REPORTABLE   IN THE 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

J U D G M E N T Deepak Verma, J. 1. Leave granted. Arguments heard. 2. Even 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:

“SECTION 41   (1)  The term of office of the Councillors shall be  

co-terminus with the duration of the council.    (2)  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  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.  

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- 2 - 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.

(2)Such resignation shall be effective on its      receipt by the President.” But in these Appeals we are not required to consider  

it. 4. Facts 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.  Since  the  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

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- 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.  The  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.

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- 4 - 6. This order was challenged by the Appellant in W.P.  No. 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. 7. We 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 the same.  According  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

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- 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.  10. 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,

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- 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.  11. In 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.  Later  on  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)

12. No 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.  Thereafter, 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

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- 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. 13. 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.   14. Shri 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

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- 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. 15. It 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. 16. He 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

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- 9 - 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. 17. On the other hand, learned Senior Counsel Shri Vinod  A. Bobde placed reliance on the following judgments starting  from AIR 1936 Privy Council 253 Nazir Ahmad Vs. King Emperor,  AIR 1954 SC 322 Rao Shiv Bahadur Singh Vs. State of V.P., AIR  1961 SC 1527 Deep Chand Vs. State of Rajasthan, (1975 ) 1  SCC  559  Ramachandra  Keshav  Adke  Vs.  Govind  Joti  Chavare,  (1978) 2 SCC 301 Union of India Vs. Gopal Chandra Mishra.  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. 18. 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

law.

- 10 - 19. 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. 20. It  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.  21. No 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.

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- 11 - 22. Thus,  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.  23. In  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 to  costs.

....................J. [P.SATHASIVAM]

....................J. [DEEPAK VERMA]

 April 19  ,2010