Bombay High Court
Babanrao Uttamrao Jadhav vs The Additional Collector, Beed ... on 5 August, 2016
Bench: S.V. Gangapurwala
1 WP9577.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 9577 OF 2013
Babanrao Uttamrao Jadhav,
Age : 48 Years, Occu. : Agri. / Sarpanch,
R/o. : Borgaon Bk., Tq. : Georai,
Dist. : Beed .. Petitioner
Versus
1. The Additional Collector,
Beed, Dist. : Beed
2. The Tahsildar,
Georai,
Tq. : Georai, Dist. : Beed
3. Presiding Officer / Circle Inspector,
Georai, Election of Sarpanch, Borgaon Bk.,
Grampanchayat Tq. : Georai, Dist. : Beed
4. Chairman,
Panchayat Samiti, Georai,
Tq. : Georai, Dist. : Beed
5. The Block Development Officer,
Panchayat Samiti, Georai,
Tq. Georai, Dist. : Beed
6. The Gramsevak,
Grampanchayat Boirgaon Bk.,
Tq. : Georai, Dist. : Beed
7. Anuradha Vishnu Dukare,
Age : 23 Years, Occu. : Up-Sarpanch,
R/o. : Borgaon Bk., Tq. : Georai,
Dist. : Beed
8. Anuradha Narayan Jadhav,
Age : 25 Years, Occu. : Member,
R/o. : Borgaon Bk., Tq. : Georai,
Dist. : Beed
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9. Anita Sajay Jadhav,
Age : 35 Years, Occu. : Member,
R/o. : Borgaon Bk., Tq. : Georai,
Dist. : Beed
10. Shobha Bharat Jadhav,
Age : 34 Years, Occu. : Member,
R/o. : Borgaon Bk., Tq. : Georai,
Dist. : Beed
11. Bhagubai Motiram Nimbore,
Age : 50 Years, Occu. : Member,
R/o. : Borgaon Bk., Tq. : Georai,
Dist. : Beed
12.
Sambhaji Shivajirao Jadhav,
Age : 25 Years, Occu. : Member,
R/o. : Borgaon Bk., Tq. : Georai,
Dist. : Beed
13. Sandip Babasaheb Jadhav,
Age : 33 Years, Occu. : Member,
R/o. : Borgaon Bk., Tq. : Georai,
Dist. : Beed
14. Kanifnath Uttam Gaikwad,
Age : 30 Years, Occu. : Member,
R/o. : Borgaon Bk., Tq. : Georai,
Dist. : Beed .. Respondents
Shri Ravindra Vitthal Gore, Advocate for the Petitioner.
Smt. A. V. Gondhalekar, A. G. P. for Respondent Nos. 1 to 3.
Shri A. R. Tapse h/f Shri Prashant D. Suryawanshi, Advocate for
Respondent No. 4.
Respondent No. 5 to 8 served.
Shri A. A. Nimbalkar, Advocate for Respondent Nos. 9 to 11, 13
and 14.
Respondent No. 12 served.
CORAM : S. V. GANGAPURWALA AND
K. K. SONAWANE, JJ.
3 WP9577.13
CLOSED FOR JUDGMENT ON : 30.06.2016.
JUDGMENT PRONOUNCED ON : 05.08.2016.
JUDGMENT (Per S. V. Gangapurwala, J) :-
1. The present Petitioner is the Sarpanch of Gram Panchayat,
Borgaon. On 13.09.2013 the Petitioner gave letter of resignation
to Respondent No. 4 i.e. Chairman of Panchayat Samiti, Georai.
The same was placed in the meeting on 28.09.2013. In the said
meeting the Petitioner withdrew his resignation. The said fact is
recorded in Resolution No. 5 of the meeting dated 28.09.2013. On
19.10.2013 Petitioner filed representation before the Collector
communicating that he has withdrawn the resignation in the said
meeting and the same was not accepted. The Respondent No. 6
gave a report to the Block Development Office on 22nd October,
2013 intimating that the Petitioner has withdrawn his resignation
in the meeting dated 28.09.2013. The Respondent No. 1 passed
an order on 11th November, 2013 declaring the post of Sarpanch
vacant and directing election for the post of Sarpanch. The same
is assailed in the present petition.
2. Mr. Gore, the learned counsel for the Petitioner submits that,
the Petitioner on 28.09.2013 before the said resignation was
accepted has withdrawn the resignation. The same is recorded
vide Resolution No. 5 of the meeting dated 28.09.2013. According
to the learned counsel, once the resignation is withdrawn before it
is accepted there is no resignation in the eyes of law. The
resignation has not taken effect. As such, no question arises of
the post becoming vacant. The learned counsel submits that, the
Petitioner is not disputing the genuineness of his resignation. The
Petitioner categorically accepts that he has tendered the
resignation vide resignation letter dated 13.09.2013. However,
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before the same was placed in the meeting for acceptance as per
Sub-section 6 of Section 29 read with section 34 of the
Maharashtra Village Panchayats Act, 1958 the Petitioner withdrew
the resignation. It was erroneous on the part of the Collector to
declare the post having become vacant. According to the learned
counsel, even if, there is no specific direction / order of any
authority with regard to withdrawal of resignation however as a
future date for acceptance is laid down and withdrawal prior to
the said date would make the resignation non est. The learned
counsel relies on the judgment of Division Bench of this court in a
case of, Rajesh S/o. Matadin Jaiswal and others V/s. Village
Panchayat, Wadi reported in 1987 (1) Bom. C. R. 528 and
another judgment of Division Bench of this court in a case of,
Kumudini Ratilal Bhagat and others V/s. State of
Maharashtra and others reported in 1987 (1) Bom. C. R.
634.
3. Mr. Nimbalkar, the learned counsel for Respondent Nos. 9 to
11, 13 and 14 submits that, there is no withdrawal of resignation
in the eyes of law. The Petitioner in his letter has not stated that
he is withdrawing the resignation however has only stated that
the said resignation be rejected. As such, there is no withdrawal
of resignation. The learned counsel further submits that, the
resignation was placed in the meeting of the Panchayat dated
28.09.2013. As per Section 29 (6) (a) when there is no dispute
regarding the genuineness the resignation takes effect after
expiry of 7 days from the date of which it is placed before the
meeting of the Panchayat. As per Section 29 (3), if, the person
who has tendered the resignation wants to dispute the
genuineness of the resignation he has to refer such dispute to the
Collector within 7 days from the date his resignation is placed
5 WP9577.13
before the meeting of the Panchayat. In the present case, the
Petitioner has moved the Collector after 21 days of the said
meeting being conducted. According to the learned counsel, the
expression "genuineness of the resignation" will have to be
given a wider connotation. It would even include within its ambit
withdrawal of resignation. If, the said expression is not given a
wider connotation then, the provision of sub - section 3 of section
29 would be rendered redundant. The learned counsel relies on
the judgment of the learned Single Judge of this court in a case of
Ravindra Bhaskar Lumpataki V/s. Chairman and others
reported in 2006 (6) Bom. C. R. 595.
4. We have considered the submissions canvassed by the
learned counsel for respective parties.
5. Before we advert to the contentions canvassed by the
learned counsel for respective parties it would be proper to refer
to the relevant provisions of the Maharashtra Village Panchayats
Act, 1958 -
"SECTION 29 :
Registration of member and disputes regarding
resignation :
1. Any member who is elected may resign his office
by writing under his hand addressed to the
Sarpanch and the Sarpanch may resign his office of
member by writing under his hand addressed to the
Chairman of the Panchayat Samiti. The resignation
shall be delivered in the manner prescribed.
2. On receipt of the resignation under sub-section
(1), the Sarpanch or, as the case may be, the
Chairman of the Panchayat Samiti shall forward it to
the Secretary who shall place it before the meeting
of the Panchayat next following.
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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.
4. The member of Sarpanch aggrieved by the
decision of the Collector may, within seven days
from the date of receipt of the Collector's decision,
appeal to the Commissioner who shall decide it, as
far as possible, within fifteen days from the date of
receipt of the appeal.
5. The decision of the Collector, subject to the
decision of the Commissioner in appeal, shall be
final.
6. The resignation shall take effect,-
(a) where there is no dispute regarding the
genuineness, after the expiry of seven days from
the date on which it is place before the meeting of
the Panchayat;
(b) where the dispute is referred to the
Collector and no appeal is made to the
Commissioner after the expiry of seven days from
the date of rejection of the dispute by the Collector;
(c) where an appeal is made to the
Commissioner, immediately after the appeal is
rejected by the Commissioner.
SECTION 34
RESIGNATION BY SARPANCH OR UPA-SARPANCH :
1. The Sarpanch may resign his office by writing
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under his hand addressed to the Chairman of the
Panchayat Samiti.
2. The Upa-Sarpanch may resign his office by
writing under his hand addressed to the Sarpanch.
3. The notice of resignation shall be delivered in the
manner prescribed.
4. The provisions of sub-sections (2), (3), (4), (5)
and (6) of section 29 shall mutatis mutandis apply
to the resignations tendered under sub-sections (1)
and (2) of this Section as they apply to the
resignation tendered under sub-section (1) of that
Section."
6. The following facts are not disputed -
A] The Petitioner is a Sarpanch of Gram Panchayat,
Borgaon.
B] On 13.09.2013 the Petitioner given letter of
resignation to the Chairman of Panchayat Samiti, Georai.
C] The resignation tendered by the Petitioner was placed
in the meeting of the Gram Panchayat on 28.09.2013.
D] On 28.09.2013 the Petitioner withdrew his
resignation. The meeting was scheduled on same day. The
same is recorded in Resolution No. 5 to the effect that he
had given the resignation due to mental agony and the
same should not be accepted. The said resignation should
be rejected.
E] On 19.10.2013 Petitioner filed representation before
the Collector communicating that he has withdrawn the
resignation in the meeting dated 28.09.2013.
F] Respondent No. 6 gave report to the Block
Development Officer on 22nd October, 2013 intimating that
Petitioner has withdrawn his resignation in the meeting
8 WP9577.13
dated 28.09.2013.
G] Respondent No. 1 passed an order on 11th November,
2013 declaring the post of Sarpanch vacant and directing
election of Sarpanch.
7. The facts hitherto narrated are uncontroverted. Section 29
of the Maharashtra Village Panchayats Act, 1958 lays down the
entire scheme from the stage of tendering the resignation and till
the same becoming effective. Section 29, read, in its entirety
leads us to an irresistible conclusion that, if, any member or
Sarpanch tenders his resignation, the said resignation does not
become effective until the expiry of 7 days from the date on
which it is placed before the meeting of the Panchayat. The
member or the Sarpanch even if he tenders his resignation he
continues to occupy the office even after resignation and until 7
days after the lapse of the meeting of the Gram Panchayat in
which the said resignation is placed.
8. When a statute lays down that the resignation would
become effective on a further date then, in absence of provision
prohibiting withdrawal of resignation the said resignation can be
withdrawn at any time before it operates to become effective.
The said right is inherent in every member in absence of any
provision prohibiting withdrawal of resignation. It has been held
by the Division Bench of this court in a case of Rajesh S/o.
Matadin Jaiswal and others V/s. Village Panchayat, Wadi
referred to supra that the right to tender resignation and the right
to withdraw the resignation are inter related as both these Acts
depend on the discretion of the person tendering the resignation.
The same view was taken by the another Division Bench in a case
of Kumudini Ratilal Bhagat and others V/s. State of
Maharashtra and others referred to supra.
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9. No particular form for withdrawal of resignation is specified.
The representation / application should suggest the intention of
the person to withdraw the resignation. The Respondent has
harped upon the fact that, in view of Section 29 (3) of the
Maharashtra Village Panchayats Act, 1958, if, the Petitioner wants
to contend that the resignation is not genuine then, he has to
refer the dispute to the Collector within 7 days and in the present
case it is referred after the lapse of the period stipulated in Sub-
Section 3 of Section 29 of the Maharashtra Village Panchayats
Act, 1958. According to Respondents even if the Petitioner is not
disputing the factum of tendering resignation as still the same is
withdrawn the dispute would arise with regard to the genuineness
of resignation inter alia the same was required to be referred by
the Petitioner to the Collector within 7 days from the date on
which his resignation is placed before the meeting of the
Panchayat. On failure of the Petitioner to refer the dispute to the
Collector within 7 days of the date of the meeting of the
Panchayat the said resignation has become effective.
10. The learned Single Judge of this court in a case of Ravindra
Bhaskar Lumpataki V/s. Chairman and others referred to
supra has observed that the expression genuineness of the
resignation will have to be interpreted in wider terms. The said
expression cannot be combined into narrow compass. The
expression genuineness would also encompass within its ambit
the absence of intention of the Sarpanch to give up his post so
also to resile from the previous stance of tendering the
resignation. In the said case the person tendering the resignation
had raised a dispute that the said resignation was obtained by
fraud. The judgment of this court cannot be read as euclid
theorem. The same will have to be read in the context in which it
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is delivered.
11. The phrase 'genuineness' would mean that it is not false,
forged, fictitious, stimulated, spurious or counterfeit. As per
Blacks Law Dictionary the expression genuineness means
authentic or real, something that has the quality of what is
purported to be or to have.
In the present case, the Petitioner does not dispute that he
has tendered his resignation and before the date stipulated for
the resignation to be effective the Petitioner has withdrawn the
said resignation.
ig There cannot be any dispute with the
proposition that dispute with regard to the genuineness of
resignation will have to be given wider connotation and may
include any facet by virtue of which the genuineness of the
resignation is doubted. In the present case, the Petitioner has
admitted that he has tendered the resignation on his own volition
and freewill, however, before the resignation was placed for
acceptance the petitioner withdrew his resignation. There was no
dispute with regard to the genuineness of the resignation. The
Division Bench of this court in a case of Kumudini Ratilal
Bhagat and others V/s. State of Maharashtra and others
referred to supra held that the nature and the controversy vis a
vis such a resignation would be capable of being brought on the
surface either in that meeting or even before thereto. The right to
withdraw such a resignation can well be exercised by such a
member till the point it has become effective. It is further
observed by the Division Bench that, if, the resignation is
voluntarily withdrawn by the concerned member even before the
meeting is actually convened and held then in reality there is no
resignation as such in existence which would be required to be
placed before the said meeting as prescribed under Sub Clause 3
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of Section 29 of the Maharashtra Village Panchayats Act, 1958
and if, that be so then, logically there would not arise any
question about the said resignation to become effective at all
because that view would remain in vacuum. In that even an
occasion for the further consequences would not arise at all and
the Division Bench thereafter held that the Petitioners therein
were within their right to voluntarily withdraw the said resignation
even before the meeting was held and the said resignation had
not become effective. It was further held that the inescapable
result therefore is that, these four members are deemed to have
been continued to be the members of the Panchayat as if, they
had not resigned at all. The further result therefore is equally
inescapable that the action taken by the authorities in resorting to
the provisions contained in Section 145 (1-A) of the Maharashtra
Village Panchayats Act, 1958 which proceeded on the erroneous
footing that these members had resigned and the resignations
had become effective immediately falls on the ground.
12. In view of the facts of the present case in the meeting
before the resignation tendered by the Petitioner was discussed
for acceptance, the Petitioner had withdrawn the resignation, it
was not necessary for the Petitioner to take further steps as is
held by the division bench of this court in case of Kumudini
Ratilal Bhagat and others V/s. State of Maharashtra and
others referred to supra. The present case is squarely covered
by the judgment of that court in case of Kumudini Ratilal
Bhagat and others V/s. State of Maharashtra and others
referred to supra. In view of that we are not required to consider
the interpretation of Sub-Section 3 of Section 29 of the
Maharashtra Village Panchayats Act, 1958
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13. In view of the above, the Writ Petition is allowed and the
impugned order is quashed and set aside, however, there shall be
no order as to costs.
[ K. K. SONAWANE, J. ] [ S. V. GANGAPURWALA, J. ]
sam/June.16
