A resignation by a councillor must be in accordance with the statutory requirements, and a letter of resignation addressed to the Commissioner instead of the Mayor is not valid and does not result in the seat falling vacant.

Dipak Misra, J.

1. Invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India the petitioner, Municipal Corporation, Bhopal through its Commissioner has prayed for issue of a writ of certiorari for quashment of order dated 28.12.1996, Annexure-P.1, passed by the State of Madhya Pradesh refusing to treat the seat of councillor of ward No. 42 to be vacant and further declare that the resignation tendered by the respondent No. 2 which bears endorsement of the respondent No. 3, the Mayor of Municipal Corporation, Bhopal as a voluntary act of tendering by the councillor, the respondent No. 2 herein, and hence operative and binding on the authorities concerned.

2. The brief facts leading to filing of this writ petition are that the respondent No. 2 was elected as a councillor from Ward No. 42 of the Municipal Corporation, Bhopal. As alleged in the petition she was unhappy with some of the actions taken by the Mayor of the Municipal Corporation for which she submitted her resignation on 31-8-1996 when the meeting of the councillors was going on. The letter of the resignation was addressed to the Commissioner of the Municipal Corporation. It is pleaded in the petition that it was personally handed over to the Mayor who had immediately made endorsement on the top of the resignation letter. According to the petitioner the factum of the resignation was released to the press by the respondent No. 2 herself. As per the provisions of the Municipal Corporation Act, 1956 (hereinafter referred to as 'the Act') intimation was sent to the State Government along with the original letter of resignation of the respondent No. 2. It is also pointed out that her resignation was accepted by the Council in its meeting dated 31.12.1996. Various newspapers clippings, the contents of resignation and certain photographs showing her handing over the letter of resignation have been brought on record. Certain facts have been narrated to show that the said respondent No. 2 has, in fact, handed over the resignation to the Mayor of the Corporation. It is pleaded that on 20th November, 1996 a letter was written by the State Government to the Mayor of the respondent No. 3 calling for a detailed report and the said letter was received by the Corporation on 26.11.1996. It is to be noted here that in her letter dated 9-10-1996 the respondent No. 2 which was communicated to the Under Secretary in Local Self Government it was mentioned that she had not tendered her resignation but had submitted a letter highlighting certain allegations. It is alleged that after the State Government called for a report it did not wait for the report and passed the impugned order on 28.12.1996, indicating that the councillor had not tendered her resignation as per the provisions postulated under the Act, and therefore, her seat could not be treated to have fallen vacant. It is further averred in the writ petition though the respondent No. 2 had addressed her letter of resignation to the Commissioner of Municipal Corporation, it was, in fact, handed over to the Mayor who had made an endorsement and, therefore, there has been due compliance of the provisions of Section 18 of the Act and the reason scribed by the State Government not to declare the seat as vacant are unsustainable in law.

3. A counter affidavit has been filed by the respondent No. 1 contending, inter alia, that the letter of resignation was a conditional one and was addressed to the Commissioner of the Municipal Corporation who is not the competent authority. It has been highlighted that the respondent No. 2 had indicated in her letter that if the Mayor of the Corporation did not resign she would resign. Thus, the stand of the respondent No. 1 is that the State Government on verification deemed it proper not to accept the resignation as it was addressed to the commissioner of the Municipal Corporation who is not the competent statutory authority.

4. A return has been filed by the re