Laxmi Verma vs State Of Maharashtra & Ors

Sau. Laxmi Verma ........Appellant

Versus

State of Maharashtra and Ors. ......Respondents

J U D G M E N T

Deepak Verma, J.

1. Leave granted. Arguments heard.

2. Even though a short but important and crisp question of

interpretation of Section 41(2) of Maharashtra Municipal

Councils, Nagar Panchayats and Industrial Townships Act,

1965 (hereinafter shall be referred to as the 'Act')

arises for our consideration in these Appeals. The

provision stands as under:

"SECTION 41

(1) The term of office of the Councillors shall be co-terminus with the duration of the council.

(2) A Councillor may resign his office unconditionally at any time by notice in writing in his hand addressed to the Collector and delivered in person and sign before the Collector and then only such resignation shall be effective." (emphasis supplied)

This particular Sub-section (2) of Section 41 is

required to be interpreted by us in this and the connected

matter.

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3. It is pertinent to mention, prior to amendment carried out sometime in 1994, said Section 41 stood as under:-

"Resignation of Councillors - (1)A Councillor may resign his office by tendering resignation in writing to the President.

(2)Such resignation shall be effective on its receipt by the President."

But in these Appeals we are not required to consider it.

4. Facts of the case lie in a narrow compass, which are as

under:-

Respondent No. 6, Rupesh Yogeshwar Dhepe was an

elected Councillor of Ward No. 8 of Municipal Council,

Achalpur, District Amravati. Election was held sometime in

the year 2008. On 18.12.2008, Respondent No. 6 wrote a letter

to the Collector, threatening to resign, if certain demands

made by him were not fulfilled, within a period of ten days.

Since the demands were not fulfilled, on 29.12.2008, he,

keeping the promise, tendered his resignation. The Collector

held that the resignation was valid and accepted it. On his

resignation and acceptance thereof, since the seat fell

vacant, Collector proceeded to arrange for elections of

Ward No. 8, from which Respondent No. 6 was earlier elected

and election programme commenced.

5. In the meantime, Respondent No. 6 filed a Revision

Application before Additional Commissioner stating therein

that he had in fact not resigned in accordance with law ....3/-

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and there has been complete violation of Sub-section (2)

of Section 41 of the Act. Thus, no fresh election should

be conducted. But in the meanwhile election programme was

already announced. The election programme so announced

specifically mentioned that election was subject to the

decision of pending proceedings. In the fresh elections,

the present Appellant Laxmi Verma was elected as

Councillor and subsequently she was also elected as

President of Municipal Council and is continuing as such.

The Additional Commissioner decided the Revision

Application of Respondent No. 6 by order dated 25.02.2009

holding that the Collector had rightly accepted the

resignation of Respondent No. 6. This order was challenged

by Respondent No. 6 by filing W.P. No. 1550 of 2009, which

was partly allowed and the Additional Commissioner was

directed to decide the Revision Application afresh after

hearing both parties. Thereafter, the Additional

Commissioner allowed the Revision Application filed by

Respondent No. 6, set aside the order of Collector,

whereby his resignation from the post of Councillor of

Municipal Council, Achalpur, was accepted, thereby

restoring the status of Municipal Councillor to Respondent

No. 6.

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6. This order was challenged by the Appellant in W.P.

No. 3167/2009, decided by learned Single Judge of the High

Court of Judicature at Bombay, Nagpur Bench whereby the

Appellant's writ petition came to be dismissed. Not being

satisfied with the said order of dismissal, Appellant carried

L.P.A No. 349 of 2009 before Division Bench of the said

Court, but vide order dated 26.8.2009, the said L.P.A also

came to be dismissed. In other words, the resignation

tendered by Respondent No. 6 was held to be invalid,

inconsequential and inoperative. Obviously, the election of

Appellant, which was subject to the final result of the lis

pending before Additional Commissioner stood set aside.

7. We have critically gone through the orders passed by

learned Single Judge and Division Bench in L.P.A and are of

considered opinion that both had dealt with the matter at

length and ultimately came to the conclusion that there has

not been full and complete compliance of the provisions of

sub-section (2) of Section 41 of the Act. Therefore, there

was no legally valid resignation tendered by Respondent No. 6

and the Collector committed an error in accepting the same.

According to the Appellant, there is no dispute that

resignation letter dated 29.12.2008 was signed by Respondent

No. 6 and was presented by him before the Collector. It is

further not in dispute that he had also put his initials at

the places, scored out by him. Therefore, it should be deemed

to be substantial compliance of the aforesaid provision. In ....5/-

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other words, it has been argued before us that the Collector

was fully justified in accepting the resignation of

Respondent No. 6, which was tendered in person to him and on

being asked to put initials at certain places scored out, he

had done so. Therefore, nothing more was required to be done

in the matter and it should be construed as if he had

delivered the same in person and signed it himself before the

Collector, only then the same was accepted.

8. On the other hand, learned Senior Counsel appearing

for Respondents contended that mere putting initials at the

places scored out in the resignation letter would not

tantamount to signing it before the Collector which is pre-

requisite for acceptance of the resignation, as contemplated

under Section 41 (2) of the Act. Therefore, there was no

valid resignation tendered by him, consequently, Additional

Commissioner, learned Single Judge and Division Bench

committed no error while recording a categorical finding

against the Appellant.

9. In the light of the aforesaid contentions, we have

heard learned Senior Counsel, Shri H.N. Salve for Appellant

and learned Senior Counsel, Shri Vinod A. Bobde for

Respondent No. 6 and Others for State of Maharashtra.

10. Section 41(2) of the Act referred to herein above

requires that a Councillor may resign his office

unconditionally at any time by notice in writing in his hand,

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to be addressed to the Collector. It further requires that

such resignation has to be delivered in person and signed

before the Collector, then only such resignation shall be

effective. Thus, mere putting initials at certain places

scored out before the Collector, would not amount to putting

the signatures in the resignation letter before the Collector

himself.

11. In this connection, it is necessary to refer to the

letter of the Collector, Amravati dated 03.07.2009 to the

Secretary, Urban Development Department, Mumbai. Collector

had made the following endorsement which reads as thus:-

"In connection with the subject referred above, it is hereby submitted that Councillor of Achalpur Municipal Council Ward No. 8 Shri Rupesh Yogeshwarrao Dhepe has tendered resignation of his Municipal Council Membership before me on 29.12.2008. The said letter of resignation was typewritten and he had already signed it. On questioning him whether resignation is his own, it was confirmed that it was his own resignation. Later on Shri Dhepe took the copy of his resignation back and made corrections in point No. 4 in that resignation letter and put his initials before me and again handed it over to me and I put remark on that as "submitted before me by Shri Dhepe". (Emphasis supplied)

12. No doubt, it is true that Collector had admitted that

resignation was typewritten and it was already signed by the

Respondent No. 6. On questioning whether it was his own,

Respondent No. 6 confirmed that it was his own resignation.

Thereafter, he took a copy of his resignation back and made

corrections in point No. 4 in that resignation and put his

initials before him and again handed it over, on which he

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then put the remark "submitted before me by Shri Dhepe". The

aforesaid statement of the Collector clearly establishes that

in any event the same was not signed by Respondent No. 6 in

his presence. Thus, it is manifest that there has been non-

compliance of the provision of Section 41(2) of the Act. The

said provision being mandatory in nature should have been

complied in letter and spirit. Its non-compliance would

automatically lead to irresistible conclusion that the same

was not properly and validly accepted resignation of

Respondent No. 6 by the Collector.

13. Photostat copy of the original resignation of

Respondent No. 6 dated 29.12.2008 has been filed by the

Appellant together with its English translation. Critical

examination of the same makes it abundantly clear that in it

certain words were scored out and only at that place he had

put his initials, which was already typed resignation, on

which he had already put his signature. Thus, there was non-

compliance with regard to that part of the Section which

requires that resignation shall be signed in presence of the

Collector.

14. Shri H.N. Salve, learned Senior Counsel appearing for

Appellant strenuously contended before us that purposive

interpretation of the aforesaid provision of law would mean

that there has been a substantial compliance of Sub-section

(2) of Section 41 of the Act, in as much as there was no

denial of the fact of submitting resignation by Respondent ....8/-

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No. 6, presenting the same by him to the Collector. On being

asked by him to put initials at the places scored out by him,

which he did, would be deemed to have been signed by him in

presence of Collector. It should, thus, be construed that

the same was validly accepted by Collector. He has,

therefore, contended that Additional Commissioner in his

revisional jurisdiction committed grave error in finding

fault in acceptance of the resignation of Respondent No. 6 by

the Collector. On the same analogy the orders passed by

learned Single Judge passed in Appellant's Writ Petition and

confirmed by Division Bench in appeal have been attacked.

15. It was further contended by him that the test of

tendering resignation as contemplated under Sub-section (2)

of Section 41 of the Act was satisfied and the resignation

having been accepted, there was no question of holding

otherwise. He has also placed reliance on the topic of

"Express Requirements And Conditions" from 'Administrative

Law', Tenth Edition 2009 of H.W.R. Wade & C.F. Forsyth.

16. He has contended that if the conclusion is reached

that on a true construction, non-observance of the condition

is fatal to the validity of the action, that condition is

said to be 'mandatory'. But if the conclusion is reached that

non-observance does not lead to invalidity, the condition is

said to be 'merely directory'. He has further contended that

sometimes the legislation makes it plain what the effect of

non-observance is to be. But more often it does not, and then ....9/-

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the Court must determine the true import of the legislation.

It is a question of construction, to be settled by looking at

the whole scheme and purpose of the Act and by weighing the

importance of the condition, the prejudice to private rights,

and the claims of the public interest.

17. On the other hand, learned Senior Counsel Shri Vinod

A. Bobde placed reliance on the following judgments starting

from AIR 1936 Privy Council 253 Nazir Ahmad Vs. King Emperor,

AIR 1954 SC 322 Rao Shiv Bahadur Singh Vs. State of V.P., AIR

1961 SC 1527 Deep Chand Vs. State of Rajasthan, (1975 ) 1

SCC 559 Ramachandra Keshav Adke Vs. Govind Joti Chavare,

(1978) 2 SCC 301 Union of India Vs. Gopal Chandra Mishra.

However, in the light of the clear provision of the Act which

is as clear as day light, it is not necessary to deal with

the aforesaid judgments individually and in details.

18. However, after going through the aforesaid Sub-

section (2) of Section 41 of the Act, the plain and only

conclusion that can be arrived at is that resignation has to

be tendered by the Councillor addressed to the Collector. It

is to be delivered by him in person and then he has to affix

his signature before the Collector on compliance of the

aforesaid conditions, then only such resignation shall be

effective. It cannot be disputed that an obligation was

created by the Statute to perform it in the manner as

provided therein, then in case of its non-compliance, the

effect thereof would be rendered redundant and invalid in law.

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19. Collector himself admitted, in no uncertain terms,

that letter of resignation was already typed, on which the

signature of Respondent No. 6 was already appearing. He went

through the same and only asked him to put his initials at

the place scored out in the said resignation. Putting of

initials at the place where some portion of resignation was

deleted, would neither amount nor can be construed to have

been signed in presence of the Collector.

20. It would have been entirely different if the

Collector would have asked Respondent No. 6 to authenticate

and endorse his own signatures in the resignation at the same

place where he had already put his signatures, then of course

to some extent arguments advanced by Shri H.N. Salve would

have made some point.

21. No doubt, it is true that equity swings in favour of

the Appellant but the law applicable to the facts of the case

is certainly against her. Apart from the above, it is also to

be recalled that fresh elections were held only subject to

ultimate result of the Revision Petition filed by Respondent

No. 6. Thus, Appellant was fully aware that her fate would

ultimately depend on the result of the litigation, which

ultimately stood decided against her and further has a seal

of approval by us.

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22. Thus, looking to the matter from all angles and

keeping in mind, strict adherence to the provisions of the

Act, we are of the opinion that there was no valid, proper

and legal resignation tendered by Respondent No. 6 in as much

as admittedly, the said resignation dated 29.12.2008 was not

signed by Respondent No. 6 in presence of the Collector which

was mandatorily required to be done. No other point was

argued before us.

23. In the light of this, we are of the considered

opinion that no case has been made out for interference in

the matter. Appeals are dismissed but with no order as to

costs.

....................J. [P.SATHASIVAM]

....................J. [DEEPAK VERMA]

April 19 ,2010