PRABHARANI VISHWAKARMA Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) Pregnability of the decision dated 14-8-97 passed in Writ Petition No. 1378/97 by a learned Single Judge of this Court is called in question by the appellant invoking the jurisdiction under clause 10 of the Letters Patent.

(2.) The respondent No. 5 and respondent No. 6, the Vice-President and a Councillor of Deori Municipality respectively approached this Court under Article 226 of the Constitution seeking writ of mandamus directing the competent authority to hold election in accordance with sub-section (4) of the Section 43 of the M. P. Municipalities Act, 1961 (hereainafter referred to as 'the Act'), as a vacancy had occurred in the office of the President in the Municipal Council due to the resignation of the President, the respondent No. 4 therein. The fact situation as have been uncurtained in the writ petition are that an election of the councillors was held in the year 1994 for the Municipal Council, Deori (in short 'the Council') and subsequently in January, 1995 the appellant herein was elected to the Office of the President which was reserved for woman candidate belonging to other backward class. The respondent No. 5 was the Vice-President of the Council and the respondent No. 6 was a woman member belonging to backward class. It was set forth in the petition that the respondent No. 4 therein resigned from her office by tendering her resignation on 23-12-96 to the Chief Municipal Officer who on receipt of the resignation informed the Collector by his memo No. 301/RA/96 indicating that a vacancy had occurred due to the resignation of President. On 24-12-96 he asked the respondent No. 4 therein to handover charge to the Vice-President. The elected President handed over charge of her office to the Vice-President on 26-12-96. The original resignation was forwarded by the Chief Municipal Officer to the Collector, Sagar with a covering letter dated 26-12-96, as the Collector desired that original letter of resignation should be placed before him. A meeting of the council was held on 26-12-96 to discuss the agenda "Naveen Bus Stank Ki Dukano Ki Nilami Ki Karyavahi Ke Sambandh Me Vichararth". In the said meeting 14 Councillors including the present appellant were present. The meeting was presided over by the Vice-President. Some of the Councillors including the appellant herein suggested that the meeting of the Council should be convened only after the election of the new President. The minutes were duly signed by the appellant. By memo dated 28-12-96 the Chief Municipal Officer again requested the competent authority for initiation of steps for holding of the election. The appellant also agitated her grievance for non-holding of the election of the new President. The Collector issued order dated 17-3-97 appointing the Sub-Divisional Officer as Presiding Officer for holding the election of the President. In the meantime, as putforth by the writ petitioners, the respondents Nos. 5 and 6 herein, that the election was delayed and at that juncture an amendment in the Act came into existence whereby the tenure of the President was extended from 21/2 years to 5 years. Because of the changed situation the respondent No. 4 therein on 27-2-97 made a representation to the State Government alleging, inter alia, that she had not tendered her resignation from the office and the letter of resignation was written under coercion. The State Government invited comments of the Chief Municipal Officer and, eventuality, by order dated 9-4-97 the State Government arrived at the conclusion that there was no valid resignation in law and no vacancy had been caused in the office of the President. Accordingly a direction was issued for restoration of the charge of the office to the appellant. The order passed by the State Government to this effect was the subject matter of the challenge in the writ petition. As the fact situation exposits it was contended before the learned single Judge that resignation tendered to the Chief Municipal Officer did not require any acceptance under the provisions existing at the relevant time and there was no question of the same having been withdrawn as it came into effect immediately upon its receipt by the Chief Municipal Officer. It was also canvassed that the fact of resignation was affirmed by the subsequent conduct of the respondent No. 4 therein as she participated in the adjourned meeting of the Councillors and as, an actual fact, raised an issue with regard to the holding of election to fill up the vacancy in the office of the President. On behalf of the respondent No. 4 therein it was proposed before the learned single Judge that resignation tendered to the Chief Municipal Officer of the Municipality was of no consequence and meaningless in law. It was also highlighted that no action of respondent No. 4 could be a substitute for the requirement of notice in writing to be tendered to the Municipal Council as that is the mandate of law. It was urged that mere participation of the said respondent in adjourned meeting of the Council which did not have the relevant subject in its agenda could not be deemed to have conformed to the requirement of the statute. It was also putforth that no orders were necessary from the Government to the effect that the respondent No. 4 would continue to hold her office notwithstanding her resignation submitted to the Chief Municipal Officer as the letter of resignation was not addressed to the Municipality.

(3.) The learned single Judge addressed himself to two issues, namely, whether the notice tendered to the Chief Municipal Officer of the Municipal Council fulfils the requirement as envisaged in law and whether the respondent No. 4 by her subsequent conduct hand, in fact, became instrumental in compliance with the requirement of law abandoning her right to challenge the letter of resignation in any manner whatsoever. The learned Single Judge placed reliance on two decisions rendered in W. P. No. 3162/96 (Amrit Chandra Rajpal v. State of M. P. and others) decided on 9-10-96 and W. P. No. 439/97 (Laxmi Narayan Dubey v. Nagar Panchayat Bodiri and another) dated 20-2-97 and came to hold that if a letter of resignation required to be submitted to the Municipality has been tendered to the Chief Municipal Officer the same cannot be said to be non-est in the eye of law. With regard to the second aspect, the learned single Judge has held that the obtaining circumstances speak eloquently that Municipal Council had due notice of resignation and by her subsequent conduct the respondent No. 4 had accepted the fact that she had resigned from her office and a vacancy had been caused.