JUDGMENT : Barman, J. - These two writ petitions arises out of resignation and withdrawal of resignation on the following day by the Vice-Chairman and Councillor, Sambalpur Municipality Sri Jagdish Prasad Lath followed by election, in the vacancy caused by the said resignation of Srimati Sumati Behera as Vice-Chairman of the council. The rival claims to the Vice-Chairmanship and membership of the council by Sri Jagdish Prasad Lath and Srimati Sumati Behera arose in the circumstances hereinafter stated. The question of legality of the acceptance of the resignation and of the subsequent election in the vacancy caused thereby was brought into issue by reason of the State Government notification by which the Municipal council's resolution accepting the resignation after withdrawal was cancelled. 2. The relevant provisions of the Orissa Municipal Act, 1950 (Orissa Act XXIII of 1950) (hereinafter referred to as the Municipal Act) so far as material for the purpose of this case are set out below: "43. A counsellor, other than Chairman and Vice-Chairman, may resign his office by writing under his hand addressed to the Chairman who shall forthwith lay such notice of resignation before the municipal council and on the resignation being accepted, the office shall become vacant. 52(1)- An appointed Chairman or Vice-Chairman of a municipality may resign by writing under his hand addressed to the State Government and on such resignation being accepted shall be deemed to have vacated office (2). An elected Chairman may resign by writing under his hand addressed to the municipal council. (3) An elected Vice-Chairman may resign by writing under his hand addressed to the Chairman of the municipality who shall forthwith lay such notice or resignation before the municipal council (4) On a resignation under Sub-section (2) or (3) being accepted by the municipal council, the Chairman or the Vice-Chairman of the municipality shall be deemed to have vacated office. 398. 398. (1) The State Government may by order in writing (i) suspend or cancel any resolution of the municipal council passed order issued or licence or permission granted, or (ii) prohibit the doing of any act which is about to be done or is being done in pursuance of or under colour of this Act, if in their opinion (a) such resolution, order, licence, permission of act has not been legally passed, issued, granted or authorised (b) such resolution, order, licence, permission or act, is in excess of the powers conferred by this Act or any other law, or (C) the execution of such resolution or order, or the continuance in force of such licence or permission or the doing of such act is likely to cause danger to human life, health or safety or is likely to lead to a riot or an affray; Provided that nothing is in this Sub-section shall enable the State Government to set aside any election which has been held. (2) (1)-The Government shall before taking action on any of the ground referred to in Clauses (a) and (b) of Sub-section (1) give the authority or person concerned an opportunity for explanation. (3) If in the opinion of the Magistrate of the district immediate action is necessary on any of the grounds referred to in Clause (c) of Sub-section (1), he may suspend the resolution, order, licence, permission or act, as the case may be, and report to the State Government who may thereupon either rescind the order of the said Magistrate or after giving the authority or person concerned a reasonable opportunity of explanation direct that it continues in force with or without modification permanently or for such period as they think fit. 3. It is mainly in the light of these provisions of the Municipal Act that the position in the present case is to be considered on the facts as herein after stated. 4. Sri Jagdish Prasad Dash was a councillor, of the Sambalpur Municipality till July 30, 1965) ; he was also the ViceChairman of the said Municipality. By a letter in writing under his hand addressed to the Chairman of the Municipality Sri Lath resigned from councillorship of the Municipality; he also by the said letter resigned from the office of the Vice-Chairmanship of the council on July 30, 1965. The resignation -latter was in these terms; Sambalpur 30-07-65. By a letter in writing under his hand addressed to the Chairman of the Municipality Sri Lath resigned from councillorship of the Municipality; he also by the said letter resigned from the office of the Vice-Chairmanship of the council on July 30, 1965. The resignation -latter was in these terms; Sambalpur 30-07-65. Chairman, Sambalpur Municipality, Sambalpur. D/Friend, I hereby tender my resignation as Vice-Chairman and as a Municipal Councillor. Please accept the same at an early date. Yours faithfully, The resignation from the councillorship and Vice-Chairmanship was handed over to the Chairman personally. 5. Under the provisions of Section 43 and Section 52 of the Act, in case a person resigns from either his office of being a councillor or a Vice-Chairman the Chairman has to forthwith lay the notice of the said resignation before the municipal council and the resignation on being accepted by the council, the office of the person resigning from the councillorship or Vice-Chairmanship becomes vacant. 6. It is said that even though Sri Lath resigned, other persons interested wanted him to continue in the office. In the meantime, after the Chairman received the resignation of the membership and Vice-Chairmanship of Sri Lath, the Chairman placed it before the municipal council at its meeting on, July 31, 1965. 7. A few hours before the meeting of the municipal .council was held, a. letter purporting to be a letter of withdrawal of the resignation submitted by Sri Lath was given to the Executive Officer of the Municipality by somebody but not by Sri Lath and the letter was not also given to the Chairman. The letter purporting to withdraw the resignation was in these terms; Sam balpur 31-07-65. To The Chairman of the Sambalpur Municipality, Sambalpur. Sir, I hereby withdraw my resignation letter submitted to you yesterday. Yours faithfully, Sd/ - Jagdish Prasad Lath. 31-7-56.... It appears that there is no provision in Municipal Law to withdraw resignation once it is submitted to the Chairman; it is only for the municipal council to consider the genuineness of the letter and accept it. 8. At a meeting of the municipal council on July 31, 1965 the Chairman placed the resignation letter for acceptance. After having considered the entire matter the municipal council accepted the resignation of membership as well as Vice-chairmanship of Sri Lath. 9. 8. At a meeting of the municipal council on July 31, 1965 the Chairman placed the resignation letter for acceptance. After having considered the entire matter the municipal council accepted the resignation of membership as well as Vice-chairmanship of Sri Lath. 9. Thereafter on August 26, 1965, in view of the vacancy caused by Sri Lath's resignation of the Vice-Chairmanship, the municipal council elected Srimati Sumati Behera (party in the writ petition) as the Vice-Chairman of the council and she has been functioning as the Vice-Chairman since then. 10. On September 7, 1!:!65 the State Government served a notice u/s 398 of the Municipal Act on the municipal council to give an explanation as to why the resolution accepting the resignation of Sri Lath should not be cancelled. 11. After receipt of the said notice the municipal council submitted that there was proper resignation and there was no provision in the Municipal Act for withdrawal of a resignation once submitted to the Chairman and that the acceptance was legally and properly made. 12. On October 15, 1965 the Government of Orissa, communicated their decision in the matter as contained in the order dated september 30, 1965 to the effect that the resolution accepting the resignation of Sri Lath is cancelled since the acceptance of the resignation after the withdrawal letter is against the settled principles of natural justice. The relevant portion of the Government order is set out below: "Government of Orissa, Health (LSG) Department. Order. Whereas the Councillors of Sambalpur Municipality passed resolution in their meeting held on 31-7-1965 accepting the letter of resignation dated 30-7-1965 submitted by the Vice-Chairman, Shri Jagadish Prasad Lath when the said letter had become infructuous as the Vice-Chairman in his letter dated 31-7-1965 with-drawn the said resignation before the letter of resignation came up for consideration before the Council. Whereas the said municipal council was given an opportunity for explanation in letter No. 13916 dated 7-9-1965. And whereas after taking into consideration the explanation given by the said municipal council, the State Government are of opinion that the resolution of the Sambalpur Municipal Council dated 31-7-1966 has not been legally passed as being opposed to the settled principles of natural justice. And whereas after taking into consideration the explanation given by the said municipal council, the State Government are of opinion that the resolution of the Sambalpur Municipal Council dated 31-7-1966 has not been legally passed as being opposed to the settled principles of natural justice. In exercise of the powers conferred by Sub-section (1) of Section 398 of the Orissa Municipal Act, 1950, the State Government do hereby cancel the resolution dated 31-7-1965 of the said council in 80 far as the aforesaid resolution refers to the acceptance of the resignation of Shri Jagadish Prasad Lath. Addl. Secretary to Government. Memo No. 15158(3) LSG dated 30.9.1965. 13. The District Magistrate, Sambalpur, in a letter dated October 13, 1965 forwarding therewith a copy of the said Government order to the Sambalpur Municipality, purporting to interpret the State Government's order, wrote that the implications of the Government orders are that Shri Jagadish Prasad Lath continues to be the Vice-Chairman of the Sambalpur Municipal Council and all other subsequent proceedings of the Council relating to election of Vice-Chairman in place of Shri J.P. Lath have become automatically infructuous and void; that Shri J.P. Lath should be enabled to function as the Vice-. Chairman as before. 14. The legality of the Government order dated September 30, 1965 is challenged on the ground that a statutory body like the Municipality is to act within the four corners of the statute; that under 398 the Government is not empowered to cancel any resolution which is said to have been legally passed and not in excess of the powers conferred by the Act or any other law; that it is an order not in accordance with Section 398 of the Act. 15. The Government order dated September 30. 1965 is further challenged on the ground Srimati Sumati Behera has been duly elected as Vice-Chairman in the said vacancy within the statutory period and she is already in office; her election cannot be set aside. 16. 15. The Government order dated September 30. 1965 is further challenged on the ground Srimati Sumati Behera has been duly elected as Vice-Chairman in the said vacancy within the statutory period and she is already in office; her election cannot be set aside. 16. It was in this background that O.J.C. No. 279 of 1965 was filed by the Sambalpur Municipality and the newly elected Vice-Chairman Srimati Sumati Behera as Petitioners against the State of Orissa, Deputy Commissioner of Sambalpur District and Sri J.P. Lath, all as opposite parties in the said writ petition; in the petition it was prayed that an appropriate writ or order be passed declaring the orders of the opposite parties 1 and 2 nun and void and by directing that the Government order should not have any effect. After the said writ petition was filed Sri J.P. Lath also filed a writ petition O.J.C. No. 84 of 1966 against the newly elected Vice-Chairman Srimati Sumati Behera, Sambalpur Municipal Council and the State of Orissa as opposite parties; in this writ petition the Petitioner Sri Lath prayed for quashing the impugned resolution dated. July 31, 1965 of the municipal council accepting his letter of resignation from Vice-Chairmanship and membership of the municipal council; further for a writ of certiorari quashing the election of Srimati Sumati Behera as Vice-Chairman of the municipal council. These two writ petitions were heard together. 17. The question is: Had Sri J.P. Lath right to withdraw his letter of resignation which he tendered to the Chairman of the municipal council before acceptance? The Chairman and Vice-Chairman of the municipality, as creatures of the Municipal Act, are governed by the provisions 'of the statute. There is no provision in the Act for withdrawal of resignation. It is clear from the provisions of Section 43 and Section 52 of the Act that so far as resigning Chairman or Vice-Chairman is concerned, the resignation is irrevocable. It was for the municipal council to decide whether or not to accept the resignation already tendered by Sri Lath.. In fact, Section 52(2) provides to the effect that on such resignation being accepted by the Municipal council, the Chairman or the Vice-Chairman of the Municipality shall be deemed to have vacated office. Ag there is no provision in the Municipal Act for withdrawal of the resignation the Vice. Chairman Sri Lath had no power to withdraw the resignation. In fact, Section 52(2) provides to the effect that on such resignation being accepted by the Municipal council, the Chairman or the Vice-Chairman of the Municipality shall be deemed to have vacated office. Ag there is no provision in the Municipal Act for withdrawal of the resignation the Vice. Chairman Sri Lath had no power to withdraw the resignation. The matter is to be decided within the provisions of the four corners of the Act itself. In the absence of a rule or bye-law to the contrary, the resignation takes immediate effect. Where the statute is silent common law would prevail. In the present case, resignation was tendered and it was accepted; in the vacancy caused by the resignation a new Vice-Chairman was elected in his place. The point is whether the resignation already tendered could be withdrawn before acceptance. In our opinion, the answer is: As soon as resignation was tendered by the ViceChairman Sri Lath, an inchoate right to accept it accrued to the municipal council such resignation as tendered cannot be withdrawn. 18. This view is supported both by English decisions on the point as also by decisions in this Court including some decisions of the Supreme Court, laying down the principles by which such cases are governed. 19. The main points urged on behalf of the former ViceChairman, Sri J.P. Lath who resigned and then withdrew the resignation before acceptance are these: A resignation may be withdrawn at any time before its acceptance; a resignation- may be withdrawn before it is acted upon, but not after it has been accepted. In other words, the point, urged, is that Sri Lath had inherent power of withdrawing his resignation before acceptance. In other words, the point, urged, is that Sri Lath had inherent power of withdrawing his resignation before acceptance. In support of this contention, reliance was placed mainly on the majority view of a Full Bench decision of the Allahabad High Court under D.P. Town Areas Act (2 of 1914), where it was held that the Chairman of a Town Area Committee who has, u/s 8-A(5), forwarded his resignation to the District Magistrate, has, before it was accepted, a right to withdraw his resignation, and he having done so there is no resignation left which can be accepted by the District Magistrate; hence, even after its withdrawal if the District Magistrate accepts the resignation, the purported acceptance of the resignation by the District Magistrate is a nullity and so is his communication to the Town Area Committee; there was, therefore, no vacancy in the office of the Chairman and no election could be held; in case an election is held in these circumstances it is void at law- Bahori Lal Paliwal Vs. District Magistrate, Bulandshahr and Another, . 20. With great respect, we are unable to accept the reasoning on which the Allahabad majority decision was based. What apparently weighed with their Lordships was the concept of contract-offer followed by acceptance completing the contract which permeated the entire reasoning of the decision. In fact, in paragraph 22 their Lordships observed thus: The analogy of the law of contract dealing with offer and acceptance may legitimately be drawn upon in this connection. An offer may be withdrawn before it is accepted. Section 5 of the Indian Contract Act provides: A proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards. It was primarily in the light of this concept of contract that their Lordships considered the questions: What would be the position during the period between the delivery of the letter of resignation and its acceptance by proper authority? It was in answer to this question as posed in the Allahabad majority judgment that their Lordships took the view that during the period of the gap, the said resignation had not become effective and was in a state of suspense. It was in answer to this question as posed in the Allahabad majority judgment that their Lordships took the view that during the period of the gap, the said resignation had not become effective and was in a state of suspense. Then in answer to a further question posed to themselves as to whether in such circumstances the resignation can be withdrawn, their Lordships took the view that law allows a person to withdraw his resignation before it had become effective by acceptance-a proposition which, according to them, was supported by authority including, as cited in the said judgment, a passage in-Corpus Juris Secundum, Vol. 62, at p. 942-where it was clearly stated that "a resignation may be withdrawn at any time before it is accepted", and also the analogy of the law of contract dealing with offer and acceptance as quoted above. 21. This reasoning in the Allahabad case shows that the majority view did not accept the settled position in law that election contests are purely statutory unknown to common law, and are neither actions at law nor suits in equity but are special proceedings; a court has no inherent powers in election proceedings, but has only such jurisdiction as is expressly conferred by the election law as contained within the four corners of the Act under consideration. 22. In this context, with great respect, we agree with the minority view, in the Allahabad case, of Mr. Justice Bhargava (as he then was) which, in our opinion, presents the correct position in law. The ratio decidendi of his Lordship's decision, broadly stated, is this: When the right to resign from an office like the office of a Chairman is not an absolute right which can be exercised by the Chairman at his will, the converse right of withdrawing a resignation already submitted, which mayor may not be accepted at the discretion of the District Magistrate, also cannot be held to be an absolute right, taking away the discretion of the District Magistrate to accept or not to accept the resignation. Once a Chairman of a Town Area Committee sends his resignation to the appropriate authority, viz., the District Magistrate, the further action on that resignation is at the discretion of that authority and, if the person sending the resignation desires that the resignation should not be acted upon, he certainly has the right to apply to the District Magistrate for withdrawal of the resignation. The existence of the right of applying for withdrawal does not, however, imply that the District Magistrate is bound to accede to the desire of that person that the resignation should not be acted upon thereafter. The question having once come within the scope of the District Magistrate it must be open to the District Magistrate either to accept the resignation or to act in accordance with the subsequently expressed desire of that person, allow the withdrawal and refuse to accept the resignation. The discretion having once vested in the District Magistrate under the law, it would not be correct to hold, that it can be taken away and fettered at the sweet will of the person who, by his act, set the law in motion so as to vest the discretion in the District Magistrate. 23. In deciding such cases within the am bit of the Municipal Act, the court has to consider the nature of the right of resignation because the nature of the right of withdrawal can appropriately be determined by reference to the nature of the right of resignation which is sought to be withdrawn. The resignation in this case was from the office of the Vice-Chairman of the Municipality-a corporate public body-created by a statute. The office of Chairman, Vice. Chairman and other office-bearers of the Municipality-a corporate public body-is regarded as a burden which the appointee was bound, in the interest of the community and of good Government, to bear. From this it follows that, after an office was conferred and assumed, it cannot be laid down without the consent of the appointing power. This is required in order that the public interests might suffer no inconvenience for the want of public servants to execute the laws. An officer of a corporate public body-Chairman, Vice. Chairman and others may certainly resign; but without acceptance his resignation is nothing, and he remains in office. It is not true that an office is held at the will of either party. An officer of a corporate public body-Chairman, Vice. Chairman and others may certainly resign; but without acceptance his resignation is nothing, and he remains in office. It is not true that an office is held at the will of either party. It is held at the will of both. Generally resignations are accepted, and that has been so much a matter of course with respect to lucrative offices, as to have grown into a common notion that to resign is a matter of right. But it is otherwise. The public has a right to the services of all the citizens, and may demand them in all civil departments as well as in the military. Hence, there are in our statute book several Acts to compel men to serve in offices. Every man is obliged, upon a general principle, after entering upon his office, and he cannot lay it down until the public, or those to whom the authority is confided, are satisfied that the office is in a proper state to be left, and the officer discharged. 24. It is this concept of public office-being a burden which the appointee was bound to bear, in the interest of the community and a good Government which distinguishes it from the contractual relationship of master and servant. Thus, the common law rule clearly brings out the difference between the obligations of a holder of a public office towards the public and the obligations of a servant towards his master. As between a master and servant, the obligations of a servant arise out of a contract and he has the right to resign from service subject to the usual rule of complying with the requirement of the requisite notice. In the case of the holder of an office in a corporate public body like a Municipality, the relation between him and the public differs fundamentally from the relation arising from the contract of service between a servant and a master. 25. It is from this settled legal position that Mr. In the case of the holder of an office in a corporate public body like a Municipality, the relation between him and the public differs fundamentally from the relation arising from the contract of service between a servant and a master. 25. It is from this settled legal position that Mr. Justice Bhargava (as he then was) took the view that the analogy of the right of a servant to resign from service cannot, therefore, be applied when considering the right of resignation of the holder of a public office; in fact, in considering the right of resignation of the holder of a public office; in fact, in considering the right of resignation by an officer holding a public office, no analogy can be drawn by reference to the principle of offer and acceptance under the Law of Contract. Under that law, an offer can be withdrawn at any time before it is accepted. That is because the proposer, who gives the offer has an absolute right either to give the offer or not to do so and until the offer is accepted, he has been given by law an absolute right to withdraw that offer. This position can only arise if, under the common law rule, the holder of a public office also had been granted an absolute right to offer his resignation in which case it might also have been possible to hold that he had an absolute right to withdraw the resignation. The holding of a public office entails duties and obligations and it is clearly in consonance with public policy of limiting the right to decline to hold the office or to resign after the office has already been held for some time; no such considerations of public policy arise with regard to the right of withdrawing an offer under the law of contract. 26. The English decisions cited in this case were all decided in the context of the particular statute as applicable to each of these cases. In England, the common law rule was gradually altered. The first step introduced by legislative amendments to the common law rule was to permit the holder of a corporate office to resign subject to the payment of a fine. In England, the common law rule was gradually altered. The first step introduced by legislative amendments to the common law rule was to permit the holder of a corporate office to resign subject to the payment of a fine. Later still the Parliament under the Local Government Act 1833, abolished the provision relating to fine and gave the right to any person, elected to any office under that Act, to resign at any time his office by writing a letter signed by him and delivering it to the person named in that law. Provision has further been made that the resignation is to take effect upon the receipt of resignation by that person. The present position in England is that the holder of a corporate office has an absolute right to resign from the office; the resignation is however irrevocable; The Queen v. The Mayor and Town-Council of Wiganl (1885) 14 Q.B.D. 908; Finck v. Cake (1896) 1 Ch. D. 409; Pease v. Lowden (1899) 1 Q.B. 386.. 27. In India, however, it appears that the common Jaw rule is still applicable and has not been abrogated or modified by legislative changes. This is clear from the fact that under the Orissa Municipal Act a resignation by a Chairman or Vice-Chairman of the Municipality does not take effect until it has been accepted by the municipal council. It is therefore clear that the right to resign from an office like the office of a Chairman or Vice-Chairman of a Municipality is not an absolute right of the person holding the office. If he desires to vacate the office, he can submit his resignation but the resignation does not become effective until the appropriate authority in exercise of its discretion accepts it. 28. We are therefore led to the conclusion that after the Vice-Chairman Sri Lath bad set his resignation to the appropriate authority, he could apply for withdrawal to such appropriate authority and, to the extent, his right of withdrawal of resignation was in existence but that right was not an absolute right and it will be at the discretion of the appropriate authority either to accept the resignation or to act on the letter of withdrawal and reject it. This discretion of the appropriate authority has to be exercised in the interests of the general public for whose benefit the statute created the corporate public body-the Municipality. This discretion of the appropriate authority has to be exercised in the interests of the general public for whose benefit the statute created the corporate public body-the Municipality. It is based on principles of justice, equity and good conscience so as to recognise the prima importance of the interests of the public which are given preference over the desire or conveniences of the holder of the office of the Chairman or the Vice-Chairman. 29. In the present case the appropriate authority chose to act on the resignation submitted by the Vice-Chairman Sri Lath and to disregard his letter of withdrawal. 30. In this context of reference was made to a decision of the Supreme Court in Jai Ram Vs. Union of India (UOI), ., where the question related to a Government servant who applied for permission to retire before superannuation; the permission for retirement was granted and the Government Servant proceeded on leave preparatory to retirement; it was while he was enjoying post-retirement leave under the rules that he moved the Court to enforce his rights to return to duty. Their Lordships observed that it may be conceded that it is open to a servant who has expressed a desire to retire from service and applied to his superior officer to give him the requisite permission to change his mind subsequently and ask for cancellation of the permission thus obtained. In our opinion, the case of a permission to retire cannot stand on the same footing as the case of a resignation. The present case is different in that in order to resign all that the Vice-Chairman has to do is to submit his resignation to the appropriate authority and he has done so. It cannot be said that the Vice-Chairman has any absolute right to withdraw the resignation already submitted and in any case we are unable to hold that their Lordships of the Supreme Court in the case cited above intended to lay down any such proposition. The said decision has therefore no application to this case. 31. In this view of the case we allow the writ petition O.J.C. 279 of 1965 filed by the Sambalpur Municipal Council and the elected Vice. The said decision has therefore no application to this case. 31. In this view of the case we allow the writ petition O.J.C. 279 of 1965 filed by the Sambalpur Municipal Council and the elected Vice. Chairman Srimati Sumati Behera and quash the State Government order dated September 30, 1965 purporting to cancel the resolution of the Sambalpur Municipal Council passed in its meeting held on July 31, 1965 relating to the acceptance of the resignation of Sri Jagdish Prasad Lath from Vice-Chairmanship and we also quash as nun and void the order of the Deputy Commissioner (District Magistrate), Sambalpur, dated October 13, 1905 purporting to convey the implications of the Government order stated therein. The other writ petition filed by the former Vice. Chairman Sri Jagdish Prasad Lath O.J.C. 84 of 1966 is dismissed. In the circumstances of the case each party to bear own costs in both the writ petitions. Ahmad, C.J. 32. I agree. Final Result : Dismissed