Bombay High Court
Kumudini Ratilal Bhagat (Sou.) And Ors. vs State Of Maharashtra And Ors. on 12 March, 1987
Equivalent citations: 1987(1)BOMCR634
JUDGMENT V.S. Kotwal, J.
1. Village Panchayat for Village Poyanad in Raigad District came to be established under section 9 of the Bombay Village Panchayat Act ("the Act"). In due course on observing the procedural formalities the election to the said Panchayat came to be held from time to time for the statutory tenure of five years. For the relevant period the elections to the Panchayat were held under section 11 of the said Act on 27th of May, 1981 for a tenure of five years. The scheduled total strength was 9 and as such 9 persons came to be elected. It so happened that two out of them had to make their exit on account of incurring certain disqualification, one because of his persistent absence from attending the meeting of the Panchayat and the other for being a defaulter in the payment of property taxes. On account of their departure there remained in the field 7 persons. The first petitioner herein was elected as the Sarpanch while the fourth petitioner as the Up-Sarpanch. Though the said Panchayat smoothly functioned for some time, a difficulty arose on account of an event that occurred on 18th of May, 1985 when it is alleged that petitioner Nos. 4 to 7 gave notices or letters of resignation to the Sarpanch and thereby withdrawing from the office as members of the said Panchayat. Receipts for those letters were also given to them. It is alleged that one set was given to the Gramsevak. As per the rule and the procedure prescribed under the Act the Sarpanch was under obligation to place the said resignations in the next meeting held by the Panchayat. The said next meeting was scheduled to be convened on 27th of May, 1985 on which date the said letters of resignation were to come up before the Panchayat. However, the complexation changed on account of the intervening circumstance when admittedly these very four petitioners by separate letters addressed and handed over to the Sarpanch on 25th of May, 1985 withdrew their resignations which they had tendered on 18th of May, 1985. The said meeting was convened on the scheduled date on 27th of May, 1985 when the fact of these four petitioners having sent their resignations and having also withdrawn those on that particular date was placed before the meeting. These petitioners also attended the said meeting. Since the resignations came to be withdrawn even before the meeting was held the Sarpanch felt it unnecessary to have any follow up action. In fact these petitioners attended some of the subsequent meeting also and participated in the transactions.
2. However, inspite of this feature the Block Development Officer felt that these petitioners had resigned and therefore, since the strength of the Panchayat had fallen below 50 per cent, as required under the Act, a case was made out for dissolution of the Panchayat under section 145(1-A) of the Act. Being of this opinion he forwarded his report to the Chief Executive officer, Zilla Parishad, Alibag giving these details and contemplating an action of dissolution under the said provisions. The Chief Executive Officer also carried the same feeling that these persons had resigned and therefore an action under section 145(1-A) of the Act had become inevitable. On the basis of this opinion he forwarded in turn his own report to the Commissioner, Konkan Division, for passing suitable action as suggested by him for dissolution of the Panchayat. The Commissioner accepted the said recommendations since also being of the opinion that the coram had fallen below the prescribed limit under the Act and therefore the Panchayat could not function. He thus directed dissolution of the Panchayat with the necessary consequence of appointment of an Administrator. A follow up action was taken to implement these directions with the result that the said Panchayat was declared as having been dissolved and the Block Development Officer was appointed as the Administrator to the said Panchayat. This order which is being impugned was passed on 9th July, 1985 by the Commissioner, Konkan Division. In pursuance of this order the said Block Development Officer in due course took charge of the affairs of the Panchayat. This petition challenges the validity of the said order dated 9th of July, 1985 under which the Panchayat was dissolved.
3. Shri N.B. Shah, the learned Counsel for the petitioners, mainly contended that on the basis on the admitted facts which was not controverted even on this forum the resignations having been withdrawn even before the date on which the meeting was convened, there were no resignations in fact in existence and at any rate the petitioner Nos. 4 to 7 could not be said to have resigned their office and if that be so, then there is no question of the coram being falling below the prescribed limit and as such there was no question of dissolving the Panchayat and thereafter appointing the Administrator. He also canvassed some other contentions mainly to the effect that under the Act the resignations would become effective within only seven days and this according to him will have to be computed after those are placed in the meeting. Shri V.A. Gangal, the learned Additional Government Pleader for respondent Nos. 1 and 2, Shri P.D. Kamerkar and Shri D.A. Ajgaonkar, the learned Counsel for the other respondents, countered these contentions. An endeavour was made to submit that the moment these resignations are tendered or at least when they are received by the Sarpanch those become final and irrevocable and, therefore, withdrawal thereof subsequently even assuming before the first meeting would be of no consequence. It was also contended inter alia that the span of seven days prescribed in some of the clauses of section 29 of the Act has a restricted field since that relates to the element of time available to the member to raise the dispute before the Collector about the genuineness of the resignation and a further period of seven days is correspondingly given to move the Commissioner if he is aggrieved by the decision of the Collector and according to them this period of seven days has no relevance or nexus with the effectiveness of the resignation.
4. In our opinion since the basic structure of facts is admitted the controversy really lies in narrow field and as such it is un-necessary to undergo the exercise of probing into the longer issue much less adjudicate upon the same. To recapitulate, it is firmly established that the four persons tendered their resignations on 18th of May, 1985; that they admittedly withdrew their resignations expressly by their letters dated 25th of May which were received by the Sarpanch on the very day and the next meeting was convened on the 27th of May, 1985. Consequently, therefore, it is apparent that the four petitioners withdrew their resignations even before the first concerned meeting was convened. There is not even a whisper anywhere on any of the forums nor before us also on behalf of the respondents that the date of withdrawal of the resignations is not correct or that those were not received by the Sarpanch on that date nor the genuineness of the withdrawal of resignations is even remotely doubted. On the contrary, this aspect is practically conceded and it is also relevant to note that even in the report of the Chief Executive Office there is a reference to the proceeding of the meeting on the 27th of may wherein also it has been specifically mentioned that the resignations have been withdrawn on 25th of May, 1985. Therefore, the foundation is firm to the effect that the resignations came to be withdrawn even before the first concerned meeting next after the resignations was convened. This in our opinion would change the entire complexion of the controversy.
5. Section 29 of the Act deals with this aspect about tendering of the resignation and the same becoming effective. It is split up into six clauses and also in different parts relating to the resignation tendered by the member or resignations tendered by the Sarpanch and Upsarpanch of his office. The first stipulation is that the manner is prescribed under which the resignation is to be tendered and the said prescribed manner is as per the rules which contain certain form which envisages that it should be in the hand of the member himself and should be addressed to the Sarpanch and should be delivered in person or by registered post or through the authorised agent and it should also bear the signature of the witnesses. This was obviously to ensure that the resignation was a genuine one and was voluntarily given. On receipt of the said resignation the Sarpanch had to forward the same to the Secretary who in turn is under the obligation to place it before the meeting of the Panchayat next following. Sub-clause (3) prescribes about the event when the meeting is convened inasmuch as when such resignations are placed before the meeting, a member who wanted to dispute the genuineness of the resignation gets a right accrued in his favour to move the Collector disputing the genuineness thereof and this right he has to exercise within seven days. If such type of exercise arose then the authority of Collector comes into picture who has to make inquiry and adjudicate upon the same as far as possible within fifteen days. If the concerned member feels aggrieved by such decision of the collector then the appeal can be preferred before the Commissioner within seven days from the receipt of the said decision. The course apparently comes to an end after the Commissioner decides the appeal. Similar stipulations are prescribed in respect of the resignation of the Sarpanch also. Sub-clause (6) however becomes relevant in the wake of the controversy which stipulates that the resignation shall become effective in case when there is no dispute regarding the genuineness, after the expiry of seven days from the date of which it is place in the meeting of the Panchayat and a further contingency is carved out under sub-clause (b) where there is a dispute which is referred to the Collector and if no appeal is made to the Commissioner then it becomes effective after the expiry of seven days from the date of rejection of the dispute by the Collector, where under the third Clause (c) if an appeal is preferred to the Commissioner against the Collector's order, then not only the finality is attached but the said resignation deems to become effective immediately on rejection of the appeal by the commissioner. Thus, basically two specific contingencies are envisaged vis-a-vis making such resignation effective one, where there is no dispute about the genuineness of the resignation while the other where the genuineness itself is placed under controversy and dispute.
6. We may incidentally observe that section 29 in all its parts has been substituted by Maharashtra Act 13 of 1976 when prior thereto the said provisions had obvious limitations and deficiencies when the old provision contemplated that a member can resign his office by giving notice in writing to that effect to the Sarpanch and the second part stipulated that the resignation would become effective from the date of its receipt by the Sarpanch. The prominent landmarks are to the effect that there was no prescription under which a particular mode was suggested for tendering the resignation and secondly as to when the resignation would become effective was also restricted in the sense that it would take effect the moment it is received by Sarpanch. It was rightly felt that there could be enough scope for abuse implicit in the said old provision especially because no mode was prescribed and thereby there was a potential that any document purporting to be the resignation of the member could be sent to the Sarpanch through any mode or agency and not necessarily directly by the candidate and the Sarpanch was not required to verify the same and furthermore if any mischief was committed it could not be rectified since it was to take effect and thus to be irrevocable the moment it falls in the hands of the Sarpanch. The potential for any mischief was intended to be removed or atleast minimised by substituting the said provision, first, by prescribing the specific mode of tendering the resignation with some in-build safeguards, such as, it should be in the hand of the member attested by witnesses and should be delivered to the Sarpanch either personally or through the registered post or through some one under the authority of the member and the Sarpanch has to issue receipt in token of having received the same. The other safeguard is obviously that the Sarpanch has to place it before the Panchayat in the meeting next following for the purpose, as suggested, so that the veil of secrecy would not be adopted and it would also be a matter of record of the Panchayat and thus would be for the knowledge and information of every one even including the concerned member. The further facet of the purpose would also have some relevance or nexus to the question of such resignation becoming effective. In the whole structure of the provisions of section 29 prominence has been given to this event of such meeting which obviously would have much significance. In this category obviously some flexibility has been introduced even regarding the time element instead of making it effective and thereby irrevocable the moment it is received by the Sarpanch. The span of such flexibility of time is the crucial question. It is also apparent that visualising the possibility or even a probability of any such resignation being non-genuine, which is not unknown in any power-game, relief was sought to be provided for the member to contest the genuineness of the resignation, which relief was not available earlier and which was felt to be necessary notwithstanding the prescribed manner in prescribed form of tendering the resignation since the said form and the manner itself has its limitation especially when tendering in person by the concerned member is not the only mode prescribed and the human ingenuity and resourcefulness to resort to any means to win the power-tussle may still in some cases overreach the so-called safeguards. The time element about making the resignation effective is prescribed in Clause (6) on the basis of three contingencies which need not be restated, though it is to be read along with all the clauses of that provision
7. In Y.K. Mathur and another v. The Commissioner, Municipal Corporation of Delhi and others, , a question was posed as to whether a Municipal Councillor who resigns from a future date can withdraw the said resignation before that date from which the resignation was to become effective. The question was answered in the affirmative. In that context it was observed that there was no prohibition that once the letter of resignation has been sent which is to become effective from a future date could not be withdrawn even before that date since the statute did not in any way limit the authority of the Councillor who has sent his resignation from a prospective date to withdraw it before that date is reached and it was ultimately observed that the resignation which is to become effective from a future date necessarily implied that if that date has reached it would be open to the Councillor concerned to withdraw it. In Union of India etc. v. Gopal Chandra Misra and others etc., where the said view of the Delhi High Court in Y.K. Mathur's case was accepted. It was observed that the general principle is that in the absence of a legal, contractual or constitutional bar, all prospective resignation can be withdrawn at any time before it becomes effective, and it becomes effective when it operates to terminate the employment or the office tenure of the resignor. It was also indicated on facts of the said case that if the concerned officer by specific mention in writing in the letter of resignation chooses to resign from a future date, the act of resigning office is not complete because it does not terminate his tenure to such date and he can at any time before the arrival of that prospective date on which it was intended to be effective withdraw it. Though dealing with the provisions of the Maharashtra Municipalities Act in the context of the resignations alleged to have been tendered and have been withdrawn by the President, a Division Bench of this Court in 1986 Maharashtra Law Journal, 383 in Vinaykumar Premratan Mundhada v. Collector, Bhuldana, indicated that in case of a dispute whether the President has or has not resigned the office, the Collector has to hold an inquiry at least for the purpose of finding out whether there is a vacancy of the office of the President has occurred or not but the inquiry also contemplated even regarding the dispute whether he has withdrawn the resignation before it was tendered to the Collector.
8. In some such cases which are illustrative, the person concerned by the act of his volition can himself prescribe a future date of making the resignation effective if the statute does not prohibit so. On par with the same principle, in some cases in the context of the relevant provisions, the statue itself may postpone such date of making the resignation effective. Only the agency is changed but the resultant consequence may be identical. In both such categories, in the absence of any mandate or prohibition in the context of the scheme of the relevant provision, once resignation is made permissible to take effect at a future date, implicit would be the power to withdraw it before the said future point of time is reached. The real question, therefore, would obviously relate to the span of time up to which the flexibility can be extended so as to make such resignations effective on the premise of the provisions contained in section 29 of the Act. This, however, would be the larger issue. On the uncontroverted facts of the case at hand the question would really fall in a further narrower and restricted field as to whether the resignations which are admittedly withdrawn even before the next following meeting was held could still be held to have become effective and thereby whether the petitioner could legitimately withdrew the said resignation in between. The three points of time about giving of the resignations on May 18, 1985, their withdrawal on May 25, 1985 and the next following meeting being scheduled on May 27,1985 are conceded and even firmly established.
9. The scheme under section 29 of the Act is already analysed. No doubt it does not incorporate within its fold the necessity of accepting the resignation by any authority or even in the meeting of the Panchayat held under sub-clause (3). Making the resignation effective has obviously made contingent on some time element in the context of certain events as stipulated in various clauses of the said provision. The prominent land mark would be the obligation placed on the Chairman to place such resignation through the Secretary in the meeting of the Panchayat next following. Though it may be that it does not prescribe any power vesting in the Panchayat either to accept or reject such resignation in such a meeting, still the convening of such meeting which must be with some purpose has been made obligatory. In the chronological order first the resignation is given where after the meeting is convened where after certain contingencies are contemplated, including the challenge made by the member of the genuineness of such resignation. The concept of genuineness and the dispute about the same would have multifold facets and could not be restricted only to one or two items such as the document is forged. For instance a person may have some justification to contend that the resignation was forced from him or that a document purporting to be such resignation which was really intended for different purpose in a different situation has been misused. This apart, as stated after receipt of such resignation a necessity immediately arises, to convene the next following meeting and it is in that meeting that such resignations are to be placed before the members. As indicated, one of the reasons which can be reasonably visualised would be to avoid any secrecy or dispel any doubt and to make it a matter of record which would be also necessary for the knowledge and information of every one even including the member concerned and as indicated earlier, the purpose also would have some relevance about giving effectiveness to the resignation. Upto this stage everything goes on one track whereafter there is some diversion in the sense that if the member wants to raise any dispute he has to adopt the course as prescribed and then the procedure and consequences are to be followed. The provisions of sub-clause (6) have their own relevance which is already discussed. However, even if some of those provisions relating to the events that occur after convening the said meeting as prescribed in sub-clause (3) are kept aside from consideration, still the fundamental fact about obligation to call the meeting and to place such resignation in that meeting which remains intact has a firm basis and also a specific purpose. As indicated, in the absence of any prohibition under the statue when giving of a resignation can be an act of volition then implicit therein would be a right inherent in such a person to withdraw the resignation of his own volition. As stated, in contrast to the earlier provisions in some other Acts the legislature did not make the resignation irrevocable the moment it is received by the Sarpanch. At least the span between the receipt of such resignation and the convening of the meeting next following has been obviously kept flexible and in our opinion this span of time or period is not capable of generating any controversy though as to whether such flexibility can be extended beyond that period once the meeting is held is capable of generating a debate. Though there is no provision either to accept or reject the resignation for its effectiveness, certain field is lift open. In the Misra's case cited supra the Supreme Court has accepted the inherent right of a person to withdraw the resignation till it reaches the point of time on which the resignation is to become final in the absence of any prohibition in the statute. The same situation exists in this provision also though herein the postponement is on account of the statutory provisions in contrast of those decisions wherein it was by the act of the person concerned. The real nature and the controversy vis-a-vis such a resignation would be capable of being brought on the surface either in that meeting or even before thereto. The member is also made aware of the resignation through that meeting. This mile-stone as prescribed in sub-clause (3) of convening the meeting and placing the resignation in that meeting would, in our opinion, serve as the minimum point of time upto which a label of finality to that resignation need not be attached and consequently therefore as a logical corollary till then a right would vest in such a member to withdraw the resignation. Such construction and especially such right vesting in the member will have to be reasonably and rationally read in this provision itself. Even sub-clause 6(a) indicates that in case there is no dispute about the genuineness the said resignation should be deemed to take effect seven days from the date on which it is placed in such a meeting. Leaving aside the controversy sought to be raised about the purpose of this period of seven days which according to Shri Kamerkar, the learned Counsel, as stated earlier, relates and restricts only to the time element for giving an opportunity to the member concerned to move the Collector in case he has a dispute about the genuineness of the resignation, still upto the point of time when the meeting is called by the Sarpanch once he received the resignation and even upto holding of such a meeting the resignation cannot be said to have become effective and if that be so then the right to withdraw such a resignation can well be exercised by such a member at least till that point of time. It may be that in some cases the resignation is tendered by a member on account of some misunderstanding or misreading of certain facts which he realises after tendering the resignation but before it is placed before the said meeting or extending it further may be in a given case in such a meeting certain explanations may be tendered by the members or even the Sarpanch which may remove such misunderstanding or which may make the member to realise that there was no justification for giving the resignation. Exhaustive list of contingencies obviously cannot be prescribed.
10. There is yet another prominent shade serving as a pointer, namely, that if the resignation is voluntarily withdrawn by the concerned member even before the meeting is actually convened and held, then in reality there is no resignation as such in existence which would be required to be placed before the said meeting as prescribed under sub-clause (3) and if that be so, then logically there would not arise any question about the said resignation to become effective at all because that feature would remain in vacuum. In that event an occasion for the further consequences would not arise at all. This in our opinion is quite formidable pointer in favour of the view that we are inclined to take in this matter.
11. Therefore, on the rational basis some reasonable period for rethinking is necessary to be allowed especially when there is no prohibition in the provision unlike some other statutes. One can easily go thus far to enunciate that having regard to the scheme of the said provisions along with the legislative intent behind the same and in the context of the various clauses enveloped in that provision, the resignation tendered by a member may not become effective until at least the meeting is called and even until such resignation is placed in that meeting. In other words, it would still remain in that nebulous form till the meeting is called or even till the meeting is held and concluded on the scheduled date and as a logical rider corollary it would follow that till then the member would be within his rights to voluntarily withdraw the said resignation. This in our opinion would be the minimum that can be safely arrived at on the premise of this harmonious construction of these provisions.
12. In this view of the matter in the context of the facts of the instant case it would not be necessary to undergo any exercise of considering much less to adjudicate upon the larger issue already indicated relating to the question about the permissibility of further flexibility of time element within which the resignation would become effective and the member could withdraw the same and if so how far it can be extended even after such meeting is not only convened but held and concluded. Both the learned Counsel canvassed their respective contentions in this filed. Thus for instance Shri N.B. Shah submitted that it could be so permissible on the basis of Clause (6) alone synchronising the period upto seven days after meeting in case of no dispute or otherwise as contemplated by other sub-clauses of Clause (6) if there is a dispute about the genuineness of the resignation. Shri Kamerkar and Shri Gangal, the learned Counsel for the respondents, did endeavour to maintain that such resignation would become effective even before such meeting is convened which contention, however, we have already rejected. Alternatively, however, they submitted that in any event it cannot be extended beyond the conclusion of such meeting and that the period of seven days has no nexus for giving effectiveness to the resignation but it is prescribed for the specific but limited purpose for adopting the further course of referring the dispute to the Collector and according to them not giving further time after the Commissioner's decision in appeal is a further pointer in favour of that view. These contentions as raised even on behalf of the respondents would obviously require anxious consideration as they are capable of generating a legitimate debate. However, on the facts of the instant case entering into that debate and resolving the said controversy has become un-necessary, more so, since this point does not directly arise in this case. As such it would not be proper much less necessary to express any opinion in that behalf.
13. In conclusion, therefore, on the facts as established in the instant case the petitioners stand on still stronger footing. There is no dispute about the genuineness of the resignations as also about the genuineness of their withdrawal. As stated, the said three points of time are firmly established and what is of more importance is that the genuineness and voluntariness of the withdrawal of those resignations as also the correctness of the date on which those were withdrawn is not even remotely doubted and thereby firmly establishing that these four petitioners have admittedly and genuinely withdrawn their resignations even before the meeting was held and as stated there thus did not arise any question of placing any such resignations in that meeting. The withdrawal of the resignations before the date of the meeting has been referred to even by the Chief Executive Officer in his report to the Commissioner. Consequently, therefore, these four petitioners were within there right to voluntarily withdraw the said resignations even before the said meeting was held as by then the said resignations had not become effective. The inescapable result, therefore, is that these four members are deemed to have been continued to be the members of the Panchayat as if they had not resigned at all. The further result, therefore, is equally inescapable that the action taken by the authorities in resorting to the provisions contained in section 145(1-A) of the Act which proceeded on the erroneous footing that these members had resigned and the resignations had become effective almost immediately itself falls on the ground. Consequently, therefore, the impugned order dated July 19, 1985 under which the Panchayat was dissolved and the consequential order of appointment of the Block Development Officer as the Administrator of the Panchayat will also have to be quashed.
14. The net result, therefore, is that this petition would obviously succeed.
15. Rule made absolute in terms of prayer (a) and (b). As a necessary consequence of this relief the charge that is taken over by the Block Development Officer would be restored to the Panchayat.
16. Under the circumstances there would be no order as to costs.