OM PRAKASH v. COLLECTOR, GUNA — 1987 DIGILAW 101 (MP)

N. D. OJHA, C. J. ( 1 ) THIS Order shall also govern the disposal of M. P. No. 123/87 between the same parties. ( 2 ) OMPRAKASH who is the petitioner in these two writ petitions, was the President of the Municipal Council, Ashok Nagar, District Guna. This Council had 24 members. 13 of the members tendered their resignations, to the Collector Guna. These resignations were accepted by the Collector and casual vacancy caused on account of these resignation was notified in the gazette by Notification dated 16-9-86, as contemplated by Sub-Sec. (2) of S. 40 of the M. P. Municipalities Act, 1961 (hereinafter referred to as the Act ). Subsequently, by Notification dated 12-1-1987, in exercise of powers conferred on it under S. 337 of the Act, the State Govt. dissolved the Council. Acting under the powers conferred on it under S. 328 (6) (b) of the Act, the State Government appointed an Administrator. ( 3 ) NOTIFICATION dated 16-9-86, whereby the vacancy was notified, has been challenged in this writ petition whereas the orders passed by the State Govt. under Ss. 337 and 328 (6) (b) of the Act have been challenged in writ petition No. 123/87. It has been urged by learned counsel for the petitioner that S. 40 (1) of the Act contemplates that any councillor may resign his office by tendering his resignation in writing to the President and since in the instant case, the resignations of the 13 councillors were not tendered to the President, but were tendered to the Collector, i. e. the prescribed authority under S. 40 of the Act directly, these resignations could not have been accepted by the Collector and consequently the notification of occurrence of casual vacancy issued under S. 40 (2) of the Act as also orders of the State Govt. dissolving the Council and appointing an Administrator are invalid. We find it difficult to agree with this submission. ( 4 ) SUB-SECS. (1) and (2) of S. 40 of the Act were substituted by M. P. Municipalities (Amendment) Act, 1982 (43 of 1982 ). The said Section, before being so substituted, read as follows :"40. Resignation by Councillor.- (1) Any Councillor may resign his office by tendering his resignation in writing to the President, and his seat shall thereupon become vacant. (1) and (2) of S. 40 of the Act were substituted by M. P. Municipalities (Amendment) Act, 1982 (43 of 1982 ). The said Section, before being so substituted, read as follows :"40. Resignation by Councillor.- (1) Any Councillor may resign his office by tendering his resignation in writing to the President, and his seat shall thereupon become vacant. (2) On receipt of the resignation under Sub-Sec. (1), the President shall communicate the same to the prescribed authority who shall cause the fact of such resignation and the occurrence of the casual vacancy thereby to be notified in the Gazette. (3) If it appears to the State Government that any Councillor having become liable for removal under S. 41 has tendered his resignation to escape such removal, then notwithstanding anything contained in this Section, the State Government may order his removal in accordance with the provisions of the said Section and thereupon the Councillor shall be deemed to have been removed from the date he resigned his office. "after amendment Sub-Secs. (1) and (2) of S. 40 read as under :"40 (1 ). Any Councillor may resign his office by tendering his resignation in writing to the President who shall forward it to the prescribed authority. (2 ). On receipt of the resignation under Sub-Sec. (1), the prescribed authority shall - (i) if it is satisfied about its genuineness, accept the resignation and notify the fact of such resignation and the occurrence of casual vacancy by reason of such resignation in the Gazette; (ii) If it is not satisfied about its genuineness, not accept the resignation for reasons to be recorded in writing. (3 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "sub-Sec. (1) of the old S. 40 contemplated that as soon as a resignation was tendered by a councillor to the President, 'his seat shall thereupon become vacant'. It is settled law that when the statute requires a particular thing to be done in a particular manner it has to be done in that manner or not at all. . "sub-Sec. (1) of the old S. 40 contemplated that as soon as a resignation was tendered by a councillor to the President, 'his seat shall thereupon become vacant'. It is settled law that when the statute requires a particular thing to be done in a particular manner it has to be done in that manner or not at all. Consequently, if the consequence of the seat becoming vacant was to ensue under Sub-Sec. (1) of old S. 40 of the Act, the resignation had to be submitted by the councillor in the manner prescribed by the said Sub-Section. The position under the substituted S. 40 of the Act is, however, different. Sub-Section (1) no doubt even now contemplates that the resignation has to be tendered by the councillor to the President, but the said Sub-Section does not contemplate any automatic consequence. The only duty which has been assigned to the President on the receipt of the resignation by a councillor is to forward it to the prescribed authority. Sub-Sec. (1) of S. 40 of the Act makes it obligatory on the President to forward the resignation to the prescribed authority. The words used in this Sub-Section are who shall forward it to the prescribed authority. Sub-Sec. (2) authorises the prescribed authority on being satisfied about the genuineness of the resignation to accept the resignation and notify the fact of such resignation of the occurrence of casual vacancy by reason of such resignation in the Gazette. ( 5 ) IT would thus be seen that even though Sub-Sec. (1) of S. 40 of the Act contemplates the resignation to be tendered by the councillor to the President, it does not prescribe the consequence of the letter of resignation not being tendered to the President, but being tendered directly to the prescribed authority who has been authorised to accept the resignation. Apparently the President, under Sub-Sec. (1) of S. 40 of the Act is only to act like a conduit pipe. The ultimate authority of acting upon the letter of resignation vests in the prescribed authority. In this view of the matter, we are of the opinion that in so far as S. 40 (1) of the Act contemplates that the letter of resignation is to be tendered by the councillor to the President is concerned, it is only director and not mandatory. It is apparently for convenience. In this view of the matter, we are of the opinion that in so far as S. 40 (1) of the Act contemplates that the letter of resignation is to be tendered by the councillor to the President is concerned, it is only director and not mandatory. It is apparently for convenience. ( 6 ) WE are aware that even directory provisions are meant to be complied with, but the distinction between directory and mandatory provisions is well-known. An action taken in breach of a mandatory provision will become invalid, whereas contravention of a directory provision need not necessarily result in the consequential actions being quashed in a writ petition unless it is shown that on account of non-compliance of the directory provisions, some prejudice has been caused. In our opinion, therefore, simply because 13 councillors had tendered their resignation in writing to the prescribed authority directly and not to the President, will not vitiate the action taken either by the prescribed authority or the consequential action taken by the State Government. ( 7 ) AS regards satisfaction about genuineness of the letter of resignation of the 13 councillors, suffice it to say that the power in this behalf has been conferred on the prescribed authority under Sub-Sec. (2) of S. 40 of the Act and it is not possible for us to take the view in the present writ petitions that the exercise of power, by the prescribed authority in this case is, in any way, vitiated so as to justify interference. The total number of councillors being only 24 and 13 out of them having resigned, the number of the councillors had apparently been reduced to less than half and consequent action under S. 337, as substituted by the Madhya Pradesh Municipalities (Amendment) Act 1981 (No. 3 of 1981), read with S. 328 of the Act cannot obviously be said to be in any way, invalid. ( 8 ) IN the result, we find no merit in these two writ petitions. They are accordingly dismissed. The interim orders of stay passed therein, are vacated. Petition dismissed. .