1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR Writ Petition No.3167 of 2009 Sau. Laxmi w/o Vijay Verma, aged about 45 years, occupation : business, President of Municipal Council, Achalpur, r/o Achalpur, District Amravati. ... Petitioner Versus 1. The State of Maharashtra, through Secretary, Urban Development Department, Mantralaya, Mumbai-32. 2. The Additional Commissioner, Amravati Division, Amravati. 3. The Collector, Amravati. 4. The Municipal Council, Achalpur, through its Chief Officer, Achalpur, Tahsil and District Amravati. 5. The State Election Commission, New Administration Building, Opposite Mantralaya, Mumbai-32. 6. Rupesh s/o yogeshwarrao Dhepe, aged about 31 years, occupation : business, r/o Tilak Square, Paratwada, District Amravati. ... Respondents 2 Shri A.M. Gordey, Advocate, with Shri J.B. Kasat, Advocate, for Petitioner. Shri N.W. Sambre, Government Pleader for Respondent Nos.1 to 3. Shri R.S. Khojre, Advocate for Respondent No.4. Shri P. Marpakwar, Advocate for Respondent No.5. Shri A.S. Kilor, Advocate for Respondent No.6. CORAM : R.C. Chavan, J. DATE : 6th August, 2009 Oral Order : 1. This petition by the President of Municipal Council, Achalpur, is directed against the order passed by the Additional Commissioner, Amravati Division, Amravati, on 26-6-2009, whereby the Additional Commissioner allowed the revision filed by respondent No.6 and set aside the order of the Collector accepting resignation of respondent No.6 from the post of Councillor of Municipal Council, Achalpur. 2. Respondent No.6 was elected as Councillor from Ward No.8. On 18-12-2008, he wrote a letter to the Collector threatening to resign if certain demands were not fulfilled within a period of ten days. On 29-12-2009, he followed up that letter by tendering his resignation. The Collector held that the resignation was valid and, therefore, proceeded to arrange for elections from Ward No.8. An election programme was commenced. In the meantime, respondent No.6 had filed a revision application before the Additional Commissioner stating that he did not in fact resign. The election programme specifically mentioned 3 that the election was subject to the decision of pending proceedings. In the elections, the petitioner was elected as Councillor and subsequently she was also elected as the President of the Municipal Council. The Additional Commissioner had decided the revision of respondent No.6 by his order dated 25-2-2009, which order was challenged by respondent No.6 before this Court by filing Writ Petition No.1550 of 2009, which was allowed and the Additional Commissioner was directed to decide the revision afresh after hearing the parties. Thereafter, the Additional Commissioner passed the impugned order. 3. The learned counsel for the petitioner submitted that the resignation of respondent No.6 was valid, since all the conditions laid down under Section 41(2) of the Maharashtra (Municipal Councils), (Nagar Panchayats) and Industrial Townships Act, 1965 (for short, “the Maharashtra Municipalities Act) had been fulfilled. He submitted that in any case, Section 318 of the Maharashtra Municipalities Act provides that no order shall be varied or reversed unless notice has been given to the parties interested to appear and be heard, which hearing was not granted to the petitioner. 4. I have heard the learned counsel for the parties. 5. As rightly pointed out by the learned counsel for respondent No.6, there was no question of hearing the petitioner in a matter pertaining to acceptance of 4 resignation of respondent No.6, since at that time the petitioner was not at all in picture. In any case, the election programme itself specified that the election was to be subject to pending proceedings and, therefore, the petitioner had sufficient notice that her election was to be subject to the outcome of revision by respondent No.6. The learned counsel for respondent No.6 reiterated that there is absolutely nothing that the petitioner could have submitted in the matter of acceptance of resignation of respondent No.6 and, therefore, proviso to Section 318 of the Maharashtra Municipalities Act would not help the petitioner in assailing the impugned order. 6. The learned counsel for the petitioner submitted that the impugned order is not sustainable. The Additional Commissioner had enumerated the requirements or ‘conditions’ for a resignation to become effective, enumerated in Section 41(2) of the Maharashtra Municipalities Act in his order. He had gone on to observe that the fact that the resignation letter dated 29-12-2008 was signed by respondent No.6, was not disputed by him, as also the fact that the said letter was addressed to the Collector. He had also accepted the Collector’s word that the resignation letter had been tendered by respondent No. 6 to the Collector and observed that even this condition was fulfilled. Yet, the Additional Commissioner went on to hold that out of five conditions prescribed, only one condition had been fulfilled and the remaining four conditions were not observed. The learned counsel for the 5 petitioner further submitted that these conditions are directory and not mandatory in nature and, therefore, strict compliance thereof need not be insisted upon. 7. Section 41(2) of the Maharashtra Municipalities Act reads as under : “ A 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 would be effective.” 8. As far as the resignation being unconditional, the observations of the Additional Commissioner appear to be improper, since even the learned counsel for respondent No.6 does not dispute that the resignation letter dated 29-12-2008 does not put any condition. In fact, respondent No.6 had altered the word ‘naslyas’ (if not done) in the last sentence of the letter to the word ‘naslyamule’ (as not done), indicating that since he found that the demands had not been met, he was tendering resignation. 9. As regards the next condition that the letter ought to be written in the hand of the Councillor, the learned counsel for the petitioner submitted that this has to be held as directory. In this case, the letter dated 29-12-2008 appears to be a computer print and is not in the handwriting of respondent No.6. However, he has not 6 disputed that he did prepare such a letter and sign it. Therefore, as regards insistence upon writing in hand is concerned, so long as the author does not dispute the writing, it may not be appropriate to insist that the letter must be in the handwriting. There could be circumstances like illiteracy or physical disability of a person preventing him from writing “in his hand”. So long as the resignation is in writing and the writing is acknowledged by the author, the writing not being in hand should not matter. Therefore, it follows that this condition could not be said to be mandatory. 10. As far as the letter being required to be addressed to the Collector, even the Additional Commissioner accepts that the letter was addressed to the Collector. About delivery of the letter by respondent No.6 to the Collector, there is a factual dispute and while respondent No.6 states that he in fact delivered to Shri Fulzele, Deputy Collector in the office of the Collector, it appears to be the case of the petitioner that the letter was actually delivered to the Collector, as was seen from the Collector’s endorsement in the margin of the letter. It appears that the Additional Commissioner has accepted the correctness of the endorsement of the Collector. In view of the acceptance of the correctness of the endorsement by the Collector, it may be taken that the letter was in fact delivered by respondent No.6 to the Collector in person and respondent No.6’s objection in that behalf may be rejected. 7 11. As regards the next condition that the letter of resignation must be signed before the Collector, the learned counsel for the petitioner submitted that since respondent No.6 had admitted his signature on the letter, failure to sign before the Collector would not be material and, therefore, this condition may be taken as directory and duly complied with. 12. The learned counsel for respondent No.6 submitted that before its amendment, Section 41 of the Municipalities Act provided for resignation by a Councillor by tendering it in writing to the President of the Municipal Council, and it became effective from the date of receipt by the President. He submitted that possibly because of disputes that such resignation gave rise to, an amendment was made to the said Section and now the said Section provides that the resignation would become effective only after the five conditions mentioned in sub-section (2) of Section 41 of the Maharashtra Municipalities Act are fulfilled. The words “then only such resignation would be effective” cannot be taken to be redundant and the intention is obviously to ensure that disputes as to whether a person had resigned or not, should be raked up subsequently. 13. Therefore, when this provision was so clear, there was absolutely no reason for the Collector to fail to insist upon respondent No.6 to sign the letter before him. There can be no excuse for not carrying out the statutory duty 8 cast upon the Collector. Therefore, as far as compliance to this condition is concerned, the Additional Commissioner cannot be said to have erred in holding that this condition was not fulfilled. This condition is mandatory and has not been inserted in the statute book just as an empty formality. 14. In view of this, though the activities of respondent No.6 in politicizing a solemn act of resigning is definitely not commendable, since the Collector failed to perform his duty in not getting the respondent No.6 sign on the resignation letter in his presence, respondent No.6 was rightly held by the Additional Commissioner by his impugned order to have not resigned. 15. The petition is, therefore, dismissed. 16. Steno copy of this order be supplied to the learned counsel for the parties. Judge. Pdl.