1987 Supreme(Bom) 112

IN THE HIGH COURT OF BOMBAY
C.S. Dharamadhikari V.S. Kotwal, JJ.
Kumudini Ratilal Bhagat (Sou.) others.... Petitioners.
Versus
State of Maharashtra others.... Respondents.
Writ Petition No. 3663 of 1985, decided on 12-3-1987.
Advocates appeared :
Navin B. Shah, for petitioners.
V.A. Gangal, A.G.P., for respondent Nos. 1 2.
P.D. Kamerkar, for respondent No. 3.
D.R. Ajgaonkar, for respondent Nos. 4 5.

Headnote:Sections 29 & 145 (1-A)-Dissolution of Panchayat-Appointment of Administrator - Writ against-Tendering of resignation by certain elected members of village Panchayat-Those members withdrawing resignations before the same were placed before next Panchayat meeting-Held-Resignations would still remain in nebulous form till meeting is called or even till meeting is held and concluded on scheduled date -Till then member would be within his rights to voluntarily withdraw said resignation-Hence order of dissolution of Panchayat passed order Section 145 (1-A) liable to be quashed.

       There is yet another prominent shade serving as a pointer, namely, that if the resignation is voluntarily withdrawn by the concerned member even before the meeting is actually convened and held, then in reality there is no resignation as such in existence which would be required to be placed before the said meeting as prescribed under sub-clause (3) and if that be so, then logically there would not arise any question about the said resignation to become effective at all because that feature would remain in vacuum. In that event an occasion for the further consequences would not arise at all. This in our opinion is quite formidable pointer in favour of the view that we are inclined to take is this matter.

       On the rational basis some reasonable period for rethinking is necessary to be allowed especially when there is no prohibition in the provision unlike some other statutes. One can easily go thus far to enunciate that having regard to the scheme of the said provisions along with the legislative intent behind the same and in the context of the various clauses enveloped in that provision, the resignation tendered by a member may not become effective until at least that meeting is called and even until such resignation is placed in that meeting. In other words, it would still remain in that nebulous form till the meeting is called or even till the meeting is held and concluded on the scheduled date and as a logical rider corollary it would follow that till then the member would be within his rights to voluntarily withdraw the said resignation. This in our opinion would be the minimum that can be safely arrived at on the premise of this harmonious construction of these provisions.

       In this view of the matter in the context of the facts of the instant case it would not be necessary to undergo any exercise of considering much less to adjudicate upon the larger issue already indicated relating to the question about the permissibility of further flexibility of time element within which the resignation would become effective and the member could withdraw the same and if so how far it can be extended even after such meeting is not only convened but held and concluded. Both the learned Counsel canvassed their respective contentions in this filed. Thus for instance Shri N. B. Shah submitted that it could be so permissible on the basis of clause (6) alone synchronising the period upto seven days after meeting in case of no dispute or otherwise as contemplated by other sub-clauses of clause (6) if there is a dispute about the genuineness of the resignation. Shri Kamerkar and Shri Gangal, the learned Counsel for the respondents, did endeavour to maintain that such resignation would become effective even before such meeting is convened which contention, however, we have already rejected. Alternatively, however, they submitted that in any event it cannot be extended beyond the conclusion of such meeting and that the period of seven days has no nexus for giving effectiveness to the resignation but it is prescribed for the specific but limited purpose for adopting the further course of referring the dispute to the Collector and according to them not giving further time after the Commissioners decision in appeal is a further pointer in favour of that view. These contentions as raised even on behalf of the respondents would obviously require anxious consideration as they are capable of generating a legitimate debate. However, on the facts of the instant case entering into that debate and resolving the said controversy has become un-necessary, more so, since this point does not directly arise in this case. As such it would not be proper much less necessary to express any opinion in that behalf.

       In conclusion, therefore, on the facts as established in the instant case the petitioners stand on still stronger footing. There is no dispute about the genuineness of the resignations as also about the genuineness of their withdrawal. As stated, the said three points of time are firmly established and what is of more importance is that the genuiness and voluntariness of the withdrawal of those resignations as also the correctness of the date on which those were withdrawn is not even remotely doubted and thereby firmly establishing that these four petitioners have admittedly and genuinely withdrawn their resignations even before the meeting was held and as stated there thus did not arise any question of placing any such resignations in that meeting. The withdrawal of the resignations before the date of the meeting has been referred to even by the Chief Executive Officer in his report to the Commissioner. Consequently, therefore, these four petitioners were within there right to voluntarily withdraw the said resignations even before the said meeting was held as by then the said resignations had not become effective. The inescapable result, therefore, is that these four members are deemed to have been continued to be the members of the Panchayat as if they had not resigned at all. The further result, therefore. is equally inescapable that the action taken by the authorities in resorting to the provisions contained in Section 145 (1-A) of the Act which proceeded on the erroneous footing that these members had resigned and the resignations had become effective almost immediately itself falls on the ground: Consequently, therefore, the impugned order dated July 9, 1985 under which the Panchayat was dissolved and the consequential order of appointment of the Block Development Officer as the Administrator of the Panchayat will also have to be quashed.

       Sections 29 (2) and 145 (1-A)-Resignation tendered by member of Panchayat to Sarpanch- Withdrawn before it could be placed in the next meeting of Panchayat -Resignation can not be said to have been effective.

       In some such cases which are illustrative, the person concerned by the act of his volition can himself prescribe a future date of making the resignation effective if the statute does not prohibit so. On par with the same principle, in some cases in the context of the relevant provisions, the statute itself may postpone such date of making the resignation effective. Only the agency is changed but the resultant consequence may be identical. In both such categories, in the absence of any mandate or prohibition in the context of the scheme of the relevant provision, once resignation is made permissible to take effect at a future date, implicit would be the power to withdraw it before the said future point of time is reached. The real question therefore, would obviously relate to the span of time upto which the flexibility can be extended so as to make such resignations effective on the premise of the provisions contained in Section 29 of the Act. This however, would be the larger issue. On the uncontroverted facts of the case at hand the question would really fall in a further narrower and restricted field as to whether the resignations which are admittedly withdrawn even before the next following meeting was held could still be held to have become effective and thereby whether the petitioners could legitimately withdraw the said resignation in between.

       The scheme under Section 29 of the Act is already analysed. No doubt it does not incorporate within its fold the necessity of accepting the resignation by any authority or even in the meeting of the Panchayat held under sub-clause (3). Making the resignation effective has obviously made contingent on some time element in the context of certain events as stipulated in various clauses of the said provision. The prominent land mark would be the obligation placed on the Chairman to place such resignation through the Secretary in the meeting of the Panchayat next following. Though it may be that it does not prescribe any power vesting in the Panchayat either to accept or reject such resignation in such a meeting, still the convening of such meeting which must be with some purpose has been made obligatory.

       In the chronological order first the resignation is given whereafter the meeting is converted whereafter certain contingencies are contemplated, including the challenge made by the member to the genuineness of such resignation. The concept of genuineness and the dispute about the same would have multifold facts and could not be restricted only to one or two items such as the document is forged for instance a person may have some justification to contend that the resignation was forced from him or that a document purporting to be such resignation which was really intended for different purpose in a different situation has been misused. This apart, as stated after receipt of such resignation a necessity immediately arises, to convene the next following meeting and it is in that meeting that such resignations are to be placed before the members. As indicated, one of the reasons which can be reasonably visualised would be to avoid any secrecy or dispel and doubt and to make it a matter of record which would be also necessary for the knowledge and information of everyone even including the member concerned and as indicated earlier, the purpose also would have some relevance about giving effectiveness to the resignation. Upto this stage everything goes on one track whereafter there is some diversion in the sense that if the member wants to raise any dispute he has to adopt the course as prescribed and then the procedure and consequences are to be followed. The provisions of sub-clause (6) have their own relevance which is already discussed. However, even if some of those provisions relating to the events that occur after convening the said meeting as prescribed in sub-clause (3) are kept aside from consideration, still the fundamental fact about obligation to call the meeting and to place such resignation in that meeting which remains intact has a firm basis and also a specific purpose. As indicated, in the absence of any prohibition under the statute when giving of a resignation can be an act of volition then implicit therein would be a right inherent in such a person to withdraw the resignation of his own volition. As stated, in contrast to the earlier provisions in some other Acts the legislature did not make the resignation irrevocable the moment it is received by the Sarpanch. At least the span between the receipt of such resignation and the convening of the meeting next following has been obviously kept flexible and in our opinion this span of time or period is not capable of granting any controversy though as to whether such flexibility can be extended beyond that period once the meeting is held is capable of generating a debate. Though there is no provision either to accept or reject the resignation for its effectiveness, certain filed is left open. Even sub-clause 6 (a) indicates that in case there is no dispute about the genuineness the said resignation should be deemed to take effect seven days from the date on which it is placed in such a meeting. Leaving aside the controversy sought to be raised about the purpose of this period of seven days which according to Shri Kamerkar, the learned Counsel, as stated earlier, relates and restricts only to the time element for giving an opportunity to the member concerned to move the Collector in case he has a dispute about the genuineness of the resignation, still upto the point of time when the meeting is called by the Sarpanch once he received the resignation and even upto holding of such a meeting the resignation cannot be said to have become effective and if that be so then the right to withdraw such a resignation can well be exercised by such a member at least till that point of time. It may be that in some cases the resignation is tendered by a member on account of some misunderstanding or misreading of certain facts which he realises after tendering the resignation but before it is placed before the said meeting or extending further may be in a given case in such a meeting certain explanation may be tendered by the members or even the Sarpanch which may remove such misunderstanding or which may make the members to realise that there was no justification for giving the resignation. Exhaustive list of contingencies obviously cannot be prescribed.

       There is yet another prominent shade serving as a pointer, namely, that if the resignation is voluntarily withdrawn by the concerned member even before the meeting is actually convened and held, then in reality there is no resignation as such in existence which would be required to be placed before the said meeting as prescribed under sub-clause (3) and if that be so, then logically there would not arise any question about the said resignation to become effective at all because that feature would remain in vacuum. In that event an occasion for the further consequences would not arise at all. This in our opinion is quite formidable pointer in favour of the view that we are inclined to take in this matter.

       Therefore, on the rational basis some reasonable period for rethinking is necessary to be allowed especially when there is no prohibition in the provision unlike some other statutes. One can easily go thus far to enunciate that having regard to the scheme of the said provisions along with the legislative intent behind the same and in the context of the various clauses enveloped in that provision, the resignation tendered by a member may not become effective until at least the meeting is called and even until such resignation is placed in that meeting. In other words, it would still remain in that nebulous form till the meeting is called or even till the meeting is held and concluded on the scheduled date and as a logical rider corollary it would follow that till then the member would be within his rights to voluntarily withdraw the said resignation. This in our opinion would be the minimum that can be safely arrived at on the premise of this harmonious construction of these provisions.

       In this view of the matter in the context of the facts of the instant case if would not be necessarily to undergo any exercise of considering must less to adjudicate upon the larger issue already indicated relating to the question about the permissibility of further flexibility of time element within which the resignation would become effective and the member could withdraw the same and if so how far it can be extended even after such meeting is not only convened but held and concluded. Both the learned Counsel canvassed their respective contentions in this field. Thus for instance Shri N. B. Shah submitted that it could be so permissible on the basis of clause (6) alone synchronising the period upto seven days after meeting in case of no dispute or otherwise as contemplated by other sub-clauses of clause (6) if there is a dispute about the genuineness of the resignation.

       In conclusion, therefore, on the facts as established in the instant case the petitioners stand on still stronger footing. There is no dispute about the genuineness of the resignations as also about the genuineness of then Withdrawal. As stated, the said three point of time are firmly established and what is of more importance is that the genuineness and voluntariness of the withdrawal of those resignations as also the correctness of the date on which those were withdrawn is not even remotely doubted and thereby firmly establishing that these four petitioners have admittedly and genuinely withdrawn their resignations even before the meeting was held and as stated there thus did not arise any question of placing any such resignations in that meeting. The withdrawal of the resignations before the date of the meeting has been referred to even by the Chief Executive Officer in his report to the Commissioner. Consequently therefore, these four petitioners were within their right to voluntarily withdraw the said resignations even before the said meeting was held as by then the said resignations had not become effective. The inescapable result, therefore, is that these four members are deemed to have been continued to the members of the Panchayat as if they had not resigned at all. The further result, therefore, is equally incapable that the action taken by the authorities in resorting to the provisions contained in Section 145 (1-A) of the Act which proceeded on the erroneous footing that these members had resigned and the resignations had become effective almost immediately itself falls on the ground. Consequently, therefore, the impugned order dated July 9, 1985 under which the Panchayat was dissolved and the consequential order of appointment of the Block Development Officer as the Administrator of the Panchayat will also have to be quashed.