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Shirishkumar Mayachandbhai Modi Vs. the Collector and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1975)16GLR703
AppellantShirishkumar Mayachandbhai Modi
RespondentThe Collector and anr.
Cases ReferredMandvi Muni. v. H. Gopalswami
Excerpt:
.....of a member of a municipality after it has been received by the municipal president. all observations which the collector has made against the petitioner in so far as they relate to the alleged failure or omission on the part of the petitioner to make an inquiry into the genuineness or otherwise of the resignation of the respondent no. in as much as he did not do so, he has failed to discharge the duty cast upon him by sub-section (5) of section 35. in the aforesaid premises, the impugned order cannot be sustained......a municipal president has no power or authority to inquire into the genuineness or validity of a resignation tendered by a councillor. therefore, the observations made by the collector against the petitioner in his order in this behalf are absolutely unwarranted and unjustified.2. the collector had not decided the question relating to the genuineness of the resignation said to have been tendered by the respondent no. 2.5. in order to examine the first contention raised by mr. zaveri it is necessary to turn to section 35 of the gujarat municipalities act, 1963. sub-section (3) of section 35 provides as under.any other councillor may resign his office by tendering his resignation in writing to the president. such resignation shall take effect on the date on which it is received by the.....
Judgment:

S.H. Sheth, J.

1. The petitioner is the President of Palanpur Municipality. The respondent No. 2 was elected as a member of the municipality to a seat reserved for the Scheduled Castes. The respondent No. 1 Is the Collector of Banaskantha. On 2nd July 1973 the petitioner received from the respondent No. 2 a letter purporting to be a letter of resignation. That letter of resignation was delivered at his place by the postman at 3-15 p.m. on that day. It appears that he was not at home at that time. He, therefore, received it at 8 p.m. He endorsed on that letter of resignation that the respondent No. 2 on account of the said resignation ceased to be a member of the municipality and that the seat had fallen vacant. He, therefore, ordered that the vacancy caused by the resignation of the respondent No. 2 should be reported to the Collector of Banaskantha. At 9 p.m. the same day the Chief Officer of the municipality gave him a letter from the respondent No. 2 in which It was stated that the aforesaid letter of resignation had been fraudulently obtained from him by another member of the municipality, Nasiruddin B. Sayed and that he had not really resigned. He, therefore, requested the petitioner to cancel the said letter of resignation. On that letter the petitioner endorsed that since he had already received the resignation of the respondent No. 2 at 8 p.m. and since it had taken immediate effect the respondent No. 2 had ceased to be a member. He further endorsed on that letter that if the respondent No. 2 wanted to raise any dispute he might take such legal steps in the matter as has might be advised to take. Further he has endorsed on that letter that the Gujarat Municipalities Act does not contain any provision for withdrawal of the resignation of a member of a municipality after it has been received by the municipal president.

2. Thereafter, the respondent No. 2 applied to the respondent No. 1 the Collector of Banaskantha under Sub-section (5) of Section 35 and challenged the genuineness of his resignation. The Collector appears to have held that the respondent No. 2 had not resigned and that, therefore, he continued to be a member of the municipality.

3. It is against that order that the petitioner has filed this petition.

4. Mr. Zaveri who appears for the petitioner has raised before me the following two contentions.

1. A municipal president has no power or authority to inquire into the genuineness or validity of a resignation tendered by a councillor. Therefore, the observations made by the Collector against the petitioner in his order in this behalf are absolutely unwarranted and unjustified.

2. The Collector had not decided the question relating to the genuineness of the resignation said to have been tendered by the respondent No. 2.

5. In order to examine the first contention raised by Mr. Zaveri it is necessary to turn to Section 35 of the Gujarat Municipalities Act, 1963. Sub-section (3) of Section 35 provides as under.

Any other councillor may resign his office by tendering his resignation in writing to the president. Such resignation shall take effect on the date on which it is received by the president.

Under Sub-section (3) of Section 35 a resignation tendered by a councillor takes effect on the date on which it is received by the president. In my opinion, resignation contemplated by Sub-section (3) is a genuine resignation because a forged resignation is no resignation at all in the eye of law. Under Sub-section (3), therefore, it is a genuine and valid resignation which takes effect on the date on which it is received by the president. However, if there is any dispute as to the genuineness or validity of a resignation of a councillor it takes effect in terms of the provisions contained in Sub-section (5), Sub-section (5) of Section 35 provides as under.

If any dispute regarding any resignation arises, it shall be referred for decision to such officer as the State Government may, by general or special order, appoint in that behalf and the decision of such officer shall be final;

Provided that no such dispute shall be entertained after the expiry of a period of thirty days from the date on which the resignation took effect;

Provided further that such resignation shall take effect in accordance with the decision of such officer.

A municipal president who receives a resignation of a councillor in the first instance presumes it to be a genuine and valid resignation. Even then if the person tendering the resignation challenges its genuineness or validity or if anyone else challenges its genuineness or validity, the dispute can be taken for decision to the officer appointed by the State Government under Sub-section (5) of Section 35. But in the instant case the petitioner came to know of the dispute as to the genuineness of the resignation immediately after he had made endorsement on the resignation that it had reached him at a particular time. If a municipal president receives a resignation from a councillor and if he comes to know that its genuineness or validity is disputed, he ought not to take any further steps in the matter of that resignation but should refer the matter to the officer appointed under Sub-section (5) of Section 35. Now so far as the disputes relating to the resignations of councillors are concerned, the State Government has appointed the Collectors of all the districts to decide them. However, in the instant case, the petitioner next day on 3rd July 1973 sent an intimation to the respondent No. 2 that his resignation had taken effect as soon as it had reached him. This letter of intimation was sent by him to the respondent No. 2 after he had come to know that the respondent No. 2 had disputed the genuineness of his resignation. In my opinion, the petitioner could not have done it. Having come to know that the genuineness of the resignation alleged to have been tendered by the respondent No. 2 was challenged by him, he ought to have referred the matter to the Collector for decision and should have awaited the decision of the Collector for taking further steps in the matter. Sub-section (5) of Section 35 does not specify any particular person or persons who can refer the dispute relating to a councillor's resignation to the Collector. Sub-section (5) has been worded in general terms and anyone who is interested in the due and proper constitution of the municipality can refer to the Collector the dispute as to the validity of a resignation tendered by a councillor. The petitioner who is the president of the municipality is certainly interested in the due and proper constitution of that municipality. Having come to know that the respondent No. 2 was challenging the genuineness of the resignation said to have been tendered by him, he ought to have referred the matter to the Collector of Banaskantha and awaited his decision.

6. In Special Civil Application No. 1316 of 1973 decided by me on 23rd/26th November 1973 Bulsar Muni. v. V.V. Ramasubbarao A Ors. I have expressed the opinion that anyone who is interested in due and proper constitution of a municipality can raise before the Collector the dispute relating to the genuineness or validity of a resignation and have it decided.

7. In Special Civil Application No. 1178 of 1973 decided by me on 19th December 1973 Purshottam Dhanji, Vice-President, Mandvi Muni. v. H. Gopalswami 16 G.L.R. 394 I have considered the effect of Sub-section (5) of Section 35 on the finality accorded by Sub-sections (1) and (2) thereof to a resignation. Following the principle laid down in the aforesaid decision I am of the opinion that the effect which a resignation tendered by a councillor under Sub-section (3) of Section 35 takes is always subject to the provisions of Sub-section (5) of that section. It is unfortunate that the petitioner did not follow this course which even commonsense suggests and took a further step of intimating to the respondent No. 2 that his resignation, though challenged by him, had taken effect.

8. Mr. Zaveri has, however, contended before me that a municipal president has no power, authority or jurisdiction to inquire into the genuineness or validity of a resignation tendered or alleged to have been tendered by a municipal councillor. Therefore, in his submission, the wide-ranging observations made by the Collector against the petitioner are not at all justified or warranted. The submission made by Mr. Zaveri is very largely correct. In my opinion, a municipal president has no authority, power or jurisdiction to inquire into the genuineness or validity of a resignation tendered by a councillor. Therefore, when the Collector says that the petitioner should have inquired into the matter, he is, in my opinion, in error. All observations which the Collector has made against the petitioner in so far as they relate to the alleged failure or omission on the part of the petitioner to make an inquiry into the genuineness or otherwise of the resignation of the respondent No. 2 are absolutely unwarranted and unjustified. They ought not to have been made. However, a municipal president holds an elective public office and enjoys public confidence. It is he who receives the resignation of a councillor. After the receipt of of the resignation of a councillor if he comes to know that its validity or genuineness is challenged, he should in discharge of his public duly as the president and as one who is interested in the due and proper constitution of the municipality refer the matter to the Collector for decision unless it has already been referred to the Collector otherwise. The effect which the resignation tendered by a municipal councillor takes on its receipt by a municipal president is a tentative effect. It becomes final if no dispute is raised as to its genuineness or validity. It remains tentative until such dispute, if raised, is decided. In terms of second proviso to Sub-section (5) of Section 35 the final effect which it takes is in accordance with the decision given by the Collector in the dispute.

9. So far as the second contention raised by Mr. Zaveri is concerned, the impugned order shows that the Collector did not take any evidence in the matter in order to decide the dispute which was raised before him. The affidavit-in-reply which the Collector has filed makes it clear beyond any doubt that he had decided that since the resignation which the respondent No. 2 is alleged to have tendered was withdrawn by him, it did not exist. Therefore, according to him, the respondent No. 2 continued to be a councillor of Palanpur Municipality. This is not the correct view because there is no provision in the Gujarat Municipalities Act, 1963 which provides for the withdrawal of a resignation which a councillor has tendered. Once a councillor tenders a resignation and it has taken effect under Sub-section (3) of Section 35, whether it is the tentative effect or final effect, it cannot be withdrawn. It is not open under the Gujarat Municipalities Act to a councillor to withdraw a resignation which he has tendered. Therefore, a valid resignation tendered by a councillor takes effect as soon as it reaches the president. Such a resignation cannot be withdrawn. The effect of withdrawal is that the councillor who has resigned and who has ceased to be a member of a municipality will continue to be its member. That is not the scheme of the Gujarat Municipalities Act, 1963. A resignation tendered by a municipal councillor, subject to any dispute which may be raised in that behalf and the decision which will be recorded in such a dispute, is final and conclusive. It cannot be withdrawn. Therefore, the formula that since the resignation was withdrawn there was no resignation was not a correct formula which the Collector applied.

10. Therefore, it was incumbent upon the Collector to decide the dispute on evidence. It is necessary for the Collector under Sub-section (5) of Section 35 to issue notice to the councillor who is alleged to have tendered his resignation, to the person who disputes the validity or genuineness of the resignation if he is different from the councillor who has resigned, to the municipality and to the municipal president and to decide the dispute after taking such evidence as they produce and after hearing them. If in his opinion it is necessary to hear any other persons he is at liberty to do so. In the instant case, the Collector had merely called upon the petitioner to make the report. That was not enough. A person who alleges that fraud has been practised upon him has to prove it. In the instant case, it was the respondent No. 2 who alleged that Nasiruddin B. Sayed had practised fraud upon him and got up his resignation on a blank piece of paper on which his signature was fraudulently obtained. These are the allegations which the respondent No. 2 made in order to challenge the genuineness of the resignation. It was his duty to prove them. The Collector ought to have called upon him to produce evidence to show that the allegations which he made were correct. He could not have concluded the case by saying that since the respondent No. 2 had withdrawn his resignation, there was nothing which was required to be done by him. He ought to have heard the municipality and the municipal president in the matter and taken on record the evidence, if any, which they would have produced. After having taken evidence on the issue, he ought to have decided the dispute and recorded a fair and objective conclusion in the matter of genuineness or otherwise of the resignation. He did not do so. In as much as he did not do so, he has failed to discharge the duty cast upon him by Sub-section (5) of Section 35. In the aforesaid premises, the impugned order cannot be sustained. It must be set aside and the Collector should be directed to hold a fresh inquiry in the matter after giving notice to all interested parties and after hearing them.

10.1 In the result, I allow the petition, quash and set aside the impugned order made by the Collector of Banaskantha and direct him to hold an inquiry into the matter and to decide on evidence whether the resignation alleged to have been tendered by the respondent No. 2 was genuine resignation or not. If he records the conclusion that it was genuine resignation, he shall declare that the seat to which the respondent No. 2 was elected has fallen vacant. If he records the conclusion that it was not a genuine resignation, he shall make an order declaring that the respondent No. 2 continues to be a member of the municipality. While making this inquiry he shall issue notice to the petitioner, the respondent No. 2, Palanpur Municipality and to such other persons as are necessary, in his opinion, to be heard in the matter. Rule is made absolute with no order as to costs in the circumstances of the case.


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