Patel Narayanbhai S. v. Collector of Valsad — 1995 DIGILAW 83 (GUJ)

R. K. ABICHANDANI, J. ( 1 ) THE petitioners of Special Civil Application No. 8558 of 1992 have challenged the resolution of the General Meeting of the respondent Municipality electing the respondent Mr. Natvarlal as the president of the Municipality and seeking a direction on the respondent No. 1 Collector to decide the dispute of the alleged resignations of the petitioners No. 3 and 4 and the respondent Mr. Natverala as the councillors of the Municipality and hold election of the President and Vice-President as per the provisions of the Gujarat Municipalities Act, 1963 and the Rules thereunder. The challenge against the resolution dated 9. 11. 1992 by which the respondent Natvarlal was elected as a president for a period of three years is based on the allegation that the petitioners No. 3 and 4 were wrongfully excluded from exercising their votes as the councillors on the ground that they had resigned and further that the respondent Natvarlal himself had resigned as a councillor and therefore could not have been elected as a president. ( 2 ) IN Special Civil Application No. 5515/1993 the petitioner who is also the petitioner no. 1 in Special Civil Application No. 8558 of 1992 has prayed for setting aside the order passed by the respondent No. 2 Collector on 11. 1. 1993 by which he held that there was no effective resignation of the respondent Natverlal. ( 3 ) BOTH the petitions were heard together at the request of the learned Counsel appearing for both the sides. ( 4 ) THE petitioners No. 3 and 4 of Special C. A. No. 8558/92 were the concillors of the respondent Municipality and they are said to have submitted their resignations in writing to the President. Under Secs. 35 (1) and 35 (2) of the said Act provision is made as to how the President and Vice-President may resign. As per the provision of Sec. 35 (3) of the said Act, any other Councillor may resign his office by tendering his resignation in writing to the President and such resignation shall take effect on the date on which it is received by the President. It is brought on record that the petitioners No. 3 and 4 of the special C. A. No. 8558 of 1992 had filed applications before the Collector to inquire as to whether they had tendered their resignations or not. It is brought on record that the petitioners No. 3 and 4 of the special C. A. No. 8558 of 1992 had filed applications before the Collector to inquire as to whether they had tendered their resignations or not. The case of the respondent No. 4 natvarlal who was the President at the relevant time, when these two councillors are said to have tendered their resignation, is that the resignations of these two councillors were accepted. The resignations would have operated even if there was no acceptance by the president in view of the fact that under Sec. 35 (4) of the said Act, such resignation becomes effective on the date on which it is received by the President. It appears that the collector examined the dispute as to the resignations of the petitioners No. 3 and 4 holding by his order dated 29. 12. 1993 that the resignation of the petitioner Harjibhai was duly tendered on 28. 10. 1992 to the President of the Municipality and had become effective and his seat had fallen vacant, and, by the order dated 26. 10. 1993 that the resignation of the petitioner Mohanbhai tendered to the President of the Municipality on 3. 11. 1992 had become effective and that his seat had also fallen vacant. Under these orders, the Collector directed that the process should be started for filling up these two seats. These orders were made by he Collector under Sec. 35 (5) of the said Act, in exercise of the power conferred on him by the Notification dated 2. 1. 1992 referred to in his orders. Therefore, these two petitioners Mohanbhai and Harjibhai having resigned as the councillors could not have voted in the meeting which was called for electing the president. It will be noticed that the President was elected unanimously and these two votes would not have made any difference even if they were cast, against the President. Therefore, the petitioners cannot challenge the impugned resolutions electing the president on this count. ( 5 ) THE learned counsel for the petitioners strongly contended that Natvarlal could not have been allowed to contest as President in view of the fact that he had resigned as a councillor and was not therefore competent to become a president of the Municipality. The letter of the respondent Natvarlal dated 7. 11. ( 5 ) THE learned counsel for the petitioners strongly contended that Natvarlal could not have been allowed to contest as President in view of the fact that he had resigned as a councillor and was not therefore competent to become a president of the Municipality. The letter of the respondent Natvarlal dated 7. 11. 1992 on which reliance is placed on behalf of the petitioners for contending that he had resigned as a Councillor makes an interesting reading. It is a letter addressed to the Collector and it records that the respondent Mr. Natvarlal who was elected as a Councillor had submitted his resignation as a Councillor to the President of the Muncipality and he himself in capacity as the president had accepted the same and thus he had ceased to be a Councillor. On his having ceased to be a Councillor, he had also ceased to be President of the Municipality. The collector was asked to take note of this fact. ( 6 ) UNDER Sec. 35 (1) of the said Act, the President may resign his office by tendering his resignation in writing to the Collector and such resignation takes effect on the date on which it accepted by the Collector or on the expiry of thirty days from the date of tendering the resignation, whichever event occurs earlier. It appears that on receiving the communication dated 7. 11. 1992 the Collector inquired into the matter and by a detailed order dated 11. 1. 93 he found that the resignation of the respondent Natvarlal was not addressed to the competent authority and was therefore ineffective and that he continued to be a Councillor of the Municipality. The respondent Natvarlal had taken a contention that he had never submitted such resignation and on 9. 12. 1992 he had continued to be the president of the Municipality and was on that day again elected as a President for the new tenure. The finding that the resignation purported to have been sent by the President was not given by him would be a finding of the fact. Apart from this, if we scrutinize the alleged resignation it becomes clear that it is not at all resignation addressed to the collector by the respondent Natvarlal for resigning as the President of the municipality. The finding that the resignation purported to have been sent by the President was not given by him would be a finding of the fact. Apart from this, if we scrutinize the alleged resignation it becomes clear that it is not at all resignation addressed to the collector by the respondent Natvarlal for resigning as the President of the municipality. Therefore, on such communication the Collector could not have accepted anything which can be described as an acceptance of the resignation from the office of the President under sec. 35 (1) of the said Act. The said communication also does not address any resignation of the respondent Natvarlal to the Collector from the post of the Councillor. There was therefore no occasion for the Collector to accept the resignation of the respondent natvarlal as a Councillor of the municipality. The communication is only an intimation to the Collector that the respondent Natvarlal in his capacity as a Councillor had tendered his resignation to himself which he had accepted in his capacity as the President and thus he had ceased to be a Councillor, as a consequence of which he had ceased to be the president. The manner in which the President can resign is specifically laid down in Sec. 35 (1) of the said Act and any such consequential and automatic resignation from the office of President as is mentioned in the letter dated 7. 11. 1992 is not contemplated by sec. 35 (1) of the said Act. When the President wants to resign as a President as well as, as a councillor he must under Sec. 35 (1) of the said Act tender his resignation to the collector. Under Sec. 35 (3) any other councillor may resign his office by tendering his resignation in writing to the President. This would mean that a Councillor who is the president cannot resign his office by tendering his resignation unto himself. This is clear from use of the words "other Councillors" in Sec. 35 (3) of the said Act which mean the councillors other than those who are the President and Vice-President and are covered by the provisions of Sec. 35 (1) and 35 (2) of the said Act respectively. Therefore since the communication dated 7. 11. This is clear from use of the words "other Councillors" in Sec. 35 (3) of the said Act which mean the councillors other than those who are the President and Vice-President and are covered by the provisions of Sec. 35 (1) and 35 (2) of the said Act respectively. Therefore since the communication dated 7. 11. 1992 addressed by the respondent Natvarlal to the Collector was not resignation either as a President or as a Councillor, there was no question of his having become disqualified for the office of the President in the meeting held on 9. 11. 1992, under Sec. 32 of the said Act for election of the President. ( 7 ) IT was sought to be urged that there is a reference to Sec. 35 (5) of the said Act in the order dated 11. 1. 1993 made by the Collector and to trie notification dated 2. 1. 1992 under which the Collector was not assigned the power for deciding such dispute. The resignation of the president is statutorily required to be tendered to the Collector under sec. 35 (1) of the said Act and it is for the Collector to accept such resignation. What the Collector has in reality done under the impugned order is to hold that there is no resignation tendered which could be accepted by the Collector. The communication dated 7. 11. 1992 clearly shows that it is only an intimation and there is no resignation tendered to the Collector. In this view of the matter, there is no warrant for interfering with the impugned order made by the Collector even though it refers to the provisions of Section 35 (5) of the said Act. The term of the respondent Natvarlal would expire in November, 1995 and he has been working as President for over two years. Therefore, having regard to the facts and circumstances of this case it would not be appropriate to interfere with his tenure at this stage particularly having regard to the fact that the intimation dated 7. 11. 1992, on the fact of it, is not any resignation tendered by him to the Collector under Sec. 35 (1) of the said Act. ( 8 ) UNDER the above circumstances, both the petitions fail. Rule discharged in both the petitions, with no order as to costs. .