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1969 Supreme(Bom) 37
IN THE HIGH COURT OF BOMBAY
Abhyankar and M.N.Chandurkar, JJ.
Appellants: Gangabai
Vs.
Respondent: President Municipal Council, Tumsar and Ors.
Special Civil Appln. No. 1059 of 1967 Decided On: 15.04.1969 Decided On: 16.04.1969
Counsels:
For Appellant/Petitioner/Plaintiff: S.W. Dhabe and S.G. Kukdey, Advs.
For Respondents/Defendant: A.S. Bobde, B.A. Masodkar, R.B. Pendharkar and S.V. Natu, Advs. and C.S. Dharmadhikari, Asst. Govt. Pleader
The Collector has the power and duty to hold an inquiry into the validity of a councillor's resignation before ordering a by-election.
Headnote:
MUNICIPALITIES ACT - RESIGNATION OF COUNCILLOR - VALIDITY - INQUIRY BY COLLECTOR - POWER OF COLLECTOR TO HOLD INQUIRY - MAHARASHTRA MUNICIPALITIES ACT, 1965, SECTIONS 41, 48 - MAHARASHTRA MUNICIPALITIES ELECTION RULES, 1966, RULE 63.
Fact of the Case:
The petitioner, a councillor of the Tumsar Municipal Council, challenged the validity of her alleged resignation and sought a declaration that she continued to be a member of the Council. The petitioner alleged that her signature on the resignation letter was obtained by fraud and misrepresentation. The Collector, who was responsible for holding by-elections to fill vacancies in the Council, refused to hold an inquiry into the validity of the resignation, contending that he had no such power.
Finding of the Court:
The Court held that the Collector had the power and duty to hold an inquiry into the validity of the resignation before ordering a by-election. The Court reasoned that the Collector's duty to hold a by-election was contingent upon the occurrence of a valid vacancy, and that the Collector had an implied power to determine whether a vacancy had occurred. The Court also noted that the Act and Rules did not provide any other mechanism for challenging the validity of a resignation, and that the Collector was the appropriate authority to conduct such an inquiry.
Issues: 1. Whether the Collector had the power to hold an inquiry into the validity of the petitioner's resignation. 2. Whether the Collector was required to hold such an inquiry before ordering a by-election.
Ratio Decidendi: The Court held that the Collector had the power and duty to hold an inquiry into the validity of the resignation before ordering a by-election. The Court reasoned that the Collector's duty to hold a by-election was contingent upon the occurrence of a valid vacancy, and that the Collector had an implied power to determine whether a vacancy had occurred. The Court also noted that the Act and Rules did not provide any other mechanism for challenging the validity of a resignation, and that the Collector was the appropriate authority to conduct such an inquiry.
Final Decision: The Court dismissed the petition, but directed the Collector to hold an inquiry into the validity of the petitioner's resignation and to decide whether a vacancy had occurred in the office of the councillor.
1. The petitioner Gangabai has filed this petition under Articles 228 and 227 of the Constitution claiming the following reliefs:--
(1) That the notice dated 23-9-1967 (annexure A) and the proceedings of the metting dated 28-9-1967 (annexure N) stating therein that the petitioner is not a member be quashed;
(2) That the Annexures D and E said to be the copies of the resignation of petitioner dated 23-9-1967 be also quashed and it be further declared that the petitioner continues to be the member of Municipal Council, Tumsar;
(3) That a writ of mandamus be issued against the respondents nos. 1 to 3 directing them to treat the petitioner as a Municipal Councillor and give her all privileges and rights of a Councillor under the provisions or the Maharashtra Municipalities Act, 1965; and
(4) That an interim order be passed staying the effect of Annexures D and E and ordering further that the petitioner be continued as a member of the Municipal Council till the decision of the petition.
2. The petitioner has impleaded to this petition as respondents the President of the Municipal Council at Tumsar, the Chief Officer of the Municipal Council, the Collector, Bhandara, one Dulich and Bhogsu Giripunje who is a Councillor from ward No. 4; and one Motiram son of Laxman Mankar, alleged to be an employee of the Municipal Council at Tumsar.
3. Elections were held for electing Councillors of the Municipal Council at Tumsar in Bhandara district after the coming into force of the Maharashtra Municipalities Act, 1965, and poll was taken on 9th July 1967. The petitioner was one of the contestants to the office of Councillor to a seat reserved for women from ward No. 21 called Shivajinagar. The petitioner polled the maximum number of votes and was declared elected from that ward. By a notification dated 20th July 1967, the names of all the Councillors elected to the Municipal Council were published as required by Section 19 (1) of the Maharashtra Municipalities Act, 1965 (hereinafter referred to as the Act.)
4. A meeting of the elected Councillors to elect the President and the Vice-President was held on 1st August 1967. It appears that although the Municipal Council comprises 21 members, one elected member was enjoined not to participate in the meeting On account of the pendency of an election petition. The remaining 20 Councillors were evenly divided between the two groups, one alleged to be led by Saraf and the other alleged to be led by Narayanrao Karemore. The polling for each of the two offices showed that the votes were evenly divided for each candidate and Shri Saraf was declared elected as President by toss and Shri Kisanrao Karemore was declared elected as Vice-President also by toss,
5. The petitioner has alleged that she belonged to a group in opposition to the elected President, respondent No. 1. Ac cording to the petitioner, she was called in the first week of September 1967 by the respondent No. 4 who came to her house and told her that as the President wanted to visit her ward, she should accompany him and accordingly she came to the office of the Municipal Council. It was at about 10 a.m. in the morning. When she went to the office believing in good faith that she was called by the President, she found that the President was sitting with his party members along with the respondent No. 4. There were some other persons present and she was entertained to tea. The President was apprised by the petitioner of the unsatisfactory conditions of Shivajinagar from which she was elected. After taking tea, the respondent No. 4 produced a written paper before her and she was called upon to sign it. The petitioner alleges that she does not know reading or writing except making her signature as Gangabai. She has further alleged that believing in good faith on the representation and assurance of the respondent that she was signing an invitation for a party at the residence or one Mahadeo Kahalkar, the petitioner signed that paper
