Gujarat High Court
Ajaykumar Babulal Patel vs State Of Gujarat on 18 June, 2018
Author: Akil Kureshi
Bench: Akil Kureshi, B.N. Karia
C/SCA/8704/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8704 of 2018
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AJAYKUMAR BABULAL PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR DIPAN DESAI(2481) for the PETITIONER(s) No. 1
MR.JAISWAL, AGP (1) for the RESPONDENT(s) No. 1
MR ADIL R MIRZA(2488) for the RESPONDENT(s) No. 5
MR HS MUNSHAW(495) for the RESPONDENT(s) No. 2
MR.V.K.BHATIYA, ADVOCATE for the RESPONDENT(s) No. 4
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 18/06/2018
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Petitioner has challenged a communication dated 29.05.2018 made by the Deputy Development Commissioner, State of Gujarat, Gandhinagar to the District Development Officer, Valsad.
2. Brief facts are as under:
3. Petitioner is a member of Pardi Taluka Panchayat. The respondent no.5 was also elected to the same panchayat during the same elections. On 01.05.2018, the respondent no.5 tendered resignation Page 1 of 15 C/SCA/8704/2018 ORDER as a member of the Taluka Panchayat which was addressed to the Taluka Development Officer, Pardi. In such letter, she simply stated that for her personal reasons, she resigns from her position. A similar communication was also addressed by her to the President, Taluka Panchayat, Pardi. It is not in dispute that such communication was inwarded in the office of the Taluka Panchayat on 01.05.2018 itself.
4. On 02.05.2018, the respondent no.5 sent a communication to the Taluka Development Officer, conveying that she had sent her resignation dated 01.05.2018, however, such step was taken hurriedly. She wishes to correct her error and therefore with immediate effect, withdraws the resignation. A similar communication was also made by her on the same date to the President, Taluka Panchayat, Pardi. Along with these communications, she had attached an affidavit sworn by her supporting such averments.
5. The President of the Taluka Panchayat put his endorsement on the resignation letter dated 01.05.2018 of the respondent no.5, in which, he recorded that in connection with the resignation, Page 2 of 15 C/SCA/8704/2018 ORDER respondent no.5 has sent a sworn affidavit requesting to reject the resignation. The resignation is therefore not accepted.
6. On 09.05.2018, the Taluka Development Officer, Pardi, wrote to the District Development Officer, Valsad, seeking his guidance with respect to the resignation of the respondent no.5 dated 01.05.2018 and its nonacceptance by the President of the Panchayat. On 16.05.2018, the petitioner herein wrote to the District Development Officer, Valsad, and contended that the respondent no.5 had already tendered resignation on 01.05.2018. As per section 68(3) of the Gujarat Panchayats Act, 1993 ('the Act' for short), such resignation would be effective from the time it is tendered. The President therefore had no power to reject the same as per law and therefore, the post in question has fallen vacant. On 18.05.2018, the District Development Officer, Valsad, wrote to the Development Commissioner and sought his guidance with respect to above mentioned dispute which has arisen. He has made specific reference to subsection (4) of section 68 of the Act. On 29.05.2018, Deputy Development Commissioner conveyed Page 3 of 15 C/SCA/8704/2018 ORDER to the District Development Officer that the President of the Taluka Panchayat had rejected resignation of the respondent no.5. Question of exercising power to decide dispute under subsection (4) of section 68 of the Act would arise when there is dispute. In short, therefore, in his opinion, since no dispute had arisen, there was no question of exercising powers under subsection (4) of section 68 of the Act.
7. Appearing for the petitioner, learned counsel Shri Dipan Desai vehemently contended that the authorities have committed a serious error. In his opinion, the resignation of the respondent no.5 would take effect, the moment it is received by the President of the Taluka Panchayat. In absence of any power for withdrawal of such resignation, the President has committed serious error in accepting the request of the respondent no.5. He therefore submitted that there was no question of any dispute about the acceptance of the resignation. Reference under subsection (4) of section 68 of the Act was even not necessary. His specific contentions were as under:
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I. The letter dated 01.05.2018 of resignation written by the respondent no.5 was received by the President of the Panchayat on the same date. This would be clear from the documents on record and in particular, the remarks put by the President while rejecting the resignation. In that view of the matter, by virtue of sub section (3) of section 68 of the Act, the resignation had become effective. II. There is no provision under section 68 of the Act permitting the person tendering resignation to withdraw the same. In absence of any such powers, the respondent no.5 could not have exercised such an option.
III. In any case, once the resignation was tendered, received by the President of the Panchayat and therefore become effective, the resignation could not have been withdrawn.
IV. The President of the Panchayat had no power to reject the resignation.
V. In view of admitted facts, there is no dispute Page 5 of 15 C/SCA/8704/2018 ORDER about the resignation having become effective. Reference under subsection (4) of section 68 of the Act is therefore not necessary. The petitioner has not raised any dispute about the resignation. He had only brought correct facts before the authorities. The authorities failed to examine such facts in correct legal perspective. The petitioner's request for declaration that the respondent no.5 has vacated the seat should therefore be granted.
8. Learned counsel Shri Desai relied on some judgments, reference to which will be made at a later stage.
9. Learned counsel Mr.Mirza appearing for respondent no.5 opposed the petition. Relying on the affidavit dated 15.06.2018, the counsel submitted that the letter of resignation was not received by the President on 1st May, contrary to what the petitioner contends. The resignation and withdrawal thereof were placed before the President simultaneously.
10. Learned counsel Shri V.K.Bhatiya appears for Page 6 of 15 C/SCA/8704/2018 ORDER respondent no.4 i.e. the President of Panchayat who has also filed an affidavit substantially supporting the factual averments made by respondent no.5 in her affidavit. Learned AGP Shri Jaiswal supported the impugned communication dated 29.05.2018.
11. Section 68 of the Act pertains to resignation and reads as under:
"68.
(1) The President may resign from his office by tendering his Resignation in writing to the competent authority but the Resignation shall not take effect until it is accepted by the competent authority.
(2) The VicePresident may resign from his office by tendering his resignation in writing to the panchayat but the resignation shall not take effect untill it is accepted by the panchayat.
(3) Any other member of the panchayat may resign by tendering his resignation to the President and the resignation shall take effect on the date on which it is received by the President.
(4) If any dispute regarding any resignation arises it shall be referred for decision to such officer as the State Government may by general or special order appoint in that behalf and the decision of such officer shall be final:
Provided that no such dispute shall be entertained after the expiry of a period of thirty days from the date on which the resignation takes effect.
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12. Perusal of the said provision would show that in case of a President or Vice President of a Panchayat, in terms of subsections (1) and (2) of section 68, the resignation would be made in writing and such resignation will not take effect until it is accepted by the competent authority. In contrast, as per sub section (3) of section 68, a member of the Panchayat can resign by tendering his or her resignation to the President and the resignation would take effect on the date on which it is received by the President. In terms of subsection (4) of Section 68, if any dispute regarding any resignation arises, the same shall be referred for decision to the officer as the Government may specify. Proviso to subsection (4) of section 68 lays down the time limit for raising such dispute.
13. Few things thus become immediately clear from this provision. Firstly, unlike in case of President or Vice President, the resignation tendered by the member of the Panchayat to the President does not require specific acceptance thereof. The effective date is the date when the same is received by the President.
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14. Learned Single Judge of this Court in somewhat similar provisions made in the Gujarat Municipalities Act, 1963, in case of Shirishkumar Mayachandbhai Modi v. Collector, Banaskantha, reported in 1975 GLR 303 observed that there is no provision under the said Act which provides for withdrawal of a resignation which the councilor has tendered. Once the councilor tenders the resignation and it has taken effect under subsection (3) of section 35, the same cannot be withdrawn. We may stress on the observation of the learned Single Judge on the resignation not only being tendered but the same taking effect preventing any withdrawal thereof later on.
15. Division Bench of this Court in case of Pravinbhai Mulubhai Gadhavi v. State of Gujarat passed in Special Civil Application No.535 of 2018 vide an order dated 22.01.2018, had an occasion to examine the provisions of section 35 of the Gujarat Municipalities Act pertaining to the resignation of President, Vice President and the councilor of the Municipality. It was observed that subsection (3) of section 35 does not require that the resignation Page 9 of 15 C/SCA/8704/2018 ORDER tendered by the councilor should be accepted by the President for it becoming effective. The provision clearly provides that the resignation shall take effect on the date on which it is received by the President. For the resignation to become effective therefore what is essential is, it is received by the President and not its acceptance.
16. The provisions of section 68(3) of the Act being similar to section 35(3) of the Municipalities Act, above observations will apply to our case also. To this extent, we have no dispute with the legal proposition raised by the counsel for the petitioner. Subsection (3) of section 68 of the Act nowhere requires that the resignation tendered by a member of a Panchayat to the President must be accepted by the President before it becomes effective. The receipt of the resignation by the President is sufficient and therefore crucial.
17. In the present case, this itself is a matter of dispute. The petitioner contends that the resignation tendered by the respondent no.5 was received by the President on 01.05.2018 and therefore its withdrawal Page 10 of 15 C/SCA/8704/2018 ORDER under letter/affidavit dated 02.05.2018 was wholly impermissible. We do not find any conclusive evidence to accept such a contention. The note put by the President on the resignation letter of respondent no.5 does not suggest that the President received the letter of resignation on 01.05.2018. He has only stated that the respondent no.5 had tendered the resignation under communication dated 01.05.2018. He thereafter recorded that she has also applied for its withdrawal under affidavit dated 02.05.2018. Nowhere, the President in this note or anywhere else from the documents supplied before us, accepts the position that the letter of resignation was received by him on 01.05.2018. In fact, in the affidavits filed by respondent nos.4 and 5 they have taken a specific stand that the letter of resignation as well as its withdrawal were placed before the President simultaneously on 02.05.2018. We are neither accepting nor rejecting such a theory. We are only concluding that in view of such conflicting stands taken by the petitioner and the contesting respondents, the disputes with respect to the resignation of the respondent no.5 and it becoming Page 11 of 15 C/SCA/8704/2018 ORDER effective have arisen. Such dispute can be resolved only by the competent authority in terms of sub section (4) of section 68 of the Act.
18. Before closing, a few peripheral aspects may be disputed of. Firstly, we wonder whether the District Development Officer had the authority to seek guidance from the Development Commissioner in this respect. Secondly, the petitioner has not raised any specific request for referring the dispute under sub section (4) of section 64 of the Act. Nevertheless, his objection to the resignation having been treated as withdrawn is sufficient to treat it as a dispute which needs to be decided by the competent authority under subsection (4) of section 68 of the Act.
19. Lastly, the petitioner has contended that in absence of any provision for withdrawal of resignation, the respondent no.5 could not have been exercised any such option. Section 68 of the Act makes no provision for withdrawal of resignation once it is effective. This is what the learned Single Judge of this Court in case of Shirishkumar Mayachandbhai Modi (supra) also held in context of Page 12 of 15 C/SCA/8704/2018 ORDER the Gujarat Municipalities Act. However, this is not the same thing as to suggest that a resignation which is put in motion, cannot be recalled before it is effective. Whether there is any stage for acceptance of resignation as in the case of President or Vice President of a Panchayat or in case of a member where no such stage is envisaged, there is nothing in the statute to prevent the person who tendered the resignation to change his or her mind before the resignation has become effective. This would not tantamount to withdrawal of resignation which has become effective, but amounts to not tendering the resignation altogether. The statute does not compel an elected member of a Panchayat to resign once any such thought is harbored and also put in writing. If such person for whatever reason has a second thought and acts on it before resignation becomes effective, the statute does not prevent its withdrawal. Situation in such a case would be that no such resignation was ever tendered. A registration which has not been tendered cannot become effective nor any authority can accept such a resignation which is not tendered. We may recall, Shri Desai had argued that Page 13 of 15 C/SCA/8704/2018 ORDER the President of the Panchayat had rejected the resignation though he had no such power. In our opinion, however, the President merely used incorrect language. What we have held is that it was within the power of respondent no.5 to withdraw the resignation before it became effective. The President of the Panchayat under such circumstances, could not have accepted it, of course, if the facts are such. His mere communication that it is rejected, would not change this legal position.
20. Under the circumstances, the petitioner's request for a declaration that respondent no.5 has vacated the post of member of Panchayat is not accepted. However, the Development Commissioner shall treat the petitioner's objection letter dated 16.05.2018 as raising a dispute with respect to the resignation of the respondent no.5 and decide such a dispute in terms of subsection (4) of section 68 of the Act. We clarify, with respect to the main factual disputes as to when were the resignation letter of the respondent no.5 and the withdrawal were received by the President, we have expressed no opinion.
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21. Petition is disposed of accordingly.
(AKIL KURESHI, J) (B.N. KARIA, J) ANKIT SHAH Page 15 of 15