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 and signed it in the usual way of her signature, namely, by putting the name Gangabai only.
6. The petitioner further alleged that on 23-9-1987 a notice of a special meeting was issued to all the Councillors of the Municipal Council and an item on the agenda was consideration of the resolution to pass a motion of no-confidence against the Vice President, A copy of that notice has been annexed to the petition. The petitioner however did not receive any such notice. The meeting was convened for 28-9-1987 to consider this resolution. As the petitioner did not receive a notice, the petitioner be came suspicious about the conduct of the respondents Nos. 1 and 4 and other persons and according to her, she sent a telegram on that date on 23-9-1967 demanding why she had not received the agenda of the special meeting fixed for 28-9-1967 and why her name as a councillor of the municipal council was omitted from the notice. No reply was received to this telegraphic communication from the respondent No. 1. On 24th September 1967 a news item appeared in a daily paper published in Nagpur called 'Navabharat' saying that the petitioner had tendered resignation of her office as councillor of the municipal council to the president. The petitioner, therefore, made a re port about the matter to the police and also to the Collector, Bhandara, on 24th September 1967. A copy of the report made to the Station Officer and a copy of the com plaint in writing addressed to the Collector are filed with the petition. The copy of the complaint to the Collector is dated 28-9-1967 and the application purports to be one under Section 308 of the Act for suspending the meeting and further proceedings of the meeting of the municipal council to be held on 28-9-1967. In paragraph 2 of this application to the Collector, the petitioner has stated that it was impossible for her to submit resignation much less to think of leaving the post or councillor which she got after a bitter struggle, that some fraud was played and she reserved her right to file further particulars after the documents are filed in this connection, that the meeting called for considering the no-confidence motion against the vice-president is illegal and unlawful, and, therefore, she requested that the meeting convened for 28-9-1967 be suspended by directing the president and other persons concerned till the decision of her application. It appears from the documents filed by the petitioner that it became known that the petitioner was not issued a notice because she was supposed to have resigned her office as councillor, and when this explanation became known, there was considerable commotion and representations were made by different categories of per sons to several authorities. The petitioner has filed copies of the representations made to the Governor, the Chief Minister, the Home Minister, the Police authorities and other persons.
7. The meeting was held as scheduled on 28-9-1967. At this meeting a question was raised as to why the petitioner was not noticed, and on this query, the president is alleged to have explained that the petitioner was no longer a councillor of the municipal council. Thereafter, the member walked out of the meeting and the remaining members passed a resolution of no-confidence against the vice-president,
8. As the petitioner did not get any relief from any of the authorities, she filed this petition on 13-10-1967 in this Court and claimed the reliefs to which we have already adverted.
9. Returns have been filed on behalf of the respondent No. 1, the president, and also the respondents Nos. 4 and 5.
10. The respondent No. 3, the Collector, has also filed a return. With regard to the allegations in paragraphs 6, 7 and 8 of the petition, the Collector states that they do not concern him and he does not want to traverse these allegations. With regard to paragraph 9 of the petition, the Collector has stated that the petitioner had sent a copy of her application dated 24-9-1967] addressed to the Station Officer, Tumsar, to the Collector, that the petitioner was not allowed to enter the hall to attend the meeting convened on 28-9-1967 and the Collector was aware that she had made a com plaint about it to higher authorities. It appears that the petitioner was removed from the place of the meeting on her refusal to obey the direction to go away because of mounting tension. The Collector has also admitted in paragraph 6 of the return that the petitioner had made an application to the Collector and prayed for stay, that the Collector thereupon asked for a report from the President, Municipal Council, as the Collector felt that the report from the president was necessary before any order could be passed on that application, and that the report was received from the president on 30-9-1967 by which time the meeting scheduled on 28-9-1967 was already held and, therefore, there was no question o granting stay. The Collector had admitted that on receipt of the report from the President, the Superintendent of Police, Bhandara, was asked to report the result of the investigation already started on the report made to the police by the petitioner. In paragraph 9 of the return, the Collector has stated that it was not necessary to hold any inquiry about the authenticity or the true character of the resignation before it was accepted. The Collector has admitted that the resignation on which action is taken has to be a genuine document, but the resignation, according to the Collector, became effective as soon as it was received by the president and the councillor ceased to hold office. In paragraph 10, the Collector has stated that it was not correct that the petitioner continued to be a councillor till the vacancy is filled up by the appropriate procedure. According to the Collector, the petitioner ceased to be a councillor as soon as the resignation was received by the president.
11. One of the reliefs asked for by the petitioner in this petition among others is a direction to the respondent No, 3, the Collector, not to treat the petitioner as having ceased to be a councillor.
12. In the course of the arguments, it is suggested that the Collector was bound to hold an inquiry before he could decide whether a vacancy had occurred and whether there was necessity of holding an election for electing a new councillor from the ward from which the petitioner was elect ed. It is admitted that no such inquiry has been held and it is common ground that the Collector had issued instructions for holding an election of a councillor from Ward No. 21 from which the petitioner was elect ed. It is stated on behalf of the respondent No. 3 that as soon as the notice of the writ in this Court regarding this petition was received, no further steps have been taken for holding the election.
13. In our opinion, it is not necessary for this Court to adjudicate on the com plaint of the petitioner whether she has validly and properly tendered resignation of her office and whether the communication dated 23-9-1967 amounts to a valid resignation of the office by the petitioner, We have come to the conclusion that in view of the provisions of Sections 41 and 48 of the Municipalities Act, Rule 63 of the Maharashtra Municipalities Election Rules, 1966, it is the Collector who is the competent authority to decide whether a vacancy has occurred in the office of a councillor on account of the resignation of his office given by that councillor. How this is so is to be considered by reference to certain provisions of the Municipalities Act.
14. Under the scheme for projecting the municipal councils to be constituted under the new Municipalities Act, the Municipal Council is to be composed of elected, co-opted and nominated members. The mode of election of councillors is provided in Sections 10 to 17. Section 18 provides for nomination of a councillor in a specified contingency and that contingency arises if at a general election or by-election no councillor is elected from any ward, and if there is a failure to elect a councillor at a fresh election by the electorate, then such a vacancy can be filled by nomination of a duly qualified person by the State Government. It is only in such a contingency that a person can be nominated as a councillor by the State Government. Provision is made for co-option of members under Section 31 (6). Section 19 requires the names of elected members to be published in the official Gazette and in certain contingencies the name of a nominated councillor is also required to be published in the official Gazette, Similarly, under Section 20, the names of co-opted councillors are also required to be published by the Collector in the official Gazette. Section 21 provides for resolution of disputes in respect of election, co-option or nomination of councillors. A special feature of the legislation is that it provides for an election dispute being raised even in respect of a co-opted member,
15. The terra of office of councillors is provided for in Section 40, and the terra of office is deemed to commence on the date of the meeting after the general election held to elect the president and the vice-president under Section 51. The term of office of a nominated councillor is to commence from the date of the meeting also, unless he is nominated under the contingency provided in Sub-section (2) of Section 18. Then follows Section 41 regarding resignation of councillors and that section is as follows:--
'41. (1) A councillor may resign his office by tendering his resignation in writing to the president.
(2) Such resignation shall be effective on its receipt by the president,'
16. Section 42 makes provision for circumstances in which a councillor may be removed from office. Under Section 44, provision is made about disqualification of councillors and the consequences of either having such disqualifications or becoming disqualified after he enters upon his office as a councillor. We may notice here the provisions of Sub-section (3) of Section 44 which expressly invests a power in the Col lector to give a decision whether on his own motion or on an application made to him, regarding a councillor having incurred a disqualification or become disabled from being a councillor. Special provision for defaulting councillors who incur a disqualification for failure to pay taxes is provided in Section 45, and so far as this provision is concerned, procedure is provided for having the question of adjudication of such a councillor being a defaulter or otherwise in Sub-sections (4) and (5). Section 48 deals with casual vacancies and the manner in which they are to be filled up. That section is as follows:--
'48. (1) Where a vacancy occurs through the non-acceptance of office by any elect ed, co-opted or nominated councillor Or such person being disqualified for becoming or continuing to be a councillor or any election being set aside under the provisions of Section 21 or the death, resignation, removal or disability of a councillor previous to the expiry of his term of office, the vacancy shall be filled by a by-election or co-option or nomination according as the councillor was elected or co-opted or nominated;
Provided that no by-election shall be held or co-option or nomination made to fill up a vacancy occurring within four months prior to the date on which the term of office of the councillors of the council expires. (2) The Chief Officer shall report to the Collector every vacancy in the office of a councillor within fifteen days of the occurrence of the vacancy or within fifteen days of his becoming aware of the vacancy, whichever is later,'
17. A perusal of Section 48 will show that when a vacancy occurs, among other grounds, by reason of resignation of a councillor, the vacancy is to be filled by a by-election if the resigning councillor was an elected councillor. It is common ground that the procedure for holding a by-election is the same as that for holding an election of a councillor. Special provision has been made in Section 48 enjoining a duty on the Chief Officer to report to the Collector every vacancy in the office of a councillor within a fortnight of the occurrence of the vacancy or within fifteen days of his becoming aware of the vacancy.
18. We may now consider the relevant provision in the rules framed by the State Government, for holding elections. These rules are called the Maharashtra Municipalities Election Rules, 1966. Rule 63 of these Rules is material and relevant. That rule is as follows:--
'Casual vacancies,--Whenever a report is received by the Collector from the Chief Officer under Sub-section (2) of Section 48 of a vacancy in the office of councillor, the Collector shall fix a date, as soon as conveniently 'may be, for holding bye-election to fill the vacancy and the provisions of these rules shall thereupon mutatis mutandis apply accordingly.' It is thus obvious that the Rule 63 of the Election Rules casts a statutory duty on the Collector to fix a date for holding a by-election as soon as he receives a report under Section 48 (2) about the vacancy having occurred in the office of a councillor. In other words, this duty is required to be performed by the Collector only when a vacancy has occurred in the office of a councillor but not otherwise. The duty to report about a vacancy having occurred is not the sine qua non for the Collector to exercise his power under Rule 63 but the condition precedent for exercise of that power or performance of the duty is the occurrence of the vacancy. Vacancy in this context must mean a lawful and valid vacancy in the office of the councillor and such a vacancy is brought about by one or several modes to which reference is made under Section 48. A vacancy in the office of a councillor may occur either by--
(1) non-acceptance of office by an elected councillor; or
(2) such person being disqualified for becoming or continuing to be a councillor, or
(3) the election of the councillor being set aside under the provisions of Section 21; or
(4) the death of the councillor; or
(5) the resignation of the councillor; or
(6) the removal of the councillor; or
(7) the disability of the councillor to continue in office.
Whether the vacancy occurs by reason one or the other circumstances enumerated in Section 48 of the Act, no by-election can be held unless there is a vacancy in the office.
19. If the power of the Collector to hold a by-election to the office of a councillor is thus made to depend on there having occurred a vacancy in the office of such a councillor in our opinion, it is implicit in this that the Collector should be satisfied that in fact and in law a vacancy has occurred in the office of the councillor. In other words, the Collector cannot exercise his power of holding a by-election under Rule 63 which he is enjoined to do, unless the Collector is satisfied that there has been a lawful vacancy in the office of the councillor concerned. It cannot, therefore, be' said that it is the report of a vacancy having occurred which the Chief Officer is required to give under Section 48 (2) which furnishes a cause of action or ground for the exercise of the power under Rule 63 but it is the occurrence of a valid vacancy in the office of a councillor from which springs that power. The power is to be exercised as soon as there is a valid vacancy in the office of a councillor but the power cannot be exercised unless there is a valid vacancy in that office. Thus, there is a twofold obligation on the Collector in exercise of his powers under Rule 63 of the Election Rules.
20. It was urged by the learned counsel on behalf of the Collector that there being no express power in the Collector to hold an inquiry whether a vacancy has lawfully occurred in the office of a councillor, the Collector cannot be expected under the scheme of the statute or the rules to exercise such powers. It is argued that in contrast to the contingency of a vacancy occurring on the resignation of his office by a councillor, power is given by the Legislature itself when a vacancy occurs on account of a councillor having incurred a disqualification under Section 44, or the election, co-option or nomination of a councillor is challenged under Section 21. In other words, what is urged is a specific machinery for adjudication of the validity of a vacancy having occurred in the office of a councillor as provided under Sections 44 and 21, and if the Legislature did not think it necessary to make a like provision for adjudication regarding the vacancy occurring in the office of a councillor by reason of death or resignation or under other circumstances, then such a power cannot be read in the duty under Rule 63 coupled with the provisions of Section 48 to hold a by-election in case of a vacancy occurring in the office of a councillor.
21. A somewhat similar situation arose under the provisions of the Bombay Village Panchayats Act, 1959, and the matter was heard by a Division Bench of this Court to which one of us (Abhyankar J.) was a party in Ramkrishna v. Secy., Village Panchayat, Borjai, : AIR1967Bom334 . In that case, a motion of no-confidence was passed and the question was whether a vacancy had occurred in the post of the office-bearer against whom the motion of no-confidence was alleged to have been passed. Section 43 of the Bombay Village Panchayats Act makes provision for filling up of vacancies and that section is as follows:--
'43. (1) Any vacancy of which notice has been given to the Collector in the prescribed manner due to the disablement, death, resignation, disqualification, absence without leave or removal of a sarpanch or upa-sarpanch or member shall be filled by the election of a sarpanch or upa-sarpanch or member who shall hold office so long only as the sarpanch, upa-sarpanch or member, in whose place he has been elected, would have held office if the vacancy had not occurred:
Provided that if no member is so elected within two months from the date on which notice of the vacancy is given to the Collector the Standing Committee shall, as soon as possible, appoint a person who is qualified to be elected, and the person so appointed shall be deemed to have been duly elected under this Sub-section:
Provided further that notwithstanding anything contained in Section 10, if the vacancy occurs within four months preceding the date on which the term of office of the members of the panchayat expires under Section 27, the vacancy shall not be filled. (2) The meeting for the election of a sarpanch under Sub-section (1) shall be convened by the Collector in the manner described in Sub-section (1) of Section 33.'
22. The question that arose was whether the Collector could perform his duty on receipt of a notice of vacancy having occurred on account of the removal of an office-bearer by passing of a motion of no-confidence and the Collector was competent to adjudicate on the validity of such action. This Court observed in paragraph 6 (of Mah LJ) = (Pr. 6 of AIR) of that decision as follows:--
'There is no provision in the Act under which the validity of a motion of no-confidence, alleged to have been passed against an office-bearer, or a member of the Village Panchayat, can be challenged as is possible when an election to an office is challengeable by an election petition. In our opinion, however, the provisions of Section 43 itself postulate that the authority to whom notice of vacancy is required to be given by the Secretary is invested with the power to determine whether the notice that is given to him is a valid notice and is in respect of a valid vacancy having been caused. It is difficult to construe the provisions of Section 43 of the Act as if the Collector is merely required to work as a machine or post office to hold election to an office purported to have fallen vacant, the moment he receives a communication to that effect from the Secretary. In numerous cases that have coma to this Court, it is obvious that allegations are frequently made about the validity of the meeting at which a motion of no-confidence is alleged to have been passed, about the sanctity of the proceedings themselves, about the signatures of members who are alleged to have recorded their votes, about the presence of the members, about giving and not giving adequate opportunity to the person concerned to explain the charges brought against him in the motion of no-confidence and further questions of facts which would invalidate the proceedings, and consequently the efficacy of the motion of no-confidence on the basis of which a notice is required to be given by the Secretary of the occurrence of the vacancy to the Collector. The Legislature, in our opinion, having admittedly chosen the Collector as the person to whom notice of the vacancy has to be given and as the authority which should take steps to hold fresh elections for filling the vacancy if validly occurred, must be intended to invest the Collector with all the implied powers in determining about the validity of the notice and also the validity of the resolution which occasioned the giving of such a notice. We are fortified in this view not only because there is no other provision in the Act whereby a person against whom a notice of no-confidence is alleged to have been passed, can seek redress, but also because under the proviso the Standing Committee of the Panchayat is empower-ea to make an appointment to office of a member which is alleged to have fallen vacant if an election is not held within two months from the date of the notice of election given to the Collector. Cases have sometimes come before this Court where the Secretary whether by design or by mistake failed to give notice, and in that contingency the Standing Committee is empowered to fill in the post by appointment.' 23. In our opinion, the situation arising under the provisions of the Municipalities Act under Section 48 is not different and the duty to hold a by-election on the ground that there has been a resignation of the office by a councillor must imply a duty to be satisfied that there has been a valid vacancy on account of a valid resignation. It is true that the Legislature considered it necessary to make specific provisions for inquiry into disqualifications resulting in unseating of a councillor under Section 44 or to provide for a special machinery by way of election petition to challenge the initial election, co-option or nomination of a councillor; we are not inclined to agree with the contention that those are the only two contingencies in which an inquiry need be made. If it is correct to say that there can be no by-election unless there is a vacancy in the office of a councillor, then we must find some authority within the Act itself or the rules competent to decide whether there has occurred a vacancy in the office of a councillor. So far as the vacancy occurring as a result of resignation is concerned, Section 41 makes no provision giving any discretion to the president either to accept or not to accept the resignation. The resignation, according to Section 41, Sub-section (2), becomes effective on its mere receipt by the president. Therefore, there is no means at that stage, even if the president were so inclined, to find out whether the resignation is genuine, bona fide, valid or otherwise in conformity with the provisions of law. When a piece of paper is brought to the president purporting to be a resignation of a councillor, possibly the president acts as a matter of course receiving it as he must receive any other paper addressed to him, and as soon as such a communication is received, it has the legal effect of the resignation being effective. In our opinion, the Legislature could never have intended that in case of a dispute arising or a doubt arising whether a person who has achieved franchise and had acquired the status of a councillor has, in fact tendered resignation of his office, no machinery should exist to adjudicate when such a question or doubt is raised. That adjudication is possible under the provisions of the Act and the rules when the question of a by-election on account of the alleged tender of resignation arises. The duty to hold a by-election having been cast on the Collector, the Collector in his turn must be satisfied on proper inquiry that in fact the office of the councillor has become vacant by a valid resignation.
24. We are not inclined to accept the contention that the Legislature not having provided specifically as it has done under Section 21 or Section 44 of the Municipalities Act for an inquiry or adjudication on the validity of a resignation alleged to be given by a councillor, it should be held that it was not the intention of the Legislature that any such inquiry or adjudication should be made. As is observed in the previous decision arising under the Bombay Village Panchayats Act, the Legislature takes care to make provisions which are self-contained. Even having made provision for certain contingencies which normally arise, such as incurring of disqualification either before or after the election, so as to affect the right of a councillor to continue as a councillor disputes about election, Co-option, or nomination which are fairly common in a democratic election, the duty to fill in an office which has become vacant because a councillor is alleged to be dead or to have resigned must also involve and imply a duty to be satisfied by independent authority that the office has in fact become vacant. If the Collector is that authority, we see no reason why the Collector should be considered powerless to exercise this function. In our opinion, therefore, the provisions of Section 48 read with Section 41 of the Act and Rule 63 of the Election Rules sufficiently warrant the conclusion that in case a vacancy alleged to have occurred in the office of a councillor on account of resignation is challenged either by the councillor concerned or at the instance of any one competent to make such a challenge, and when the matter is before the Collector on a report being received under Section 48 (2) to make arrangements for holding a by-election, the Collector ought to satisfy himself that the vacancy has, in fact, occurred.
25. In the instant case, the Collector was apprised by the communication from the petitioner and other persons also that the so-called resignation alleged to be given by the petitioner is not a conscious act of resignation of her office by the petitioner. The petitioner made several allegations as to the circumstances in which her signature is alleged to have been taken on a document by representing that it was in respect of an altogether different matter. Whether this is so or not is a matter which the Collector at the inquiry to be held may consider and decide.
26. We, therefore, hold that the petitioner has an adequate remedy and the petitioner having made a complaint to the Collector, may be under a wrong section of the Municipalities Act, the Collector ought to have held an inquiry. In fact, the Collector did persuade himself to call for a report both from the president as well as from the police. It is, therefore, undoubtedly a matter which required careful consideration. But possibly, in the absence of a specific provision the respondent No. 3 considered that he had no statutory power to hold an inquiry and decide whether the petitioner had in fact validly tendered resignation of her office as a councillor. In view of what we have stated above, it must be held that the Collector has such power and is required to exercise it in a case like the present one where the petitioner challenges that she has not voluntarily resigned her office as a councillor.
27. In the result, we dismiss the petition, but we direct that the respondent No. 3 shall hold an inquiry into the allegations made by the petitioner as to the circumstances in which her signature was taken on the communication received by the respondent No. 1 and decide whether the petitioner can be said to have resigned her office according to law. The Collector will, therefore, decide whether a vacancy has occurred in the office of the councillor so as to require by-election being held. In the result, the petition fails and is dismissed, but there will be no order as to costs.
28. Petition dismissed.