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Akhtar Hasan And Anr. vs District Magistrate, ...

High Court Of Judicature at Allahabad|17 December, 1976


1. The controversy raised in this writ petition centers round the construction of Section 39 of the U.P. Municipalities Act, 1916. The facts giving rise to the petition are these:--
The Municipal Board, Kairana, district Muzaffarnagar (hereinafter referred to as the Board) comprised of 17 members and the President. Nine members of the Board submitted their resignation to the District Magistrate, Muzaffarnagar, on 13th September, 1976, who passed en order on the same day under Section 10-AA (2) of the U. P. Local Government Laws (Amendment) Ordinance, 1976 (U. P. Ordinance No, 18 of 1976) (hereinafter called the Ordinance) assuming the charge as administrator of the Board.
2. A perusal of the said order makes it clear that at the time of assumption of charge by the District Magistrate under Section 10-AA (2) the resignation of nine members had not been forwarded to the State Government. It has been stated in the counter-affidavit filed on behalf of the District Magistrate that the letters of resignation were sent by the District Magistrate along with his letter the same day they were delivered to him i. e. 13th of September, 1976 to the Commissioner, Mee-rut Division for being sent to the State Government. The resignation letters appear to have been despatched from Commissioner's office on 25th September. 1976 to the Governor,
3. Between sending of these resignations by the District Magistrate to the Commissioner and its despatch from the office of the Commissioner to the State Government another important event took place on 15th September, .1976. The Governor of Uttar Pradesh issued the ordinance which amended Section 9 of the U, P. Municipalities Act. The effect of the amendment was that all the members of the House of People and the State Legislative Assembly whose constituencies include the whole or any part of the limits of a Municipality became ex-officio members of the Municipal Board of that Municipality. Jt is further provided that if none of the persons who so become members, is a woman, the State Government may by a notification nominate a woman as a member of the Board. The effect of this ordinance was that the member of the two legislatures within whose constituencies the limits of the municipality of Kairana fell became ex-officio members of the Board from 15th September, 1976. It is admitted that the Board has no woman member, nor has the State Government issued any notification nominating any woman as a member of the Board. The effect of this ordinance shall assume importance only if we come to the conclusion that the Board continued to be in existence till 15th September, 1976.
4. Sir S.N. Kackkar, appearing for the petitioner, has urged that the resignations submitted by the members of the Board did not become effective under Section 39 unless they were communicated to the State Government or at least received by the State Government. It was also argued by him that in the present case the District Magistrate exercised his power under Section 10-AA (2) even before the resignations were despatched to the State Government and that, therefore, in view of our decision in Civil Misc. Writ Petn. No. 3431 of 197,6 (All) (Basudeo Gupta v. District Magistrate, Shahjahanpur) on 13th Sept., 1976 the impugned order of the District Magistrate was liable to the struck down.
5. We have heard Sri B.D. Agarwal, Chief Standing Counsel for the District Magistrate and Sri Shanti Bhushan on behalf of nine members who had resigned from the Board on 13-9-1976 and who on their application have been impleaded as respondents in the writ petition. Sri Shanti Bhushan has urged that once a letter of resignation addressed to the State Government was written and signed by a member of the Board, he ceased to be a member of the Board. According to Sri Shanti Bhushan no further act is required to be done to make such resignation complete and effective.
5-A. Sri Shanti Bhushan urged that the view taken by us in our earlier decision in Writ Petition No. 3431 of 1976 (All) needs reconsideration. He has placed reliance on a passage in the decision of the Full Bendh of this court in Bahori Lal Paliwal v. District Magistrate, Bulandshahr, 1956 All LJ 421 at p. 423 = (AIR 1956 All 511 at p. 513). He strongly relied on a passage in Halsbury's Laws of England, Simond's Edition at page 261. He submitted that a resignation of membership of a municipal corporation operates from the moment the letter of resignation is signed. The office held by a member of the Board, according to Sri Shanti Bhushan, is an office at the will of that member and once his willingness to relinquish the office has been expressed by him, he cannot be forced to remain in office even for a moment and the right to resign is absolutely and that if it is made dependent on some further act to be performed by some other person or authority it ceases to be absolutely. Sri Shanti Bhushan strongly urged that while construing Section 39 we should not depart from the well-settled interpretation, of provisions in laws of Municipal Corporation in regard to resignation of members. He has submitted that there is neither any rationale nor any principle of law to hold that the resignation of a member of a Board becomes effective only when it is communicated to or readies the State Government.
6. Sri Shanti Bhushan referred to the following passage in Halsbury's Laws of England Vol. 24, paragraph 836:
"A person elected (u) to any office (a) may at any time resign that office by notice in writing signed by him. and delivered to the clerk of the country Council, town clerk, clerk of the district Council, or, in the case of a parish councillor, to the chairman of the parish council, or in the case of a chairman of a Parish Council or Parish meeting to the Council or meeting as the case may be (b) such resignation taking effect upon the receipt of the notice by the person or body to whom it is required to be delivered (c)."
Whatever may have been or is position in England the law dealing with the resignations of the members of Municipal Board is contained in Section 39 of the Municipalities Act. It is difficult to accept his argument that for interpreting Section 39 of the U. P. Municipalities Act we should look for guidance to the above quoted passage in Halsbury's Laws of England. The section in Local Government Act, 1953 expressly provides that the resignation will take effect the moment it is delivered to the clerk of the Council etc. In our opinion Section 292 should be construed in the background, setting and circumstance of its own. If necessary the legislative intent may be gathered from the use and understanding of similar expressions from the acts in pari materia. Such express provision as is used in English is absent is Section 39 of the U. P. Municipalities Act. Section 39 of the U. P. Municipalities Act reads as under:--
"If a member of a Board other than the President resigns by writing under his hand addressed to the State Government his seat shall thereupon become vacant. The resignation shall be delivered at the office of the District Magistrate of the district, in which the Municipality is situate who shall forthwith inform the President and shall forward the resignation to the State Government," Can it be said that a member of the Board if he hands over 'his resignation letter to his domestic servant, a servant or an employee of the Municipal Board or any assistant in the office of the District Magistrate, has ceased to be a member of the Board. The literal interpretation suggestion by Shri Shanti Bhushan may lead to anomalous results. It does not stand to reason. Similar argument was rejected in Rameshwar Das Mittal v. State of Uttar Pradesh (1972 All LJ 990) and in Writ Petition No. 34S1 of 1976 (All).
7. It was next submitted by Shri Shanti Bhusan that even if the resignation is to be sent or communicated to the State Government, the District Magistrate being its agent, delivery of resignation to the District Magistrate, is communication to, or receipt by the State Government and therefore, the moment a letter of resignation is handed over to the District Magistrate the requirement of the first part of Sub-section (1) of Section 39 is satisfied and the seat of the member resigning became vacant. Reliance has been placed on a Division Bench decision in Ram Gopal Gupta v. State (1969 All LJ 231).
8. We are not persuaded to think that our earlier decision on the above two points require reconsideration. We have rejected a similar argument in Civil Misc. Writ Petition No. 3431 of 1976 (All).
9. The argument of Sri Kackker that the resignation under Section 39 of the U. P. Municipalities Act is effective only from the date it is received by the State Government, does not impress us. He has relied in this connection on Harish Chandra v. Dy. L. A. Officer (AIR 1961 SC 1500); State of Punjab v Amar Singh (AIR 1966 SC 1313) and an unreported judgment of R.S. Pathak, J. in Shamsuddin v. Dr. Sarin (Civil Misc. Writ Petition No. 3622 of 1966 decided on 10-1-1967) (All). In Harish Chandra's case it was held that where rights of a person are effected and a remedy toy way of appeal is provided against the order, the making of the order must mean either actual or constructive communication, in Amar Singh's case it was held that the mere passing of an order of dismissal is not effective unless it is published and communicated. In our opinion the principles laid down in these decisions are not helpful in construing Section 39 in the manner suggested by Sri S.N. Kackker.
10. The decision in Shamsuddin's case is based on Section 47 of the U. P. Municipalities Act. It is not necessary to discuss this in detail as conclusions reached by us are on the legislative history of Section 39 and the intention of the legislative as can be gathered from the section itself.
11. Section 39 originally read as under:--
"(1) A member, other than the chairman, of a Board wishing to resign may forward his written resignation through the chairman to the Commissioner.
(b) When the acceptance of the resignation, by the Commissioner has been communicated to the Board the member shall be deemed to have vacated his seat."
The section was amended by Act 7 of 1949 and in its amended form it stands even today. The amendment makes it clear that the cessation of membership does not depend on acceptance or its reaching the Government. A perusal of various Acts relating to Urban Local Bodies, namely, Town Areas Act and Nagar Mahapalika Adhiniyam, shows that the legislature has not adopted an uniform pattern. For instance, under the Town Areas Act the membership of the Committee ceases on acceptance (Section 6 (4)). In Nagar Mahapalika Adhini-yam Sections 19 (2), 23 and 29 use similar expresisions as are used in Section 39 in relation to resignation of Up-Nagar Pramukh, Vishistha Sabhasad and Sabhasad and make the resignation effective only from the date it is received by the authority to whom the resignation is addressed. The legislature did not provide that resignation under Section 3-9 shall be effective only when it reaches the State Government unlike in Nagar Mahapalika Adhiniyam. We cannot, while construing Section 39, add a further requirement which the legislature itself has not thought it fit to provide.
12. Sri Shanti Bhushan next contended that even according to decision in Civil Misc. Writ Petn. No. 3431 of 1976 (All) the resignation becomes effective as soon as resignation is forwarded by the District Magistrate to the Government and that it is not necessary that the resignation should reach the Government before it became effective. He maintained that forwarding the letter of resignation through the Commissioner is not provided in Section 39 and that Commissioner is, also not required to do anything in regard to such resignation the date on which the Commissioner forwards such resignation to the Government is wholly immaterial.
13. There can be no doubt that once the resignation letters were forwarded by the District Magistrate to the Commissioner, they were sent by him to the State Government. The requirement in Section 39 is that the District Magistrate shall send it to the State Government. If either due to the practice prevalent or under the rules governing the procedure for the District Magistrate corresponding with the State Government the letters were routed through the Commissioner, it cannot be said that they were not sent by the District Magistrate to the State Government when he sent them to the Commissioner. Under the Act or the Rules the Commissioner is not required to perform any function or to make any comment in regard to these resignation letters. That the resignation letters were sent by the District Magistrate to the Commissioner and not directly to the Government on 13-9-1976 did not in any manner take away the legal effect of the District Magistrate sending them on 13-9-76.
14. As the resignation sent on 13th September 1976 were by more than half of the members of the Board, the casual vacancy as contemplated under Section 10-AA (2) occurred and the Board stood dissolved.
15. The next question is whether the action of the District Magistrate on 13-9-76 in assuming charge as Administrator of the Board, was correct or calls for interference by us. Since the District Magistrate had not yet forwarded the resignations of 9 members of the Board to the Commissioner on that day, the resignations of those 9 members had not become effective and the Board did not stand dissolved on that day. Hence the action of the District Magistrate in assuming charge as Administrator on 13-9-1976, was not in accordance with law. Yet, the question is whether the action of the District Magistrate calls for interference. As stated earlier, the District Magistrate forwarded the resignations of the 9 members to the Government on 13-9-1976 through the Commissioner though subsequent to his assuming charge as Administrator on that day. According to the view we have taken above, those resignations became effective on 13-9-1976 as soon as he forwarded them to the Governor and as the U. P. Municipalities Act stood then, the Board got dissolved on that day and it was also competent for the District Magistrate to assume charge as Administrator on 13-9-1976 after forwarding those resignations. Thus it is seen that the only error on the part of the District Magistrate was in assuming charge as Administrator a few hours before forwarding those resignations. In the circumstances of the case we do not find it necessary to strike down the order of the District Magistrate assuming charge as Administrator especially since the position of law as to when a resignation of a member actually becomes effective, was not free from difficulty. It is sufficient to point out the error committed by the District Magistrate.
16. The result is that the writ petition is dismissed. The parties shall, however, bear their own costs.
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Akhtar Hasan And Anr. vs District Magistrate, ...


High Court Of Judicature at Allahabad

17 December, 1976
  • D Chandrashekhar
  • R Sahai