Jagdish Sahai, J. - (1.) This special appeal is directed against the judgment and order of our brother Mathur dated 1-10-1959 dismissing a writ petition filed by the appellant.
(2.) The appellant was the President of the Municipal Board of Bareilly. A motion of non-confidence was moved against him in a meeting of the Board held on 30-5-1959. The appellant moved the writ petition mentioned above in this Court. After the petition was dismissed on 1st October, 1959, the appellant submitted his resignation. The State Government declared a casual vacancy and an election was held on 20th of December, 1959. There were two contestants, namely, the appellant and Sri L. D. Singhal. Sri Singhal having secured a larger number of votes was declared elected. It is the common case of the parties that he has accepted office and is functioning as the President of the Municipal Board of Bareilly. Under these circumstances it appears to us that this special appeal has got to be dismissed. In Sohan Lal v. Union of India, (S) AIR 1957 SC 529 it was observed as follows: "We, have not been able to find a direct authority to cover a case like the one before us, but it would appear that so far as election to an office is concerned, a mandamus to restore, admit, or elect to an office will not be granted unless the office is vacant. If the office is in fact full, proceedings must be taken by way of injunction or election petition to oust the party in possession, and that a mandamus will go only on the supposition that there is nobody holding the office in question. In R. v. Chester Corporation, (1855) 25 LJ QB 61 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 lie unless the election can be shown to be merely colourable." In Halsbury's Laws of England, Vol. 11, para 165, the Law on the point has been stated in the following words: "A mandamus to restore, admit, or elect to an office will not be granted unless the office is vacant. If the office is in fact full, proceedings must be taken by way of injunction or election petition to oust the party in possession. A mandamus will go only on the supposition that there is nobody holding the office in question. A mandamus will, however, be issued commanding election to an office when, although there has been an election to the office in question, yet that election is void or merely colourable......" The House of Lords in (1855) 25 LJ QB 61 which our Supreme Court followed in Sohanlal's case (S) AIR 1957 SC 529 held as follows: "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 lie unless the election can be shown to be merely colourable."
(3.) Inasmuch as Sri Singhal has been elected and has taken over charge of office it is not possible to issue any writ against him. We are all the more reluctant to interfere in the present case for the reason that the appellant contested the election after his resignation and thus acquiesced in the proceedings of the election. It does not lie in his mouth 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 pronouncements: See Hurdeo Das v. State of West Bengal, AIR 1952 Cal 857. We may also observe that Sri Singhal has not been made a party to these proceedings and we cannot pass any orders adverse to him in his absence. Lastly it may be mentioned that an election petition has already been filed challenging the election of Sri Singhal.;