Padhye, J.:— Three important questions are involved for decision in this case (1) Whether a Councillor of Zilla Parishad who could have challenged the validity of the election of a President under the provisions of section 45(4) of Maharashtra Zilla Parishads and Panchayat Samities Act, 1961 (for short Zilla Parishad Act) but has failed to do so within the prescribed time limit for want of knowledge of the alleged disqualification and/or a person who could not have challenged the validity of the election of the President of Zilla Parishad under the above referred provision could seek a writ in the nature of Quo-Warranto under Article 226 of the Constitution of India or whether the remedy of seeking such a writ stands displaced on account of the alternative remedy contained in Zilla Parishad Act for challenging the validity of the election of the President of Zilla Parishad? (2) If the provisions of the Maharashtra Co-operative Societies Act, 1960 (for short Co-operative Societies Act), Rules framed thereunder and Bye-laws of a Co-operative Society are silent about the manner and circumstances in which the office-bearer of the said Co-operative Society can tender his resignation, does the resignation become operative, the moment it is tendered or only after due acceptance by the body electing the office-bearer? (3) If a Statute (section 42 of Zilla Parishad Act) provides a disqualification (being Chairman of a Co-operative Society) for being elected to a post (President, Zilla Parishad) and if the Statute further provides a specific remedy for challenging the election of the disqualified person to that post [section 45(4), Zilla Parishad Act] without further providing that the disqualification is not only for eligibility for being elected as President of Zilla Parishad but also for (being) in that post, i.e for continuing in that post, does that initially disqualified person continue to hold that post in contravention of law even after the remedy for challenging his election under the provisions of Zilla Parishad Act stands barred not having been pursued within the prescribed time limit?

(Emphasis supplied by us)

2. A brief reference to the facts as alleged by the petitioners and denied or admitted by respondent will be necessary before embarking upon an enquiry for answering the above referred questions. Petitioners Nos. 1 and 3 as well as respondents Nos. 1 and 2, amongst others, were elected as Councillors of Zilla Parishad, Akola from different constituencies in May-June 1979. Respondent No. 3 is the Collector, Akola who presided over an election meeting of Councillors called under the provisions of section 45 of the Zilla Parishad Act on 20-6-1979 for election of President and Vice-President of Zilla Parishad, Akola. Respondent No. 4 is Commissioner of Nagpur Division of the State of Maharashtra. Respondent No. 5 is one of the five Block Co-operative Agricultural Sale Purchase Societies covering the territory of Akola district. Respondent No. 5 operates within the jurisdiction of Telhara Block. Initially petitioner No. 3 and respondents Nos. 1 and 2 filled in nominations for contesting the post of President, Zilla Parishad but after acceptance of their nomination papers respondent No. 2 withdrew, leaving petitioner No. 3 and respondent No. 1 to have a straight contest for the post of President of Zilla Parishad, Akola. It may be pointed out at this stage that none of the Councillors filed any objection to any of the nomination papers for the post of President, Zilla Parishad, Akola. Respondent No. 1 having secured 28 votes against 25 votes polled by petitioner No. 3, was declared duly elected as President of Zilla Parishad, Akola. Petitioner No. 2 had nothing to do with the election to the post of President, Zilla Parishad, Akola but claims to be interested by virtue of the fact that he was a voter in the general election of Councillors of Zilla Parishad held in May-June 1979 and referred to above. After about more than 8 months Wasudeo Hiraman Palaspagar moved an application to respondent No. 4, Commissioner Nagpur Division, Nagpur in the form of a representation alleging that respondent No. 1 was Chairman of respondent No. 5 Co-operative Society on the date of election and, therefore, disqualified for becoming a President of Zilla Parishad, Akola in terms of section 42 of the Zilla Parishad Act. He further prayed that relevant documents of respondent No. 5 be seized and seat of President, Zilla Parishad, Akola be declared as vacant. True copy of this application has not been placed on record but a true copy of a similar application moved by one Shri K.N Patil Dhabekar, Councillor of Zilla Parishad, Akola to respondent No. 3 Collector, Akola has been placed on record as Annexure 4 to the petition. It appears that Collector, Akola ordered an enquiry which was conducted by Shri S.S Choube, Deputy District Election Officer, Akola by visiting the office of respondent No. 5 Society along with Shri S.B Borde, Assistant Registrar, Co-operative Societies and examining the relevant records. He submitted a report dated 1st of April 1980, a true copy of which is annexed to the petition as Annexure 2. After receipt of the said report Collector, Akola forwarded his own report to Commissioner, Nagpur Division, Nagpur on 15-4-1980 and a true copy of the said report is annexed to the petition as Annexure 3. The enquiry officer as well as Collector, Akola expressed doubts about the genuineness of the proceedings of the Managing Committee, of respondent No. 5 Co-operative Society and observed that chances of manipulation of records could not be ruled out. It was reported to the Commissioner that thorough investigation into the matter at the hands of some higher authority like Joint Registrar, Co-operative Societies should be ordered. More than a month having elapsed after moving the application and the result having been nothing but a recommendation by Collector that another thorough investigation at the hands of Joint Registrar, Co-operative Societies was desirable, the petitioners felt that they could not wait any more for the result of such enquiries and moved this petition for obtaining a Writ in the nature of Quo-warranto calling upon respondent No. 1 to show as to how he was occupying the post of President, Zilla Parishad, Akola in accordance with law.

3. The case of respondent No. 1 as fully supported by respondent No. 5 Co-operative Society is that respondent No. 1 submitted his resignation of the post of Chairman of respondent No. 5 Co-operative Society on 19-6-1979 i.e one day prior to the election for the post of President of Zilla Parishad, Akola, to the Vice-Chairman of the Co-operative Society in the following terms:—

“I am submitting my resignation of the office of the Chairman of Telhara Block Co-operative Agricultural Sale Purchase Society Ltd., Telhara on account of my involvement in personal work. It is requested that the same may be kindly accepted.”

4. Broadly stated the case of petitioners is that petitioners Nos. 1 and 3 did not know about the disqualification till the date 7-3-1980 when Shri Palaspagar moved application to the Commissioner, Nagpur Division, Nagpur. It is because of this that they could not challenge the election of respondent No. 1 to the post of President, Zilla Parishad, Akola within 30 days as provided by section 45(4) of Zilla Parishad Act. In the circumstances, it is claimed that petitioners Nos. 1 and 3 can move an application for obtaining a Writ in the nature of Quo-warranto for getting a declaration that respondent No. 1 was never the President of Zilla Parishad Akola. The petitioners submit that respondent No. 1 never submitted resignation of the post of Chairman of respondent No. 5 Co-operative Society on 19-6-1979 as alleged and that the entire record of respondent No. 5 Co-operative Society for showing that respondent No. 1 had submitted his resignation for the post of Chairman on 19-6-1979 has been manipulated after the representation made by Shri Palaspagar. The petitioners alternatively submit that even assuming that the resignation in question was submitted on 19-6-1979 by respondent No. 1, he continued to remain a Chairman of respondent No. 5 Co-operative Society on the date of election for the post of President, Zilla Parishad, Akola held on 20-6-1979 because even according to respondents Nos. 1 and 5 the said resignation was accepted by the Managing Committee of respondent No. 5 Co-operative Society on 31-7-1979. According to the petitioners, the resignation was conditional in view of the fact that respondent No. 1 prayed for its acceptance. On the question of maintainability of this petition, it was pointed out on behalf of the petitioners that petitioner No. 2, who was not a voter in the election for the post of President, Zilla Parishad, Akola by elected Councillors of Zilla Parishad Akola, could certainly file this petition because remedy of challenging the said election under the provisions of section 45(4) of the Zilla Parishad Act was certainly not available to him.

5. As against this, case of respondents Nos. 1 and 5 is that the resignation in question was certainly submitted on 19-6-1979 and the corrections or alterations in the proceedings and records of respondent No. 5 Co-operative Society were done by the Manager of the Co-operative Society for correcting obvious mistakes which he had committed in writing those proceedings. It was further submitted on their behalf that Manager's wrong description of respondent No. 1 as Chairman of respondent No. 5 Co-operative Society in the proceedings of Managing Committee and General Body as well as in the Dak-book and Annual Report to which the detailed reference will be made hereinafter, could not be used against respondent No. 1 who never acted as Chairman of the respondent No. 5 Co-operative Society after 19-6-1979. In any case, according to them, the evidence that is required for upsetting the election of a person by a democratic process must be of such standard as is required in a criminal case and, therefore, for obtaining a Writ in the nature of Quo-warranto for getting a declaration that respondent No. 1 was not duly elected as President of Zilla Parishad, Akola, evidence of similar standard should be available. In the absence of such evidence no relief could be granted merely on evidence which at the most, can create a doubt. It was contended that resignation dated 19-6-1979 became effective ‘immediately on the same day’ when it was tendered to the Vice Chairman and acceptance of the Managing Committee of respondent No. 5 Co-operative Society was not at all legally necessary for making it effective. Referring to the provisions of section 42 of Zilla Parishad Act, it was lastly submitted that it did not provide that the disqualification of Chairman of a Co-operative Society was not only a disqualification for “being elected”, but was also a disqualification “for being”, i.e for continuing as a President of Zilla Parishad. In this view of the matter, the argument is that respondent No. 1 does not continue to hold the post of President, Zilla Parishad, Akola in contravention of law after the remedy by way of challenge under section 45(4) of Zilla Parishad Act was barred and, therefore, grant of Writ in the nature of Quo warranto could not be asked for.

6. Petitioners had prayed for production of the records of enquiry held by Shri S.S Choube, Deputy Election Officer, Akola and his report as well as Dak-book and proceeding book of the Managing Committee and General Body meetings for the year 1978-1979 and 1979-1980 of respondent No. 5 Co-operative Society. These records were duly produced and perused by the parties before the arguments began.

7. It was vehemently urged on behalf of respondent No. 1 that this petition was not maintainable. So far as petitioners Nos. 1 and 3 are concerned, the contention is that they had an alternative remedy of challenging the election of respondent No. 1 to the post of President, Zilla Parishad, Akola by filing a petition under section 45(4) of the Zilla Parishad Act and they having failed to avail of that remedy, for whatever reason, could not seek a Writ or Order in the nature of Quo-warranto because existence of alternative remedy under a given Statute displaced the remedy of obtaining such a Writ. It was also argued that petitioners Nos. 1 and 3 having acquiesced in the election of respondent No. 1 to the post of President, Zilla Parishad, Akola could not file this petition. Regarding petitioner No. 2 who admittedly had no alternative remedy as referred to above, it was contended that he was neither a person interested in the election of President, Zilla Parishad, Akola nor a person aggrieved by election of respondent No. 1 to that post, and, therefore, he had no locus for filing this petition.

8. We feel that prima facie it is extremely difficult to accept a proposition that the remedy of obtaining a direction, order or Writ in the nature of Quo-warrano provided under Article 226 of Constitution of India can be displaced by a remedy provided by a Statute passed by Parliament or State legislature which themselves are creations of that Constitution. Shri C.G Madkholkar, learned Counsel for Respondent No. 1 made a reference, in this behalf to a Supreme Court decision in the case of N.P Ponduswami v. Returning Officer, Namakkal Constituency.1 Appellant Ponnuswami's nomination paper for election to the Madras Legislative Assembly having been rejected an application under Article 226 of the Constitution of India praying for a Writ of certiorari to quash the order of rejection passed by the Returning Officer was sought. Madras High Court dismissed this petition. In para 12 of the Appellate Judgment of the Supreme Court of India, it was observed that the Representation of the People Act provided for only one remedy, that remedy being of an election petition to be presented after the election was over and there was no remedy provided at any of the intermediate stages. It was further stated in para 18 of the judgment that the right to vote or stand as a candidate for election was not a civil right but as a creature of Statute or sub-law and must be subject to the limitations imposed by it. It was on the basis of these observations that an argument about bar of any remedies other than an election petition was advanced. It is clear to us that the argument is misconceived and this will be clear by a mere reference to para 19 of the said judgment. It is as under:—

“It should be mentioned here that the question as to what the powers of the High Court under Articles 226 and 227 and of this Court under Article 136 of the Constitution may be, is one that will have to be decided on a proper occasion.”

9. Reference was, thereafter, made to a Division Bench decision of this Court in the case of Bhairulal Chunilal v. State of Bombay.2 The petitioner in this case had sought a Writ of Quo-warranto on the ground that General Elections of Amalner Borough Municipality held on 2-3-1953, by which Councillors of Amalner Borough Municipality were elected, were null and void; Observing that section 15(5) of the Bombay Municipal Boroughs Act provided a machinery for challenging the election, it was observed in para 8 of the judgment “It is well settled that where you have statutory provisions dealing with the conduct of an election the Writ of ‘Quo-warranto’ is displaced. An election then can only be challenged in the manner laid down by the Statute”. We do not think that the learned Chief Justice who delivered judgment in this case meant to lay down a proposition that a petitioner who could have filed an election petition could not seek remedy under Article 226 of Constitution of India. This is clear from further observation in para 9 of the judgment to the effect that Writ of Quo-warranto is not issued as a matter of right and that it is a discretionary relief and the Court has always to ask itself whether in the circumstances of each case petitioner should be given a relief under the Writ of Quo-warranto which he seeks. On the facts of that case it was held that public notice fixing the general elections was issued on 20-1-1953 and the general election to Amalner Borough Municipality were held on 2-3-1953 and if the petitioner wanted to challenge the elections on the ground that the earlier Municipal Committee had legally ceased to exist in spite of an extension given by the Government of Bombay, he should have sought necessary relief before the elections were held. Petitioner allowed the voters to go and cast their votes and elect their representatives, incur expenditure and then approached the Court challenging the election on purely technical grounds. It was observed that Courts must always be reluctant to interfere with elections except on the clearest and strongest of grounds and that an election is a luxury which a 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. In the circumstances, the Court felt that the petitioner was not entitled to the discretionary relief of a Writ in the nature of Quo-warranto. Apart from this view of Bhairulal's case which we are inclined to take, law as laid down by the Supreme Court of India subsequent to this decision makes it extremely clear that an alternative remedy under the Statute could never be a bar in obtaining remedy under Article 226 of the Constitution of India and we will be referring to these decisions in due course. Reliance was also placed on a decision of Learned Single Judge in the case Shiam Sunder v. The State of Punjab . AIR 1958 Punjab 128. and another decision of learned Single Judge of Rajasthan High Court Purshottam Lal Sharma v. State of Rajasthan . AIR 1979 Rajasthan 18. for the proposition that Writ of Quo-warranto is displaced if an alternative remedy by way of election petition exists. We do not feel it necessary to refer in detail to the facts of these cases. Relevant proposition in these case is on the same lines on which it has been stated in Bhairulal's case, and ultimately it turns down to the question as to whether the discretionary relief under Articles 226 of the Constitution of India could or could not be granted on the facts of those cases. Shri C.G Madkholkar, learned Counsel for respondent No. 1 thereafter invited our attention to a full bench decision of Patna High Court in the case of Ram Naresh Rai v. State of Bihar.5 containing three separate but concurring judgments of Nagendra Prasad J., B.S Sinha J., and S.P Sinha J. in which elections of office bearers of different Grampanchayats were challenged by various Writ petitions primarily on the ground that the electoral rolls for such elections were prepared under such provisions of Bihar Panchayat Samitis Act, 1947 and Rules framed thereunder which were ultra vires. Referring to the argument that the challenge being to entire election, Writ jurisdiction sprang into action in spite of failure to follow remedy by way of election petition, Nagendra Prasad J., observed in the opening Judgment that sub-clause 3 of Article 226 as introduced by Constitution (42nd amendment) Act, 1976 amounted to a bar and challenge to election was not on the ground of infringement of any fundamental rights and was only a redress of an injury by reason of contravention of the provisions of a Statute. Clause 3 which was added to Article 226 of Constitution (42nd Amendment) Act, 1976 provided “(3) No petition for the redress of any injury referred to in sub-clause (b) or sub-clause (c) of clause 1 shall be entertained if any other remedy for such redress is provided for by or under law for the time being in force.” This clause was deleted by the Constitution (44th Amendment) Act, 1978. Even prior to this amendment, it was well settled law that though the powers of High Court under Article 276 were wide still there were self imposed limitations, one of which was that the High Court would not act under Article 226 when there was an appropriate or equally efficacious remedy. This self imposed limitation was sought to be engrafted under Article 226 by introduction of clause 3 of the Constitution (42nd Amendment) Act. As of today, we do not think that the Full Bench's decision in Ramnaresh's case is of any use to respondent No. 1. It must be mentioned that our attention was also invited to the case of Pramod v. Additional District Magistrate 24 Paragannas . AIR 1957 Calcutta 164. and to the case of Pyarasingh v. State of Punjab . AIR 1962 Punjab 498. and a decision of High Court of Himachal Pradesh reported in A.I.R 1962 Himachal Pradesh, 19 in support of the argument referred to above on behalf of respondent No. 1. Suffice it to point out that none of these decisions held that existence of an alternative adequate or suitable remedy was per se an absolute bar to a petition under Article 226. All these decisions relate to election and turn on the question of ground of discretionary relief. As pointed out earlier, law laid down by the Supreme Court of India in the case M.C Abrol, Additional Collector of Customs Bombay v. Ms. Shantilal Chotalal . AIR 1956 SC 19., in para 15 is that apart from the question as to whether the alternative remedy was effective or not “the existence of an effective remedy does not oust the jurisdiction of the High Court but it is only one of the circumstances that the Court should take into consideration in exercising its jurisdiction under Article 226 of the Constitution”. To similar effect is the statement of law laid down by the Supreme Court of India in the case of Workmen of the Rajasthan Atomic Power Project v. Management of Rajasthan Power Project.9 and in the case of Rohtas Industries Ltd. v. Rohtas Industries Staff Union.10 the relevant observation in para 9 of the judgment is to the following effect:—

“The extensive and extraordinary power of the High Court under Article 226 is as wide as amplitude of the language used indicates and so can affect any person even a private individual and be available for in any (other) purpose even one for which another remedy may exist.”

10. In the face of this statement of law laid down by the highest Court of this land, any statement contrary to it contained in any of the decisions referred to above, as urged by the learned counsel for respondent No. 1 but not found therein, in our view, can no longer be good law.

11. An attempt to press the same argument from another angle was made by the learned counsel for respondent by referring to a decision of Nagpur High Court in the case of Miss Avi J. Coma v. Banwarilal Agarwal . 1953 NLJ 503 by referring to the observations stated in para 21 of the judgment of this case 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. The Court will not listen to a candidate who has acquiesced or perhaps concurred in the very act which he afterwards comes to complain of when it suits his purpose. It will not issue a writ of quo warranto at the instance of the candidate for an election who did not object to the nomination of another candidate for the same constituency at the proper time”. The case arose upon a petition for a writ in the nature of quo warranto and certiorari filed by Miss Avi J. Cama who was a voter in Ward No. 39 of the City of Nagpur and a candidate for election from that Ward to Nagpur Corporation. The contention was that respondent No. 1 was not entitled to file nomination papers for two wards and he having done so, his election was null and void. It is plain that this objection could have been taken at the time of nominations. It was specifically observed by the Court that Miss Avi J. Cama who was an Advocate herself had not “averred that she was unawre of this provision” meaning the relevant provision prohibiting filing of nominations from two wards. She had an opportunity of producing the nomination papers of respondent No. 1 and yet she did not promptly raise an objection but waited till she was defeated at the election and it is on this basis that it has been observed that she was a relator to acquiesce or concurrent in the act regarding which she was making a complaint in the petition. In the present case there is a specific averment that petitioners Nos. 1 and 3 were not aware of the disqualification of respondent No. 1 even after the period of filing the election petition was over until Shri Palaspagar filed a representation dated 7-3-1980. The ratio of this case is, therefore, clearly inapplicable to the facts of the present case.

12. In view of the position of law discussed above, we are clearly of the opinion that petition of petitioners Nos. 1 and 3 could not be thrown out summarily on the ground that their remedy of moving this Court under Article 226 of the Constitution of India for obtaining a Writ in the nature of Quo-warranto and displaced on account of an alternative remedy of challenging the election of respondent No. 1 to the post of President of Zilla Parishad Akola under the provisions of section 45(4) of Zilla Parishad Act. Moreover, this is a case in which petitioner No. 2 is a person to whom such a remedy was not available. An argument was advanced that he, not being interested in the election of President of Zilla Parishad Akola as a voter-councillor he was not a person aggrieved by election of respondent No. 1 to the post of President of Zilla Parishad, Akola and, therefore, he had no locus for filing this petition. For this proposition reliance was sought to be placed on a decision of Division Bench of Orissa High Court in the case of Ajoy Kumar Jagadev Mohapatra v. Saila Behari Choudhary . AIR 1957 Orissa 159.. The relevant observations find place in para 14 of the judgment and are to the following effect:—

“In the two applications before us, the petitioners never contested for a seat in the Senate, did not file any nomination paper and had nothing to do with the election except being on the roll of the registered graduates of the University. Though they are not entitled to file an application for a Writ in the nature of a Quo-warranto they are not in any way prejudiced by the elections held by virtue of the notifications issued by the Registrar, according to the rules and forms prescribed by the Statutes. They are not also residents of the merged States so as to come under the category of the persons aggrieved. The elections are already held. The person elected to represent the merged territories is opposite party No. 3 Shri Pratap Kesari Deb, M.L.A Maharaja of Kalahandi…………

We do not think, we should exercise our discretion under the circumstances present in this case to issue such a Writ.”

13. It is thus very clear that the conduct of the petitioners in that particular case induced the Court to refuse to exercise powers under Article 226 for granting a discretionary relief. The proposition is not, as was urged by Shri C.G Madkholkar that the petitioners in that case had no locus for filing a petition. As observed by their Lordships of the Supreme Court of India in the case of Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal . AIR 1962 SC 1044. in para 5 of the judgment:

“The right that can be enforced under Article 226 also shall ordinarily be the personal or individual right of the petitioner himself, though in the case of some of the Writs like habeas corpus or quo warranto this rule may have to be relaxed or modified.”

14. We feel that it must always be remembered that a petitioner seeking a Writ in the nature of quo warranto is a relator and not a suitor. The question of locus in the sense in which it arises in the case of petitioners who seek Writ in the nature of certiorari or Mandamus does not arise in the case of a petitioner who seeks to Jay information regarding usurpation of a public office by a person in contravention of provisions of law. In fact, a Division Bench of this Court had an occasion to observe in the case of Kashinath Laxman Bhide v. The State of Bombay . AIR 1954 Bom. 41. in para 5 of the judgment that:

“It is the duty of the Court, as soon as its attention is 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.”

15. quo warranto which means ‘by what authority’ is a form of a Writ which existed in England since 1278 and as it stood originally it consisted of a direction by Court to the proper authorities to enquire into the circumstances under which any office or franchise was held. The law as it stands to day in this country requires fulfilment of four conditions for issuance of a Writ in the nature of quo warranto; firstly; the office must be public and substantive in character; secondly, the office must have been created by Statute or by Constitution; thirdly, the usurper must have asserted its claim to that office and fourthly, it must be shown that respondent was not legally qualified to hold the office or to remain in the office because of contravention of some provisions in law or the Constitution of India. So far as the present case is concerned there is no debate regarding the first three conditions. Whether the fourth condition is satisfied is a question to which we will adhere to in the subsequent part of this judgment. As observed earlier, question of locus does not arise provided that the petitioner is not altogether a stranger and has some interest in the matter. In the case of Vidvasagar Singh v. Krishna Ballabha Sahay . AIR 1965 Pat. 321., it was held that a person not connected with Legislature could challenge validity of nominations to the State Legislative Council of Bihar. Adverting to the argument of the learned Advocate General that the petitioner who was a social worker had no locus standi to move an application for a Writ in the nature of quo warranto, the Court observed:—

“It was urged by him that the petitioner was in no way connected with the Legislature and only because he chooses to describe himself as a social worker, he cannot be permitted to question the nominations, as he has no personal interest in the matter, nor has he been prejudiced by these nominations, I do not, however, consider this argument as valid, for dismissing the application on this preliminary ground. In my opinion, there is no bar to the petitioner agitating the questions of public importance which have been raised in this case.”

16. Election to Syndicate of University of Rajasthan came to be challenged by petition for obtaining Writ of Quo-warranto in the case of Satish Chander Sharma v. The University of Rajasthan . AIR 1970 Raj. 184.. It was observed in this case that “Registered graduates cannot be said to be party not interested in the functioning of university of which syndicate is a very important body even though they are neither voters nor candidates.” It cannot, therefore, be said that petitioner No. 2 not being a voter at the election of President by the elected Councillors, was a person not interested in the election of the President of Zilla Parishad, Akola or that he was not a person aggrieved by election of respondent No. 1 to that post. Apart from the question as to whether petitioner for obtaining the Writ in the nature of Quo-warranto, could or could not lie at the instance of petitioners Nos. 1 and 2 who were voters and who had an alternative remedy of challenging the election of filing a petition under section 45(4) of the Zilla Parishad Act, we feel that this petition could certainly be filed by petitioner No. 2. Shri R.B Agrawal, learned counsel for the petitioners also tried to support his case about the maintainability of this petition in spite of availability and failure to follow alternative remedy under Zilla Parishad Act on the ground that the petitioners having been entertained and heard on merits could not be dismissed on this preliminary objection by relying upon the case of L. Hirday Narain v. Income-tax Officer, Bareilly . 1970 2 SCC 355, but in view of the fact that we have held that the petition is maintainable we do not think it necessary to refer to the proposition of law laid down in this case.

17. As indicated earlier, relevant records of respondent No. 5 Co-operative Society, Telhara and enquiry conducted by Deputy Election Officer as a result of a representation dated 7-3-1980 by Shri Palaspagar addressed to Commissioner, Nagpur Division, were produced before us at our direction. A brief reference to these documents is necessary to decide the question as to the point of time when the resignation said to have been tendered by respondent No. 1 on 19-6-1979 takes effect. Outward Dak-book of respondent No. 5 Co-operative Society for the period beginning from 31-3-1979 and ending with 3-11-1980 was produced before us. Shri R.B Agrawal, learned Advocate for the petitioners who argued this case initially invited our attention to certain entries for the purpose of pointing out that notice and communications addressed to respondent No. 1 between the period 31st August 1979 to 23rd of February 1980 were entered in this Dak-book in the name of Shri Khotre, Chairman followed by Vice-Chairman and members of the Managing Committee but words “Zilla Parishad” were added subsequently so as to suggest that these communications were not addressed to. Shri Khotre, respondent No. 1 in his capacity as Chairman of respondent No. 5 Society but as President of Zilla Parishad. It is obvious that the relevant Dak-book must have been maintained by some official of respondent No. 5 Co-operative Society and, therefore, it will be difficult to allege that respondent No. 1 Shri Khotre was responsible for these entries. However, the fact remains that additions and interpolations in these entries could not have been at the instance of anybody else than respondent No. 1 Shri Khotre who alone was interested in styling himself as President of Zilla Parishad and not as Chairman of respondent No. 5 Co-operative Society. We think that a detailed reference to as many as 9 entries between the period from 31st August 1979 to 23rd February 1980 is not necessary because the general nature of the alleged tampering is that after the words “Shri Khotre, Chairman” words to the effect “Zilla Parishad” were added subsequently in different inks. The relevant entries to which our attention was invited are at serial No. dated 27-8-1979 at page 73, serial No. 350/79 D/- 17-9-1979 at page 81, serial No. 412/1/79 D/- 11-10-1979 at page 87, serial No. 426/1/79 D/- 19-10-1979 at page 89, serial No. 513/1/79 D/- 8-11-1979 at page 99, serial No. 595/1/79 at page 109, serial No. 715/1/79 dated 19-12-1979 at page 124, serial No. 803/1/80 dated 11-1-1980 at page 134 and lastly entry No. 1003/1 dated 23-2-1980 at page 156 of the relevant outward Dak-book. Interpolations in different ink of the words “Zilla Parishad” appear in some of the entries while some of the entries are in the name of “Chairman” alone without such interpolations. It will be worth-while to note at this stage that from date 23-4-1980 onwards entries in the name of Shri Khotre, respondent No. 1 are clearly in the name of Shri “G.J Khotre, Member Akola”. The relevant entry is at serial No. 1171 dated 24-3-1980 at page 176. It is obvious that this is a date subsequent to the date of representation by Shri Palaspagar on 7-3-1980 to Commissioner, alleging that respondent No. 1 was a Chairman of a Co-operative Society and was, as such, disqualified for being elected to the post of President, Zilla Parishad, in terms of section 42 of Zilla Parishad Act. Even accepting the position that the relevant entries referred to above having been made by some official of respondent No. 5-Co-operative Society could not be ascribed to respondent No. 1 Shri Khotre direct, we feel that it could be reasonably argued that whosoever tampered with these entries, must probably have done so at the instance of Shri Khotre and none else. A register entitled “as proceedings of Managing Committee for the period from 14-8-1978 to 30-6-1979” was also produced. Referring to page 112 of this register, the last page of which is 119, we find that it records partial proceedings of Managing Committee meeting held on 31-7-1979. Originally it was written that Shri G.J Khotre was President of the meeting. The words “G.J Khotre, Chairman” were scratched and words “P.P Kokate, member” seem to have been substituted, probably in different ink. After recording the names of the members present and proceedings of subject No. 1, there is an endorsement that the remaining pages of the register being insufficient for covering the entire subjects before the meeting, the proceedings of this meeting are being written in a separate register. It is pertinent to note that in the name of members attending this meeting, name of Shri G.J Khotre is at serial No. 1 and the word written against this name is ‘Chairman’. The word ‘Chairman’ has been scratched substituting the word ‘member’ in its place and above it. It was submitted that these interpolations and alterations indicated that Shri G.J Khotre, respondent No. 1 conducted this meeting as Chairman. The case of respondent No. 1 and respondent No. 5 is that these proceedings were written by the Manager of respondent No. 5 Co-operative Society as usual on account of his habit in that respect and when Shri G.J Khotre respondent No. 1 noticed this, he ordered the Manager to strike out his name and word “Chairman” appearing in the proceedings at page 112 of the register as stated above. The new register, which was opened indicates Shri G.J Khotre as member alone in the meeting of Managing Committee from 31-7-1979 onwards. Dates of meetings after 31-7-1979 are from 31-8-1979 to 16-10-1980 with description of respondent No. 1 Shri G.J Khotre as member in the proceedings recorded in this register. Out of these meetings, respondent No. 1 had attended no meetings except meeting dated 22-9-1979 in the proceedings of which he has signed against his description as a member. Our attention was then invited to the register of proceedings of annual meetings of respondent No. 5, Co-operative Society from 30-9-1963 to 15-11-1979. The annual general meeting of respondent No. 5 Co-operative Society relevant for our purpose was held on 15-11-1979. It appears that the word “Chairman” written in front of the first member Shri G.J Khotre, attending this meeting were erased completely, either by razor or rubber substituting word ‘member’ in its place. After the names of 75 members who attended and signed the proceedings of the meeting have been written. In the preamble, it has been recorded that the Chairman of the (respondent No. 5) Co-operative Society “Chairman Shriman Dadasaheb Khotre” was requested to preside over the general meeting and “Shriman Dadasaheb” accepted the request and started the proceedings. The words “Chairman Shriman Dadasaheb Khotre” and “Dadasaheb” have been scored out by drawing a line and name of Shri Haribhau Gomase, who was Vice-Chairman of respondent No. 5 Co-operative Society has been substituted above the scored word. It was submitted on behalf of petitioners that these interpolations and wording, particularly coupled with the signature of respondent No. 1 himself, did indicate that respondent No. 1 conducted this meeting in a capacity as Chairman of respondent No. 5 Co-operative Society after accepting a request to preside over the meeting in question. A printed copy of annual report of respondent No. 5 Co-operative Society for the year 1978-1979 was also produced before us. It contains a copy of notice for annual general meeting scheduled to be held on 15-11-1979 for considering and accepting the working report of the Co-operative Society for the year 1978-1979. It was pointed out that subject of acceptance of resignation of respondent No. 1 has not been mentioned in this notice. The suggestion was that the subject, entry No. 5 under resolution No. 9 at page 9 of the annual proceeding book for the proceedings of Managing Committee meeting held on 31-7-1979 to the effect that resignation of respondent No. 1 dated 19-6-1979 was accepted “from 19-6-1979” must have been a subsequent interpolation. It was also pointed out that the annual report dated 25-10-1979 contained in this book-let was signed by Shri G.J Khotre as Chairman of respondent No. 5 Co-operative Society. Besides above referred documents Shri R.B Agrawal also produced a Souvenir of some School for the year 1980, containing an advertisement from respondent No. 5 Co-operative Society purported to have been signed by Shri G.J Khotre as Chairman of respondent No. 5 Co-operative Society.

18. Referring to the papers of enquiry conducted by the Deputy Election Officer, Akola, we find that the conclusion to which he arrived after referring to the various documents referred to above and recording statement of Clerk Shri Gangaram Kadu and Manager Shri Vishwanath Raipure is that “the narration of facts as were seen by me in person provides sufficient doubt on the genuineness of the proceedings of the Managing Committee, the scratching, rewriting in different inks needs to be investigated by the competent technical authority”. After this report was submitted to Collector, Akola, he came to a conclusion that “chances of manipulation of the record cannot be ruled out in this particular case” recommended a thorough investigation at the hands of Joint Registrar Co-operative Societies.

19. Referring to the various documents referred to above, Shri R.B Agrawal, learned counsel for the petitioners submitted that the documents referred to above and the fact that intimation of vacancy of office required by Co-operative Societies Act and Rules was not given to Deputy Registrar, Co-operative Societies as observed in the report of Deputy Election Officer Shri S.S Choube led to an irresistible conclusion that respondent No. 1 must not have submitted his resignation on 19-6-1979 and all these records must have been manipulated at some subsequent dates after realising that his continuance as a Chairman of respondent No. 5 Co-operative Society after 19-6-1979 was disastrous to his position as President of Zilla Parishad, Akola. It must be admitted that the documents referred to above and the fact of non-intimation of vacancy in the office of the Chairman of respondent No. 5 Co-operative Society to Deputy Registrar, Co-operative Societies does create a doubt as to whether the allegation of respondent No. 1 and respondent No. 5 that the resignation of Chairman of respondent No. 5 Co-operative Society was tendered by respondent No. 1 to the Vice Chairman on 19-6-1979 is true or not. These facts led not only to a doubt in that behalf but to a very grave doubt. The question is as to whether this evidence not tested by cross examination can constitute a conclusive proof of the petitioners' allegation that respondent No. 1 did not give resignation on 19-6-1979. It will be interesting to note at this stage that while the petitioners allege in paragraph 2 at page 5 of the petition that “the resignation does not appear to have been given on 19-6-1979 and accepted on 31-7-1979…” Respondent No. 1 as well as respondent No. 5 swore an affidavit that respondent No. 1 did give resignation of his office as Chairman of respondent No. 5 Co-operative Society on 19-6-1979. In a matter in which the Court has to interfere with the office of office-bearers elected by democratic process, the burden of proof on the person who challenges election of such person is of the standard which is expected in a criminal case and this is a well-known proposition which needs no support by citation of precedents. It is true that this Court is not prevented from going into questions of facts on the basis of affidavits in those cases in which it could be said that the given facts have been established by overwhelming evidence to the extent that the facts were patent. However, it is also true that a Court exercising jurisdiction under Article 226 of the Constitution of India will not enter into disputed questions of facts on the basis of some evidence creating a doubt about the existence of a given fact. In a decision of Supreme Court of India in the case of Arya Vyasa Sabha etc. v. The Commissioner of Hindu Charitable and Religious Institutions and Endowments, Hyderabad . 1976 1 SCC 292, it was held that even a mixed question of facts and law as to whether an institution is of religious denomination, was meant for decision by appropriate authority and resort to writ remedy in the first instance is inappropriate and misconceived.

20. If the petitioners or any of them had filed a dispute under section 45(4) of Zilla Parishad Act, all these matters could have been enquired in detail and subject to the accepted test of cross-examination. We are afraid, that the material produced before us, though sufficient enough to raise a very grave doubt, can be dubbed as material enough to conclusively establish the main allegation of the petitioners, that respondent No. 1 did not submit his resignation on 19-6-1979. This factual controversy was appropriate for authority enjoined with the duty of deciding such disputes under section 45(4) of Zilla Parishad Act and we do not feel inclined to enter into this factual controversy on petitioners' allegation that “probably respondent No. 1 did not give resignation on 19-6-1979”. In the face of sworn testimony of respondent No. 1 and respondent No. 5 that the resignation was given on 19-6-1979 and also in the face of averment in the report of Deputy Election Officer contained in para 3 that “on verification of records of sales and purchase of Society Telhara, it is found that Shri G.J Khotre has resigned with effect from 19th June 1979. His resignation appears to have been handed over to Vice Chairman Shri H.N Gomase”. We feel that we will have to proceed on the basis that the alleged resignation was given by respondent No. 1 on 19-6-1979.

21. That brings us to the second question as to the date on which this resignation took effect. Chambers's 20th Century Dictionary defines resignation as an “act of giving up”. In relation to an office it must be construed as an act of giving up or relinquishment of an office unless there is a provision to the contrary in contract or regulations, it has necessarily to be a unilateral act. Government servants hold office during the pleasure of President of India or Governor of a State, depending upon the fact as to whether they are Union Governments's employees or State employees. Article 310 of Constitution of India provides so specifically. They are governed by service regulations which, amongst other things, provide for the manner of resignation. The result is that resignations in such cases do not become effective unless accepted. It was so found in the case of Lahiri Singh v. Attar Singh decided by Election Tribunal Patiala and reported in 3 ELR 403. One Hari Singh was a teacher in the service of State Government. He tendered his resignation before filing his nomination for election to State Legislative Assembly of Pepsu but his resignation was not accepted by Government prior to the date of nomination. It was held “Under Article 310 of Constitution, his service was dependent on pleasure of the Government and his resignation not having been accepted, the disqualification of being the holder of office of profit continued to operate”. The question before us is as to whether the same rule applies to posts held in organizations like Societies, Clubs or Companies when the Statute and Rules under which they are created and silent on the question of resignation and the bye-laws do not contain any provision in that behalf. It was argued on behalf of respondent No. 1 that in the absence of any provision requiring acceptance of resignation, an office bearer of a Society like respondent No. 5 Co-operative Society could “give up” his office at his sweet will and ceased to be “Chairman” from the moment he tendered his resignation of that post. It was pointed out that a person desirous of standing for election to the post of Chairman of respondent No. 5 Co-operative Society was required to give his consent on the proposal form. It is because of this consent which he gives that the Managing Committee elects him as a Chairman. How and under what provision could he be compelled to remain and continue as a Chairman was the question. When there is no such provision, withdrawal of consent by tendering resignation was his choice and must operate immediately. We feel that there is much substance in this submission. It is also not without support from precedents. In the case of R.B Bisweswarlal Harwasya v. Babu Rang Lal Jajodia . Case No. 34 at p. 186 of Doabia's Election Cases 1864, 1935, Vol. I. decided by Election Commission in 1924, what happened was that Bengal Marwari Association of Calcutta and Indian Commerce Special Constituency were called upon to elect a member to Legislative Assembly. Respondent Babu Rang Lal Jajodia was Joint Secretary of Bengal Marwari Association and Joint Secretary of the said Association was specified by office and not by name as the Returning Officer in the Assembly Regulations. It was also provided that P.A to Secretary could also perform all and any functions of Returning Officer. Respondent Babu Rang Lal Jajodia resigned on 7-10-1923 and filed his nomination on 8-10-1923. His nomination was challenged on the ground that his resignation not having been accepted, he continued to be Returning Officer and as such could not be validly nominated. It was held “it does not seem that the acceptance of resignation is necessary. Subject to any provisions in the Rules to the contrary, a member may resign at any time and he ceases to be a member. [Halsbury Vol. IV, P. 414 (1896) 1 Chancery P. 400]. Questions may arise about his liability but that is a different matter. It is not shown that there is anything in the Rules of Marwari Association which prevented the respondent from resigning his office as Joint Secretary. One conclusion, therefore, is that Babu Rang Lal Jajodia ceases to be a Returning Officer after 7th of October.” The English decision referred to in the judgment of Bengal Marwari Association case, (supra) is Finch v. Oake . 1896 1 Ch. 409.. Plaintiff-respondent Oake tendered resignation of his membership of a voluntary trade protection society and withdrew it before receiving letter of acceptance. His contention that he continued to be a member was not accepted by appellants defendants who were office bearers of the Society. Trial Court having granted interim injunction to plaintiff-respondent, this appeal was filed. The Rules contained no provision as to resignation or expulsion of members. Lindley L.J held “In my opinion, when he has paid his subscription for the year, he is under no obligation whatever to his fellow members. By paying subscription he no doubt acquires certain rights and benefits. But what is there to prevent him from retiring from the Association at any moment, if he wishes to do so? Absolutely nothing. In my opinion, no acceptance of his resignation is required, though he cannot get back 10 s. 6 d. which he has paid. The other members have no power to say that he shall not retire and there is no law that a resignation which cannot be refused must be accepted before it can take effect.” The other two Lord Justices of Court of Appeal concurred by giving separate judgments with similar reasoning. In the present case, there is no provision in the Co-operative Societies Act or Rules or Bye laws of respondent No. 5 Co-operative Society to refuse resignation. Consequently, it follows that there is no need of its acceptance. The case of Bengal Marwari Association, (supra) was distinguished in Ram Murti v. Sumba Sadar . II ELR 330., decided on 22-12-1952 by Election Tribunal, Berhampur in the following words “This case (Bengal Marwari Association case) has got to be distinguished from the facts of the present case. As stated above, the respondents held service under the State during the pleasure of Government and not at his pleasure.” In the case of A. Sudarsana Rao v. J.A Christian Pillai . AIR 1924 Lah. 396.. The learned single Judge while holding that “without acceptance, resignation amounts to nothing and the person resigning remains in office” further found that “It may be that the need for acceptance does not apply to honorary appointments and it is a question of fact in each case whether the resignation amounted to renunciation without acceptance and may depend to a certain extent on the contents of the letter of resignation which is not filed in this case.” The decision in Finch v. Oake (supra), was cited with approval in John v. Rees . 1970 1 Ch. 345. decided on 18-10-1968 by Lord Justices of Appellate Court in the following words “Unless in Rules expressly provide to the contrary a member of an unincorporated Association is entitled to resign. Similarly a section of a voluntary Association is always entitled to disaffiliate or secede from the Association and having seceded they are no longer bound by the Club rules. See Finch v. Oake, Sheriff v. Mo Muller . 1952 IR 326. and General Assembly of Free Church of Scotland v. Over town . 1904 AC 415.. No one would dare to suggest that an individual member of the Labour party cannot resign, if disenchanted with labour or from mere caprice”. In the case of Transport Ltd. v. Schonberg . TLR 305, Vol. XXI. decided on 27-2-1905 by Warrington J. of Chancery Division, the question being of the effective date of resignation given by a Director, it was observed “I see nothing in the article to compel a Director to serve until his time for retiring arrives or until the company agrees to release him and I am of the opinion that the resignations were effectual without acceptance”.

22. Referring to the end clause of resignation letter of respondent No. 1 requesting “acceptance”, it was argued on behalf of petitioners that the resignation was conditional and would not have become effective without acceptance. We do not think that a request which appears redundant upon interpretation of law governing resignation could, when made by a person like respondent No. 1 without understanding the implications, was meant to be or could be construed as a “condition” of resignation. The resignation is a resignation in praesenti and without conditions and operated on 19-6-1979 when it was tendered.

23. Assuming but not admitting that respondent No. 1 continued to be Chairman of respondent No. 5 Co-operative Society on and even after 20-6-1979 either because he did not tender the resignation of the said post on 19-6-1979 as alleged by him or because it did not operate in the absence of acceptance by Managing Committee of respondent No. 5 Co-operative Society which even on their own showing was not recorded earlier to 31-7-1979, the question is “Can it be said that respondent No. 1 was not legally qualified to hold the office or to remain in the office of President Zilla Parishad, Akola, because of contravention of some Constitutional or statutory provision?” For this purpose we will have to examine the wording of section 42 of Zilla Parishad Act which reads as under:—

“42 Every Zilla Parishad shall be presided over by a President, who shall be elected by the Parishad, from amongst its elected Councillors. The Zilla Parishad shall also elect one of its elected Councillors to be the Vice-President:

Provided that, no Councillor shall be eligible for being elected as President or Vice-President if he has held any such office for two consecutive terms (or if he is a Chairman of any co-operative society and if a President or Vice-President is elected as Chairman of any co-operative society, the office of the President, or as the case may be, Vice-President shall, on the date on which he is so elected, become vacant):

Provided further that, if a Chairman or Deputy Chairman of a Panchayat Samiti is elected as President or Vice-President, (the office of the Chairman, or as the case may be, of the Deputy Chairman shall, on the date on which he is so elected, become vacant).

(Explanation.—For the purpose of this section a President or Vice-President shall be deemed to have held office for two consecutive terms even although the duration of the office held by him in any of such consecutive terms may not be of full five years or more as provided by this Act).”

(Emphasis supplied)

24. Apparently if a person “is a Chairman” he is not eligible for being elected as President or Vice-President of Zilla Parishad and if having become a President or Vice-President of Zilla Parishad, he “is elected” as Chairman of any Co-operative Society, his office of President or Vice-President of Zilla Parishad, automatically becomes vacant on the date of his election as Chairman. It is pertinent to note here that the section does not provide for a case in which a person was already a Chairman of a Co-operative Society when he was elected as President of Zilla Parishad and continues to be so thereafter in the absence of challenge to his election on that ground. There is no provision which says that the disqualification shall be a disqualification not only for “being elected” but also “for being”, that is, for continuing as a President of Zilla Parishad. The wording of this section can be appreciated in this light, in bold relief, against the background of Section 16 of Zilla Parishad Act, providing for various disqualifications in respect of the post of Councillors. Section 16 of Zilla Parishad Act begins with the wording “Subject to the provisions of sub-section (2), a person shall be disqualified for being chosen as and for being a Councillor—

(a) if, whether before or after the commencement of this Act, he has been convicted, or has, in proceeding for questioning the validity or regularity of an election, been found to have been guilty of—

(b) if, whether before or after the commencement of this Act, he has been convicted by a Court in India of any of the offence and sentenced to imprisonment for not less than one year, unless a period of five years, or such lesser period as the State Government may allow in any particular case, has elapsed since his release: or

(c) if, having held any office under any Government or local authority, he has, whether before or after the commencement of this Act, been dismissed for misconduct unless a period of five years has elapsed since his dismissal; or

(d) if, he has been removed from office under section 39 and a period of five years, or such lesser period as the State Government may notify in any particular case, has not elapsed from the date of such removal; or

(e) if he is of unsound mind and stands so declared by a competent Court; or

(f) if he is an undischarged insolvent: or

(g) if he is a deaf-mute; or

25. A comparison of the two sections referred to above clearly shows that the Legislature intended that the disqualifications “for being chosen as” a councillor were further intended “for being” a Councillor but disqualification for “being elected” as President or Vice-President of Zilla Parishad was not intended as a disqualification for being a President of Zilla Parishad though in cases in which a person who had already been elected as President of Zilla Parishad “was elected as Chairman of any Co-operative Society” his office became automatically “vacant” on the date of his election as Chairman. In short, there is no provision in Zilla Parishad Act for continuing the initial disqualification even if election of President of Zilla Parishad was not challenged by raising an election dispute. At the outset this line of approach appears strange but it is not so. A question similar to this was posed for decision before Supreme Court of India in the case of Election Commission, India v. Saka Venkata Rao . AIR 1958 SC 210.. Respondent Saka was convicted by Sessions Judge of East Godavari and sentenced to a term of seven years' rigorous imprisonment but he was released on the occasion of the celebration of the Independence Day on 15-8-1947. There was to be a bye-election in June 1952 for election to a reserved seat from Kakinada constituency. Five years not having elapsed from the date of his release till the date fixed for nominations, respondent Saka was disqualified for contesting this election in terms of section 7(b) of Representation of People Act, 1951. He applies for getting exemption but got elected without getting any exemption order from Election Commission. On 3-7-1952 speaker of the assembly read out a communication from Election Commission that respondent's request for getting exemption was rejected and that, therefore, such action as may be deemed fit may be taken against him in view of continuing disqualification. Article 191 of Constitution of India provided that the disqualifications mentioned therein which included the disqualification of respondent Saka were disqualifications for “being chosen as and for being a member of Legislative Assembly” but the remedy of getting the question decided by Governor as contained in Article 192 provided for decision of a question as to whether a sitting member “has become subject to any of the disqualifications mentioned in Article 191(1) of Constitution of India.” Argument on behalf of respondent Saka was that Article 192 of Constitution was applicable only where a member became subject to a disqualification after he was elected but not where, as here, the disqualification arose long before the election in which case the only remedy was challenge to election by an election petition. This argument was accepted by Madras High Court. In appeal it was held by Supreme Court of India that the words “becomes subject” to disqualification as used in Article 190(3) providing for automatic vacation of seat and words “has become subject” to disqualification as used in Article 192 providing for decision of question of automatic vacancy by Governor, contemplated “a change in position of the member after he was elected”. Argument that “becomes” or “has become” could be more appropriately read as “is” because Article 191 spoke of disqualification “for being chosen to and for being” a member, was rejected. In the present case, even such an argument is not available because words to the effect that the disqualification is also “for being” a President of Zilla Parishad are totally absent.

26. We have already indicated above that there are 4 requirements which a petitioner must fulfil for obtaining a Writ or order in the nature of quo warranto. Establishment of 4th condition requires that the petitioner must be able to show that the respondent was not legally qualified “to remain in the office” because of some Statutory bar. This position was reiterated by Supreme Court of India in The University of Mysore v. C.D Govinda Rao . AIR 1965 SC 491. in the following words at the end of para 7 of the judgment:—

“It is thus clear that before a citizen can claim a Writ of quo warranto, he must satisfy the Court, inter alia, that the office in question is a public office and is held by usurper without legal authority… …………”

(Emphasis supplied.)

27. In view of our finding that respondent No. 1 had validly resigned before he was elected President of the Zilla Parishad and also in view of the interpretation of the provisions of section 42 of Zilla Parishad Act which appears to us to be right and proper, we are inclined to hold that petitioners have failed to prove that respondent No. 1 is holding the office of President, Zilla Parishad without legal authority. After the judgment was dictated upto this stage and before the final operative order was passed, Shri V.R Manohar, learned counsel appearing for petitioners placed a note of submission dated 25-11-1980 on record along with a true copy of decision of a Division Bench of this Court in Writ Petition No. 2551 of 1980 (Shankarrao Eknath Kharde v. Dnanadeo Baburao Kasar) requesting that this judgment be considered before final decision. We, therefore, went through the judgment in the case of Shankarrao Eknath Kharde referred to above and came to a conclusion that the decision at which we have arrived, need not be changed on account of this judgment. It has been observed in the judgment in paragraph 4 at page 6 of the typed copy that “We do not think it necessary to consider in this case whether resignation by a Chairman of a Co-operative Society becomes effective as soon as the same is tendered to the Executive Officer of the Society.” The Court felt that the text of letter of resignation by itself, in which prayer for acceptance was made, could be a deciding point without going to the question referred to above. In the present case, we have decided the question as to when a resignation given by the Chairman of Co-operative Society takes effect. We have come to a conclusion that it takes effect, the moment it is tendered. In view of this decision of ours, the question of the wording of the text of resignation letter, in which it has been stated that the resignation may be accepted, is of no consequence.

28. The petition, therefore, fails and is dismissed but in the circumstances of the case, the costs shall be as incurred.

Petition dismissed.

(section 42 of Zilla Parishad Act)