JUDGMENT

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.

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 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.

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 r