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Kesavan Vs. State of Tamil Nadu and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtChennai High Court
Decided On
Case NumberWrit Petn. No. 1158 of 1978
Judge
Reported inAIR1979Mad133
ActsConstitution of India - Articles 163 and 164
AppellantKesavan
RespondentState of Tamil Nadu and anr.
Cases ReferredG. D. Karkare v. T. L. Shevde
Excerpt:
.....(state of tamil nadu by chief secretary to government) from permitting the second respondent (the chief minister of tamil nadu) from acting in films or engaging himself in any profession, art, calling or employment while he continues to be the chief minister of tamil nadu, on the ground that it is illegal and violative of the constitution for a chief minister, a holder of a full time salaried public office to engage in any profession, avocation, trade or calling while continuing to be the chief minister;the question that arose for consideration was whether the court could issue a writ of mandamus at the instance, of a person who did not make out a grievance.;held, it is true that the question whether the office of the chief minister is a full time salaried office or not, is one which..........fort st. george, madras) from permitting the second respondent, thiru m. g. ramachandran, chief minister of tamil nadu from acting in films or engaging himself in any profession, art, calling or employment while he continues to be the chief minister of tamil nadu.2. the petitioner is a citizen of india and a voter. the second respondent was appointed chief minister by the governor of tamil nadu in june 1977. for some weeks now the second respondent has been stating that he was going to engage himself in film acting. various statements in different forms have been appearing in the newspapers. a news appearing in the daily 'sunday standard' a copy of which is annexed to the affidavit to indicate that he has definitely intended to engage in film acting while continuing to be the.....
Judgment:
1. This writ petition is for Mandamus seeking directions to restrain the first respondent (State of Tamil Nadu represented by the Chief Secretary to Government, Fort St. George, Madras) from permitting the second respondent, Thiru M. G. Ramachandran, Chief Minister of Tamil Nadu from acting in films or engaging himself in any profession, art, calling or employment while he continues to be the Chief Minister of Tamil Nadu.

2. The petitioner is a citizen of India and a voter. The second respondent was appointed Chief Minister by the Governor of Tamil Nadu in June 1977. For some weeks now the second respondent has been stating that he was going to engage himself in film acting. Various statements in different forms have been appearing in the newspapers. A news appearing in the daily 'Sunday Standard' a copy of which is annexed to the affidavit to indicate that he has definitely intended to engage in film acting while continuing to be the Chief Minister of Tamil Nadu. The petitioner in his affidavit, after tracing that in this country a cabinet form of Parliamentary Government on the British model has come to be established, also refers to certain provisions of the Constitution of India, particularly, Articles 163 and 164 and states on advice that the Ministership is a full time salaried public office. It is further stated by him that as such the Minister must give his full time to the service of the State as Minister and it is illegal and violation of the Constitution for a Minister to engage in any profession, avocation, trade or calling while continuing to be a Minister.

3. The Chief Minister was appointed by the Governor of Tamil Nadu and it is well known that the executive power is vested in the governor who is aided and advised by the Council of Ministers with the Chief Minister at the head. On the advice of the Chief Minister, the other Ministers are appointed.

4. Every citizen of India is interested in the governance of the country and of the State by an executive which does not itself transgress the Constitution and violate the provisions of the Constitution, with respect to the powers and duties of a Minister. The grave public danger of a transgression of the Constitution by the very persons who are the custodians of the Constitution would take place if one Minister who is a holder of a full time salaried public office is allowed to act. Therefore, according to the petitioner, it is just and necessary that this court may decide whether or not in terms of Arts. 154, 163 and 164 of the Constitution in the light of the British Parliamentary Cabinet system, the office of the Chief Minister is a full time salaried office. If this court holds that it is a full time salaried office the petitioner is entitled to pray this court to grant an injunction restraining the first respondent for the above stated relief. It is with these averments in the affidavit the above relief is prayed for.

5. Mr. V. K. Thiruvenkatachari, learned counsel for their petitioner, states as under-

(i) this court has the power to interpret the Constitution;

(ii) In 1942-1-All Eng. Rep. 378, it is stated-

"This is the King's court. We sit here to administer justice, and to interpret the laws of the rules in the King's name. It is respectful and proper to assume that once the law is declared by a competent judicial authority, it will be followed by the Crown".

(iii) It is further submitted by the learned counsel that important issues or matters required to be decided in this case relating to the prominent position of the Chief Minister, is a holder of a public office, a full time salaried office. If that question is a question of general public importance, it may be asked as to who could move the court for the determination of that question. It would be three kinds of persons who could move the court.

(i) any citizen of India;

(ii) only a person whose business. Profession is injuriously affected by the entry of another into it;

(iii) none at all.

The submission of the learned counsel is when it is the primary duty of the Chief Minister to uphold the Constitution and it Constitutional questions are of general public importance as in any case, in such a context this court will give its decision at the instance of any citizen of India. The citizen here is only the representative of the entire nation bringing it to the knowledge of this court of a situation in which the court's decision, one way or other, will bring out the necessary dnte.

(iv) It is not necessary that the petitioner should be personally aggrieved because the prayer is very much akin to quo warranto. It is well settled that in a case of quo warranto, any citizen is entitled to apply as a private relator, because public offices should not be filed by usurpers. The present writ is at the earlier stage to pray at the hands of this court to decide whether a Minister can engage in any other profession or employment. In support of this submission, the learned counsel also draws my attention to Constitutional Law of India by H. M. Seervai, 2nd Edn., Volume 1. Page 986, para 16-316. wherein it is stated referring to G. D. Karkare v. T. L. Shevde ILR (1952) Nag 409 : (AIR 1952 Nag 330) in which the question arose whether the appointment of the Advocate General could be challenged on the ground that he was not qualified. It was held that any person who could move the court without alleging the violation of any specific right of the applicant because the office of Advocate General was a high public office. Drawing succour from this statement, the learned counsel vehemently contends that if that is the law relating to the office of an Advocate General, principles will apply with greater force to a pre-eminent office like that of the Chief Minister. Therefore, according to the learned counsel for the petitioner, there is nothing to establish that the writ petitioner is personally aggrieved and the prayer as asked for would issue.

6. I have given my utmost consideration to the various points raised by the learned counsel for the petitioner. It is true that the question whether the office of the Chief Minister is a full time salaries office or not, is one which relates to the interpretation of Constitution, particularly Arts. 163 and 164. But what has to be borne in mind is merely because a substantial question of law of general public importance arises, it does not mean this court can adjudicate upon that question, at the instance of a total stranger who is in no way connected. If that were so, this High Court would be flooded with writ petitions which could always raise some question of constitutional importance arising out of any provision of the Constitution and seek an adjudication thereof. Certainly, the purpose of writ jurisdiction has never been understood to be so comprehensive. When I say this I am fully conscious of the fact that in the case of a writ of quo warranto, the requirement that the petitioner should be a person aggrieved is dispensed with to a great extent, but not altogether. That is because what is sought in a case of quo warranto is an answer from the respondent "by what authority you hold the public office". But in this case it is not so. What is sought at my hands is a Mandamus, which means a command should issue from this Court. Can this court issue a command at the instance of a person who does not make out a grievance. My answer should be in the negative.

7. The passage relied on in the Constitutional Law of India, by H. M. Seervai, 2nd Edn. Vol. 1, page 986, wherein G. D. Karkare v. T. L. Shevde ILR (1952) Nag 409 : (AIR 1952 Nag 330) is quoted, does not again advance the case of the petitioner because that case specifically related to quo warranto and in that connection it came to be held that any person could move the court for the alleged violation with reference to the appointment of the High Office of Advocate General. That is certainly not the position here. That is the reason why the learned counsel would state that the prayer that is asked is akin to quo warranto. I am unable to agree. Therefore, it is highly incumbent upon the petitioner in order to found his cause under writ jurisdiction and to seek a command at the hands of this Court to show that he is a person aggrieved. That had not been shown. Therefore, whatever may be the importance of the question involved, I cannot proceed to decide at the instance of a person who is not in any legal sense aggrieved. In this view, I dismiss the writ petition.

8. Petition dismissed.


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