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The Municipal Committee Vs. the Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Writ Petn. No. 8 of 1971
Judge
Reported inAIR1972HP105
ActsHimachal Pradesh Municipal Act, 1968 - Section 14
AppellantThe Municipal Committee
RespondentThe Union of India (Uoi) and ors.
Appellant Advocate S. Malhotra and; H.K. Bhardwaj, Advs.
Respondent Advocate Inder Singh and; Chhabil Dass, Advs.
DispositionPetition dismissed
Cases ReferredN. S. Subramaniam v. State
Excerpt:
civil - resignation - section 14 of himachal pradesh municipal act, 1968 - x is member of municipal committee - submitted his resignation from membership of committee - no response form government - later withdrew his resignation - appellant contended that withdrawal of resignation was barred by time as it had not been submitted within 15 days of submission of resignation - contended that resignation be deemed to have been accepted by government - under section 14 if state government does notify acceptance of resignation within sixty days it must be taken that resignation had not been accepted - held, x continued to be member of municipal committee. - .....and, therefore, a fresh election for the vacant seat should be held. on april 29, 1970, the state government sent a letter to the deputy commissioner saying that as the fourth respondent had withdrawn his resignation before it was accepted, he continued to be a member of the committee, and the president of the committee should be directed to send notice of meetings to the fourth respondent as usual. a copy of the letter was forwarded to the president of the committee. there was further correspondence on the subject, and the president of the committee continued to protest that the resignation of the fourth respondent had taken effect. the matter was referred by the deputy commissioner to the government. on november 30, 1970, the committee was apprised the opinion of the state.....
Judgment:
ORDER

R.S. Pathak, C.J.

1. The petitioner is a Municipal Committee constituted under Section 10 of the Himachal Pradesh Municipal Act, 1968. Sri Pyare Lal is the President. The fourth respondent, Shri. Durga Singh Thakur, is one of the members of the Committee. By a letter dated December 29, 1969, addressed to the Deputy Commissioner, Mahasu District, Kasumpti, the fourth respondent submitted his resignation from the membership of the committee. The ground tar his resignation Was the decision of the Government turning down the vote of no confidence in the President. He stated that in case the Government was prepared to review its decision. he would withdraw his resignation. However, on March 17, 1970, even without any response from the Government the fourth respondent wrote to the Deputy Commissioner withdrawing his resignation. The Committee, on coming to know of that communication, wrote to the Deputy Commissioner that the notice of withdrawal was barred by time inasmuch as it had not been submitted within 15 days of the receipt of the application intimating the desire to resign office, and that the resignation should be deemed to have been accepted by the Government and, therefore, a fresh election for the vacant seat should be held. On April 29, 1970, the State Government sent a letter to the Deputy Commissioner saying that as the fourth respondent had withdrawn his resignation before it was accepted, he continued to be a member of the Committee, and the President of the Committee should be directed to send notice of meetings to the fourth respondent as usual. A copy of the letter was forwarded to the President of the Committee. There was further correspondence on the subject, and the President of the Committee continued to protest that the resignation of the fourth respondent had taken effect. The matter was referred by the Deputy Commissioner to the Government. On November 30, 1970, the Committee was apprised the opinion of the State Government that the fourth respondent was free to withdraw his resignation even though the period of 15 days had expired, that the provision specifying that period was procedural only and not mandatory, and as the resignation had been withdrawn before it was accepted no question arose of accepting the resignation. Aggrieved by the position taken by the Deputy Commissioner and the State Government, the petitioner has applied for relief under Article 226 of the Constitution.

2. To appreciate the rival contentions of the parties, it is necessary to set out the provisions of Section 14 of the Himachal Pradesh Municipal Act. Section 14 provides :

'If a member of a committee wishes to resign his office, he shall submit an application in writing through the Deputy Commissioner to the State Government. If such resignation is accepted, it shall be notified in the gazette on a, date not less than 15 days and not more than 60 days after the receipt of the said member's application by the Deputy Commissioner whereupon the member shall be deemed to have vacated his seat :

Provided that if a member who has submitted an application to resign wishes to withdraw his resignation, he may apply to the Deputy Commissioner within 15 days of the receipt by the Deputy Commissioner of his application to resign, and the application to resign shall then be deemed to have been withdrawn.'

It is clear that a member of a Municipal Committee constituted under the Act cannot resign at will. If he wishes to resign, he must submit an application in writing through the Deputy Commissioner to the State Government, and it is only when the application is allowed and the resignation is accepted and notified in the gazette that it can be said that the member has resigned. The notification must be effected on a date not less than 15 days and not more than 60 days after the receipt of the application by the Deputy Commissioner. Upon the making of the notification, the member is deemed to have vacated his seat.

3. The Municipal Committee, with Which we are concerned, is a statutory body. It has been constituted for the purpose of discharging public functions. Under the Common law, therefore, its members cannot be said to enjoy an absolute right to resign at will. The law casts a duty upon them to act in the public interest, and it could work serious mischief if they were allowed to vacate office at will. The position was explained by Mr. Justice Bradley of the U. S. Supreme Court in Edward M Edwards v. United States, (1880) 26 Law Ed 314, as follows :--

'As civil officers are appointed for the purpose of exercising the functions and carrying on the operation of Government, and maintaining public order, a political organisation would seem to be imperfect which should allow the depositories of its power to throw off their responsibilities at their own pleasure. This certainly was not the doctrine of the Common law.

In England a person elected to a municipal office was obliged to accept it and perform its duties, and subjected himself to a penalty by refusal. An office was regarded as a burden which the appointee was bound, in the interest of the community and of good government, to bear. And from this it followed of course that, after an office was conferred and assumed, it could not be laid down without the consent of the appointing power.

This was required in order that the public interests might suffer no inconvenience for the want of public servants to execute the laws ..... To complete a resignation it is necessary that the corporation manifest their acceptance of the offer to resign .....'

4. Section 14 of the Himachal Pradesh Municipal Act proceeds upon that principle. It recognises that no member of a Municipal Committee can vacate office at will, and that before he can be relieved of the responsibilities of office, his resignation must be accepted by the State Government. Section 14, as its terms plainly show, contemplates an application by the member conveying his desire to resign. He must apply, and the application has to be considered by the State Government. It is for the State Government to decide whether or not the application should be allowed and the member permitted to resign.

5. Now, it may be that after submitting the application the member may have second thoughts and may decide to withdraw his application. He is entitled as of right to withdraw the application, and no discretion vests in the Deputy Commissioner or the State Government in that matter, provided he intimates the withdrawal of his application within 15 days of its receipt by the Deputy Commissioner. The proviso to Section 14 lays down that if the member wishes to withdraw his resignation and applies to the Deputy Commissioner within such period of 15 days, 'the application to resign shall then be deemed to have been withdrawn'. It is clear that by the operation of the law itself, the application to resign stands withdrawn provided the member fulfils the statutory condition of applying to the Deputy Commissioner in that behalf within the period of 15 days. Although the proviso speaks of his applying to the Deputy Commissioner in that regard, the application is merely an intimation and no more. It is not an application calling for an order by the Deputy Commissioner to be made in his discretion. It is in law an intimation by the member that he has withdrawn his application to resign. As I have already said, the mere act of 'applying' to the Deputy Commissioner within the statutory period of 15 days results in the law treating the application to resign as having been withdrawn. And this is evident from the requirement in the substantive provision of Section 14 that the acceptance of the resignation by the State Government shall not be notified before the said period of 15 days. By staving its hands for 15 days, the State Government must afford an opportunity to the member to exercise his statutory right to withdraw his application to resign within that period. That is the position when the member acts within 15 days of the receipt by the Deputy Commissioner of his application to resign.

6. But what would be the position if a member applies to withdraw his application to resign after 15 days have expired For that, we must proceed to the substantive provision of Section 14. As I have indicated, after the period of 15 days has expired the State Government is entitled to consider the application to resign and to accept the resignation. Whether it will accept it may be determined by one or more of several considerations. One of them may be that there is a case for removal of the member under Section 15 (I) of the Act. A member so removed attracts the penalty mentioned in Section 15 (2) of the Act, that is to say, he becomes disqualified for election for a period of one to five years. It may also be that there is a case for proceeding against the member under Section 49 of the Act, if he is liable for the loss, waste or misapplication of any money or other property belonging to the Committee. An enquiry into this matter may not be conveniently and effectively possible if the member ceases to hold office. Upon those considerations, the State Government may decline to permit the member to resign. The application to resign may also be rejected on the ground that the member has since applied to withdraw the application. It will be noted that whereas if the application to withdraw is made within 15 days the withdrawal takes effect automatically by operation of the statute, where the application to withdraw is made after the expiry of that period it will be in the discretion of the State Government whether or not to allow the member to withdraw his application to resign.

7. In the present case, the application to withdraw was clearly made beyond 15 days of the receipt by the Deputy Commissioner of the application to resign. The fourth respondent cannot claim the benefit of the proviso to Section 14, and on that basis assert that his application to resign stands withdrawn.

8. The State Government, upon the expiry of the period of 15 days, is armed with the discretion to accept or not to accept the resignation. But what happens when, as in this case, the period of 60 days has also expired Is the State Government left with any power to accept the resignation The fourth respondent urges that it is not. But on behalf of the petitioner, as well as on behalf of the State Government, it is contended that the period of 60 days specified in Section 14 is directory only and it is still open to the State Government to accept the resignation tendered by the fourth respondent. It is urged that as no penal provision has been laid down for non-compliance by the State Government with the provisions of Section 14, the requirement that the resignation should be accepted within 60 days is directory only and not mandatory. Reliance is placed on Jagan Nath v. Jas. want Singh, AIR 1954 SC 210. It seems to me that the test laid down by the Supreme Court in that case is only one of the tests for determining whether a statutory requirement is mandatory or directory. The essential test, I think, is whether the context in which the requirement has been framed, indicates that it is mandatory or directory. Viewed in that light, the requirement that if the resignation is accepted, that must be effected and notified within 60 days is mandatory. A member wishing to resign his office and applying in that behalf is entitled to know within a reasonable period whether his resignation has been accepted. That is necessary in order to enable him to arrange his affairs. It would be unreasonable to keep his application pending for an indefinite period. The Legislature appears to have considered a period of 60 days to be a reasonable period for taking a decision on the application to resign. It seems to me that the language in which the requirement has been framed is also suggestive. The acceptance of the resignation, Section 14 says, must be notified 'on a date not less than 15 days and not more than 60 days' after the receipt of the application by the Deputy Commissioner. The period during which the power to accept the resignation can be exercised has been clearly defined and limited. It commences upon the expiry of 15 days, and terminates with the expiry of 60 days, from the receipt of the application. The expression 'not more' has an imperative connotation. It indicates that the resignation cannot be accepted after the period of 60 days,

9. Learned counsel for the petitioner relies on Shamsuddin v. State of Rajasthan, AIR 1952 Raj 53 in support of the proposition that the resignation of a member of a Municipal Board takes effect as soon as it is communicated to the appropriate authority. With respect to the learned Judges, who expressed that opinion, I find it difficult to agree. On the contrary, I would prefer the view taken by the majority in Bahori Lal Paliwal v. District Magistrate, Bulandshahr, AIR 1956 All 511 (FB). where it was laid down that acceptance is necessary before such a resignation can take effect. And the Supreme Court decision in Jai Ram v. Union of India, AIR 1954 SC 584 proceeds on the hypothesis that permission is necessary by the Government before a Government servant can retire from service on his desiring to do so.

10. Learned counsel for the petitioner also refers to N. S. Subramaniam v. State by Union of India, 1970 Ser LR 180 = (1969 Cri LJ 1294 Mad). In that case, it was held by the Madras High Court that a Government servant could terminate his services by merely giving notice in writing to the appointing authority, the period of such notice being one month. Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949, specifically lays down that the termination can be effected by mere notice in writing on the part of the Government servant. The terms of the Rule itself preclude the element of acceptance by the Government, the decision resting entirely with the Government servant. The learned Judges specifically distinguished that rule from rules which made acceptance necessary before the resignation of a Government servant could become effective.

11. In the present case, upon a true view of Section 14 of the Himachal Pradesh Municipal Act, as the State Government did not notify its acceptance of the resignation of the fourth respondent within the statutory period of 60 days, it must be taken that the resignation has not been accepted. And it is no longer open to the State Government to accept the resignation. The fourth respondent continues to be a member of the Municipal Committee. Accordingly, the petitioner can have no legitimate objection to the directions issued to it by the State Government and the Deputy Commissioner.

12. It was urged on behalf of the respondents that the petitioner had no locus standi to maintain the writ petition. Because of the view taken by me on the merits, it is not necessary to express any opinion on that submission.

13. The petition fails and is dismissed with costs.


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