N.K. Vakil, J.
1. The petitioner was elected a member of the Village Panchayat of Moti Kunkavav of Vadia Taluka of Amreli District (hereinafter referred to as 'the Gram Panchayat') in the year 1960. In a meeting held on the 30th of June 1960, the petitioner was duly elected as Sarpanch. Section 14 of the Gujarat Panchayats Act, 1961, (hereinafter referred to as 'the Act') provides the constitution of the Taluka Panchayat. It consists of four categories of members. (A) Ex-Officio members and these ex-officio members are (i) the Sarpanchas of all the Gram Panchayats within the taluka, and (ii) The Chairmen of all the Nagar Panchayats within the taluka; (B) Elected members; (C) Co-opted members; (D) Associate members. We do not deem it necessary to enter into the details of the last three categories of the members of the Taluka Panchayat. Under this constitution, when the petitioner was elected the Sarpanch of the Gram Panchayat, be became an ex-officio member of the Vadia Taluka Panchayat. On the 20th of March 1963, the first meeting of the Taluka Panchayat was held to elect its President and the petitioner was duly elected as President and he assumed office thereof on that day. Sub-section (3) of Section 14 provides that a Sarpanch of a Gram Panchayat if elected as the President of the Taluka Panchayat of which he is an ex-officio member, shall cease to hold the office of Sarpanch, but shall continue to be an ex-officio member of the Taluka Panchayat. Section 57 of the Act lays down that save as otherwise provided in the Act, the term of office of members, President and Vice-President of a Taluka Panchayat shall be coextensive with the term of the Panchayat. Section 17 of the Act provides that the term of the Panchayat as constituted at its first meeting shall, save as otherwise provided under the Act, be four years from the date of such meeting. Thus the petitioner claims that his term of office as President of the Taluka Panchayat continues under law upto the 20th of March 1967. However, on the 27th of January 1964, respondent No. 2, the Taluka Development Officer, under instructions of respondent No. 3, the District Development Officer, addressed to him a letter to the effect that the petitioner had come in the Taluka Panchayat because of his office as Sarpanch of KunkaVav Gram Panchayat and thereafter he had been elected as the President of the Taluka Panchayat. Now that the term of Kunkavav Gram Panchayat was expiring on the 30th of June 1964 and as the term of his office as Sarpanch of that Gram Panchayat would also come to an end, his term as the President of the Taluka Panchayat would automatically expire on that day and, as such, the office of the President has to be treated as falling vacant, and by this letter he was informed in advance about the vacancy in the said office. He was also informed that he will have to vacate the office as the President of the Taluka Panchayat from that day and the Vice-President will take over the daily functions of the President from that day till the next election and the charge of his office will remain with the Vice-President. The petitioner was thus made to leave the charge of his office as the President of the Taluka Panchayat on the 30th of June 1964. The petitioner now complains that this was enforced on him illegally. On the 1st of July 1964, fresh elections were held for the Gram Panchayat. The petitioner was elected a member and also as the Sarpanch. On the 24th of July 1964, a notice was given to all the members that a meeting will be held on the 7th of August 1964 for electing the President of the Taluka Panchayat. In the said meeting, respondent No. 4 was duly elected as the President of the Taluka Panchayat. It is an admitted position that the petitioner had also contested for the Presidentship of the Taluka Panchayat, but he lost. On the 2nd of September 1964, the term of the Tori Gram Panchayat expired. It may be noticed that respondent No. 4 had come to the Taluka Panchayat as the Sarpanch of the Tori Gram Panchayat. Therefore, following the same procedure as in the case of the petitioner, he left charge as the President of the Taluka Panchayat on the 30th of September 1964. In that election also respondent No. 4 was elected the President of the Taluka Panchayat. It appears the petitioner did not remain present in that meeting. We may as well note that on the 10th of December 1964, the election of the District Panchayat was held. Now, under the constitution of the District Panchayat, the Presidents of the Taluka Panchayats become its ex-officio members, but over and above that, the Taluka Panchayats have to send one elected member and the petitioner was so elected as a member to the District Panchayat and, as stated above, respondent No. 4 became the ex-officio member being the President of the Taluka Panchayat. The petition was filed on the 31st of December 1964.
2. It is the petitioner's case that once that he was elected the President of the Taluka Panchayat, and he was legally and validly elected to be so under Section 57, he did not cease to hold office until his successor was legally and validly elected. Until there was a successor who was elected as the President in accordance with law, he continued to hold the office as President under Sub-section (2) of Section 57 of the Act. He, therefore, claims that inspite of what has happened, he continues to be the President of the Taluka Panchayat and the two elections held, whereby respondent No. 4 was elected President, are not validly held elections and therefore, respondent No. 4 was not holding his office legally and validly. He has, therefore, prayed for a writ in the nature of quo warranto for directions setting aside the aforesaid elections of respondent No. 4 as President of the Kunkavav Vadia Taluka Panchayat and declaring the said elections of respondent No. 4 invalid and also for appropriate writ or order of direction declaring that the petitioner is the President of the Taluka Panchayat and his term of office could expire only on the 20th day of March, 1967.
3. Respondent No. 1 is the Kunkavav Vadia Taluka Panchayat and respondent No. 2 is the Taluka Development Officer. They have been duly served but no appearance has been filed before us on their behalf. Respondent No. 3 is the District Development Officer and Mr. B.R. Sompura, the learned Assistant Government Pleader, has appeared for him. Mr. K.G. Vakharia, the learned advocate has appeared for respondent No. 4.
4. The case as disclosed in the affidavits filed by respondent Nos. 3 and 4 in reply to the petition mainly is:
(1) That the petitioner had vacated the office on the 30th of June 1964.
(2) That the petition is barred and the petitioner is not entitled to any writ in the nature of quo warranto because of acquiescence and latches.
(3) That on a true construction of the relevant provisions of the Act, the petitioner could not be held to continue as the President upto the 20th of March 1967 and the two elections of respondent No. 4 are valid and binding.
5. Now, the last submission made by Mr. Vakharia and the contention raised thereby, has been set at rest by the decision of the Division Bench of this Court in Special Civil Application No. 849 of 1964 (Raising v. The Wankaner Taluka Panchayat) consisting of Bakshi and Mehta JJ., dated the 13th of November 1964. In the said Special Civil Application, identical contention was raised where the petitioner was elected the President of the Taluka Panchayat of Wankaner and on the expiry of the period of the Gram Panchayat, his office as the President of the Taluka Panchayat had been considered to come to an end and steps were taken to hold a fresh election for the purposes of electing the President of the Taluka Panchayat on the assumption that the office of the President of the Wankaner Taluka Panchayat held by the petitioner had fallen vacant The said petitioner, apprehending that steps would be taken for the election of the new President of the Taluka Panchayat, approached the High Court by a petition praying for an appropriate writ restraining the authorities from taking any further steps and claiming that he continued to be the President and that his term of office would only expire on March 20, 1967 when the term of the Taluka Panchayat would expire. On the construction of Section 14 Sub-section (3), Section 57 and Section 17 of the Act, the learned Judges came to the conclusion that the continuance of the membership in the Taluka Panchayat of the petitioner after he was elected as the President of that Panchayat did not at all depend upon the holding of any office as Sarpanch or the membership of the Grame Panchayat, the membership was held by the President of the Taluka Panchayat by reason of the special provision to be found in Sub-section (3) of Section 14 of the Act. The learned Judges also considered Sub-section (1) of Section 57 and pointed out that the term of office of members, President and Vice-President of the Taluka Panchayat was co-extensive with the term of the Taluka' Panchayat itself and that no proviso was inserted to this clause as was done in the case of the Chairman of a Co-operative Society. That proviso to Section 57 is as follows:
Provided that where any person in his capacity as a Chairman of a Co-operative Society has been elected as a member of the Panchayat he shall cease to be a member on the expiry of his term as such chairman unless he is re-elected as a chairman of the Co-operative Society or if he otherwise ceases to be such chairman.
Under these circumstances, the learned Judges further held that it was clearly not possible to insert by implication a proviso which is altogether absent in the statute for, to do that would be not to construe the statute but to alter it. As a result it was held that the term of the office of the President of the Taluka Panchayat must be held to be co-extensive with the term of the Panchayat itself and it, therefore, expires as contended by the petitioner on March 20, 1967. The facts in the present case are entirely similar as aforesaid The said decision is binding on as and we see no reason to differ from it. It is, therefore, not necessary for us to discuss them all over again. The conclusion, therefore, we reach so far as the merits of the case are concerned is that the petitioner's office as the President of the Taluka Panchayat would not come to an end on the 30th June 1964, but by virtue of the provisions referred to hereinabove, would continue upto the 20th of March 1967.
6. But the question that has arisen before us and which has been vehemently contended is whether the petitioner would be entitled, under the facts and circumstances of this case, to the grant of the prayer for which he has come. On behalf of the respondents it was urged by Mr. Vakharia that, in this case, the petitioner must be held to have acquiesced into the illegal acts which be has come complaining before this Court. Not only that, but there is inordinate delay on the part of the petitioner in moving this Court to exercise its extraordinary jurisdiction under Article 226 of the Constitution. Now, the important and material point to remember here is that the petitioner complains before us that though under law the office of the President of the Taluka Panchayat had not become vacant, elections were held wrongly and respondent No. 4 was elected as President and thus has, since his last election on the 30th of September 1964, been holding that office unauthorisedly. Mr. Shah appearing on behalf of the petitioner has put his case as stated hereinabove. It is true that we have come to the conclusion that on the proper interpretation of the relevant provisions of law, respondent No. 4 could not be held to be occupying his office as the President of the Taluka Panchayat legally. But, at the same lime, the fact remains that the petitioner did not try to invoke the jurisdiction of this Court at an earlier stage when he could have come and sought adequate relief. In the present petition, at the stage when he came seeking relief from this Court, he has been put into the position of asking for a writ in the nature of quo-warranto. The question, therefore, that arises is whether the petitioner is entitled to such a writ. Now, in order to determine this question, it has to be noticed that the Constitution entitles the High Courts under Article 226 to issue the writ in the nature of quo-warranto. It will be helpful, to understand the nature of this writ, to refer to some passages from Halsbury's Laws of England 3rd Edition, Volume II, page 148-150.
278. Procedure when office full. The procedure described in this subsection are the proper method of questioning the holder's title when an office is in fact full. In such cases mandamus will not be granted.
Now, so far as the present case is also concerned, though it is true that respondent No. 4 is not holding his office legally, the office is all the same occupied by him and, therefore, the office is full. Therefore, there is no doubt that this Court would not exercise its jurisdiction to issue a writ in the nature of mandamus. Similar is the view of the decisions in this country also and when we refer to the decisions a bit later, we shall make a reference to this aspect. We also find in Halsbury again at page 150 of the same volume in paragraph 285, the following passage:
285. Impeaching qualification of relator. The qualification of a person to act as relator could be successfully impeached if it could be shown that at the time, he acquiesced in the election to which he objected.
The other important passage to which we would like to refer to is at page 148 paragraph 281 which runs as follows:
281. Discretion of the Court. 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 would inquire into the conduct and motives of the applicant, and 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. It is conceived that the Court will follow similar principles in determining whether to grant an injunction in lieu.
These passages, therefore, make it amply clear that a writ of quo warranto cannot be issued on the mere fact that a public office is held by a person not according to law or that he is not authorised to continue to hold that public office. It is necessary for the Court also to keep in mind, the qualification of the relator who comes before the Court seeking that relief. It may be that in a given case, the facts may be such as may induce the Court to exercise its discretion in granting the quo warranto despite the relator having conducted himself in a particular manner. Therefore, it becomes a question of fact also in each case to consider whether a writ in the nature of quo warranto or an injunction in lieu thereof should be issued or not.
7. Now, we go to consider the relevant facts. It has been pointed out on behalf of the respondents that in this case, the petitioner has conducted himself in such a manner that there is positive acquiescence on his part in the illegal act which he has come before this Court complaining. On the 27th of January 1964, when respondent No. 2 intimated to him as aforesaid, that his office shall become vacant because he will cease to be the Sarpanch of the Gram Panchayat on the 30th of July 1964, he did not object against this construction put by the authorities. Thereafter, the elections of the Gram Panchayat were held and on the 24th of July 1964, a notice was given to all the members of the Taluka Panchayat, and the petitioner had once again become an ex-officio member of the Taluka Panchayat because he was reelected as the Sarpanch in the Gram Panchayat in the new elections, intimating that a meeting shall be held on the 7th of August 1964 for the election of the President of the Taluka Panchayat. Therefore, there was a period of almost 15 days before that election was again held. In between, the petitioner did not take any step whatever objecting against a fresh election being held for the Presidentship of the Taluka Panchayat. He could certainly have approached this Court at that stage and complained that no election could be held of the Presidentship of the Taluka Panchayat because he would continue to be the President upto the 20th of March, 1967. Had he come at that stage, the illegal election and the whole procedure that had been gone through for the election of the President of the Taluka Panchayat could have been stopped. The petitioner did not choose to do so. But that is not all. When actually on the 7th of August 1964 the election was held, he stood as a candidate in that election and lost and respondent No. 4 was elected. Thereafter, as pointed out heieinabove, on the 2nd of September 1964, respondent No. 4 went out of office for the same reason as did the petitioner, and after the election of the Tori Gram Panchayat was held, respondent No. 4 was again elected the Sarpanch. On the 30th of September 1964, a meeting was held to elect the President of the Taluka Panchayat. Respondent No. 4 was elected president and at that time the petitioner absented himself from the meeting. Even after the second election, he actively acquiesced into one more act of respondent No. 4 on the basis of his being the President of the Taluka Panchayat, and that was when he allowed respondent No. 4 to become an ex-officio member of the District Panchayat on his qualification of being the President of the Taluka Panchayat and he himself contesting the election as an ordinary member of the Taluka Panchayat to become a member of the District Panchayat. So again, the petitioner while cognizant of the objection to the respondent No. 4's election, voluntarily so acted as a member of the Taluka Panchayat that it enabled respondent No. 4 to exercise his right as the President of the Taluka Panchayat. It was submitted by Mr. Vakharia that the petitioner never did have any idea to challenge the election of respondent No. 4 or contending that respondent No. 4 held the office without authority of law and, on the contrary, bad actually acquiesced in the elections of the respondent and even thereafter acquiesced in the holding of this office by respondent No. 4 as such. Respondent No. 4 has further said in his affidavit in reply that this petition was only an after-thought and the petitioner only approached this Court because of the view taken by this Court in the Writ Petition filed in respect of the Wankaner Taluka Panchayat referred to hereinabove and which was published in the paper. The petitioner has made no effort to deny this by filing a sub-rejoinder. Therefore the Court should not exercise the discretion in favour of the petitioner and grant the relief.
8. We find substance in this submission of Mr. Vakharia. Besides, in order to support his submissions he has relied upon decisions of other High Courts and we may have a look at them before we turn to the sub missions of Mr. Shah to persuade us not to accept the submissions made on behalf of the respondents.
9. The first authority relied upon by Mr. Vakharia is Ram Singh Khanna v. State of U.P. and Ors. A.I.R. 1963 Allahabad page 447. In the said decision it was held that so far as election to an office is concerned, a mandamus to restore, admit or elect to an office will not begranted unless the office is vacant. A mandamus will not lie unless the election can be shown to be merely colourable. They further observed that the Court was all the more reluctant to interfere for the reason that the appellant had contested the election and thus acquiesced in the proceeding in the election. The facts of the case shortly were that the appellant was the President of the Bareilly Municipality. A motion of no-confidence was moved against him in the meeting. Then the appellant approached by a Writ-Petition before the Single Judge of the Allahabad High Court. That petition was dismissed. The petitioner then submitted his resignation. A casual vacancy thereupon was declared by the authority and an election was held on a date fixed. There were three contestants viz. the opponent, the appellant and a third party. In the election the appellant lost and his opponent succeeded. It was the common case of the parties that thereafter the successful candidate occupied the office and was functioning as the President of the Municipal Board. Under these circumstances, relying upon certain English authorities and the case of Sohan Lal v. Union of India : [1957]1SCR738 , the learned Judges came to the conclusion that no writ of mandamus which was asked could be granted. One fact need be noticed that after the petition was dismissed by the Single Judge of the High Court of Allahabad, the petitioner bad filed the appeal and in the said appeal this decision was reached that a writ of mandamus could not be issued where the office was already occupied. The learned Judges also added as a supporting reason for refusing the writ by observing that they were all more reluctant to interfere in the present case for the reason that the appellant had contested the election after his resignation and has thus acquiesced in the proceedings of the election. It would not lie in his mouth then to say that though he contested that election, the election has been illegally held. The principle of acquiescence in such, matters has been accepted in judicial pronouncement and the learned does for proposition relied upon the case of Hurdeo Das v. State of West Bengal A.T.R. 1952 Cal. 857. We may only here note that in the Supreme Court case relied upon by Their Lordships, there is one observation which may be useful to us and which has been taken from the English decision mentioned therein viz. R. Chester Corporation, 1855 (25) LJ.Q.B. 61. The observation in the said case is as follows:
It was held that it is an inflexible rule of law that where a person has been de facto elected to a corporate office, and has accepted and acted in the office, the validity of the election and the title to the office can only be tried by proceeding on a quo-warranto information. A mandamus will not unless the election can be shown to be merely colourable.
Now, we are not concerned in this case with a writ of mandamus. We are concerned with a case where the petitioner had sought a writ in the nature of quo warranto which, according to this decision cited by Mr. Vakhatia, is the proper proceeding to be taken in a case where a public office is held by a person who is alleged to hold that office without warrant of law. Again, it may be pointed out that the decision in : AIR1952Cal857 which is tried to be relied upon by the learned Judges does not appear to be an authority on the point. Mr. Shah, therefore, urged that this decision cannot be considered to be an authority supporting the proposition propounded by Mr. Vakharia before us and we are inclined to agree with him that this decision is no direct authority for the point canvassed by Mr. Vakharia.
10. The next decision relied upon by Mr. Vakharia is A.I.R. 1953 Nagpur 81 (Miss Avi J. Cama v. Banwarilal Agarwal and Ors). In the said case the facts were that a writ of quo warranto was sought amongst other reliefs against respondent No. 1. The petitioner in the said matter was a voter in ward No. 39 of the City of Nagpur and was a candidate for the election from that ward for the City Municipal Corporation of Nagpur. Respondent No. 1 was also one of the candidates, so was one other person. Respondent No. 1 had filed a nomination paper for the ward No. 39 as well as ward No. 40. Before the scrutiny, however, he had informed the Returning Officer that he withdrew his nomination paper for ward No. 39. Returning officer, however, refused to take notice of it. He rejected his nomination paper for ward No. 40 and accepted the one for ward No. 39. Thereafter election was held. Against this decision respondent No. 1 had appealed to the proper authority but the appeal Was dismissed. The election was held thereafter. Respondent No. 1 obtained the highest votes securing 492 votes, the petitioner obtained 488 votes and the third person secured 324 votes. Respondent No. 1 thus was declared elected. The only ground on which the petition was filed and the election was challenged by the petitioner was under Section 14 of the relevant Act on the ground that respondent No. 1 was not entitled to file nomination papers for two wards and, therefore, the election was null and void and as the petitioner was entitled to be declared elected, respondent No. 2, the competent authority, should be directed to make the declaration. We are not concerned with the merits of the case but the other 'factors to be taken into consideration which were considered by the learned Judges in deciding the petition are relevant for the purpose of deciding the matter before us. It appears that on the merits, the Court came to the conclusion that, there was a more effective and legal remedy that was open to the petitioner, but they had not dismissed the petition on that ground. 'The learned Judges then observed that even if it were to be assumed that the petitioner could not resort to the remedy of election petition and prevent the respondent No. 1 from acting as a councillor, there were other weighty reasons for not exercising the jurisdiction under Article 226 in favour of the petitioner. They have made an important observation that before granting a writ of quo warranto, it is necessary to see that the relator is a fit person to be entrusted with this writ. This is the view that we are taking. After having accepted this principle, they have further observed that the counsel for the petitioner had further admitted that the petitioner had not raised any objection to the validity of the nomination paper of respondent No. 1 before the Returning Officer as was provided by Rule 4(5) of the Rules relating to the election. She had not even explained why she had not done so. She bad also not averred that she was unaware of that provision. She was an advocate herself and she must have, therefore, read those rules and she had also an opportunity of scrutinizing the nomination papers of respondent No. 1, and the yet no objection was raised but she waited till she was defeated at the election. Then to support the conclusion ultimately reached they have relied upon certain English cases and particularly the following observation of Lord Kenyon C.J. in The King v. Clerke:
The Courts have indeed on several occasions said, and said wisely, that they will not listen to a common relator coming, though within the time limited, as a mere stranger, to disturb a corporation with which he has no concern, nor even to a corporator who has acquiesced or perhaps concurred in the very act which he afterwards comes to complain of when it suits his purpose.
Relying upon this passage, the learned Judges of the Nagpur High Court decided that they were not prepared to issue a writ of quo warranto at the instance of the petitioner who had not objected to the nomination of respondent No. 1 at the proper time This decision, therefore, definitely accepts the principle which we are adopting that in a case of a petitioner seeking relief by way of issue of a writ in the nature of quo warranto, he cannot ask for it as of right and it will be for the Court to consider as to whether the petitioner is a fit person to get that relief. The second principle that has been accepted by the learned Judges, which we are also accepting, is that by conduct the petitioner could be said to acquiesce into the act which subsequently has been complained of as the wrongful act and that would be one of the grounds to hold that he is not a fit person in whose favour the Court would be inclined to exercise its extra-ordinary jurisdiction of granting a writ in the nature of quo warranto.
11. Mr. Shah, however, tried to minimise the importance of this decision by submitting that in that case, the election was challenged on the ground that respondent No. 1 could not submit nomination papers for two wards and as he had done so, his election was not valid. Furthermore, the rules provided that a party who had any objection against any nomination papers being accepted, could object and the petitioner at that stage had not done so but had acquiesced into it and allowed the election to proceed and after having been defeated she tried to challenge the election on the ground which she could have put forward at the proper time. Therefore, in the said case there was a legal remedy given at that stage to object to the nomination and the petitioner bad not done so. If the petitioner in that case had objected, then the illegality could have been averted. But in the instant case there was nothing to show that the petitioner could have objected on the basis of any provision of law to the election being held. We are not impressed by this argument and the effort on the part of Mr. Shah to distinguish the case. It is true that in the present case the record does not show that there was any specific provision under which the petitioner could have raised the objection, but, at the same time, there is nothing to show that the petitioner could not have raised the objection. As a matter of fact, the very provisions on which he relies before us viz. Sections 14, 17 and 57 of the Act are the provisions on which he could have relied upon to object to the authorities intimating to him in the first instance that the office of the President of the Taluka Panchayat will stand vacated on the 30th of June 1964. He could have certainly brought to their notice these provisions and pointed out that his office of the President of the Taluka Panchayat under law is co-terminus with the period of the existence of the Taluka Panchayat itself. Not only that, but even at the time when the notice was given to him on the 24th of July 1964 that the election will be held on the 7th of August 1964 for the election of the President of the Taluka Panchayat, he does nothing. Even at that date he could have protested under these very provisions and pointed out that there was no right or authority in any of those officers to hold the election as the office of the President had not fallen vacant. Therefore, in our opinion, this ruling is a decision which supports the view that we 'have taken and on which reliance was placed by Mr. Vakharia.
12. The third ruling on which Mr. Vakharia relied upon is Raghuni Nayak and Ors. v. District Magistrate : AIR1959Pat7 . In the said case the petitioners of one of the two petitions which were heard together, were the three defeated candidates in the election of the Rosera 'Municipality In the District of Darbhanga. The petitioners bad sought, by appropriate writ, to set aside the election of the elected candidates of the above municipality by restraining the returned candidates from functioning as the members of the said municipality and directing the District Magistrate of Darbhanga for holding a fresh election in accordance with law. The ground on which this contention was raised was that no electoral roll as required by the Municipal Act and the Rules framed thereunder had been prepared in the case and also because it was not held within the last date fixed for the purpose. Now, so far as the petition in which the three petitioners were the defeated candidates is concerned, the argument that was raised against the petition was that the petitioners of that case having participated in the election, were estopped from challenging the validity of election after having lost therein. Reliance was placed on another ruling of the same High Court in Bindhyachal v. S.C. Mukherji I.L.R. 33 Pat 905, wherein also the petitioners knowing the illegality of the election acquiesced or concurred in the election of the Municipal Councillors. After reviewing the various cases on the point. the learned Judge) held that the petitioners were not entitled to information in the nature of quo warranto and an application for a writ at their instance could not be maintained. The learned Judges of the Patna High Court in the case under consideration held the view that argument was well-founded. Then they considered the point as to whether under the said circumstances the petitioners would be entitled to any writ in the nature of quo warranto, and held that they were not entitled. Therefore, this ruling also accepts the principles that we adopt for the decision of this petition. Mr. Shah once again tried to distinguish this case on the ground that there also the challenge was made on the ground that the electoral roll was not prepared according to law and therefore the election was bad and under the Rules, at the stage when the electoral roll was not properly prepared, the petitioners could have raised their contention and they having not done so. Their Lordships had taken the view as mentioned hereinabove. We do not find any merit in this submission made by Mr. Shah As we have already pointed out, the petitioner in this case also could have, at the proper stage, taken the objection, approached the proper authorities and could have drawn their attention to the relevant provisions. He having not done so, and not only that but having himself again taken part in the election itself, he, in our view, cannot now be allowed to come before us and seek the relief in the nature of a writ of quo warranto. In our view, therefore, the last decision cited by Mr. Vakharia definitely helps the submission made on behalf of the respondents.
13. Now, we turn to the positive arguments of Mr. Shah. He firstly tried to urge that in a case where a public office is shown to be held by a person who is not qualified to hold it, it is the duty of the Court to declare that he is not entitled to hold it and to prevent him from acting, and the considerations of exercise of discretion and the conduct of the petitioner by way of acquiescence have no place in such a case and for this proposition, he mainly relied upon the Bombay decision in Kashinath v. State of Bombay : AIR1954Bom41 . He particularly relied upon the passage in the judgment delivered by Chief Justice Chagla which is as follows:
The Advocate General says that inasmuch as opponent No. 2 has been acting as 'de facto' president, we should not interfere at this stage by issuing a writ of 'quo warranto.' In our opinion it is the duty of the Court, as soon as its attention It drawn to the fact that a person who is not qualified is holding a public office, to declare that he is not entitled to that office and to prevent him from acting as such.
It would be enough to mention that in the said case, the question as to whether issuing of a writ of quo warranto is a discretionary matter with the Court or not never came up for consideration directly nor did the question come up for consideration as to whether in such a writ, the question as to whether the petitioner was a fit person or not bad to be considered. We do not want to enter into the discussion of this case any further because in a later decision by the same learned Judges, this point has been directly dealt with and the proposition which was first tried to be canvassed on behalf of the petitioner has been positively negatived and it fully accepts the principles that have been considered by the above referred to two decisions and the other observations that we have made in that respect. That later decision is Bhairulal Chunilal v. State of Bombay : AIR1954Bom116 . That was also a case under the Bombay Municipal Boroughs Act and where the election of the Amalner Borough Municipality was challenged. We need not state the facts and we directly refer to the passage which is material for our purpose, Chief Justice Chagla who spoke for the Court has observed as follows:
Now, the writ of 'quo warranto' is not issued as a matter of right. It is a discretionary relief and the Court has always to ask itself whether under the circumstances of each case the petitioner should be given the relief in the nature of 'quo warranto' which he seeks. In this particular case every factor which can be taken into consideration weighs against the petitioner being entitled to the relief. The public notice, as already pointed out, was issued by the Municipality on 20-1-1953. Therefore, the petitioner had knowledge that the elections were going to take place under that notification and that the 'de facto' President was going to act as the President of the Municipality under the Election Rules. He takes no action whatever till after the elections are held, which is on 2-3-1953. He allows voters to go and cast their votes, elect their representatives, incur expenditure, and then comes to this Court and challenges the election on a pure technicality It is not suggested that the result of the election has in any way been affected by what took place in the course of the election. The Courts must always be reluctant to interfere with elections except on the clearest and strongest of grounds. An election is a luxury which democracy cannot be expected to indulge in too frequently, and once the people have recorded their votes and expressed their confidence in their representatives, the Court should be loath to interfere with the decision of the people merely because some technicality has not been observed or some irregularity has been committed. The matter would be entirely different if the irregularity has resulted in the people not being able to express their views properly, or if there was any corrupt practice which has materially affected the result of the election. It might have also been different if the election itself was held without any authority of law. But once it is conceded that the Collector had the authority to fix the dates of the general election and the general election took place according to law, any irregularity committed in the course of the election cannot be a ground for the issue of a writ of 'quo warranto.
Now, it is obvious that the first part of the observations made by the learned Chief Justice definitely concur with the opinion that we are holding. But Mr. Shah tried to make out from these observations that Their Lordships had made definite exceptions to the general rule which they have adopted while considering the question of the issue of a writ in the nature of quo warranto and he particularly relied upon the following lines:
It might have also been different if the election itself was held without any authority of law.
The argument was that this observation goes to decide that in case where the election itself was held without any authority of law, then the question of acquiescence would not creep in, or, in any event, such writ would not then be withheld and the petitioner would be entitled to have the relief that he asked for. We are unable to even agree with this submission made on behalf of the petitioner. The only thing that the learned Chief Justice has said is that, it might have also been different if the election itself was held without any authority of law, which would only mean that if such a case were to arise, it would require consideration and, therefore, it could not be taken to have been decided that in such a case the writ would be issued as a matter of course. The decision is certainly an authority on the point that it would depend on the facts of each case and that it is a matter of discretion for the Court to issue a writ of qua warranto and take into consideration the fitness of the petitioner while considering the question.
14. Mr. Shah then tried to urge that even if the Court has such a discretion to refuse to help the petitioner where there is acquiescence. In this case the conduct of the petitioner would not amount to acquiescence. To support this submission, it was argued by Mr. Shah that when respondent No. 2, the Taluka Development Officer intimated the present petitioner that his term of office as the President of the Taluka Panchayat shall expire with the expiry of the period of his office as the Sarpanch on the 30th of June 1964 and then held the election for electing the President of the Taluka Panchayat, the petitioner had two courses open before him either to rush to this Court by filing a writ petition or to go to the electing body and remedy the evil, the democratic way. At that stage the petitioner may not be quite certain what view the Court may take of these provisions because the law was not settled at that date. As a prudent man, he first tried to stand at the bar of the electorate and when he did not succeed, he turned to the other course of coming to the Court to seek his legal remedy. In such conduct, argued Mr. Shah, the principle of estoppel by acquiescence would not apply and the petitioner could not be refused the remedy. At first blush the argument may appear to be plausible, but a little scrutiny would expose its infirmity.
15. The doctrine of acquiescence put in simple language is that if a person who has a right and seeing another person committing an act in a manner that infringes upon that right, stands by or conducts himself in such a manner as to induce the person committing the act, and who might otherwise have abstained from it, to believe that he assents to it being committed, he cannot afterwards be heard to complain of the act. It may be that when a right is infringed the aggrieved party is entitled to two inconsistent alternative remedies and he may elect to resort to one which he may think prudent to choose and which may work out his purpose, but once he makes his choice and adopts one of the alternative remedies his act would debar him as regards the other. The petitioner not only did not protest against the stand taken by the authorities about his right to continue as the President of the Taluka Panchayat, he not only stood by and saw the election being held, but himself contested and took the chance of securing the office and having failed, he now cannot be allowed to turn round and be heard to say that the election was illegally held and the successful candidate has no legal right to hold the office. It is true that if he were to come to Court without taking part in the election and if the election were held and if the Court were to decide against him, he may lose the right to contest the election for ever. But that pre-supposes that the Court would not have stayed the election if he came to Court in time and if he had a good right to stand upon. We are, therefore, unable to accept this submission of Mr. Shah that the conduct of the petitioner would not, in law, amount to acquiescence. The Nagpur case, the Patna case and the other authorities relied upon by the learned Judges deciding those two matters are direct authorities on the point. We may also point out that the Supreme Court in Nain Sukh Das and another v. The State of Uttar Pradesh and others, 1953 Supreme Court Reports 1184, declined to exercise its discretion to issue the writ in the nature of quo warranto and interfere with the municipal elections held in contravention of Article 15(1) of the Constitution of India, on the same principle, one of the grounds being that 'In fact, the petitioners acquiesced in the elections being conducted under the old system of separate electorates and felt no discrimination having been practised against them until a no-confidence motion was tabled recently against the former Chairman who has since lost his seat as a result of that motion having been carried.'
16. The petitioner had one more argument to advance. It was urged that if the submission on the part of the respondents were to be accepted that the petitioner had no idea at all about his right to continue as the President and that he only woke up to it when this Court gave the decision in the matter of the Wankaner Taluka Panchayat, then on such facts the doctrine of acquiescence cannot at all come into play. But here again the petitioner's effort is foiled by his own pleading. His case in the petition is clear which is to be found in paragraph 15 of the petition, where he has said that 'the petitioner wanted to have his grievance remedied and right exercised and recognised but he was unaware of this forum and remedy and could not find it out earlier and hence, petitioner prefers this special civil application today.' His plea was not that he was unaware of his right and, therefore, could not take any steps in a Court of law and contested the election. The petitioner has taken inconsistent stands to ress is claim before us. His conduct all along had been one of absolute acquiescence. He does not appear to have come to this Court for the writ in the nature of quo warranto with the predominate idea of seeing that the public office is not continued to be held by a person not entitled to do so, but has come with a view to secure a personal gain.
17. There is one more contention which was raised on behalf of the respondents and that was that the petitioner is not a fit person to be given the writ in the nature of quo warranto because there is latches on his p article Mr. Vakharia relied upon the same set of facts to put forward this contention also. Mr. Shah, however, pointed out to us that the Bombay High Court in I.L.R. 1958 Bombay 113 Sonu Sampat Shewale and another v. The Jalgaon Borough Municipality has decided that in a case of writ in the nature of quo warranto, the cause of action arises from day to day, so long as the public office is filled by a person who is not entitled to hold that office and, therefore, no question of latches or delay would arise.
18. We do not propose to decide this contention raised on the part of the respondents because we have already come to the conclusion that on the ground of acquiescence, the relator or the petitioner is not a fit person, and in whose favour we are not prepared to exercise our discretion to issue a writ of the nature of quo warranto.
19. The result is that this petition fails. Rule is discharged but having regard to the special facts of this case, there would be no order as to costs.