Verma Vs. State of Maharashtra & Ors.  INSC 341 (19 April 2010)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL Nos.3411-3412
OF 2010 [Arising out of SLP(C) Nos.23171-23172 of 2009] Sau. Laxmi Verma
........Appellant Versus State of Maharashtra and Ors. ......Respondents
granted. Arguments heard.
though a short but important and crisp question of interpretation of Section
41(2) of Maharashtra Municipal Councils, Nagar Panchayats and Industrial
Townships Act, 1965 (hereinafter shall be referred to as the 'Act') arises for
our consideration in these Appeals. The provision stands as under:
41 (1) The term of office of the Councillors shall be co-terminus with the
duration of the council.
Councillor may resign his office unconditionally at any time by notice in
writing in his hand addressed to the Collector and delivered in person and sign
before the Collector and then only such resignation shall be effective."
(emphasis supplied) This particular Sub-section (2) of Section 41 is required
to be interpreted by us in this and the connected matter.
3. It is
pertinent to mention, prior to amendment carried out sometime in 1994, said
Section 41 stood as under:- "Resignation of Councillors - (1)A Councillor
may resign his office by tendering resignation in writing to the President.
resignation shall be effective on its receipt by the President."
these Appeals we are not required to consider it.
of the case lie in a narrow compass, which are as under:- Respondent No. 6,
Rupesh Yogeshwar Dhepe was an elected Councillor of Ward No. 8 of Municipal
Council, Achalpur, District Amravati. Election was held sometime in the year
2008. On 18.12.2008, Respondent No. 6 wrote a letter to the Collector,
threatening to resign, if certain demands made by him were not fulfilled,
within a period of ten days.
demands were not fulfilled, on 29.12.2008, he, keeping the promise, tendered
his resignation. The Collector held that the resignation was valid and accepted
it. On his resignation and acceptance thereof, since the seat fell vacant,
Collector proceeded to arrange for elections of Ward No. 8, from which
Respondent No. 6 was earlier elected and election programme commenced.
5. In the
meantime, Respondent No. 6 filed a Revision Application before Additional
Commissioner stating therein that he had in fact not resigned in accordance
with law ....3/- - 3 - and there has been complete violation of Sub-section (2)
of Section 41 of the Act. Thus, no fresh election should be conducted. But in
the meanwhile election programme was already announced. The election programme
so announced specifically mentioned that election was subject to the decision
of pending proceedings. In the fresh elections, the present Appellant Laxmi
Verma was elected as Councillor and subsequently she was also elected as
President of Municipal Council and is continuing as such.
Additional Commissioner decided the Revision Application of Respondent No. 6 by
order dated 25.02.2009 holding that the Collector had rightly accepted the
resignation of Respondent No. 6. This order was challenged by Respondent No. 6
by filing W.P. No. 1550 of 2009, which was partly allowed and the Additional
Commissioner was directed to decide the Revision Application afresh after hearing
both parties. Thereafter, the Additional Commissioner allowed the Revision
Application filed by Respondent No. 6, set aside the order of Collector,
whereby his resignation from the post of Councillor of Municipal Council,
Achalpur, was accepted, thereby restoring the status of Municipal Councillor to
Respondent No. 6.
4 - 6. This order was challenged by the Appellant in W.P.
3167/2009, decided by learned Single Judge of the High Court of Judicature at
Bombay, Nagpur Bench whereby the Appellant's writ petition came to be
dismissed. Not being satisfied with the said order of dismissal, Appellant
carried L.P.A No. 349 of 2009 before Division Bench of the said Court, but vide
order dated 26.8.2009, the said L.P.A also came to be dismissed. In other
words, the resignation tendered by Respondent No. 6 was held to be invalid,
inconsequential and inoperative. Obviously, the election of Appellant, which
was subject to the final result of the lis pending before Additional
Commissioner stood set aside.
have critically gone through the orders passed by learned Single Judge and
Division Bench in L.P.A and are of considered opinion that both had dealt with
the matter at length and ultimately came to the conclusion that there has not
been full and complete compliance of the provisions of sub-section (2) of
Section 41 of the Act. Therefore, there was no legally valid resignation
tendered by Respondent No. 6 and the Collector committed an error in accepting
to the Appellant, there is no dispute that resignation letter dated 29.12.2008
was signed by Respondent No. 6 and was presented by him before the Collector.
It is further not in dispute that he had also put his initials at the places,
scored out by him. Therefore, it should be deemed to be substantial compliance
of the aforesaid provision. In ....5/- - 5 - other words, it has been argued
before us that the Collector was fully justified in accepting the resignation
of Respondent No. 6, which was tendered in person to him and on being asked to
put initials at certain places scored out, he had done so. Therefore, nothing
more was required to be done in the matter and it should be construed as if he
had delivered the same in person and signed it himself before the Collector,
only then the same was accepted.
8. On the
other hand, learned Senior Counsel appearing for Respondents contended that
mere putting initials at the places scored out in the resignation letter would
not tantamount to signing it before the Collector which is pre- requisite for
acceptance of the resignation, as contemplated under Section 41 (2) of the Act.
Therefore, there was no valid resignation tendered by him, consequently,
Additional Commissioner, learned Single Judge and Division Bench committed no
error while recording a categorical finding against the Appellant.
9. In the
light of the aforesaid contentions, we have heard learned Senior Counsel, Shri
H.N. Salve for Appellant and learned Senior Counsel, Shri Vinod A. Bobde for
Respondent No. 6 and Others for State of Maharashtra.
Section 41(2) of the Act referred to herein above requires that a Councillor
may resign his office unconditionally at any time by notice in writing in his
hand, ....6/- - 6 - to be addressed to the Collector. It further requires that
such resignation has to be delivered in person and signed before the Collector,
then only such resignation shall be effective. Thus, mere putting initials at
certain places scored out before the Collector, would not amount to putting the
signatures in the resignation letter before the Collector himself.
this connection, it is necessary to refer to the letter of the Collector,
Amravati dated 03.07.2009 to the Secretary, Urban Development Department,
Mumbai. Collector had made the following endorsement which reads as thus:-
"In connection with the subject referred above, it is hereby submitted
that Councillor of Achalpur Municipal Council Ward No. 8 Shri Rupesh
Yogeshwarrao Dhepe has tendered resignation of his Municipal Council Membership
before me on 29.12.2008. The said letter of resignation was typewritten and he
had already signed it. On questioning him whether resignation is his own, it
was confirmed that it was his own resignation.
Shri Dhepe took the copy of his resignation back and made corrections in point
No. 4 in that resignation letter and put his initials before me and again
handed it over to me and I put remark on that as "submitted before me by
Shri Dhepe". (Emphasis supplied)
doubt, it is true that Collector had admitted that resignation was typewritten
and it was already signed by the Respondent No. 6. On questioning whether it
was his own, Respondent No. 6 confirmed that it was his own resignation.
he took a copy of his resignation back and made corrections in point No. 4 in
that resignation and put his initials before him and again handed it over, on
which he ....7/- - 7 - then put the remark "submitted before me by Shri
Dhepe". The aforesaid statement of the Collector clearly establishes that
in any event the same was not signed by Respondent No. 6 in his presence. Thus,
it is manifest that there has been non- compliance of the provision of Section
41(2) of the Act. The said provision being mandatory in nature should have been
complied in letter and spirit. Its non-compliance would automatically lead to
irresistible conclusion that the same was not properly and validly accepted
resignation of Respondent No. 6 by the Collector.
Photostat copy of the original resignation of Respondent No. 6 dated 29.12.2008
has been filed by the Appellant together with its English translation. Critical
examination of the same makes it abundantly clear that in it certain words were
scored out and only at that place he had put his initials, which was already
typed resignation, on which he had already put his signature. Thus, there was
non- compliance with regard to that part of the Section which requires that
resignation shall be signed in presence of the Collector.
H.N. Salve, learned Senior Counsel appearing for Appellant strenuously
contended before us that purposive interpretation of the aforesaid provision of
law would mean that there has been a substantial compliance of Sub-section (2)
of Section 41 of the Act, in as much as there was no denial of the fact of
submitting resignation by Respondent ....8/- - 8 - No. 6, presenting the same
by him to the Collector. On being asked by him to put initials at the places
scored out by him, which he did, would be deemed to have been signed by him in
presence of Collector. It should, thus, be construed that the same was validly
accepted by Collector. He has, therefore, contended that Additional
Commissioner in his revisional jurisdiction committed grave error in finding fault
in acceptance of the resignation of Respondent No. 6 by the Collector. On the
same analogy the orders passed by learned Single Judge passed in Appellant's
Writ Petition and confirmed by Division Bench in appeal have been attacked.
was further contended by him that the test of tendering resignation as
contemplated under Sub-section (2) of Section 41 of the Act was satisfied and
the resignation having been accepted, there was no question of holding
otherwise. He has also placed reliance on the topic of "Express
Requirements And Conditions" from 'Administrative Law', Tenth Edition 2009
of H.W.R. Wade & C.F. Forsyth.
has contended that if the conclusion is reached that on a true construction,
non-observance of the condition is fatal to the validity of the action, that
condition is said to be 'mandatory'. But if the conclusion is reached that
non-observance does not lead to invalidity, the condition is said to be 'merely
directory'. He has further contended that sometimes the legislation makes it
plain what the effect of non-observance is to be. But more often it does not,
and then the Court must determine the true import of the legislation.
It is a
question of construction, to be settled by looking at the whole scheme and
purpose of the Act and by weighing the importance of the condition, the
prejudice to private rights, and the claims of the public interest.
the other hand, learned Senior Counsel Shri Vinod A. Bobde placed reliance on
the following judgments starting However, in the light of the clear provision
of the Act which is as clear as day light, it is not necessary to deal with the
aforesaid judgments individually and in details.
However, after going through the aforesaid Sub-section (2) of Section 41 of the
Act, the plain and only conclusion that can be arrived at is that resignation
has to be tendered by the Councillor addressed to the Collector. It is to be
delivered by him in person and then he has to affix his signature before the
Collector on compliance of the aforesaid conditions, then only such resignation
shall be effective. It cannot be disputed that an obligation was created by the
Statute to perform it in the manner as provided therein, then in case of its
non-compliance, the effect thereof would be rendered redundant and invalid in
Collector himself admitted, in no uncertain terms, that letter of resignation
was already typed, on which the signature of Respondent No. 6 was already
appearing. He went through the same and only asked him to put his initials at
the place scored out in the said resignation. Putting of initials at the place
where some portion of resignation was deleted, would neither amount nor can be
construed to have been signed in presence of the Collector.
would have been entirely different if the Collector would have asked Respondent
No. 6 to authenticate and endorse his own signatures in the resignation at the
same place where he had already put his signatures, then of course to some
extent arguments advanced by Shri H.N. Salve would have made some point.
doubt, it is true that equity swings in favour of the Appellant but the law
applicable to the facts of the case is certainly against her. Apart from the
above, it is also to be recalled that fresh elections were held only subject to
ultimate result of the Revision Petition filed by Respondent No. 6. Thus,
Appellant was fully aware that her fate would ultimately depend on the result
of the litigation, which ultimately stood decided against her and further has a
seal of approval by us.
looking to the matter from all angles and keeping in mind, strict adherence to
the provisions of the Act, we are of the opinion that there was no valid,
proper and legal resignation tendered by Respondent No. 6 in as much as
admittedly, the said resignation dated 29.12.2008 was not signed by Respondent
No. 6 in presence of the Collector which was mandatorily required to be done.
No other point was argued before us.
the light of this, we are of the considered opinion that no case has been made
out for interference in the matter. Appeals are dismissed but with no order as