Sau. Laxmi W/O Vijay Verma vs The State Of Maharashtra on 26 August, 2009

[Cites 27, Cited by 0]

Bombay High Court

Sau. Laxmi W/O Vijay Verma vs The State Of Maharashtra on 26 August, 2009

1. Considering the nature of controversy, we have heard parties finally. Resignation letter dated 29/12/2008 submitted by present respondent No. 6 is found to be not signed by him in presence of respondent No. 3 Collector and, therefore, not in conformity with provisions of Section 41 (2) of Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965; hereinafter referred to as 1965 Act. This finding ::: Downloaded on - 09/06/2013 14:56:51 ::: 3 recorded in favour of respondent No. 6 in his statutory revision by respondent No. 2 Additional Commissioner Amravati has been maintained by learned Single Judge in Writ Petition No. 3167 of 2009 vide judgment dated 6/8/2009. That writ petition was filed by present Appellant who came to be elected in by-election in vacancy caused because of acceptance of said resignation by respondent No. 3 Collector and she has been later on elected as President of respondent No. 4 - Municipal Council.

2. Before proceeding further it is advantages to reproduce above section 41 here.

"41. Term of office of Councilors.

(1). The term of office of the Councilors shall be co-terminus with the duration of the Council.

(2). A councilor may resign his office unconditionally at any time by notice in writing in his hand addressed to the Collector and delivered in person and sign before the Collector and then only such resignation would be effective."

3. Learned Single Judge has found that resignation letter ::: Downloaded on - 09/06/2013 14:56:51 ::: 4 in dispute was unconditional and it was also delivered in person.

Though it was a computer print-out as it was bearing signature in original, condition that said letter must be "in writing in his hand" is held to be only directory. It is also found that it has been delivered to Collector but then, as it was not signed before Collector that is respondent No. 3, it did not satisfy the mandatory requirement and hence could not become effective. It is this finding which is being assailed before us by the Appellant, who was petitioner before learned Single Judge.

4. In this background, we have heard Advocate A.M. Gorde with Advocate P.C. Madkholkar and Advocate Kasat for Appellant, Advocate Kilor for Respondent No. 6, Shri Doifode, AGP for Respondent Nos. 1 to 3, Advocate Shri Khojre, for respondent No. 4 and Advocate P.C. Marpakwar for Respondent No. 5.

5. Advocate A.M. Gorde for Appellant has, after narrating the facts, pointed out the limited nature of controversy involved ::: Downloaded on - 09/06/2013 14:56:51 ::: 5 and has contended that learned Single Judge was not right in concluding that respondent No. 3 Collector did not discharge his statutory obligation in the matter. He argues that intention to resign declared well in advance by respondent No. 6, preparation of resignation letter by him, its delivery to respondent No. 3 personally by him, its being unconditional, existence of his own signature on it are all the facts which are proved on record and only because of conclusion that said resignation letter was not signed by respondent No. 6 before the Collector, its acceptance is found to be vitiated. He states that when the condition of such letter being "in writing in his hand" is held to be only directory, different yardstick could not have been applied to requirement of signing before collector. In the present circumstances, the said requirement is substantially fulfilled and view of respondent No. 2 about its breach as upheld by learned Single Judge is unsustainable. Without prejudice to this contention, he argues that the safeguards provided for in Section 41 (2) of 1965 Act are only in the interest of respondent 6 and hence, even if the same I held to the mandatory, it is open to said respondent to ::: Downloaded on - 09/06/2013 14:56:51 ::: 6 waive it. He argues that respondent No. 6 has not demonstrated any prejudice because of non-fulfillment of this particular condition. He has relied upon certain precedents to substantiate his arguments and we find it appropriate to refer to the same little later.

Advocate A.M. Gorde has also contended that after Collector received the resignation of respondent No. 6 a vacancy arose and by-election to fill it was then conducted in terms of Section 48 of 1965 Act on 26/3/2009. Revision of respondent 6 filed challenging treatment to said resignation as valid was already rejected on 25/2/2009 and writ petition 1550/2009 filed by him was ultimately allowed by this High Court on 4/5/2009 and matter was reminded back to respondent No. 2 Commissioner. He states that thus in the meanwhile Appellant became Councilor or ward member and vitally interested in the result of said proceedings. She was also thereafter elected as President of respondent No. 4 - Municipal Council. According to him when the by-elections were declare on 9/2/2009 and Appellant submitted her nomination, she became interested and ::: Downloaded on - 09/06/2013 14:56:51 ::: 7 ought to have been joined as party respondent by respondent No. 6 in his revision before respondent No. 2 because of express mandate of Section 318 of 1965 Act. He further states that as order of acceptance of resignation could not have been supported by respondent No.3 Collector in said Revision before respondent No. 2 Commissioner, respondent No. 2 itself should have issued notice to Appellant and as that has not been done, order of said respondent in revision and subsequent judgment of learned Single Judge cannot bind present Appellant and operate to her prejudice.

6. Advocate Kilor for Respondent No. 6 invites attention to earlier section 41 of 1965 Act and states that amendment in 1994 in the scheme of resignation made by legislature is deliberate and in public interest. According to him the emphasis is on words "and then only" in the entire scheme of present section 41 and if arguments of Appellant are accepted, said scheme and its purpose is defeated. There was nothing before respondent No. 3 Collector on 29/12/2008 to conclude that ::: Downloaded on - 09/06/2013 14:56:51 ::: 8 resignation letter was signed by respondent 6. He invites attention to earlier letter dated 18/12/2008 given by respondent No. 6 which contained a threat of resignation if his demands were not fulfilled to urge that disputed resignation letter dated 29/12/2008 is in continuation thereof and could not have been construed independently. He invites attention to the findings reached by Commissioner that said resignation was not "unconditional" and assails approach of Learned Single Judge in appreciating it as an independent action unrelated with earlier threat. He further points out that finding about handing over said resignation to respondent No. 3 Collector is also incorrect and invites attention to office copy of said resignation letter to show that it bears acknowledgment of Deputy Collector of having received it from respondent No. 6. He further invites attention to note prepared by said Deputy Collector submitting resignation letter to Collector along with ground taken by respondent No. 6 in his revision and reply filed to it. Collector has accepted resignation mechanically without realizing the scheme and purpose of section 41 and this ground is also tried ::: Downloaded on - 09/06/2013 14:56:51 ::: 9 to be substantiated by pointing out ingredients of said provision as mentioned by Collector in reply filed before learned Single Judge. He states that this itself demonstrates that all five ingredients of section 41 are not fulfilled in present matter. In this background our attention has been invited to grievance made by respondent No. 6 on 5/1/2009 with request not to treat that letter as resignation and for not accepting it.

According to him there is no question of any waiver in the matter and respondent No. 6 had no intention to resign. All conditions of section 41 of 1985 Act are mandatory and councilor resigning has to submit his resignation only in mode and manner stipulated therein. As the alleged resignation does not fulfill these mandatory requirements, its acceptance has been rightly found to be illegal in revision and in writ petition. He argues that there cannot be any waiver of conditions imposed by legislature in this respect. He has relied upon certain judgments to support his arguments. He further states that by-election was itself subject to result of these proceedings as notified by respondent No. 5 Election Commissioner and Appellant was all ::: Downloaded on - 09/06/2013 14:56:51 ::: 10 the while aware of pending proceedings and this condition. She therefore did not derive any right which necessitated grant of opportunity of hearing in revision before respondent No. 2 Commissioner. He therefore prays for dismissal of LPA.

7. Shri Doifode, AGP for Respondent Nos. 1 to 3

supported the view taken by respondent No. 2 in revision and also in impugned Judgment. Advocate P.C. Marpakwar for Respondent No. 5 argues that said respondent has discharged its statutory obligation in the light of mandate of section 48 of 1965 Act fairly and independently.

8. In (1996) 5 SCC 460 = AIR 1996 S.C. 2736 "Rajendra Singh v. State of M.P." relied upon by Appellant question of waiver of a statutory provision, mandatory or directory and of resulting prejudice has been examined by Hon Apex Court. There by pointing out a Constitution Bench of Apex Court in Har Shankar v. Deputy Excise and Taxation Commissioner, AIR 1975 SC 1121, it has been reiterated that "The writ jurisdiction of ::: Downloaded on - 09/06/2013 14:56:51 ::: 11 High Court under Art. 226 of the Constitution is not intended to facilitate avoidance of obligations voluntarily incurred." At the same time, it is observed that the licensees are not precluded from seeking to enforce the statutory provisions governing the contract. Hon'ble Apex Court, however, states that it was dealing with parties to a contract- a business transaction governed by statutory provisions. It then holds in paragraph 6 that "While examining complaints of violation of statutory rules and conditions, it must be remembered that violations of each and every provision does not furnish a ground for the Court to interfere. The provision may be a directory one or a mandatory one. In the case of directory provisions, substantial compliance would be enough.

Unless it is established that violation of a directory provision has resulted in loss and/or prejudice to the party, no interference is warranted. Even in the case of violation of a mandatory provision, interference does not follow as a matter of course. A mandatory provision conceived in the interest of a party can be waived by that party, whereas a mandatory provision conceived in the interest of public cannot be waived by him. In other words, wherever a ::: Downloaded on - 09/06/2013 14:56:51 ::: 12 complaint of violation of a mandatory provision is made, the Court should enquire -in whose interest is the provision conceived. If it is not conceived in the interest of public, questions of waiver and/or acquiescence may arise-subject. of course, to the pleadings of the parties. This aspect has been dealt with elaborately by this Court in State Bank Patiala v. S. K. Sharma, (1996) 3 SCC 364 : (1996 AIR SCW 1740) and in Krishanlal v. State of Jammu and Kashmir, (1994) 4 SCC 422 on the basis of a large number of decisions on the subject. Though the said decisions were rendered with reference to the statutory Rules and statutory provisions (besides the principles of natural justice) governing the disciplinary enquiries involving government servants and employees of statutory corporations, the principles adumbrated therein are of general application. It is necessary to keep these considerations in mind while deciding whether any interference is called for by the Court-

whether under Art. 226 or in a suit. The functions of the Court is not a mechanical one. It is always a considered course of action."

Shri Gorde, the learned counsel also relied upon State Bank ::: Downloaded on - 09/06/2013 14:56:51 ::: 13 Patiala v. S. K. Sharma, (1996) 3 SCC 364 : AIR 1996 S.C. 1669.

As this judgment is relied upon by Hon Apex Court in its above-

mentioned judgment, We do not find it necessary to refer it again.

9. In AIR 1975 S.C. 915=(1975) 1 SCC 559--

"Ramchandra Keshav Adke v. Govind Joti Chavare" relied upon by Advocate Kilor, Hon'ble Apex Court considers S.5(3)(b) of the Bombay Tenancy and Agricultural Lands Act (67 of 1948) (as amended in 1952) & R.2A of Bombay Tenancy and Agricultural Lands Rules (1956) to conclude that combined reading of S. 5 (3) (b) with R. 2-A which prescribes the manner of verification of a surrender shows that a surrender of tenancy by a tenant in order to be valid and effective must fulfill the following requirements: (1) It must be in writing. (2) It must be verified before the Mamlatdar, (3) While making such verification the Mamlatdar must satisfy himself in regard to two things, namely,

(a) that the tenant understands the nature and consequences of the surrender, and (b) that it is voluntary. (4) The Mamlatdar ::: Downloaded on - 09/06/2013 14:56:51 ::: 14 must endorse his finding as to such satisfaction upon the document of surrender. Hon. Apex Court states that the imperative language, the beneficent purpose and importance of S.5 (3) (b) and R. 2-A for efficacious implementation of the general scheme of the Act all unerringly lead to the conclusion that those provisions were intended to be mandatory and not directory. The requirement as to the recording of its satisfaction by the authority in the manner prescribed by the Rule, is the substance of the matter and not an empty formality. In the absence of the requisite endorsement, therefore, it cannot be said that there has been even a substantial compliance with the statutory requirements. Failure to comply with the mandatory provisions as to verification of the surrender is therefore held to vitiate the surrender and render it non est for the purpose of S. 5 (3) (b). In AIR 1976 S.C. 714 "Lachmi Narain v. Union of India and ors." in para 66, Hon'ble Apex Court noticed Section 6(2) of the Probation of Offenders Act (20 of 1958), as it stood immediately before the impugned notification, which required the State Government to give by Notification in the Official ::: Downloaded on - 09/06/2013 14:56:51 ::: 15 Gazette "not less than 3 months' notice'' of its intention to add to or omit from or otherwise amend the Second Schedule. It is then observed "The primary key to the problem whether a statutory provision is mandatory or directory, is the intention of the law-

maker as expressed in the law, itself. The reason behind the provision may be a further aid to the ascertainment of that intention. If the legislative intent is expressed clearly and strongly in imperative words, such as the use of 'must' instead of "shall'', that will itself be sufficient to hold the provision to be mandatory, and it will not be necessary to pursue the enquiry further. If the provision is couched in prohibitive or negative language, it can rarely be directory, the use of peremptory language in a negative form is per se indicative of the intent that the provision is to be mandatory (Crawford, the Construction of Statutes pp. 523-524).

Here the language of sub-section (2) of Section 6 is emphatically prohibitive, it commands the Government in unambiguous negative terms that the period of the requisite notice must not be less than three months." In AIR 1978 S.C. 694 "Union of India v. Gopal ::: Downloaded on - 09/06/2013 14:56:51 ::: 16 Chandra Misra" , Article 217(1), Proviso(a) of Constitution of India & validity of the withdrawal of a prospective resignation by the High Court Judge at Allahabad are considered. It is held that if a Judge by writing, chooses to resign from a future date, the act of resigning office is not complete because it does not terminate his tenure before such date and the Judge can at any time before the arrival of that prospective date on which it was intended to be effective withdraw it, because the Constitution does not bar such withdrawal. Following observations in paragraphs 19 & 20 are important here:-- "19. Article 217 (1) fixes the tenure of the office of a High Court Judge. It provides that a Judge shall hold office until he attains the age of 62 years. The three clauses of the proviso to Article 217 (1) indicate that this tenure can be terminated before the Judge attains the age of 62 years, in four contingencies, namely, where he- (i) resigns his office in the manner laid down in its clause (a);(ii) is removed from his office in the manner provided in Article 124 (4) (vide its clause

(b));(iii) is appointed a Judge of the Supreme Court (vide its clause

(c)); (iv) is transferred to any other High Court in India. 20. Here, ::: Downloaded on - 09/06/2013 14:56:51 ::: 17 in this case, we have to focus attention on clause (a) of the Proviso.

In order to terminate his tenure under this clause, the Judge must do three volitional things: Firstly, he should execute a "writing under his hand". Secondly, the writing should be "addressed to the President." Thirdly by that writing he should "resign his office". If any of these things is not done, or the performance of any of them is not complete, clause (a) will not operate to cut short or terminate the tenure of his office. Respondent 6 also cited Tarlochan Dev Sharma v. State of Punjab--(2001) 6 SCC 260 which lays down in para 7 that an elected candidate is entitled to continue in his office for entire term & cutting short his tenure is a serious matter.

10. Advocate Kilor relied upon D.B. judgment in AIR 1970 Bom. 170- "Gangabai v. Tumsar Municipality" which considers old S.41, S.48, S.44 of Maharashtra Municipalities Act (40 of 1965), & Rule 63 of the Maharashtra Municipalities Election Rules (1966) and finds that the provisions of Section 48 read with Section 41 of the Act and Rule 63 of the Election Rules ::: Downloaded on - 09/06/2013 14:56:51 ::: 18 revealed that in case a vacancy alleged to have occurred in the office of a Councilor on account of resignation was challenged either by the Councilor concerned or at the instance of any one competent to make such a challenge, and when the matter was before the Collector on a report being received under Section 48 (2) to make arrangements for holding a by-election, the Collector needed to satisfy himself that the vacancy had in fact occurred.

It is observed that where the Councilor of Municipality had apprised the Collector that the so-called resignation alleged to be given by him was not a conscious act of resignation and that his signature was taken on resignation by misrepresentation and fraud, it was obligatory for the Collector to hold inquiry and decide whether the councilor in fact tendered resignation validly.

Under section 41 then obtaining, councilor could resign by tendering his resignation in writing to President and it became effective on its receipt by President. In view of change in said scheme and present position in said section 41, this ruling has no application now. Earlier Section 48(2) required chief officer of municipal council to report the vacancy to the Collector for ::: Downloaded on - 09/06/2013 14:56:51 ::: 19 arranging a by-election. Now said S. 48(2) requires chief officer to report the vacancy to the State Election Commissioner.

Following observations in "Ramchandra Keshav Adke v. Govind Joti Chavare" (supra) are also important to understand the meaning and scope of present Section 41 (2) of 1965 Act."25. A century ago, in Taylor v. Taylor, (1875) 1 Ch D 426 Jessel M. R. adopted the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden.

This rule has stood the test of time. It was applied by the Privy Council, in Nazir Ahmed v. Emperor, 63 Ind App 372 = (AIR 1936 PC 253 (2)) and later by this Court in several cases, Shiv Bahadur Singh v. State of V. P., (1954) SCR 1098 = (AIR 1954 SC 322 = 1954 Cri LJ 910)'; Deep Chand v. State of Rajasthan. (l962) SCR 662 = (AIR 1961 SC 1527 = 1961 (2) Cri LJ 705) to a Magistrate making a record under Sections 164 and 364 of the Code of Criminal Procedure, 1898. This rule squarely applies "where indeed, the whole aim and object of the legislature would be ::: Downloaded on - 09/06/2013 14:56:51 ::: 20 plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other. Maxwell's Interpretation of Statutes, 11th Edn.pp.362-363."The rule will be attracted with full force in the present case, because non-

verification of the surrender in the requisite manner would frustrate the very purpose of this provision. Intention of the legislature to prohibit the verification of the surrender in a manner other than the one prescribed is implied in these provisions. Failure to comply with these mandatory provisions, therefore had vitiated the surrender and rendered it non est for the purpose of S. 5 (3)

(b)." AIR 1999 S.C. 1281 "Babu Verghese v. Bar Council of Kerala" also uses this principle and at the end of para 29 and in para 30 & 31, Hon. Apex Court observes :--"29. ............"But that was not enough as the Rule itself provides that "action" will not be taken unless agreed to by a majority of the members. Since there were eighteen members in the BCI, the opinion of four of the members was wholly irrelevant and insufficient for "action" being taken. On that basis, no extension could be granted, nor was it ::: Downloaded on - 09/06/2013 14:56:51 ::: 21 granted. 30. We may point it out that the process for extension of the term of Kerala Bar Council was initiated under Rule 6. If Rule 6 is to be applied, it must be shown that all its requirements were fulfilled. 31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any Statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor, (1875) 1 Ch D 426 which was followed by Lord Roche in Nazir Ahmad v. King Emperor, 63 Ind App 372 : AIR 1936 PC 253". In AIR 1982 S.C. 1413 "Prithi Pal Singh Bedi, Lt. Col. v. Union of India" , Hon Apex Court states the following principles on interpretation: --"8.

The dominant purpose in construing a statute is to ascertain the intention of the Parliament. One of the well recognised canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity, in the language of the provision the Court should adopt literal construction if it does not lead to an absurdity. The first question to be posed is whether there is any ambiguity in the language used in. Rule 40. If there is ::: Downloaded on - 09/06/2013 14:56:51 ::: 22 none, it would mean the language used, speaks the mind of Parliament and there is no need to look somewhere else to discover the intention or meaning. If the literal construction leads to an absurdity, external aids to construction can be resorted to. To ascertain the literal meaning it is equally necessary first to ascertain the juxtaposition in which the rule is placed, the purpose for which it is enacted and the object which it is required to subserve and the authority by which the rule is framed. This necessitates, examination of the broad features of the Act."

11. Section 41 reproduced above is as considered in writ petition and also as printed in Acts section of 1995 (1) Mah. Law Journal & 2006 edition by State government printing press .

However in one commentary (Shanti Law House, Nagpur--2003 edt.) the section reproduced uses the words--"signed before the Collector". Commentary of Nasik Law House (2000 edt.) shows the words--"sign he before the Collector". But then basic scheme of section 41 (2) does not change because of this difference. We accept the wording as in government printing ::: Downloaded on - 09/06/2013 14:56:51 ::: 23 press publication i.e. "sign before the Collector". Language of Section 41 (2) is, in any case, clear and unambiguous. The resignation of councilor contemplated therein needs to be (i) by a notice in writing, (ii) unconditional , (iii) such writing has to be in his hand, (iv) addressed to the Collector and (v) delivered in person. Said provision also shows that there is no need of its acceptance by Collector and it becomes effective automatically if conditions stipulated in section 41 (2) are fulfilled. Apart from 5 conditions or ingredients mentioned above, there is one most important requirement and it is of signing before the Collector.

Only upon such sign before the Collector resignation will be effective. As the section uses the words "sign before the Collector" look at the use of tense in said section and its impact is called for. In the opening part "may resign" is used the while in concluding part "would" is used. Apart from this, past tense is employed in "addressed" & "delivered". These two words relate to act of drafting and submission of resignation. In this background, not using the word "signed" and use of word "sign"

is very significant. The words "and sign before the Collector"

::: Downloaded on - 09/06/2013 14:56:51 ::: 24

and mandate flowing therefrom separate that part of section from its earlier part. It also separates that process of putting sign from earlier part and indicates more weight attached by the legislature to the act of putting sign before the Collector. It uses present tense to show that after complying with 5 steps mentioned above, the candidate has to sign only before the Collector and not behind his back. No other inference is possible because of consequences of putting such sign provided in concluding part of said S. 41(2). Upon such sign before the Collector only, the document becomes an effective resignation and not otherwise. Thus mandate to put sign before the Collector is integrally connected with coming into force of resignation. As already stated above, Collector is not expected by law to pass any order accepting the resignation. In earlier part of said provision words "in writing" and "in his hand" are already used and those words otherwise are wide enough to comprehend signature also of such councilor on resignation. In spite of this, legislature has separately prescribed this signing in particular manner and has emphasized its importance by adding "and sign before the ::: Downloaded on - 09/06/2013 14:56:52 ::: 25 Collector" & "then only" such resignation will become effective.

This deliberate separate emphatic prescription of mode and manner of putting sign with declaration of its effect is not superfluous. No part of that provision can be considered as a meaningless surplus age, when it is clear & in consonance with the its other parts and expresses the specific intention. Use of present tense by employing word "sign" as against word "addressed & delivered" and not employing the word "signed" is deliberate and thereby, legislature has mandated that resignation so tendered becomes effective only after councilor signs it before the Collector. No sooner such sign is put on such document i.e. incohate resignation by resigning councilor before Collector, it matures into a resignation and becomes effective. In other words, till such signature is put by councilor before Collector, resignation is not born. Tendering of a resignation already signed therefore does not meet requirement of this provision. If present tense is used, it is also apparent that mere acceptance of or verification of signature already made will be against the spirit of the provision. Separate mention of procedure for putting ::: Downloaded on - 09/06/2013 14:56:52 ::: 26 such sign in particular manner is because of its co-relation with resignation becoming effective and any interpretation tending to defeat this arrangement deliberately made by legislature cannot be accepted. By prescribing that councilor has to resign in particular way and sign before Collector so as to bring it into life, a foolproof & self sufficient scheme has been provided by legislature as there is no requirement of acceptance of such resignation or then there is no provision for its withdrawal.

Under earlier section 41 i.e. before 1994 amendment, a councilor could resign by tendering his resignation in writing to President and it became effective on its receipt by President. The change brought about in entire scheme by present section 41 (2) is thus eloquent and far reaching. Requirement of putting sign before a very superior and respectable representative of State Government like Collector i.e. a head of the district is to avoid any controversy in relation to such resignation and to put an end to unnecessary wastage of public money spent in holding fresh elections or by-election. Collector represents executive wing of State and is expected to be unbiased & impartial. It is obvious ::: Downloaded on - 09/06/2013 14:56:52 ::: 27 that Collector therefore plays important role in the matter and he has to find out whether resignation letter tendered to him meets all the requirements of S. 41(2). Verification by the Collector personally of these ingredients and watching councilor sign on resignation will show that such councilor was present before a high ranking representative of State voluntarily in free atmosphere. When elaborate procedure deliberately made by the legislature is complied with, its fulfillment will normally rule out any forcible or involuntary resignation. Collector should first verify all other factors and then ask the candidate to sign the document of resignation and then himself put an endorsement thereafter that it has been so signed so as to put an end to all speculations possible in such matters. Collector will thus be honouring the faith put in him by the legislature. Absence of signing before the Collector cannot bring into life the resignation letter which then remains only a piece of paper without any legal value. Such signing before the Collector by councilor makes his resignation absolute and irrevocable. This legislative stipulation of signing before Collector is thus deliberate, with some purpose ::: Downloaded on - 09/06/2013 14:56:52 ::: 28 and mandatory as also in public interest and not only for the benefit of councilor intending to resign. It does not permit Collector to dispense with requirement of signing before himself because it is the soul of entire scheme. When he witnesses such signing then only the vacancy for holding by-election under s. 48 of 1965 Act becomes available. Thus the entire democratic machinery and set up for holding fresh elections or then a by-

election has to stand on this sign put by councilor before the Collector. This mandatory requirement therefore can not be waived. Councilor can not sign his resignation in any other manner.

12. Though respondent No. 2 - Commissioner found that resignation was not unconditional, said authority has viewed it in the backdrop of earlier threat given by respondent No. 6 on 18/12/2008. The resignation letter dated 29/12/2008 however does not mention any condition. It only shows that proposals for development by respondent No. 6 were deliberately overlooked by municipal administration. It contains request to accept the ::: Downloaded on - 09/06/2013 14:56:52 ::: 29 resignation and therefore intention to resign flows from it.

Learned Single Judge has therefore rightly evaluated this letter dated 29/12/2008 independently as it is not eclipsed in any way by earlier communication. Though respondent No. 6 has contended before us that this was tendered by him to Deputy Collector and not to Collector and from office copy thereof retained by him with him tried to show that it was handed over to Deputy Collector who acknowledged its receipt by giving acknowledgement on said office copy, original resignation with respondent No. 3 Collector shows that original was tendered to him. In what circumstances, respondent No. 6 got acknowledgement from Deputy Collector is not very clear. Office note dated 30/12/2008 prepared by Deputy Collector at its top clearly mentions that resignation was presented before Collector.

Said note also mentions that signature on resignation letter was made before Collector. But then Appellant submitted before learned Single Judge (Para 11 of impugned judgment) that failure of respondent No. 6 to sign on resignation letter before Collector would not be very material as he admitted his signature ::: Downloaded on - 09/06/2013 14:56:52 ::: 30 on it. Respondent No. 2 Commission also found that this condition of signing before Collector was not satisfied in present matter. This finding and argument of present Appellant in writ petition clearly cast a shadow of doubt on this office note dated 30/12/2008. In view of this position, it is not necessary for us to go in to question whether other conditions prescribed in section 41 (2) are fulfilled or not. We find that most cardinal condition which brings into force the resignation letter was observed in breach in present matter.

13. Next question its whether present Appellant ought to have been joined as party to revision filed under section 318 of 1965 Act by respondent No. 6. Said revision was already filed on 21/1/2009 and process of election commenced on 9/2/2009 when election programme for conducting by-election from Ward No. 8 was published. The communication dated 12/1/2009 forwarded by respondent No. 5 State Election Commission to respondent No. 4 Municipal Council shows that it carried the standard condition that by-elections were subject to all court ::: Downloaded on - 09/06/2013 14:56:52 ::: 31 decisions in pending matters. In fact, revision of respondent No. 6 was not pending on 12/1/2009. However election programme was published by respondent No. 3 Collector on 24/2/2009 and therein it is mention that by-election from Ward No. 8 was subject to proceedings pending in court. On 4/2/2009, chief officer of Principal Council had informed respondent No. 5 Election Commission about filing of revision by respondent No.

6. This revision was initially rejected by Commissioner on 25/2/2009 but then was restored for fresh consideration by High Court on 4/5/2009 and was allowed by Commissioner on 26/6/2009. The Appellant was declared elected on 26/3/2009.

She has been elected as president on 16/6/2009. It is therefore obvious that present Appellant was all the while aware that her election as councilor and therefore as president is subject to result of of revision filed by respondent No. 6. Section 318 of 1965 Act confers revisional powers on State Government and its first provision castes obligation upon it not to vary or reverse any order unless notice is given to interested parties to appear & argue. In 1996 (1) Mh.L.J. Page 30 - Baby Samuel vs Tukaram ::: Downloaded on - 09/06/2013 14:56:52 ::: 32 Laxman Sable, Hon'ble Apex Court has found that when disqualification of president of municipal Council under section 44 of 1965 Act was set aside in appeal, the appellant disqualified candidate was entitled to be put back in same position in which he/she was before removal. Appeal there was under section 44 (4) which contains the mandate that no order shall be passed against any councilor without giving him a reasonable opportunity of being heard. Respondent Tukaram was elected as president during pendency of this appeal and he had approached High Court contending that before allowing appeal of Baby Samuel he should have been heard. This grievance did not find favour with Hon'ble Apex Court. This law has been applied by Division Bench of this High Court in paragraph 30 of judgment in case of Javed s/o Sheikh Mustaque Patel vs. State of Maharashtra reported at 2009 (3) All M.R. 40. The judgment of learned Single Judge of Hon Rajasthan High Court reported at A.I.R. 2009 Rajasthan 109 - Smt. Vimala Vyas vs State of Rajasthan, is also sought to be relied upon. There a member allowed to hold charge of chairperson was not allowed to join writ petition filed ::: Downloaded on - 09/06/2013 14:56:52 ::: 33 by petitioner challenging his removal as chairperson of municipal board after concluding that validity and legality of order of removal was essentially a matter between Petitioner and state government. In AIR 1992 S.C. 1277 "State of H.P. v. Kailash Chand Mahajan" while considering issue of necessary party in writ petition, in paragraph 100, Hon'ble Apex Court noticed that Chairman of State Electricity Board was challenging Ordinance and Act fixing age of superannuation of member of Board depriving him of his further continuance in post. Appointment of one Chouhan in his place consequent to suspension of Chairman had been stayed by High Court "till further orders". It was held that failure to implead Chouhan would not affect maintainability of writ petition as said chairman was not seeking any relief against him. Plea that decision of court in absence of said appointee Shri Chouhan would be violative of principles of natural justice was also held to be not tenable. It is thus obvious that when present Appellant has drawn her "interest" subsequent to accrual of cause of action in favour of respondent No. 6, such interest is subservient to said cause and its adjudication. The ::: Downloaded on - 09/06/2013 14:56:52 ::: 34 Appellant cannot enlarge that subordinate interest and it cannot militate with cause & case of respondent No. 6. She had not independently defended acceptance of resignation of respondent No. 6 by Collector in any capacity and her interest arose only after by-election was notified and she got elected. She was therefore not an interested party under section 318 of 1965 Act.

14. As a result of above discussion, We do not find any merit in any of the contentions raised before us by Appellant.

Letters Patent Appeal is, therefore, dismissed with no order as to costs.

                 JUDGE                                      JUDGE                     

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At this stage, Shri Gorde, learned counsel for the appellant states that the interim order operating till today should ::: Downloaded on - 09/06/2013 14:56:52 ::: 35 be continued for a period of three weeks so as to enable the appellant to take further appropriate steps in the matter.

Shri Kilor as also the learned counsel for the respective respondents are opposing the request.

However, in the interest of justice, we continue the interim order for a period of three weeks more from today. The said order shall cease to operate automatically thereafter.

                   JUDGE                                       JUDGE                     
      


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     *dragon/GS.






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