The court's function in a writ of quo warranto is circumscribed to a query to the person in question 'what is your authority to hold the office'? The court declines to entertain a petition under Art.226 of the Constitution to grant a quo warranto writ where it would be vexatious to do so.

1. The first respondent in this case is a sitting judge of this court. The petitioner prays that this court should issue a writ of quo warrant calling upon the first respondent to show before this court under what authority, the first respondent is holding the office of a judge of this court. The petitioner submits that there was no proper, effective and meaningful consultation as contemplated under Art.217 of the Constitution of India in the matter of the appointment of the first respondent as a judge of this court. This is the stereo-bate of this action.

2. Before I consider the points raised by the petitioner, I feel that I should tell in brief what I understand to be the sphere of action and the whip hand of a writ of quo warranto. What is the width and orbit of this prerogative writ? In fact this prerogative writ in its prestine form is now obsolete in the country of its origin. But in India, Art.226 of the Constitution specifically provides that every High Court shall have power to issue to any person or authority... writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. A writ of quo warranto postulates an answer to a query to the holder of a public office. The query in plain language is, where is your warrant of appointment by which you are holding this office? In short, it is an enquiry as to under what authority, the person in question is holding his office, franchise or liberty as the case may be.

3. Halsbury's Laws of England, 3rd Edition, Vol II Para 281 contains a succinct summary of 'he decisions of English Court with regard to the discretion of the Court in issuing a writ of quo warranto. It runs thus:

"An information in the nature of a quo warranto was not issued, and an injunction in lieu thereof will not be granted as a matter of course. It is in the discretion of the Court to refuse or grant it according to the facts and circumstances of the case the Court might in its discretion decline to grant a quo warranto information where it would be vexatious to do so, or where an information would be futile in its results, or where there was an alternative remedy which was equally appropriate and effective."

4. In King v. Speyer (1916) 1 KB 595 it was considered that:

"An information in the nature of a quo warranto will lie at the instance of a private relator against a member of the Privy Council whose appointment is alleged to be invalid."

In this case, a rule nisi was issued calling upon Sir Edgar Speyer and Sir Ernest Joseph to show cause why information in the nature of a quo warranto should not be exhibited against them to show by what authority they were or claimed to be, members of His Majesty's Privy Council for Great Britain.

5. Tindal C. J. has said:

"The result appears to be, that this proceeding by information in the nature of quo warranto will lie for usurping any office, whether created by charter alone, or by the Crown, with the consent of Parliament, provided the office be of a public nature, and a substantive office, not merely the function or employment of a deputy servant held at the will and pleasure of others; for, with respect to such an employment, the Court certainly will not interfere, and the information will not properly lie."

Rex v. Stacey (1785) 99 ER. 938 holds that a writ of quo warranto is not a motion of course and it is in the discretion of the Court to issue it considering the circumstances of the case. The Canadian view as stated in The King ex rel Beudret v. Johnston (1923) 2 DLR 278 is that the court has to take into consideration public interest, the consequences to follow the issue of a writ of quo warranto and all the other circumstances of the case.

6. Unlike the other prerogative writs, the issue of writ in the nature of quo warranto was purely a discretionary writ. There was a little controversy about this aspect of the matter. S. A. de Smith in his Book The Judicial Review of Administrative Action (2nd Edition) at