Sinha, J. - (1.) The petitioner is an elected Commissioner of the South Dum Dum Municipality, representing Ward No. 2. He was acting as such since his election in 1952. On the 1st July, 1954, he addressed a letter to the Chairman of the Municipality asking for leave for a period of three months with effect from the 1st July, 1954, as he required rest, being in ill-health. It is said that the Chairman was not agreeable to this proposal and on the 15th July, 1954, the petitioner wrote a letter to the Chairman, which is as follows:- "The Chairman, South Dum Dum Municipality, Nagerbazar, Dum Dum. Dear Sir, I do hereby tender my resignation from the Municipal Commissionership due to my ill-health. Dated, Dum Dum, Yours faithfully, The 15th July, 1954. Anil Chandra Guha." On the 26th July, 1954, the petitioner addressed a second letter to the Chairman stating that he withdrew his notice of resignation and requesting that the same may be treated as cancelled and not placed at the meeting of the Commissioners. It is stated by the petitioner that he did so, although he was in indifferent health, as he was requested to withdraw his resignation by his constituency, and he thought that it was his duty to do so in the public interest. On the 27th July, 1954, the petitioner addressed another letter to the Chairman complaining that the agenda for the next meeting showed an item for the consideration of the petitioner's resignation, but none about the withdrawal of the notice. The petitioner further pointed out that in any event he was still continuing to be a Commissioner and that he was entitled to have a copy of the agenda. It is admitted that he had no notice of the next meeting, nor any copy of the agenda was served upon him. At the meeting of the 30th July, 1954, a resolution was passed which is as follows : "No. 7. Sri A.C. Guha, Commissioner's letters dated 1.7.54. for leave and dated 15.7.54. tendering resignation from commissionership. Read the letters dated 1.7.54 and 15.7.54 as also the letters, dated 26.7.54 and 27.7.54 from Sri A.C. Guha, Commissioner. After a full discussion regarding the letters in question from the Commissioner, resolved unanimously that his resignation be accepted."
(2.) This Rule was issued on the 16th August, 1954, calling upon the opposite-parties to show cause why a Writ in the nature of Mandamus should not issue directing them to expunge the Resolution in Item No. 7 dated the 30th July, 1954, complained of in the petition and to forbear from giving effect to the same and to allow the petitioner to function in the office and/or why such further or other order or orders should not be made as to this Court may seem fit and proper.
(3.) Mr. Das on behalf of the petitioner urged that under section 60 of the Bengal Municipal Act, 1932, a Commissioner can vacate his office by a resignation which is to be handed over to the Chairman and by him placed before the Commissioners at a meeting. The relevant provision is as follows:- "A Vice-Chairman or a Commissioner may resign by notifying his intention to do so to the Chairman, who shall forthwith lay such notice before the Commissioners at a meeting. On a resignation under sub-section (2) or sub-section (3) being accepted by the Commissioners at a meeting, the Chairman, Vice-Chairman or Commissioner, as the case may be, shall be deemed to have vacated his office.";