Ravindra S/O Bhaskar Lumpataki vs The Chairman, Panchayat Samiti, ...
2006 Latest Caselaw 971 Bom

JUDGMENT

V.R. Kingaonkar, J.

Page 3383

1. Rule. Rule made returnable forthwith and heard finally by consent of the parties.

2. The petitioner was Sarpanch of Puntamba-Rastapur Group Gram Panchayat. A meeting was summoned on 28.9.2005 in order to discuss various subjects including subject pertaining to verification of a purported resignation tendered by the petitioner. The subject was discussed and by majority it was resolved that the resignation was tendered, in fact, by the petitioner. The Resolution No. 7 passed in the said meeting was disputed by the petitioner. According to him, the resignation letter in question was not tendered by him, it was not in his hand and it was not voluntarily given by him. He further alleged that his signature was taken on such resignation letter when he was inducted in office as a Sarpanch by members of his group which was the then prevailing practice. He alleged that a fraud was played on him and that the signed resignation letter was misused while he was absent from the village and had gone to Pune for his personal work.

3. The Collector, Ahmednagar enquired into the dispute raised by the petitioner under Section 34(3) of the Bombay Village Panchayat Act, 1958 ("the said Act" for short). The Collector rejected the application of the petitioner whereby he had raised the dispute regarding validity, authorship and correctness of the resignation letter. The petitioner preferred an appeal against such finding of the learned Collector. The appeal came to be dismissed. Feeling aggrieved, he has filed the instant writ petition.

4. The petitioner assails the findings of both the authorities on the ground that there was no proper enquiry held. His case is that the resignation letter was never tendered by him on 8.9.2005 at office of the Chairman of the Panchayat Samiti, Rahata. He alleges that he was out of station on that day and his signed letter of resignation was misused. He further alleges that the resignation letter is not in his hand and could not be regarded as his voluntary act to leave charge of the office. He would further submit that before holding of the meeting dated 28th September, 2005 he had forwarded a letter dated 22nd September, 2005 to the Chairman of Panchayat Samiti, Rahata, explaining his stance as well his contention that the resignation is not submitted by him and, therefore, his request was that the resignation be not approved. He denied the fact that he had tendered the resignation in the meeting dated 28th September, 2005 but this aspect was not taken into account and unnecessarily he has been asked to lay down the office of Sarpanch.

Page 3384

5. Heard learned Counsel for the parties, learned Counsel for the intervenors and learned A.G.P.

6. Before I proceed to consider the merits of this matter, let it be noted that the members of the Village Panchayat did not consider the stance of the petitioner regarding his unwillingness to resign the office. He had made it clear at the time of commencement of the meeting that he was not ready and willing to lay down the office since the resignation itself was fraudulently obtained from him. Thus, intention of the petitioner was made explicit at the relevant time of the meeting. The members of the Village Panchayat, however, confined themselves to the issue regarding verification of the resignation letter. According to the majority of members, when the fact that resignation was tendered is manifest then no further discussion was necessary. The Collector also enquired into the dispute only within specified parameters, namely, whether the resignation was tendered by the petitioner as a fact or not. The impugned order dated 31.12.2005 would show that the Collector did not consider the arguments advanced by the learned Counsel for the petitioner.

7. A bare perusal of the order of the learned collector would show that he did not apply his mind to the questions raised by the petitioner and his contentions. He only perused the affidavit of the petitioner, affidavits of two witnesses, who had attested the resignation letter, and affidavit of the Chairman of the Panchayat Samiti and came to the conclusion that the resignation was tendered by the petitioner. Similarly, the appellate authority too did not pay any heed to the other contentions raised by the petitioner and restricted its enquiry regarding the fact of tendering the resignation by the petitioner to the Chairman of the Panchayat Samiti. I hasten to add that both the authorities failed to apply judicial mind to the contentious issues raised and both the impugned orders are bereft of reasons. I mean to say that these orders cannot be regarded as speaking orders in the eye of law.

8. Be that as it may, the question involved in the petition is not as to whether a fraud was played on the petitioner and the resignation was procured from him. Though he made such allegations yet such question regarding disputed fact need not be addressed to in this petition. The only aspect to be examined is whether the resignation so tendered by the petitioner could be lawfully withdrawn by him. The authorities have found that the petitioner has signed the resignation letter and the Chairman of the Panchayat Samiti did support the fact that it was personally tendered by the petitioner who was accompanied by the two witnesses who have signed it. The resignation letter is in accordance with the Form No. 1 as provided by Rule 3(2) of the Bombay Village Panchayats (Delivery of Notice of Resignation) Rules, 1965 ("said Rules" for short). There appears sufficient evidence to show that the Chairman, Panchayat Samiti, forwarded the resignation letter to the Secretary of the Village Panchayat for placing it before the members in the meeting which was to be convened. It further appears that the meeting dated 28.9.2005 was convened by a letter signed by the petitioner himself. The petitioner cannot be heard of saying, therefore, that he had no knowledge regarding the subject to be discussed.

9. Section 34(1) of the said Act provides that the Sarpanch may resign his office by writing under his hand addressed to the Chairman of the Panchayat Page 3385 Samiti. Sub-section (4) of Section 34 would indicate that the provisions of Sub-sections (2), (3), (4), (5) and (6) of Section 29 would apply mutatis mutandis to the resignation tendered by the Sarpanch. The first requirement under Sub-section (1) of Section 34 is that the resignation must be by writing under the hand of the Sarpanch. The petitioner denied the fact that the resignation letter is in his hand writing. The petitioner raised such contention inter alia right from the date of his letter dated 22.9.2005 addressed to the Chairman of Panchayat Samiti. Still, however, neither the members of the Village Panchayat nor the Collector took pains to verify whether the resignation was actually in the hand writing of the petitioner.

10. The relevant provisions of Section 29 would show that the question regarding genuineness of the resignation ought to be determined when the Sarpanch wants to dispute the veracity and correctness thereof. The expression "genuineness" as used in Sub-section (3) of Section 29 has wider meaning. The Sub-section (3) of Section 29 may be reproduced for ready reference as follows:

29. Resignation of member and disputes regarding resignation.-

(3) If any member or the Sarpanch whose resignation is placed before the meeting of the panchayat wants to dispute the genuineness of the resignation, he shall refer such dispute to the Collector within seven days from the date on which his resignation is placed before the meeting of the panchayat. On the receipt of dispute, the Collector shall decide it, as far as possible, within fifteen days from the date of its receipt.

11. As stated earlier, the expression "genuineness of the resignation" will have to be interpreted in wider terms. The expression cannot be unnecessarily cribbed and cabined into narrow compass so as to mean that only the fact of tendering the resignation would require verification. The expression "genuineness" would also encompass within its ambit the absence of intention of the Sarpanch to give up his post. It would also encompass within its fold intention of the Sarpanch to resile from the previous stance of tendering the resignation. It also would include the intention to recall the resignation and continue in the office for the next term. In other words, it was necessary to examine whether the petitioner really wanted to give up his office and as such, had resigned the post. He was at liberty to withdraw the resignation letter before it was given effect in legal parlance.

12. The enquiry made by the Collector would show that the letter dated 22.9.2005 was brought to his notice. By the said letter, the petitioner requested the Chairman, Panchayat Samiti that his resignation may not be granted. He further made it amply clear that the resignation letter was not issued by his consent and, therefore, he was informing the Chairman about the same prior to the meeting scheduled on 28th September, 2005. He has filed a copy of the said letter on record. There is no denial to the fact that such letter was issued by him and was received by the Chairman, Panchayat Samiti, Rahata. It is explicit, therefore, that before commencement of the meeting dated 28th September, 2005 he had disowned the resignation letter and moreover, by his conduct, had withdrawn the same. The resignation cannot be foisted on him when he had no intention to give up the charge of his office. The resignation Page 3386 would operate only when the legal effect could be given to the same. The meeting was called in order to verify the genuineness of the resignation letter and hence all the aforesaid aspects ought to have been considered by the members of the Village Panchayat. The learned Collector and the appellate authority did commit serious error while ignoring these aspects, particularly when the provisions of Section 29(3) of the said Act would make it amply clear that the genuineness of the resignation was required to be verified from all angles, including the purported withdrawal of the same.

13. Learned Counsel Shri Hon, appearing for the intervenors, rightly pointed out that the meeting was summoned by the petitioner himself and hence the petitioner's stand that the resignation letter was outcome of fraud should be rejected. As stated before, I do not think it necessary to consider the question regarding fraud played on the petitioner. The intention of the petitioner that he wanted to withdraw the the resignation much prior to the commencement of the meeting dated 28th September, 2005 is writ large from the available record.

14. In case of Kumudini Ratilal Bhagat and Ors. v. State of Maharashtra and Ors. 1987 Mh.L.J. 462, a Division Bench of this Court has held that the resignation would become effective only if it is accepted in legal manner and there is no withdrawal at any time before it becomes effective. The resignation could not have become effective unless it was approved in the meeting dated 28th September, 2005. So, the petitioner was at liberty to withdraw the same any time before the scheduled meeting. The resignation cannot become effective immediately on the date mentioned in the resignation letter and in the present case it is so, particularly, because the petitioner has come out with a case that he did not scribe the resignation letter in his hand. There is no denial to this assertion of the petitioner that the letter is not in his hand writing. The mere mentioning of the date on the resignation letter is of no consequence, therefore, and it would remain as only a letter of intent until it was so confirmed in the meeting scheduled to verify the contents thereof. The petitioner disputed genuineness of the resignation on various counts but the fact about withdrawal of the resignation was the most important and ought to have been so determined in his favour in view of the previous correspondence as well as his statement made during course of the meeting dated 28th September, 2005.

15. To conclude, it will have to be said that the impugned decisions of the learned Collector and the appellate authority are improper and untenable. It will have to be further said that the petitioner withdrew the resignation letter and hence it could not be regarded as genuine one. The petition deserves to be allowed and as such the petitioner would be entitled to continue in the office until lawfully required to give it up.

16. In the result, the petition is allowed. The impugned orders are set aside. It is declared that the petitioner would continue as the Sarpanch of the Village Panchayat until his term is over or till by lawful means he would be required to vacate the office. Rule made absolute in the above terms. No costs.