PRAVINBHAI MULUBHAI GADHAVI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) For the interim order that we propose to pass, brief discussion would be necessary. Petitioner was an elected Councillor of Palitana Municipality, Ward No. 7, for which, general elections were held on 29.11.2015. He submitted his resignation from such position on 21.11.2017 to the President of the Municipality which was also received by the President on the same day. The President accepted the resignation by making endorsement on 23.11.2017. On 05.12.2017, Chief Officer of the Municipality informed the Collector, Bhavnagar that the petitioner has resigned as Councillor and the said seat has become vacant. Subsequently, the Municipality under a letter dated 26.12.2017 forwarded the proposal to the State Election Commission to hold by-election for the said vacancy. The State Election Commission has undertaken the exercise to hold elections to various Taluka Panchayat, District Panchayat and Municipality in the State along with which, the process for holding the by- election for the present vacancy has already been undertaken. Consequently, provisional voters' list was published on 09.01.2018.

(2.) In the meantime, respondent No.5, who is also one of the Councillors of the same Municipality, filed an application before the Collector on 08.01.2018 challenging the validity of the resignation of the petitioner inter alia on the ground that the same could not have been accepted by the President without taking General Body of the Municipality into confidence. Purportedly, such application was filed under section 35(5) of the Gujarat Municipalities Act. On such application, the Collector, Bhavnagar on 09.01.2008 passed the impugned order suspending the resignation. In such order, he recorded the objections of respondent No.5 that in the previous Assembly election, the petitioner had committed a breach of anti-defection law for which action has to be initiated against him for defection. Further, the President of the Municipality has accepted the resignation without placing the same before the General Body or taking the approval of the General Body. Till this is done, the seat of the Councillor cannot fall vacant. He was of the opinion that considering such objections, the decision of the President of the Municipality dated 23.11.2017 accepting resignation of the petitioner should be stayed. He accordingly passed the said order suspending the acceptance and resignation of the petitioner.

(3.) Learned counsel for the petitioner drew our attention to section 35 of the Municipalities Act. Sub-section (3) of section 35 provides that Councillor of Municipality may resign from his office by tendering his resignation in writing to the President. Such resignation shall take effect on the date on which it is received by the President. Sub-section (5) of section 35 provides that if any dispute regarding any resignation arises, it shall be referred for decision to such officer as the State Government may appoint and the decision of such officer shall be final. Proviso to sub-section (5) of section 35 provides that no such dispute shall be entertained after the expiry of a period of thirty days from the date of which the resignation took effect. Prima facie reading of these provisions would show that there is no procedure for acceptance of a resignation once tendered by a Councillor. In fact, the resignation becomes effective on the date on which it is received by the President. There is no further requirement for the President to accept the same. The objection to the acceptance of the resignation without placing it before the General Body and without its approval therefore appears to be invalid. Further, any dispute with respect to the resignation can be raised under sub-section (5) of section 35 of the Act and under proviso to sub-section (5) no such dispute can be entertained after expiry of a period of thirty days from the date of which the resignation took effect. In the present case, the objection was raised by respondent No.5 under a letter dated 08.01.2018. The resignation of the petitioner was received by the President on 21.11.2017 and, at any rate, the endorsement was made by the President of the Municipality having accepted the same on 23.11.2017. Looked from any angle, the objection was raised by respondent No.5 long after expiry of a period of thirty days from the date, the resignation becomes effective. Our strong prima facie impression therefore is :'