Punjab-Haryana High Court
Kirti Parshad Jain, President, ... vs The State Of Haryana, Through The ... on 1 April, 1991
Equivalent citations: (1991)99PLR693
JUDGMENT J.L. Gupta, J.
1. The petitioners who Were Municipal Commissioners of Municipal Committee, Ambala City, have impugned herein the order of 3.1.1991 passed by the Deputy Commissioner, Ambala (Annexure P-4) By this order, the resignation submitted by the four Municipal Commissioners (respondents No. 3 to 6) on 2.10. 1990 which had been accepted by the Deputy Commissioner on the sane day were allowed to be withdrawn and it was declared that they should be deemed to have continued as Members of the Municipal Committee, Ambala City.
2. First, the sequence of events. Respondents Nos. 3 to 6 along with another person submitted resignation to Deputy Commissioner, Ambala on 2-10 1990 vide letter at Annexure R-l It appears to have been accepted by the Deputy Commissioner on the same day. Subsequently, on 22-11-1990 they submitted another letter informing the Deputy Commissioner that they were not pressing their resignation On 28.11.1990 the Deputy Commissioner informed the Director, Local Bodies, Haryana regarding the request of the four persons for the withdrawal of their resignation It appears that by this letter which is at Annexure P-3 Deputy Commissioner sought clarification from the Director, Local Bodies. The matter appears to have been referred to the Legal Remembrancer also and finally vide impugned order, the Deputy Com missioner appears to have accepted the request of the four respondents and declared that they would be deemed to have continued as Municipal Commissioners.
3. In reply to the notice of the writ petition, two written statements have been filed. On behalf of respondents Nos. 1 and 2 reply his been filed by the Deputy Commissioner, Ambala while respondent Nos. 3 to 6 have filed a separate written statement. Besides raising various preliminary objections including a challenge to locus standi of the writ petitioners, it has been averred that in view of the provisions of Section 13 of the Haryana Municipal Act, a member cannot be deemed to have vacated a seat if the notification regarding the acceptance of his resignation is not published in the official gazette within a period of 60 days It has also been suggested that the resignation can be accepted finally by the Government and not by the Deputy Commissioner. Respondents Nos. 3 to 6 have also averred that the acceptance of the resignation was never communicated to them Various other averments in the writ petition have also been controverter. The other controversies raised by the respondents in their written statements do not appear to be relevant for the decision of the present dispute.
4. Mr. S. P. Jain. learned counsel appearing for the petitioner has vehemently argued that the resignation submitted by respondents Nos. 3 to 6 had been duly accepted by the Deputy Commissioner on 2-10-1990 By the acceptance of the resignation the respondents ceased to be Municipal Commissioner. Thereafter, the publication of the notification in the official gazettee was only a procedural/ministerial act willed cannot even remotely take away the effect of the acceptance of their resignation
5. On hehalf of the respondents it has been submitted that the petitioners have no locus standi to maintain the present petition. It is further submitted that unless cue acceptance of the resignation was duly communicated to the concerned persons, it was wholly ineffective and that the case involves disputed questions of fact which could not be gone into by the Court in the exercise of its writ jurisdiction.
6. The controversy hinges upon the provision contained in Section 13 of the Haryana Municipal Act, 1973. It reads as under :-
"13. If a member of a Committee wishes to resign his office he shall submit an application in writing to Deputy Commissioner. If such resignation is accepted, it shall be notified in the Official Gazette on a date not less than fifteen days and more than sixty 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 fifteen days of the receipt by the Deputy Commissioner of his application to resign a d the application to resign shall then be deemed to have been withdrawn."
7. As I read this provision, it gives a member an absolute right to withdraw his resignation within 15 days of its receipt by the Deputy Commissioner. Immediately, on submission of the application for withdrawal, the resignation is "deemed to have been withdrawn" without anything more. Furthermore, the acceptance of the resignation is required to be notified within 60 days of the receipt of the application by the Deputy Commissioner. It is only on the publication of the notification that the "member shall be deemed to have vacated his seat."
8. I am unable to sustain the plea of the learned counsel for the petitioners that the Deputy Commissioner having accepted the resignation on 2-10-1990 itself, respondents Nos. 3 to 6 were not entitled to continue as members. The acceptance under the provisions of Section 13 is inchoate for a period of 15 days as mentioned in the proviso to Section 13. During that period it is open to the member to withdraw the resignation and without the order from the Deputy Commissioner the withdrawal becomes automatically effective Consequently, it is wrong to contend that the acceptance of the resignation was complete and effective on 2 10 1990 itself.
9. The next question that arises is, as to whether or not the respondents No. 3 to 6 were entitled withdraw their resignation after the expiry of 15 days or at any time before the publication of the notification. The answer to this question would essentially depend upon interpretation of the substantive provision. It provides that the acceptance of the resignation "shall be notified in the official gazette on a date not less than 15 days and not more than 60 days after the receipt----------". In my view it is incumbent upon the authorities to notify the acceptance of the resignation within 60 days of its receipt. The use pf the expression "not more" gives the indication that it is imperative for the authorities to notify the acceptance. Without such a notification the resignation does not become effective.
10. The reason for so constituting this provision is that a member of a Municipal Committee holds an elected office and is burdened with statutory duties which involve considerable public interest. The Legislature has in its wisdom chosen to give an option to the member to withdraw the resignation within 15 days and also made it incumbent upon the authorities to notify the acceptance within 60 days It is only on the publication of the notification that "the member shall be deemed to have vacated his seat "
11. Is it possible for a member to withdraw the resignation at any time before its acceptance is notified in the official gazette? I think, yes. Section 13, in my view, gives a right to a member to withdraw the resignation within 15 days even if ft has bean accepted before that Thereafter, if the acceptance has not been published in the official gazette, the member has a right to withdraw it The only difference would be that it would be discretionary for the authority to allow the withdrawal or to disallow it.
12. According to the petitioners, the application for withdrawal was made on 22-11-1990. This was before the publication of the acceptance in the official gazette. I think, the Deputy Commissioner had tae discretion to allow the withdrawal. He did not violate any provision of the Act while doing so. Consequently, the impugned order (Annexure P-4) was not passed in violation of the provisions of Section 13.
13. In this view of the matter, I don't think it is necessary for me to go into the contentions raised on behalf of the respondents-re regarding the locus standi etc of the petitioners.
14. The writ petition thus fails and is dismissed with costs Counsel's fee Rs. 1,000/-.