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2005 DIGILAW 56 (PAT)

Vijay Kumar Manmouji v. State Of Bihar

2005-01-19

R.S.GARG

body2005
Judgment R.S.Garg, J. 1. Heard learned counsel for the petitioner, learned counsel for the State and Shri Ajay Kumar Ambastha, learned counsel for the intervener (Up-Mukhiya of Gram Panchayat). 2. The facts necessary for disposal of the present writ application are that the present petitioner who was elected as Mukhiya, vide his letter dated 1.3.2003, addressed to the Block Development Officer, Khagaria, resigned from the office of Mukhiya. However a copy of the said letter was also forwarded to the District Panchayati Raj Officer, Khagaria for Information and necessary action. It appears that in the meanwhile the disputes between the Block Development Officer and the Mukhiya were settled which would be clear from Annexure-5, the petitioner on 4.3.2003 (Annexure-3) again submitted a letter to the Block Development Officer seeking withdrawal of the resignation letter. A copy of the said letter was again forwarded to the District Panchayati Raj Officer for information and necessary action. On 26.3.2003, vide order contained in memo No. 80, the District Panchayati Raj Officer, Khagaria accepted the resignation and directed the Block Development Officer that the charge of the office of Mukhiya be handed over to the Up-Mukhiya, (the intervener in these proceedings). On 29.3.2003 the Block Development Officer vide his letter No. 805 (Annexure-5) informed the District Panchayati Raj Officer that neither the resignation was addressed to D.P.R.O. nor withdrawal of resignation was addressed to D.P.R.O. therefore, nothing could have been forwarded and under the "circumstances the order accepting the resignation be re-considered. It appears that the matter went up to the Secretariat. The Secretary of the Department, it appears from Annexure 7 sought legal advise from the Law Department. In accordance with the advice given to him, he observed that the letter proposing withdrawal of the resignation was not addressed to the District Panchayati Raj Officer, therefore, the letter would not be effective and the resignation was rightly accepted. 3. The petitioner being aggrieved by the acceptance of the resignation and other proceedings recorded against him is before this Court. 4. Learned counsel for the petitioner submits that in accordance with Sub-sec. (1) of sec. 18 of the Bihar Panchayat Raj Act, 1993 the resignation would be valid if it is addressed to the District Panchayati Raj Officer and not otherwise. 4. Learned counsel for the petitioner submits that in accordance with Sub-sec. (1) of sec. 18 of the Bihar Panchayat Raj Act, 1993 the resignation would be valid if it is addressed to the District Panchayati Raj Officer and not otherwise. He submits that from Annexure-2 it would clearly appear that the resignation was addressed to the Block Development Officer and a copy simply , was forwarded to the District Panchayati Raj Officer. According to him, the resignation as contained in Annexure-2 was invalid and if the forwarding of the copy would be taken to be addressing a letter of resignation to the D.P.R.O. then the withdrawal if is submitted to the B.D.O. with a copy to the D.P.R.O. should also be taken to the valid withdrawal. According to him, Sub-sec. (1) and Sub-sec. (2) of sec. 18 of the Act cannot be interpreted in different manner. 5. Learned counsel for the State however, submitted that the withdrawal letter dated 4.3.2003 contained in Annexure-3 was never served upon he D.P.R.O. and under the circumstances he was justified in accepting the resignation. 6. The intervenor however, submits that after the vacancy was caused he was entitled to assume the charge of Mukhiya, but till date the charge has not been handed over to him and the present petitioner did not allow him to act as a Mukhiya, therefore, this Court should take note of the fact On the legal question relating to submission of the resignation, the learned counsel for the intervenor, however, submitted that sec. 18(1) and 18(2) of the Act are to be read in juxtaposition and the construction must be harmonious. 7. sec. 18(1) says "that the Mukhiya/Up-Mukhiya may resign his office by writing under this own hand addressed to the District Panchayati Raj Officer, According to Sub-sec. (2), every resignation under Sub-sec. (1) shall take effect on the expiry of fifteen days from the date of its receipt by the District Panchayati Raj Officer unless within this period of 15 days he withdraws such resignation by writing under his hand addressed to the District Panchayati Raj Officer. 8. From a fair reading and understanding of Sub-sec. (1) it would clearly appear that the resignation is not only to be sent to the District Panchayati Raj Officer, but it is to be addressed to him. 8. From a fair reading and understanding of Sub-sec. (1) it would clearly appear that the resignation is not only to be sent to the District Panchayati Raj Officer, but it is to be addressed to him. The words "addressed to him" do not mean that the resignation is not in the name of the particular officer, but the envelope simply is addressed to a particular person. If the submission of the resignation to the District Panchayati Raj Officer is the mandatory requirement of law, then its submission to any other officer and forwarding a copy of the same to the D.P.R.O. would not be sufficient under the law. The law is plain and simple. According to it, if an action is to be taken in accordance with particular procedure then the action has to be in accordance with the procedure or not at all. In the present matter, the resignation was not addressed to the District Panchayati Raj Officer. 9. The respondents are justifying their action by saying that because the copy of the letter was forwarded to the District Panchayati Raj Officer, therefore, it should be deemed to be a proper compliance of Sub-sec. (1) of sec. 18 of the Act. If the argument is accepted as valid then there is no escape from mischief of Sub-sec. (2) of the sec. 18 which says that the resignation should be withdrawal within 15 days and the same may be addressed to the District Panchayati Raj Officer. 10. In the present case, it would be clear from Annexure-3 that the withdrawal of the resignation was again addressed to the Block Development Officer and a copy was forwarded to the District Panchayati Raj Officer. If the writing of the address on the envelope or forwarding a copy of the letter to the D.P.R.O. for purposes of Sub-sec. (1) is deemed to be sufficient compliance then the same would be sufficient compliance for observing Sub-sec. (2) of sec. 18 of the Act. The State and its Authority cannot be allowed to blow not and cold at the same time. If for Sub-sec. (1) of sec. 18 of the Act a particular procedure is considered to be valid the same will have to be taken to be valid for Sub-sec. (2) of sec. 18 of the Act. 11. 18 of the Act. The State and its Authority cannot be allowed to blow not and cold at the same time. If for Sub-sec. (1) of sec. 18 of the Act a particular procedure is considered to be valid the same will have to be taken to be valid for Sub-sec. (2) of sec. 18 of the Act. 11. Learned counsel for the private respondent-intervenor has fairly submitted that Annexure-2 was not addressed to the D.P.R.O., therefore, the same was not valid and if forwarding of the copy was treated to be in compliance of Sub-sec. (1) then its withdrawal ought to have been treated to be valid. His only grievance is that he was not allowed to assume the charge of the office of Mukhiya. 12. According to him, he made complaints into the conduct of the Mukhiya and non-grant of the charge of the office to the higher authorities, but in the opinion of this Court, that would not assume any importance at this stage. 13. The order dated 26.3.2003, as contained in Annexure-4, in the opinion of this Court, is patently illegal because this Court is of the considered opinion that the resignation was not tendered in accordance with Sub-sec. (1) of Sec. 18 of the Act nor it was addressed to the District Panchayati Raj Officer. As a consequence of quashing of Annexure-4, letter contained in memo No. 80 dated 26.3.2003, I must observe that the petitioner continues to be Mukhiya of the said Gram Panchayat. The petition is allowed.