Writ petition held not maintainable.

The writ petition has been preferred by an advocate of this Court. The respondents cited are L1. His Excellency the Governor of Tamil Nadu, 2. The Chief Minister of the State of Tamil Nadu Smt. V.N. Janaki Ramachandran and 3. the Chief Secretary to the Government of Tamil Nadu, Fort St. George, Madras.

2. The facts as averred shortly in his affidavit are as follows:- The second respondent had paraded some of the members of the Legislative Assembly on 2nd January 1988 before the residence of the first respondent (Governor). The Governor asked the second respondent to form the ministry of A.I.A.D.M.K. on condition that the second respondent would show on the floor of the Assembly the strength of the supported majority. The petitioner would state that the Governor had not subjectively satisfied himself and yet prepared to give a long rope to the second respondent and thereby giving room for speculation regarding the stability and strength of the ministry of the State of Tamil Nadu.

3. The act of the Governor is not constitutional, because India has adopted the Constitution which proclaims in the preamble that the Government is a democratic Republic. There is a distinction (discretion) in the Governor in appointing the Chief Minister and other Ministers on the advice of the Chief Minister. In so far as the Governor has chosen to appoint the second respondent who is not a member of the Legislature, that is not in accordance with the correct interpretation of Art.164 of the Constitution. The test of the majority ought to have been decided only on the floor of the Assembly and not in the Governor's house.

4. All the members of the Legislative Assembly of both factions stare under coercion and undue influence and the choice of a leader by either faction is not voluntary and hence, the choosing of the Chief Minister is null and void. It is on these averments the present writ petition for quo warranto against the 2nd respondent has been preferred, calling upon her to state on what authority, the second respondent had assumed the office of Chief Minister of Tamil Nadu.

5. The office had returned the writ petition calling upon the petitioner to state as to how the writ petition is maintainable. Inter alia, one of the returns states as to how in view of Art. 361 of the Constitution of India, the writ is maintainable against the Governor, first respondent.

6. The learned counsel for the petitioner argued yesterday before me on the strength of the Full Bench ruling of this court, reported in K. A. Mathialagan v. The Governor, 1973 AIR(Mad) 198 that the immunity conferred on the Governor under Art.361 would relate only to his person and that too from civil and criminal proceedings alone. Such an immunity would not be available in cases of this character.

7. I directed notice to the learned Advocate General with regard to the maintainability. Learned Advocate General would submit that the writ is not maintainable. According to him, under the Constitution, the Governor exercises three kinds of powers :-

1. the executive power taken in the name of the Governor;

2. the power exercised by him with the aid and advice of Council of Ministers headed by the Chief Minister; and

3. the power exercised by him in his sole discretion.

Though the immunity under Art.361 is not available with regard to the first two categories of exercise of powers. viz., the executive power and the power exercised with the aid and advice, in so far as it relates to matter where the power of the Governor comes to be exercised solely in his discretion, he is completely immune and his action cannot be called in question. In support of this submission, reliance is placed on Samsher Singh v. State of Punjab, 1974 AIR(SC) 2192, 1974 LIC 1380, 1974 (2) LLJ 465, 1975 SLJ 1, 1974 (2) SLR 701, 1974 (2) SCC 831, 1975 (1) SCR 814, 1974 SCC(L&S) 550, 1974 SCC(L&S) 550, 1974 SCC(L&S) 550, 1974 SCC(Lab) 550, 1974 SCC(L&S) 550, 1974 SCC(L&S) 550, 1974 SCC(L&S) 550, 1974 SCC(L&S) 550, and