JUDGMENT :

A.L. Dave, J.

The petitioner who is a resident of State of Uttar Pradesh and practicing Advocate at Lucknow has preferred this writ-petition in the nature of Public Interest Litigation with the following prayers:-

“12(a) To issue a writ of Quo warranto thereby asking Dr.Kamla Benewal, the Government of Gujarat, the Respondent No.5 as to how she is holding the office of Government of Gujarat and by means of a writ of certiorari, her appointment may be quashed after summoning the same from the concerned Respondent Nos. 1 to 3 and 5.

(b) Issue a writ in the nature of mandamus thereby directing the respondent nos.1 and 2 to recall Dr.Kamla Benewal, the present Governor of Gujarat and to appoint some other suitable person after taking the approval of the Chief Minister.”

2. This petition is a fine specimen of abuse of process of the Court in the name of Public Interest Litigation. It was expected from a member of a noble profession not to invoke jurisdiction of the Court in a matter where the position of law is abundantly clear.

3. The petitioner has submitted that he is a public spirited person. He submitted that he is of the view that the Constitution should be implemented in its letter and spirit. He wants that rule of law should prevail in the Nation and all the concerned should act in accordance with the provisions of law. He submitted that the appointment and the continuance of respondent no.5 as Governor of Gujarat is expressly violative of the provisions and the spirit of the Constitution. He submitted that Chief Minister of State of Gujarat by writing a letter dated 01.09.2011 addressed to the Hon'ble Prime Minister of India has prayed for recall of present Governor of the State Her Excellency Dr.Kamla Baniwal. He submitted that almost one month has lapsed, but, no recall of the Governor as desired by the Chief Minister of State of Gujarat has been effected. As a result of this, Her Excellency, Governor of Gujarat still continues in the office. He submitted that the Governor of State of Gujarat being executive head of the State is required and expected to function according to aid and advice by the Council of Ministers, as the Chief Minister is the head, who enjoys the confidence and majority desire of people, and the voters of the State. He relied upon Article 163(1), which says that “There shall be Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his function, except in so far as he is by or under this Constitution required to exercise his funcitions or any of them in his discretion.” He submitted that Governor of State of Gujarat, is appointed to function in total conformity with the solemn undertaking given by the constituent assembly to the people of India. He submitted that when the issue of appointment of Governor was being debated in the constituent assembly, so many members were of the view that there should not be any office of Governor in any form in the province. Some of the members debated in favour of elected office of Governor whereas some complained as to how the Governor is working against wishes of the elected Government and even trying to divide the party.

4. He further contended that so far the present case is concerned, it is a proved fact that Governor by breaking the norms of the Constitution and settled principle of law, has crossed the limit of democratic setup of the Government. The petitioner submitted that when Her Excellency, the Governor of State of Gujarat appointed Hon'ble Justice Mr. R.A. Mehta as Lokayukta of the State, the Governor did it without getting advice from the elected Government of the State i.e. Chief Minister and his Council of Ministers in the office. This action of Governor was unconstitutional, illegal, unjust, improper and biased.

4.1 We inquired from the petitioner that as to what was the public interest involved in this petition and what is the base or the foundation for preferring this petition in the nature o