Decided on January 09,1967



- (1.) THIS is a petition under Art. 226 and 227 of the Constitution by eleven members of the Municipal Board, Shri Dungargarh. The petition has been contested by respondent No. 4 Shri Trilok Sharma.
(2.) SHRI Trilok Sharma was elected chairman of Municipal Board, SHRI Dungargarh on 18th February, 1965. On 23rd July, 1965 the petitioners and some other members of the Municipal Board presented a notice of motion of no-confidence against SHRI Trilok Sharma to the Collector. On 27th July, 1965 SHRI Trilok Sharma submitted his resignation to the Sub Divisional Officer, Ratangarh who accepted it on the same day and informed the Collector, Churu about it. On learning about the resignation and its acceptance the Collector asked the Executive Officer, SHRI Dungargarh Municipal Board to inform the members that there was no necessity of calling a meeting to discuss the no-confidence motion against the chairman as he had already resigned and his resignation -had been accepted. The Collector did not convene a meeting for the consideration of the no-confidence motion as required by sec. 72 (2) of the Rajasthan Municipalities Act, 1959. On 26th August, 1965, SHRI Trilok Sharma wrote another letter to the Sub Divisional Officer withdrawing his resignation. The latter accepted the withdrawal. Thereupon the present writ petition was filed. It is contended that the resignation of SHRI Trilok Sharma became effective as soon as it was tendered and could not be withdrawn. In the alternative it is contended that the Collector may be directed to hold the meeting for the consideration of the motion of no-confidence. In support of the first contention reliance was placed on the decision in Shamsuddin vs. The State of Rajasthan and others (l ). In that case a member of the Nagaur Municipal Board sent his resignation from the membership of the Board by post from Bombay, to the Collector, Nagaur on 8th June, 1951. On 23rd June, 1951 he sent a telegram to the Collector withdrawing his resignation. This was confirmed by a letter dated 25th June, 1951. Both the letter of resignation and the letter withdrawing it were forwarded by the Collector to the Government which accepted the resignation on 23rd July, 1951 and ignored the letter withdrawing the resignation This order was challenged by the member concerned by filing a writ petition. The statute constituting the Municipal Board did not contain any provision with regard to the resignation from membership. Following the observations made in Halsbury's Laws of England in the following paragraph it was held that the resignation became effective as soon as it was tendered and could not be withdrawn : - "subject to any provision in the rules to the contrary, a member of an unincorporated membership, and if desirous of doing so must communicate to the secretary his intention to resign. The resignation does not require any acceptance by the committee, and cannot, in the absence of a bye-law to the contrary, be withdrawn or revoked. A member who sends a letter of resignation thereupon ceases to be a member and can only be reinstated by re-election. " It is noteworthy that the above provision is only applicable to a member of an unicorporated body. Under sec. 7 of the Rajasthan Municipalities Act, 1959 all the Municipal Boards in Rajasthan are now incorporated bodies. The above observation made in Halsbury's Laws of England is not thus applicable to the office bearers of the Municipal Board in Rajasthan. In corporations created by statutes for the discharge of public functions a member may not have an absolute right to resign at will, because the law may cast a duty upon the person elected to a public office to act in that office in the public interest. Under the English common law when a person was elected to a municipal corporation he could resign only with the consent of the proper authority. But so far as the chairman of the Municipal Board is concerned a specific provision has been made under sec. 65 (12) of the Rajasthan Municipalities Act, 1959 which runs as follows - "a vice-chairman may resign his office by giving notice in writing to the chairman, and a chairman may resign by giving a like notice to such officer as may be appointed or authorized by the State Government in this behalf. Every such resignation shall take effect on the expiry of one month from the delivery of the notice to the chairman or such officer, as the case may be. " Under Notification No. 1/84/lsg/62-II dated 6th August, 1962, published in Rajasthan Rajpatra, Part IV (c) Extraordinary dated 10th August, 1967 the Sub-divisional Officers concerned in respect of Municipal Board having a population not exceeding 50,000 were authorised to receive the notice of resignation that may be given by a chairman. It will thus be seen that the Sub divisional Officer was only authorised to receive the notice of resignation given to him by the chairman. He had no power to accept the resignation. The resignation was to take effect under sec. 65 (12) on the expiry of one month from the delivery of the notice to the Sub divisional Officer. Before that date it could not take effect in view of the wording of the statute. Before the resignation became effective it could be withdrawn. In this connection I may refer to the decision of a Full Bench of the Allahabad High Court in Bahori Lal Paliwal vs. Disstt. Magistrate, Bulanshahr (2 ). I accordingly hold that Shri Trilok Sharma was entitled to withdraw his resignation which he tendered on 27th July, 1965 on 26th August, 1965, as it had not become effective till then. Coming now to the alternative contention made on behalf of the petitioners, the Collector was entitled to convene a meeting not later than 30 days from the date of the receipt of the no-confidence motion. But the no-confidence motion was received by the Collector on 23rd July, 1960. No writ petition was moved before this Court till the expiry of the period provided under sec. 72 (2 ). As such the petitioners are not entitled to a direction to the Collector to convene a meeting to consider the no-confidence motion. It is open to them to give another notice of a fresh motion of no-confidence. I accordingly dismiss the writ petition and vacate the stay order. In the circumstances of the case I leave the parties to bear their own costs of this writ petition. . ;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.