Back
2009 Supreme(Bom) 1082
In the High Court of Bombay at Nagpur
THE HONOURABLE MR. JUSTICE B.P. DHARMADHIKARI & THE HONOURABLE MR. JUSTICE F.M. REIS
Sau. Laxmi w/o Vijay Verma – Appellant
Versus
The State of Maharashtra, through the Secretary, Urban Development Department & Others - Respondent
LETTERS PATENT APPEAL NO.349 OF 2009 IN WRIT PETITION NO.3167 OF 2009
Decided on : 26-08-2009
For the Appellant:A.M. Gorde with P.C. Madkholkar and Kasat, Advocates. For the Respondents:R1 to R3, S.S. Doifode, AGP, R4, R.S. Khojre, R5, P.C. Marpakwar, R6, A.S. Kilor & S.S. Shingne, Advocates.
Headnote:Maharashtra Municipal Councils, Nagar Panchayats and Industrial Township Act, 1965 - Sections 41(2) and 318 - Resignation of Councillor - Councillor not signed resignation before Collector - Writ petition by appellant, elected in by election in vacancies caused due to resignation of Councillor - Held - Provision of Section 41(2) of Act shows that resignation becomes effective automatically if conditions stipulated in fulfilled - No need of its acceptance by Collector - Office note prepared by Deputy Collector clearly mentioned that resignation presented before Collector and signature on resignation made before Collector - Appellant’s interest arose only after by election - Appellant not interested party under Section 318 of Act - Letters Patent Appeal dismissed. - Section 41 is as considered in writ petition and also as printed in Act Section of 1995 (1) Mah Law Journal and 2006 edition by State Government printing press. However in one commentary (Shanti Law House, Nagpur - 2003 edn.) the section reproduced uses the words - "signed before the Collector". Commentary of Nasik Law House (2000 edn.) shows the words "sign he before the Collector". But then basic scheme of Section 41(2) does not change because of this difference. Court accepts the wording as in Government printing press publication i.e. "sign before the Collector" Language of Section 41(2) is, in any case clear and unambiguous. The resignation of Councillor contemplated therein needs to be (i) by a notice in writing (ii) unconditional, (iii) such writing has to be in his hand, (iv) addressed to the Collector and (v) delivered in person. Said provision also shows that there is no need of its acceptance by Collector it becomes effective automatically if conditions stipulated in Section 41(2) are fulfilled. Apart from 5 conditions or ingredients mentioned above there is one most important requirement and it is of signing before the Collector. Only upon such singing before the Collector resignation will be effective. As the section uses the words "sign before the Collector" look at the use of tense in said section and its impact is called for. In the opening part may resign is used the while in concluding part "would" is used apart from this past tense is employed in "addressed" and delivered. These two words relate to act of drafting and submission of resignation. In this background, not using the word "signed" and use of work "sign" is very significant. The words and sign before the Collector" and mandate flowing therefrom separate that part of section from its earlier part. It also separates that process of putting sign from earlier part and indicates more weight attached by the Legislature to the act of putting sign before the Collector. It uses present tense to show that after complying with 5 steps mentioned above, there the candidate has to sign only before the Collector and not behind his back. No other inference is possible because of consequences of putting such sign provided in concluding part of said section 41(2). Upon such sign before the Collector only the document becomes an effective resignation and not otherwise. Thus mandate to put sign before the Collector is integrally connected with coming into force of resignation. As already stated above Collector is not expected by law to pass any order accepting the resignation.
In earlier part of said provision words "in writing" and "in his hand" are already used and those words otherwise are wide enough to comprehend signature also of such Councillor on resignation. In spite of this, Legislature has separately prescribed this signing in particular manner and has emphasized its importance by adding "and sign before the Collector" and "then only" such resignation will become effective. This deliberate separate emphatic prescription of mode and manner of putting sign with declaration of its effect is not superfluous. No part of that provision can be considered as a meaningless surplusage, when it is clear and in consonance with its other parts and expresses the specific intention. Use of present tense by employing word "sign" as against word "addressed and delivered" and not employing the word "signed" is deliberate and thereby, Legislature has mandated that resignation so tendered becomes effective only after Councillor signs it before the Collector. No sooner sign is put on such document i.e. incohate resignation by resigning Councillor before Collector it matures into a resignation and becomes effective. In other words till such signature is put by Councillor before Collector, resignation is not born. Tendering of a resignation already signed therefore does not meet requirement of this provision. If present tense is used it is also apparent that mere acceptance of or verification of signature already made will be against the spirit of the provision. Separate mention of procedure for putting such sign in particular manner is because of its co-relation with resignation becoming effective and any interpretation tending to defeat this arrangement deliberately made by Legislature cannot be accepted. By prescribing that Councillor has to resign in particular way and sign before Collector so as to bring it into life, a foolproof and self sufficient scheme has been provided by Legislature as there is no requirement of acceptance of such resignation or then there is no provision for its withdrawal. Under earlier Section 41 i.e. before 1994 amendment a Councillor could resign by tendering his resignation in writing to President and it becomes effective on its receipt by President. The change brought about in entire scheme by present Section 41(2) is thus eloquent and far reaching. Requirement of putting sign before a very superior and respectable representative of State Government like Collector i.e. a head of the district is to avoid any controversy in relation to such resignation and to put an end to unnecessary wastage of public money spent in holding fresh elections or by-election. Collector represents executive wing of State and is expected to be unbiased and impartial. It is obvious that Collector therefore plays important role in the matter and he has to find out whether resignation letter tendered to him meets all the requirements of Section 41(2). Verification by the Collector personally of these ingredients and watching Councillor sign on resignation will show that such Councillor was present before high ranking representative of State voluntarily in free atmosphere. When elaborate procedure deliberately made by the Legislature is complied with, its fulfilment will normally rule out any forcible or involuntary resignation Collector should first verify all other factors and then ask the candidate to sign the document of resignation and then himself put an endorsement thereafter that it has been so signed so as to put an end to all speculations possible in such matters. Collector will thus be honouring the faith put in him by the Legislature. Absence of signing before the Collector cannot bring into life the resignation letter which then remains only a piece of paper without any legal value. Such signing before the Collector by Councillor makes his resignation absolute and irrevocable. This stipulation of signing before Collector is thus deliberate, with some purpose and mandatory as also in public interest and not only for the benefit of Councillor intending to resign. It does not permit Collector to dispense with requirement of signing before himself because it is the soul of entire scheme. When he witnesses such signing then only the vacancy for holding by election under Section 48 of 1965 Act becomes available. Thus the entire democratic machinery and set up for holding fresh elections or then a by-election has to stand on this sign put by Councillor before the Collector. This mandatory requirement therefore can not be waived Councillor can not sign his resignation in any other manner.
Respondent No. 2 Commissioner found that resignation was not unconditional said authority has viewed it in the backdrop of earlier threat given by respondent No. 6 on 18.12.2008. The resignation letter dated 29.12.2008, however does not mention any condition. It only shows that proposals for development by respondent No. 6 were deliberately overlooked by municipal administration. It contains request to accept the resignation and therefore intention to resign flows from it. Single Judge has therefore rightly evaluated this letter dated 29.12.2008 in dependently as it is not eclipsed in any way by earlier communication. Though respondent No. 6 has contended that this was tendered by him to Deputy Collector and not to Collector and from office copy thereof retained by him tried to show that it was handed over to Deputy Collector who acknowledge its receipt by giving acknowledgement on said office copy, original resignation with respondent No. 3 Collector shows that original was tendered to him. In what circumstances, respondent No. 6 got acknowledgement from Deputy Collector is not very clear. Office note dated 30.12.2008, prepared by Deputy Collector at its top clearly mentions that resignation was presented before Collector. Said note also mentions that signature on resignation letter was made before Collector. But then appellant submitted before Single Judge that failure of respondent No. 6 to sign on resignation letter before Collector would not be very material as he admitted his signature on it. Respondent No. 2 Commission also found that this condition of signing before Collector was not satisfied in present matter. This finding and argument of present appellant in writ petition clearly cast a shadow of doubt on this office note dated 30.12.2008. In view of this position, it is not necessary for Court to go into question whether other conditions prescribed in Section 41(2) are fulfilled or not. Court finds that most cardinal condition which brings into force the resignation letter was observed in breach in present matter.
Next question its whether present appellant ought to have been joined as party to revision filed under Section 318 of 1965 Act by respondent No. 6. Said revision was already filed on 21.1.2009 and process of election commenced on 9.2.2009 when election programme for conducting by-election from Ward No. 8 was published. The communication dated 12.1.2009 forwarded by respondent No. 5 State Election Commission to respondent No. 4 Municipal Council shows that it carried the standard condition that by-elections were subject to all Court decisions in pending matters. In fact revision of respondent No. 6 was not pending on 12.1.2009. However election programme was published by respondent No. 3 Collector on 24.2.2009 and therein it mentioned that by-election from Ward No. 8 was subject to proceedings pending in Court. On 4.2.2009, Chief Officer of Principal Council had informed respondent No. 5 Election Commission about filing of revision by respondent No. 6. Thus revision was initially rejected by Commissioner on 25.2.2009, but then was restored for fresh consideration by High Court on 4.5.2009, and was allowed by Commissioner on 26.6.2009. The appellant was declared elected on 26.3.2009. She has been elected as president on 16.6.2009. It is therefore obvious that present appellant was all the while aware that her election as Councillor and therefore as president is subject to result of revision filed by respondent No. 6. Section 318 of 1965 Act confers revisional powers on State Government and its first provision casts obligation upon it not to vary or reverse any order unless notice is given to interested parties to appear and argue. In 1997 (supp) Bom CR 874 (SC) : 1995 DGLS (Soft) 745 : 1996 (1) Mh LJ 30 : 1995 (Supp.4) SCC 215 (Baby Samuel v. Tukaram Laxman Sable), Hon’ble Apex Court has found that when disqualification of president of Municipal Council under Section 44 of 1965 Act was set aside in appeal, the appellant disqualified candidate was entitled to be put back in same position in which he/she was before removal Appeal there was under Section 44(4) which contains the mandate that no order shall be passed against any Councillor without giving him a reasonable opportunity of being heard. Respondent Tukaram was elected as president during pendency of this appeal and he had approached High Court contending that before allowing appeal of Baby Samual he should have been heard. This grievance did not find favour with Hon’ble Apex Court. This law has been applied by Division Bench of the High Court in paragraph 30 of judgment in case of Javed s/o Sheikh Mustaque Patel v. State of Maharashtra, reported in 2009 (3) Bom CR 719 (NB) : 2009 (3) All MR 40. The judgment of Single Judge of Hon’ble Rajasthan High Court reported at AIR 2009 Raj 109, (Smt. Vimala Vyas v. State of Rajasthan), is also sought to be relied upon. There a member allowed to hold charge of chairperson was not allowed to join writ petition filed by petitioner challenging his removal as chairman of Municipal Board after concluding that validity and legality of order of removal was essentially a matter between petitioner and State Government. In 1992 DGLS (Soft) 172 : AIR 1992 SC 1277 (State of H.P. v. Kailash Chand Mahaja), while considering issue of necessary party in writ petition in paragraph 100, Hon’ble Apex Court noticed that Chairman of State Electricity Board was challenging Ordinance and Act fixing age of superannuation of member of Board depriving him of his further continuance in post. Appointment of one Chouhan in his place consequent to suspension of Chairman had been stayed by High Court "till further orders". It was held that failure to implead Chouhan would not affect maintainability of writ petition as said chairman was not seeking any relief against him. The appellant cannot enlarge that subordinate interest and it cannot militate with cause and case of respondent No. 6. She had not independently defended acceptance of resignation of respondent No. 6 by Collector in any capacity and her interest arose only after by-election was notified and she got elected. She was therefore not an interested party under Section 318 of 1965 Act.
B.P. Dharmadhikari, J.
1. Considering the nature of controversy, we have heard parties finally. Resignation letter dated 29/12/2008 submitted by present respondent No. 6 is found to be not signed by him in presence of respondent No. 3 Collector and, therefore, not in conformity with provisions of Section 41 (2) of Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965; hereinafter referred to as 1965 Act. This finding recorded in favour of respondent No. 6 in his statutory revision by respondent No. 2 Additional Commissioner Amravati has been maintained by learned Single Judge in Writ Petition No. 3167 of 2009 vide judgment dated 6/8/2009. That writ petition was filed by present Appellant who came to be elected in by-election in vacancy caused because of acceptance of said resignation by respondent No. 3 Collector and she has been later on elected as President of respondent No. - 4 Municipal Council.
2. Before proceeding further it is advantages to reproduce above section 41 here.
"41. Term of office of Councilors.
(1). The term of office of the Councilors shall be Co-terminus with the duration of the Council.
(2). A councilor 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 would be effective."
3. Learned Single Judge has found that resignation letter in dispute was unconditional and it was also delivered in person. Though it was a computer printout as it was bearing signature in original, condition that said letter must be "in writing in his hand" is held to be only directory. It is also found that it has been delivered to Collector but then, as it was not signed before Collector that is respondent No. 3, it did not satisfy the mandatory requirement and hence could not become effective. It is this finding which is being assailed before us by the Appellant, who was petitioner before learned Single Judge.
4. In this background, we have heard Advocate A.M. Gorde with Advocate P.C. Madkholkar and Advocate Kasat for Appellant, Advocate Kilor for Respondent No. 6, Shri Doifode, AGP for Respondent Nos. 1 to 3, Advocate Shri Khojre, for respondent No. 4 and Advocate P.C. Marpakwar for Respondent No. 5.
5. Advocate A.M. Gorde for Appellant has, after narrating the facts, pointed out the limited nature of controversy involved and has contended that learned Single Judge was not right in concluding that respondent No. 3 Collector did not discharge his statutory obligation in the matter. He argues that intention to resign declared well in advance by respondent No. 6, preparation of resignation letter by him, its delivery to respondent No. 3 personally by him, its being unconditional, existence of his own signature on it are all the facts which are proved on record and only because of conclusion that said resignation letter was not signed by respondent No. 6 before the Collector, its acceptance is found to be vitiated. He states that when the condition of such letter being "in writing in his hand" is held to be only directory, different yardstick could not have been applied to requirement of signing before collector. In the present circumstances, the said requirement is substantially fulfilled and view of respondent No. 2 about its breach as upheld by learned Single Judge is unsustainable. Without prejudice to this contention, he argues that the safeguards provided for in Section 41 (2) of 1965 Act are only in the interest of respondent 6 and hence, even if the same I held to the mandatory, it is open to said respondent to waive it. He argues that respondent No. 6 has not demonstrated any prejudice because of non-fulfillment of this particular condition. He has relied upon certain precedents to substantiate his arguments and we find it appropriate to refer to the same little later.
Advocate A.M. Gorde has also contended that after Collector received the
