SAU. LAXMI VERMAversusSTATE OF MAHARASHTRA AND ORS.

                       [201 O] 4 S.C.R. 782


A                      SAU. LAXMI VERMA
                                 V.
             STATE OF MAHARASHTRA AND ORS.
             (Civil Appeal Nos. 3411-3412 of 2010)

                         APRIL 19, 2010
B
         [P. SATHASIVAM AND DEEPAK VERMA, JJ.]

        Maharashtra Municipal Councils, Nagar Panchayats and
  Industrial Townships Act, 1965: s.41(2) - Resignation by
C Councillor - Procedure - Held: Resignation is to be delivered
  in person and signed before the Collector - Mere putting
  initials at certain places scored out in the resignation letter
  before the Collector would not amount to putting the
  signatures before the Collector himself - The provision is
D mandatory in nature and must be complied in letter and spirit
  - Election laws.

       Respondent 6 was an elected Councillor of Municipal
  Council. Few days after the elElctions, he tendered his
E resignation to the Collector which was duly accepted by
  the Collector. Thereafter, the Collector proceeded to
  arrange for fresh elections. Meanwhile, respondent 6 filed
  revision application before the Additional Commissioner
  stating that he had in fact not resigned in accordance
  with law and there was complete violation of sub-section
F (2) of Section 41 of the Maharashtra Municipal Councils,
  Nagar Panchayats and Industrial Townships Act, 1965
  and therefore the resignation tendered by him should be
  held as invalid and inoperative. Meanwhile election
  programme was announced which specifically mentioned
G that the election was subject to the decision of pending
  revision application. Elections were again held and
  appellant was elected as Councillor and subsequently
  she was also elected as President of Municipal Council
  and continued as such. Additional Commissioner allowed
H                               782
     SAU. LAXMI VERMA v.STATE OF MAHARASHTRA                783
                     AND ORS.
    the revision application of respondent no.6 thereby            A
    restoring the status of Municipal Councillor to respondent
    no.6. Aggrieved appellant filed writ petition, which was
    dismissed. Hence the appeals.

        Dismissing the appeals, the Court
                                                                   B
        HELD: 1.1. There was no legally valid resignation
1
    tendered by Respondent No. 6 and the Collector
    committed an error in accepting the same as there was
    not full and complete compliance of the provisions of
    sub-section (2) of Section 41 of the Maharashtra Municipal     C
    Councils, Nagar Panchayats and Industrial Townships
    Act, 1965. Section 41 (2) of the Act required that a
    Councillor may resign his office unconditionally at any
    time by notice in writing in his hand, to be addressed to
    the Collector. It further required that such resignation was   D
    to be delivered in person and signed before the Collector
    and then only such resignation would be effective. It
    cannot be disputed that an obligation was created by the
    Statute to perform it in the manner as provided therein,
    and in case of its non-compliance, the effect thereof would    E
    be rendered redundant and invalid in law. Thus, mere
    putting irtitials at certain places scored out before the
    Collector, would not amount to putting the signatures in
    the resignation letter before the Collector himself. [Paras
    7, 10] [788-C-D; 789-8-C]                                      F

        1.2. It is true that the Collector admitted that the
    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, Collector took a copy of his          G
    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 then put the remark
    "submitted before me by respondent no. 6". The said
    statement of the Collector clearly established that in any     H
    784    SUPREME COURT REPORTS               [2010] 4 S.C.R.


A event the same was not signed by Respondent No. 6 in
  his presence. Thus, it is manifest that there was 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-
B compliance would automatically lead to irresistible
  conclusion that the same was not properly and validly
  accepted resignation of Respondent No. 6 by the
  Collector. [Para 12] [789-G-H; 790-A-C]

~     1.3. The critical examination of the Photostat copy of
v the original resignation of Respondent No. 6 makes it
  abundantly clear that in it certain words were scored out
  and only at that place, respondent 6 had put his initials,
  which was already typed resignation, on which he had
  already put his signature. Thus, there was non-
D compliance with regard to that part of the Section which
  required that resignation should be signed in the
  presence of Collector. [Para 13] [790-A-C]

      Nazir Ahmad v. King Emperor AIR 1936 Privy Council
E 253; Rao Shiv Bahadur Singh v. State of V.P. AIR 1954 SC
  322; Deep Chand v. State of Rajasthan AIR 1961 SC 1527;
  Ramachandra Keshav Adke v. Govind Joti Chavare (1975 )
  1 SCC 559; Union of India v. Gopa/ Chandra Mishra (1978)
  2 sec 301, referred to.
F       2. 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 this, it is also to
  be recalled that fresh elections were held only subject to
  ultimate result of the Revision Petition filed by
G Respondent No. 6. Thus, Appellant was fully aware that
  her fate would ultimately depend on the result of the
  litigation, which ultimately is decided against her. Thus,
  looking to the matter from all angles and keeping in mind,
  strict adherence to the provisions of the Act, there was
H no valid, proper and legal resignation tendered by
 SAU. LAXMI VERMA v.STATE OF MAHARASHTRA 785
                 AND ORS.

Respondent No. 6 in as much as admittedly, the said              A
resignation dated 29.12.2008 was not signed by
Respondent No. 6. [Paras 19, 21, 22) [792-F-H]

                     Case Law Reference:

AIR 1936 Privy Council 253 referred to             Para 17       B

 AIR 1954 SC 322               referred to         Para 17

 AIR 1961 SC 1527              referred to         Para 17

 (1975 ) 1 sec 559             r~ferred 'to.       Para 17       c
 (1978) 2 sec 301              referred to         Para 17

    CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
3411-3412 of 2010.

     From the Judgment & Order dated 6.8.2009 and                D
26.8.2009 of the High Court of Judicature at Bombay, Nagpur
Bench in Wirt Petition No. 3167 of 2009 and LPA No 349 of
2009 in W.P. No. 3167 of 2009.

    Harish N. Salve, Gangan Sanghi, Rameshwar Prasad             E
Goyal for the Appellant.

    Vinod A. Bobde, Anil S. Kilor, Satyajit A. Desai, Shushil
Karanjkar, Sanjay Kharde, Asha Gopalan Nair, Anagha S.
Desai, Vijay Kumar, Makarand D. Adkar, Vishwajit Singh, Arun
                                                                 F
R. Pednekar, V.N. Raghupathy for the Respondents.
    The Judgment of the Court was delivered by

    DEEPAK VERMA, J. 1. Leave granted. Arguments heard.
                                                                 G
     2. Even though a short but important and crisp question
of interpretation of Section 41 (2) of Maharashtra Municipal
Councils, Nagar Panchayats and tndustrial Townships Act, 1965
(hereinafter shall be referred to as the 'Act') arises for our
consideration in these Appeals. The provision stands as under:
                                                                 H
    786       SUPREME COURT REPORTS                   [2010] 4 S.C.R.


A         "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
B         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)

c        This particular Sub-section (2) of Section 41 is required
    to be interpreted by us in this and the connected matter.

       3. It is pertinent to mention, prior to amendment carried out
    sometime in 1994, said Section 41 stood as under:-

0         "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
E         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:-
F
       Responaent 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
G 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
H
 SAU. LAXMI VERMA v.STATE OF MAHARASHTRA                   787
        AND ORS. [DEEPAK VERMA, J.]
proceeded to arrange for elections of Ward No. 8, from which       A
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    B
he had in fact not resigned in accor-Oance with law 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         C
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
Applic~tion of Respondent No. 6 by order dated 25.02.2009          D
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 aljlowed and the Additional Commissioner was directed
to deciae the Revision Application afresh after hearing both       E
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            F
Respondent No. 6.

     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                  G
Appellant's writ petition came to be dismissed. Not being
satisfied with the said order of dismissal, Appellant carried
LP.A No. 349 of2009 before Division Bench of the said Court,
but vide order dated 26.8.2009, the said LP.A also came to
be dismissed. In other words, the resignation tendered by          H
    788      SUPREME COURT REPORTS                  [2010] 4 S.C.R.


A   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.

B       7. We have critically gone through the orders passed by
  learned Single Judge and Division Bench in LP.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
C (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
D 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 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
E 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.
F
       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
G 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.

H         9. In the light of the aforesaid contentions, we have heard
 SAU. LAX.Ml VERMA v.STATE OF MAHARASHTRA                     789
        AND ORS. [DEEPAK VERMA, J.]
learned Senior Counsel, Shri H.N. Salve for Appellant and             A
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      8
at any time by notice in writing in his hand, 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          C
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              D
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 E
     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
                                                                   F
     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)
                                                                   G
     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 H
    790      SUPREME COURT REPORTS                  [2010] 4 S.C.R.


A corrections in point No. 4 in that resignation and put his initials
  before him and again handed it over, on which he 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 Resp_ondent No. 6 in his presence.
B 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
c 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
D 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
E 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
F 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 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
G did, would be deemed to have bee·n 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
H
 SAU. LAXMI VERMA v.STATE OF MAHARASHTRA                      791
        AND ORS. [DEEPAK VERMA, J.]
analogy the orders passed by learned Single Judge passed              A
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
                                                                      B
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.
                                                                      c
      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      D
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 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        E
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          F
from Al R 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              G
vs. Gopa/ 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.
                                                                      H
    792      SUPREME COURT REPORTS                  [2010] 4 S.C.R.


A      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
B 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
c redundant and invalid in law.

        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
D 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.

E     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
F 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
G 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.

H         22. Thus, looking to the matter from all angles and keeping
 SAU. LAXMI VERMA v.STATE OF MAHARASHTRA                   793
        AND ORS. [DEEPAK VERMA, J.]
in mind, strict adherence to the provisions of the Act, we are    A
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           B
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.          ·
                                                                  c
D.G.                                      Appeals dismissed.