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2020 DIGILAW 1234 (BOM)

Deepak Umakant Mathpati v. Latur Municipal Corporation

2020-10-23

S.V.GANGAPURWALA, SHRIKANT D.KULKARNI

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JUDGMENT S. V. Gangapurwala, J. - Rule. Rule made returnable forthwith. With the consent of parties taken up for final hearing. 2. The petitioner seeks a direction that, the respondent No. 4 ceases to be a member of the Standing Committee of the Latur Municipal Corporation (for the sake of brevity hereinafter referred to as "L.M.C.") with effect from the date of his resignation i. e. 28.05.2019 and/or 20.06.2019 (the date of acceptance of resignation). 3. Shorn off all necessary details, the facts relevant to adjudicate the lis are hereinto spelt out. The petitioner claims to be the Chairman of the Standing Committee of the L.M.C. The respondent No. 4 is a member of the standing committee of L.M.C. The respondent No. 4 on or about 28.05.2019 tendered his resignation from the post of member of the Standing Committee. On 20th June, 2019, the resignation of the respondent No. 4 was accepted by the erstwhile Mayor. The respondent No. 4 did not attend a single meeting of the standing committee from July 2019 to 21.12.2019. On 11.12.2019 a letter is issued by the respondent No. 4 to the respondent No. 3 that on 28.05.2019, he had tendered his resignation as a member of the standing committee. He did not receive any correspondence thereafter. The corporation did not take any decision about his membership of the standing committee, nor any other candidate is elected in his place as a member of the standing committee and as such his membership is intact and he should be issued with the notices of the standing committee meetings. Pursuant thereto on 20.01.2020, a resolution was passed in the General Body Meeting of the L. M. C. and it was resolved that the respondent No. 4 is subsisting member of the standing committee of L. M. C. 4. Mr. Yadkikar, the learned advocate for the petitioner lucidly canvassed his submissions. The same are as under : A) The respondent No. 4 tendered his unconditional and unqualified resignation on 20.05.2019 from the post of member of the standing committee on his own volition. The erstwhile Mayor of the L. M. C., Mr. Pawar accepted and acknowledged the resignation of the respondent No. 4 by endorsing "Rajinama Manzur" and further forwarded it to the respondent No. 3 for maintaining the record. The erstwhile Mayor of the L. M. C., Mr. Pawar accepted and acknowledged the resignation of the respondent No. 4 by endorsing "Rajinama Manzur" and further forwarded it to the respondent No. 3 for maintaining the record. The factum of respondent No. 4 tendering the resignation is accepted by the respondent No. 4 and respondent Nos. 1 and 3 in their affidavit. B) Neither the Maharashtra Municipal Corporation Act, 1949 (for short "Act of 1949"), nor any Rules and regulations governing the membership of standing committee provide for manner of tendering resignation or the authority competent to accept such resignation. The resignation is of unilateral character and it comes into effect on the date of the same being tendered. The learned counsel relies upon the judgment of the apex Court in a case of Moti Ram Vs. Param Dev and others, (1993) AIR SC 1662 . The learned counsel also relies upon the judgment of the learned Single Judge of this Court in a case of Prakash Mahadeo Khot and others Vs. Maruti Dadu Khot and others, (2005) 2 AllMR 775 . C) The resignation has been acted upon by all the parties including the respondent No. 4, hence the respondent No. 4 cannot be allowed to continue as member of the standing committee, unless he is lawfully reelected. The respondent No. 4 did not attend any standing committee meetings between July to December, 2019, nor withdrew his resignation at any point of time. On 11th December, 2019, for the first time, the respondent No. 4 acknowledging his resignation dated 28th May, 2019, wrote to the corporation that he has not received any communication from the corporation regarding acceptance of his resignation. The respondent Nos. 1 and 3 also did not issue notices of meetings of the standing committee to the respondent No. 4 between July to December 2019, which shows that the respondent Nos. 1 and 3 also acted upon the resignation of the respondent No. 4 dated 28th May, 2019. The respondent No. 4 has not been paid any honorarium, which is paid to the standing committee member after his resignation. It also clearly shows that L.M.C. has acted upon the resignation. 1 and 3 also acted upon the resignation of the respondent No. 4 dated 28th May, 2019. The respondent No. 4 has not been paid any honorarium, which is paid to the standing committee member after his resignation. It also clearly shows that L.M.C. has acted upon the resignation. D) As per Section 22 of the Act of 1949 any member of the standing committee who absents himself during two successive months from the meetings of the committee, except on account of temporary illness or other cause to be approved by the committee or absents himself from or is unable to attend meetings of the Committee during four successive months from any cause whatever, whether approved by the Committee or not shall cease to be a member of the Standing Committee and his seat shall thereupon be vacant. The respondent No. 4 did not attend standing committee meetings dated 11.07.2019, 03.08.2019, 07.09.2019, 11.09.2019 and 21.12.2019. In view of Section 22 of the Act of 1949, the respondent No. 4 ceases to be a member of the standing committee since he did not attend five consecutive standing committee meetings. E) The petition does not involve disputed question of fact. The resolution No. 135 is not of re-appointment of the respondent No. 4. L.M.C. cannot pass such a resolution. The resolution is void ab initio since it is nothing but a mischievous attempt to negate the already acted upon resignation of the respondent No. 4, which is not permissible in law. The general body of the corporation was inherently incapacitated to pass it. The petitioner need not separately make a prayer for quashing the same. Section 451 of the Act of 1949 relied by the respondents is merely supervisory power of review conferred upon the State Government and it is not by any stretch of imagination an equally efficatious alternate remedy. F) This Court under Article 226 of the Constitution of India would deal with the issue. The learned counsel relies on the judgment of the Apex Court in a case of ABL International Ltd. and others Vs. Export Credit Guarantee Corporation of India ltd. and others, (2005) 10 SCC 495 . 5. Mr. Hon, the learned senior advocate appearing for respondent Nos. 1 and 3 with his usual flair submits that, a) The statute does not prescribe for procedure of tendering resignation or a person competent to accept the same. Export Credit Guarantee Corporation of India ltd. and others, (2005) 10 SCC 495 . 5. Mr. Hon, the learned senior advocate appearing for respondent Nos. 1 and 3 with his usual flair submits that, a) The statute does not prescribe for procedure of tendering resignation or a person competent to accept the same. The resignation tendered by the respondent No. 4 on 28.05.2019 was submitted to the Mayor. Almost after one month on 20th June, 2019, the Mayor made an endorsement that the resignation is accepted and the same was forwarded to the respondent No. 3 for record on 20.06.2019. Thereafter, no notice of standing committee has been sent to the respondent No. 4 of the meetings dated 11.07.2019, 03.08.2019, 07.09.2019, 11.09.2019 and 21.12.2019. As notices of aforesaid meetings were not sent to the respondent No. 4, therefore, there was no reason for the respondent No. 4 to attend the meetings. It cannot be said that, there is deliberate and willful default by the member in attending the meetings. In view of that, the provisions of Section 22 of the Act of 1949 would not be attracted. b) General body is supreme body of the Corporation. It has passed resolution No. 135 in the meeting dated 20.01.2020 continuing the membership of the respondent No. 4 of the standing committee. The petitioner has not challenged the said resolution. There are disputed questions of fact. The resolution was passed as per subject No. 14 of the agenda of the meeting dated 20th January, 2020. The petitioner was aware of the said fact. The petitioner has neither objected in the general body meeting dated 20.01.2020, nor asked details about subject No. 14. 6. Mr. Irpatgire, the learned advocate for the respondent No. 4 strenuously submits that, i) The respondent No. 4 was not issued with the notices of the meetings and agenda of the standing committee meetings from July to December 2019. The respondent No. 3 under political pressure of the petitioner did not issue agenda of the standing committee meeting, as such the respondent No. 4 was restrained from attending the meetings. ii) The petitioner is making false contention that, the resignation of the respondent No. 4 is accepted on 20.06.2019 by the then Mayor. The petitioner is blowing hot and cold. ii) The petitioner is making false contention that, the resignation of the respondent No. 4 is accepted on 20.06.2019 by the then Mayor. The petitioner is blowing hot and cold. On one hand the petitioner contends that the resignation of the respondent No. 4 is accepted on 20.09.2020 by the then Mayor and on the other hand seeking cessation of membership of the respondent No. 4 by making contrary and false statements in the writ petition. iii) After the respondent No. 4 issued a letter on 11th December, 2019, the political opponent of the respondent No. 4 to counter the said letter, issued letter dated 20th December, 2019. iv) The phraseology absents himself would mean kept himself away or stayed away. Absented himself cannot be equated with remained absent or was not present. As no notices of the meetings were issued from July to December, it cannot be said that the petitioner absented himself. The learned advocate relies upon the judgment of the Division Bench of this Court at Nagpur in a case of Bhaskar Atmaram Joshi Vs. State of Maharashtra and others, (1976) AIR Bombay 206 . v) The resignation was given under political pressure and was not on account of free will, as such could not be acted upon. Whether the resignation was given on own volition or because of political pressure involves disputed question of fact. Same cannot be gone into in the writ jurisdiction of this Court. vi) The petitioner has not placed on record any evidence about the service of notice and knowledge of meetings to the respondent No. 4 and, therefore, it cannot be said that the respondent No. 4 absented himself and, therefore, provisions of Section 22 of the Act of 1949 cannot be made applicable. There is no provision in the Act of 1949 for tendering or acceptance of resignation of standing committee members. The alleged resignation submitted to Mayor is not before the competent authority and is not valid. Considering the language of Section 22 of the Act of 1949 and the consequences thereunder are of penal nature, there is no automatic cessation of membership. There is no specific provision under Section 22 of the Act of 1949 to decide the said dispute about the vacancy occurred on the count of member absented himself. The respondent No. 4 is attending the meetings of standing committee regularly. 7. There is no specific provision under Section 22 of the Act of 1949 to decide the said dispute about the vacancy occurred on the count of member absented himself. The respondent No. 4 is attending the meetings of standing committee regularly. 7. The issue requiring deliberation to adjudicate the lis would be, "If the statute does not provide for the procedure and manner of tendering resignation, nor it provides for acceptance of the resignation, then when and how the resignation would take effect". 8. The Apex Court in a case of Moti Ram Vs. Param Dev and others (supra) has observed that, "resignation means the spontaneous relinquishment of one's own right and in relation to an office, it connotes the act of giving up or relinquishing the office. It has been held that in the general juristic sense, in order to constitute a complete and operative resignation there must be the intention to give up or relinquish the office and the concomitant act of its relinquishment. If the act of relinquishment is of unilateral character, it comes into effect when such act indicating the intention to relinquish the office is communicated to the competent authority. The authority to whom the act of relinquishment is communicated is not required to take any action and the relinquishment takes effect from the date of such communication where the resignation is intended to operate in praesenti". 9. The learned Single Judge of this Court in a case of Prakash Mahadeo Khot and others Vs. Maruti Dadu Khot and others (supra) has observed that, "in the absence of any constitutional, contractual or legal requirement, the resignation must be regarded as unilateral in character and when tendered with immediate effect, took effect immediately." The learned Single Judge further observed that, "subsequent withdrawal of such resignations, therefore, would be of no consequence." 10. The Standing Committee of Municipal Corporation is constituted under Section 20 of the Act of 1949. The appointment of members of the standing committee, their tenure is governed by said provision of the Act of 1949. The standing committee shall consist of sixteen members. The corporation in its first meeting after general election appoints sixteen persons out of its own body to be the members of the standing committee. The appointment of members of the standing committee, their tenure is governed by said provision of the Act of 1949. The standing committee shall consist of sixteen members. The corporation in its first meeting after general election appoints sixteen persons out of its own body to be the members of the standing committee. One half of the members of the standing committee shall retire every succeeding year at noon on the first day of the month in which first meeting of the corporation mentioned in sub-section (2) of Section 20 of the Act of 1949 was held. 11. Section 23 of the Act of 1949 further provides that, in the event of non acceptance of office by a councillor appointed to be a member of the standing committee or of the death or resignation of a member of the said committee or of his becoming incapable of acting previous to the expiry of his term of office or of his seat becoming vacant under Section 22 on his ceasing to be a councillor, the vacancy shall be filled up, as soon as it conveniently may be, by the appointment of a person thereto, who shall hold office so long only as the member in whose place he is appointed could have been entitled to hold it, if the vacancy had not occurred. 12. While Section 23 recognizes an act of resignation of a member of a standing committee, the Act does not contain a provision regulating the procedure or manner of tendering the resignation. 13. The phrase resignation means spontaneous relinquishment of once own right. It is conveyed by the maxim "resignatio est juris propril spontanea refutatio". The explanation resignation means voluntarily abdicating the position of office or voluntarily surrendering the office/post. 14. It is undisputed that, the petitioner is the Chairman of the Standing Committee. The respondent No. 4 was a member of the standing committee. The respondent No. 4 tendered his resignation on 28.05.2019. The Mayor accepted the resignation on 20th June, 2019 and forwarded it to the respondent No. 3 for the purpose of record. The respondent No. 4 on 11.12.2019 issued a letter to the respondent No. 3 in regional language accepting in no uncertain words that he has tendered resignation on 28.05.2019 as a member of the standing committee. 15. We asked the learned advocate for the petitioner, the learned senior advocate for respondent Nos. The respondent No. 4 on 11.12.2019 issued a letter to the respondent No. 3 in regional language accepting in no uncertain words that he has tendered resignation on 28.05.2019 as a member of the standing committee. 15. We asked the learned advocate for the petitioner, the learned senior advocate for respondent Nos. 1 and 3 and the learned advocate for the respondent No. 4, the procedure for tendering resignation and acceptance of resignation of a member of the standing committee. Though parties are at schism, on this issue all the advocates are ad-idem that the Act of 1949 and the Rules do not provide for the methodology and the manner of tendering the resignation, the person to whom the resignation should be tendered and the authority to accept the resignation. 16. The resignation in such a case would be unilateral act. The statute does not require resignation to be accepted by an authority to make it effective. 17. In the instant matter, the letter of resignation is in regional language. It reads thus : 17. The letter of resignation is unambiguous. The resignation is in presenti. The letter of resignation reads that, the respondent No. 4 is member of the standing committee and due to his personal reasons, he is not in a position to devote time to the standing committee and as such tendered his resignation as a member of standing committee. The same be accepted. The said resignation letter is addressed to the Mayor of L.M.C. The Mayor on 20th June, put an endorsement that resignation is accepted and sent it to the respondent No. 3/Secretary for the purpose of record. It is also not disputed that from July to December 2019, five standing committee meetings were held. The respondent No. 4 was never issued with notices of the meetings of the standing committee and that the respondent No. 4 did not remain present for any of the meetings of the standing committee. The respondent No. 4 on 11.12.2019 gave a letter to the respondent No. 3 in the regional language. The same reads thus : 18. In the letter reproduced above, the respondent No. 4 has admitted that, on 28.05.2019, he has tendered his resignation as the member of standing committee, but thereafter he has not received any correspondence with regard to his resignation. The same reads thus : 18. In the letter reproduced above, the respondent No. 4 has admitted that, on 28.05.2019, he has tendered his resignation as the member of standing committee, but thereafter he has not received any correspondence with regard to his resignation. The corporation has not taken any decision about his membership of the standing committee, no other person has been elected in his place as member of the standing committee and as such his membership of the standing committee is intact. 19. The factum of the respondent No. 4 tendering his resignation on 28.05.2019 is accepted by the respondent No. 4 in communication dated 11.12.2019. The respondent No. 4 was never issued with the notices of the meetings of the standing committee by the respondent No. 3 from July to December 2019, though five standing committee meetings were held during this period. The resignation of the respondent No. 4 was then acted upon. All these are undisputed facts. In his letter dated 11.12.2019, the respondent No. 4 nowhere spells out that on 28.05.2019, he has tendered the resignation under political pressure. The resignation was a voluntary act of the respondent No. 4. 20. The statute governing the parties does not require the resignation by a member of standing committee to be accepted by any authority. The statute does not provide an authority to whom the resignation should be given, the resignation shall have to be held to be an unilateral act requiring no acceptance, nor any other action is required to be taken for the resignation to be effective. The respondent No. 4 at no material point of time had withdrawn the resignation, though withdrawal may not be of any consequence. Once the respondent No. 4 has tendered his resignation and the statute not providing for any provision for acceptance of the resignation, the resignation will be deemed to have taken effect on the date the resignation has been tendered. No further act of acceptance of the resignation is necessary, as the same is not contemplated by the statute. Once the resignation is submitted, the communication of the same is complete as soon as it is put in the course of transmission so as to be out of his power. The resignation in the instant case is in presenti. It is operative from the date it is submitted to the authority. Once the resignation is submitted, the communication of the same is complete as soon as it is put in the course of transmission so as to be out of his power. The resignation in the instant case is in presenti. It is operative from the date it is submitted to the authority. Once the resignation is tendered, it has come into effect immediately. No further process is required for resignation to take effect. The membership of the standing committee is not a constitutional or fundamental right, but a statutory right governed by the provisions of the statute. De-hors the statute, the member of the standing committee does not possess any right. The respondent No. 4 abdicated his post as a member of standing committee on the day he tendered his resignation. 21. The right to get elected as a member of standing committee, to remain a member of standing committee, enforcement of right and performance of duties as a member of standing committee is under a statute. The statute gives right to a councilor to get elected as a member of standing committee, so also it gives right to the member to relinquish and resign from his membership of the standing committee. 22. The resignation has taken effect on the day it was tendered. The further resolution by the general body of the corporation that the membership of the respondent No. 4 of standing committee is intact was unwarranted and without authority. Once having resigned from the post of a member of the standing committee, the only way for entry of the respondent No. 4 as a member of standing committee was by the procedure contemplated under Sec. 20 of the Act of 1949. The resolution of the general body dated 20.01.2020 was without authority. The general body in passing the resolution dated 20.01.2020 has arrogated unto itself the power not bestowed by the Statute. As discussed above, the resignation of the respondent No. 4 was in presenti. The resignation took effect on the day it was tendered. The post of respondent No. 4 as a member of standing committee became vacant on the very date. The act of general body in passing resolution is without authority and non-est. The same would not have any legal effect upon the resignation of the respondent No. 4. 23. The resignation took effect on the day it was tendered. The post of respondent No. 4 as a member of standing committee became vacant on the very date. The act of general body in passing resolution is without authority and non-est. The same would not have any legal effect upon the resignation of the respondent No. 4. 23. In the light of the above, the petitioner is entitled for the declaration that the respondent No. 4 has ceased to be a member of the Standing Committee of Latur City Municipal Corporation, Latur and cannot continue as a member of the standing committee of the L.M.C. 24. We have held that, the resignation of the respondent No. 4 has taken effect on the date of its tender and no further process of acceptance of the resignation is necessary. We need not deal with the issue of membership of the respondent No. 4 on the ground of not attending four consecutive meetings. 25. In the light of the above, the writ petition is allowed. Rule is made absolute in terms of prayer clauses 'B' and 'C'. No costs.