The writs of Certiorari and Quo Warranto are not mutually destructive and can coexist.

JUDGMENT :

MOUSHUMI BHATTACHARYA, J.

1. The petitioners seek a writ or a direction in the nature of Certiorari for quashing a Notification dated 28.1.2022 and an order dated 27.7.2022 passed by the respondent no. 1, State of West Bengal, Minority Affairs and Madrasah Educaion Department, nominating the private respondent no. 2 as a member of Board of Waqf as a recognised Scholar of Islamic Theology belonging to the Shia Sect. The adjudication in this judgment is restricted to an application made by the petitioners for amendment of the writ petition for insertion of a prayer for a writ of Quo Warranto.

2. Learned counsel appearing for the respondent no. 2 took an objection on the locus standi of the petitioners at the time of moving the writ petition on the ground that the petitioners are not persons aggrieved, whereupon learned counsel appearing for the petitioners prayed for leave to file an application for amendment of the prayers in the writ petition. Learned counsel appearing for the State supports the private respondent.

3. The application for amendment - CAN 1 of 2022 - seeks to insert a prayer seeking issuance of a writ or order/direction in the nature of Quo Warranto directing that the respondent no. 2 be removed as a member of Waqf Board, Kolkata since he fails to meet the eligibility criteria prescribed in section 14(1)(d) of The Waqf Act, 1995.

4. The parties before the Court have filed their respective affidavits to the application for amendment and have relied on case law in support of their contentions. The order dated 16.12.2022 records that the amendment application will be decided first.

5. The arguments urged on behalf of the petitioners, the State and the private respondent no. 2 are briefly stated below.

6. The petitioners say that the amendment incorporating the prayer for Quo Warranto should be allowed since Article 226(1) of the Constitution empowers a High Court to issue writs for the enforcement of any of the rights conferred by Part III and “for any other purpose” the contention being that the High Court should not take a hyper-technical approach while correcting the injustice brought to the Court.

7. The respondent no. 1, State of West Bengal says that the writ petition is not maintainable since the petitioners, not being ‘persons aggrieved’ have failed to demonstrate their locus to file the writ petition. The private respondent no. 2 urges that a writ of Certiorari, which was the prayer in the writ petition as filed, originally cannot co-exist with a writ of Quo Warranto since both the writs are mutually destructive. It is also argued that the scope of a writ of Certiorari is different from that of a writ of Quo Warranto and that the amendment is in abuse of process.

8. The decision which follows rests on whether a writ of Certiorari can coexist - peacefully-with a writ of Quo Warranto and whether allowing the amendment would change the nature and character of the writ petition as originally filed.

9. The starting point of the controversy should be explained. The petitioners have come to the Court seeking the issuance of a Certiorari for quashing the impugned Notification and order passed by the State of West Bengal nominating the private respondent to function as a member of the Board of Waqf. The objection raised was that the private respondent is not a recognised Scholar of Islamic Theology in Shia Sect as required under section 14(1)(d) of The Waqf Act, 1995. The respondents, on their part, objected to the maintainability of the writ petition on the ground that the petitioners are not persons aggrieved by the impugned Notification or the order under challenge. The petitioners hence filed for amending the prayers to include the writ of Quo Warranto to tide over the locus and maintainability objections.

Certiorari and Quo Warranto - Do they destroy each other?

Certiorari

10. One of the distinguishing features of a Writ of Certiorari is that the writ can be used to adjudicate on the validity of judicial acts. T