JUDGMENT : S.R. BRAHMBHATT, J. 1. In this group of four petitions the petitioners, who happened to be Councillors of Rajpipla Municipality and who have alleged to have resigned, have approached this Court by way of these petitions challenging the Communication dated 09.08.2018 of the Chief Officer, respondent no.3, to the Election Commission calling upon the Commission to initiate bi-election proceedings for those vacancies said to have arisen on account of so called resignations of the petitioners. 2. As the entire issue pertains to a question as to whether during the pendency of the adjudication before the competent authority in respect of the dispute regarding resignation, can the vacancies said to have arisen on account thereof, be treated vacancies warrant initiation of bi-election proceedings ? Hence, all the matters heard together and are being disposed of by this common judgment and order, at the request of learned counsels for the parties. The formality of Rule is required to be completed, hence, Rule. Learned AGP waves service of notice of Rule on behalf of respondent nos.1 and 2, learned counsel Shri Vaghela waves service of notice of Rule on behalf of respondent no.3 and Ms. Roopal R. Patel, waves service of notice of Rule on behalf of respondent no.4. Rule is fixed forthwith at the request of learned counsels appearing for the parties. 3. The common facts in all these petitions, shorn off undue details and deserving for appreciating the controversy only, needs to be set out as under. 4. In the last general election of Rajpipla Municipality, the petitioners were elected from the respective wards mentioned in the petitions and they were thereafter functioning as such. The first meeting of the newly elected Councillors of Rajpipla was held on December 15, 2015. The term of the President and Vice-president of the Municipality was expiring on June 14, 2018. It was averred in the memo of petition that in the first meeting itself, without knowledge the signatures were obtained in the blank papers, which was sought to be utilized to bring about desired voting from such Councillors and as such they were threatened to be removed by using those blank papers as their resignations. It was averred in the memo of petition that in the first meeting itself, without knowledge the signatures were obtained in the blank papers, which was sought to be utilized to bring about desired voting from such Councillors and as such they were threatened to be removed by using those blank papers as their resignations. Apprehending this, the petitioners moved Special Civil Application No.8650 of 2018, which was required to be withdrawn with a liberty to file fresh petition in the event of the apprehension which was expressed by the petitioners in that petition came to be correct. The said withdrawal was permitted by this Court vide order dated 12.06.2018, which is produced in the memo of these petitions also. The petitioners’ apprehension came true, as the blank papers which were utilized for converting them into resignations were used and on that basis the petitioners-councillors’ seats were sought to be brought to an end. The Chief Officer sent a communication dated 09.08.2018 impugned in this petition. Being aggrieved and dissatisfied therewith, the present petitions have been laid inter alia contending that when the competent authority is in seisin of the entire facts and examining the dispute qua resignations and their genuineness, there was no reason to either the Chief Officer or the Election Authorities in precipitating the bi-election proceedings so as to scuttle the very scrutiny at the end of the adjudicating authority. The petitioners have in fact approached the authority vide their respective applications which are called appeals and the adjudicating authority in seisin thereof. 5. This Court initially passed the order on 21.08.2018, which deserves to be set out as under: “Learned counsel Mr.Mangukiya for the petitioner invited Court’s attention to the provisions of Section 35(5) of the Gujarat Municipalities Act, 1963 and submitted that the dispute as envisaged thereunder qua the factum of resignation of the petitioner is already pending before the Competent Officer I.e. Collector. As the same was referred to him way back on 25.6.2018 and as per the provisions of law, there cannot be any further proceeding in respect of so called vacancies in municipalities. The communication emanating from the concerned Officer at page 116, unfortunately does not disclose the information qua pendency of dispute in respect of the resignation which would held to be genuine resulting into vacancy being available for further Election. The communication emanating from the concerned Officer at page 116, unfortunately does not disclose the information qua pendency of dispute in respect of the resignation which would held to be genuine resulting into vacancy being available for further Election. Learned Assistant Government Pleader Mr.Jaiswal on advance copy seeks short adjournment to receive instruction. At his request, matter is kept on 23.8.2018.” Thereafter, on 23.08.2018, the Court passed following order: “1. On 21st August 2018, this Court passed the following order:- “Learned counsel Mr.Mangukiya for the petitioner invited Court’s attention to the provisions of Section 35(5) of the Gujarat Municipalities Act, 1963 and submitted that the dispute as envisaged thereunder qua the factum of resignation of the petitioner is already pending before the Competent Officer I.e. Collector. As the same was referred to him way back on 25.6.2018 and as per the provisions of law, there cannot be any further proceeding in respect of so called vacancies in municipalities. The communication emanating from the concerned Officer at page 116, unfortunately does not disclose the information qua pendency of dispute in respect of the resignation which would held to be genuine resulting into vacancy being available for further Election. Learned AGP Mr.Jaiswal on advance copy seeks short adjournment to receive instruction. At his request, matter is kept on 23.8.2018.” 2. Today, Mr. Jaiswal, learned Assistant Government Pleader under the instructions submitted that the appeals are pending and they are at the stage of processing the Notice. 3. Ms. Prajapati, learned advocate for the petitioner submitted that in that view of the matter, the information on page No. 116 by the Chief Officer, Rajpipla Nagarpalika qua appeal being pending or not may be appreciated in proper perspective. 4. The learned counsel for the petitioner further submitted that as per the provision of law the vacancies cannot be treated to have arisen when the vary dispute qua resignation based whereupon the authorities keeping as if the vacancy or reason is under consideration. 5. In that view of the matter, let there be Notice returnable on 6th September, 2018. Mr. Jaiswl, learned Assistant Government Pleader waives service of notice on behalf of the respondent Nos.1 & 2. 6. In the meantime and till the returnable date, the communication at page No.116 shall remain stayed meaning thereby no further action being taken so far as the Ward Nos. Mr. Jaiswl, learned Assistant Government Pleader waives service of notice on behalf of the respondent Nos.1 & 2. 6. In the meantime and till the returnable date, the communication at page No.116 shall remain stayed meaning thereby no further action being taken so far as the Ward Nos. 1, 2, 4 and 7 of Rajpipla Nagarpalika are concerned. Direct service today qua other respondents is permitted.” Accordingly, the communication is stayed and no further actions have been taken qua filling in those vacancies by way of holding bi-election. 6. Learned counsel appearing for the petitioners contended that the respondents could not have shown unholy haste in ordering the election, as the vacancies could not have been treated to have finally occurred in view of the provision of law specially Section 35 (5) of the Gujarat Municipalities Act, 1963 (hereinafter referred to as ‘the Act’ for the sake of brevity). 7. Learned counsel appearing for the respondent no.3 invited Court’s attention to the provision of Section 35 of the Act to support his submission that the acceptance and the effect of resignations is well taken care of by the proviso itself and therefore assuming for the sake of argument without conceding that, there exists an area where the dispute can said to have arisen, but that in itself would not entitle or enable the petitioners to function as Councillors. The counsel for the respondent no.3, however, could not dispute the aspect that the vacancies and its occurrence would govern by the provision of Section 35(5) of the Act. 8. Learned AGP appearing for the respondent nos.1 and 2 could not controvert the provision of law and the statutory provision and its purport and he submitted that the Councillors may not be treated as Councillors and the vacancies or its occurrence may be governed by the provision of Section 35(5) of the Act. 9. Ms. Roopal R.Patel, learned counsel appearing for the respondent no.4, submits that the Court may pass appropriate order, as the authority has to act only upon receipt of the clear vacancies’ intimation. 10. This Court has heard learned counsel appearing for the parties at length. 9. Ms. Roopal R.Patel, learned counsel appearing for the respondent no.4, submits that the Court may pass appropriate order, as the authority has to act only upon receipt of the clear vacancies’ intimation. 10. This Court has heard learned counsel appearing for the parties at length. The relevant provision of Section 35 deserves to be set out as under: Section 35(5): 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 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 took effect: Provided further that such resignation shall take effect in accordance with the decision of such officer.” 11. The provision of Section 35(5) and the second proviso would clearly indicate that the vacancies cannot be said to have finally occurred in case where a substantive dispute is raised and is referred to the competent authority for its adjudication. The time taken by the competent authority can naturally not be attributed to the Councillors or the Municipality but that in itself would not nullify or render the provision of Section 35(5) otiose, so as to treat those vacancies to have arisen when the competent authority is scrutinizing the aspect of validity of resignation or genuineness of resignation. 12. In that eventuality, the proviso is amply clear making it final when the decision is rendered. Therefore, in our considered view the communication impugned in these proceedings cannot be said to be validly issued specially when the dispute qua resignation is taken up and is awaiting its adjudication. By virtue of provision of Section 35(5) of the Act, those resignations when have been disputed cannot be said to have resulted into clear vacancies so as to call for any bielection proceedings pending adjudication on the dispute. 13. Hence, the petitions are required to be allowed and accordingly allowed to the aforesaid extent. The Communication dated 09.08.2018 is hereby quashed. It goes without saying that it will be open to all the concerned to request the competent authority to render its decision and it goes without saying that once the decision is rendered the vacancies’ position will be governed in accordance therewith. Rule is made absolute to the aforesaid extent.