Partly allowed

Ajaykumar Babulal Patel v. State of Gujarat

Gujarat HC18 Jun 2018SCA/8704/2018

Case brief

AI extract

What is this about?

The High Court of Gujarat held that while a panchayat member's resignation becomes effective upon receipt by the President, it can be withdrawn before that point. The Court found a dispute existed regarding the receipt date, thus directing the Development Commissioner to decide the matter under section 68(4) of the Gujarat Panchayats Act, 1993.

What did the court decide?

The petitioner's request for declaration was not accepted, but the objection was treated as a dispute under section 68(4) to be decided by the Development Commissioner.

Ajaykumar Babulal Patel Vs State of Gujarat — Pension and Retirement Benefits | Gujarat HC (2018)

¶1

C/SCA/8704/2018 ORDER

¶2

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

¶3

R/SPECIAL CIVIL APPLICATION NO. 8704 of 2018

¶4

==========================================================

¶5

AJAYKUMAR BABULAL PATEL

¶6

Versus STATE OF GUJARAT

¶7

==========================================================

¶8

Appearance:

¶9

MR DIPAN DESAI(2481) for the PETITIONER(s) No. 1 MR.JAISWAL, AGP (1) for the RESPONDENT(s) No. 1 MR ADIL R MIRZA(2488) for the RESPONDENT(s) No. 5 MR HS MUNSHAW(495) for the RESPONDENT(s) No. 2 MR.V.K.BHATIYA, ADVOCATE for the RESPONDENT(s) No. 4 NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 3

¶10

==========================================================

¶11

CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI and

¶12

HONOURABLE MR.JUSTICE B.N. KARIA

¶13

Date : 18/06/2018

¶14

ORAL ORDER

¶15

(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)

¶16

1. Petitioner has challenged a communication dated

¶17

29.05.2018 made by the Deputy Development
Commissioner, State of Gujarat, Gandhinagar to the
District Development Officer, Valsad.

¶18

2. Brief facts are as under:

¶19

3.Petitioner is a member of Pardi Taluka

¶20

Panchayat. The respondent no.5 was also elected to
the same panchayat during the same elections. On
01.05.2018, the respondent no.5 tendered resignation

¶21

Page 1 of 15

¶22

C/SCA/8704/2018 ORDER

¶23

as a member of the Taluka Panchayat which was
addressed to the Taluka Development Officer, Pardi.
In such letter, she simply stated that for her
personal reasons, she resigns from her position. A
similar communication was also addressed by her to
the President, Taluka Panchayat, Pardi. It is not in
dispute that such communication was inwarded in the
office of the Taluka Panchayat on 01.05.2018 itself.

¶24

4.On 02.05.2018, the respondent no.5 sent a
communication to the Taluka Development Officer,
conveying that she had sent her resignation dated
01.05.2018, however, such step was taken hurriedly.
She wishes to correct her error and therefore with
immediate effect, withdraws the resignation. A
similar communication was also made by her on the
same date to the President, Taluka Panchayat, Pardi.
Along with these communications, she had attached an
affidavit sworn by her supporting such averments.

¶25

5.The President of the Taluka Panchayat put his
endorsement on the resignation letter dated
01.05.2018 of the respondent no.5, in which, he
recorded that in connection with the resignation,

¶26

Page 2 of 15

¶27

C/SCA/8704/2018 ORDER

¶28

respondent no.5 has sent a sworn affidavit requesting
to reject the resignation. The resignation is
therefore not accepted.

¶29

6.On 09.05.2018, the Taluka Development Officer,
Pardi, wrote to the District Development Officer,
Valsad, seeking his guidance with respect to the
resignation of the respondent no.5 dated 01.05.2018
and its nonacceptance by the President of the
Panchayat. On 16.05.2018, the petitioner herein
wrote to the District Development Officer, Valsad,
and contended that the respondent no.5 had already
tendered resignation on 01.05.2018. As per section
68(3) of the Gujarat Panchayats Act, 1993 ('the Act'
for short), such resignation would be effective from
the time it is tendered. The President therefore had
no power to reject the same as per law and therefore,
the post in question has fallen vacant. On
18.05.2018, the District Development Officer, Valsad,
wrote to the Development Commissioner and sought his
guidance with respect to above mentioned dispute
which has arisen. He has made specific reference to
sub-section (4) of section 68 of the Act. On
29.05.2018, Deputy Development Commissioner conveyed

¶30

Page 3 of 15

¶31

C/SCA/8704/2018 ORDER

¶32

to the District Development Officer that the
President of the Taluka Panchayat had rejected
resignation of the respondent no.5. Question of
exercising power to decide dispute under sub-section
(4) of section 68 of the Act would arise when there
is dispute. In short, therefore, in his opinion,
since no dispute had arisen, there was no question of
exercising powers under sub-section (4) of section 68
of the Act.

¶33

7.Appearing for the petitioner, learned counsel
Shri Dipan Desai vehemently contended that the
authorities have committed a serious error. In his
opinion, the resignation of the respondent no.5 would
take effect, the moment it is received by the
President of the Taluka Panchayat. In absence of any
power for withdrawal of such resignation, the
President has committed serious error in accepting
the request of the respondent no.5. He therefore
submitted that there was no question of any dispute
about the acceptance of the resignation. Reference
under sub-section (4) of section 68 of the Act was
even not necessary. His specific contentions were as
under:

¶34

Page 4 of 15

¶35

C/SCA/8704/2018 ORDER

¶36

I.The letter dated 01.05.2018 of resignation
written by the respondent no.5 was received by
the President of the Panchayat on the same date.
This would be clear from the documents on record

¶37

and in particular, the remarks put by the
President while rejecting the resignation. In
that view of the matter, by virtue of sub-
section (3) of section 68 of the Act, the
resignation had become effective.

¶38

II.There is no provision under section 68 of the
Act permitting the person tendering resignation
to withdraw the same. In absence of any such
powers, the respondent no.5 could not have
exercised such an option.

¶39

III. In any case, once the resignation was tendered, received by the President of the Panchayat and therefore become effective, the resignation could not have been withdrawn.

¶40

IV. The President of the Panchayat had no power to reject the resignation.

¶41

V. In view of admitted facts, there is no dispute

¶42

Page 5 of 15

¶43

C/SCA/8704/2018 ORDER

¶44

about the resignation having become effective.
Reference under sub-section (4) of section 68 of
the Act is therefore not necessary. The
petitioner has not raised any dispute about the
resignation. He had only brought correct facts
before the authorities. The authorities failed
to examine such facts in correct legal
perspective. The petitioner's request for
declaration that the respondent no.5 has vacated
the seat should therefore be granted.

¶45

8.Learned counsel Shri Desai relied on some

¶46

judgments, reference to which will be made at a later
stage.

¶47

9.Learned counsel Mr.Mirza appearing for

¶48

respondent no.5 opposed the petition. Relying on the
affidavit dated 15.06.2018, the counsel submitted
that the letter of resignation was not received by
the President on 1st May, contrary to what the
petitioner contends. The resignation and withdrawal
thereof were placed before the President
simultaneously.

¶49

10.Learned counsel Shri V.K.Bhatiya appears for

¶50

Page 6 of 15

¶51

C/SCA/8704/2018 ORDER

¶52

respondent no.4 i.e. the President of Panchayat who
has also filed an affidavit substantially supporting
the factual averments made by respondent no.5 in her
affidavit. Learned AGP Shri Jaiswal supported the
impugned communication dated 29.05.2018.

¶53

11.Section 68 of the Act pertains to resignation
and reads as under:

¶54

“68.

¶55

(1) The President may resign from his office by
tendering his Resignation in writing to the
competent authority but the Resignation shall
not take effect until it is accepted by the
competent authority.

¶56

(2) The Vice-President may resign from his
office by tendering his resignation in writing
to the panchayat but the resignation shall not
take effect untill it is accepted by the
panchayat.

¶57

(3) Any other member of the panchayat may resign
by tendering his resignation to the President
and the resignation shall take effect on the
date on which it is received by the President.

¶58

(4) If any dispute regarding any resignation
arises it shall be referred for decision to such
officer as the State Government may by general
or special order appoint in that behalf and the
decision of such officer shall be final:

¶59

Provided that no such dispute shall be
entertained after the expiry of a period of
thirty days from the date on which the
resignation takes effect.

¶60

Page 7 of 15

¶61

C/SCA/8704/2018 ORDER

¶62

12.Perusal of the said provision would show that in
case of a President or Vice President of a Panchayat,
in terms of sub-sections (1) and (2) of section 68,
the resignation would be made in writing and such
resignation will not take effect until it is accepted
by the competent authority. In contrast, as per sub-
section (3) of section 68, a member of the Panchayat
can resign by tendering his or her resignation to the
President and the resignation would take effect on
the date on which it is received by the President. In
terms of sub-section (4) of Section 68, if any
dispute regarding any resignation arises, the same
shall be referred for decision to the officer as the
Government may specify. Proviso to sub-section (4)
of section 68 lays down the time limit for raising
such dispute.

¶63

13.Few things thus become immediately clear from
this provision. Firstly, unlike in case of President
or Vice President, the resignation tendered by the
member of the Panchayat to the President does not
require specific acceptance thereof. The effective
date is the date when the same is received by the
President.

¶64

Page 8 of 15

¶65

C/SCA/8704/2018 ORDER

¶66

14.Learned Single Judge of this Court in somewhat
similar provisions made in the Gujarat Municipalities
Act, 1963, in case of Shirishkumar Mayachandbhai
Modi v. Collector, Banaskantha, reported in 1975 GLR
303 observed that there is no provision under the
said Act which provides for withdrawal of a
resignation which the councilor has tendered. Once
the councilor tenders the resignation and it has
taken effect under sub-section (3) of section 35, the
same cannot be withdrawn. We may stress on the
observation of the learned Single Judge on the
resignation not only being tendered but the same
taking effect preventing any withdrawal thereof later
on.

¶67

15.Division Bench of this Court in case of

¶68

Pravinbhai Mulubhai Gadhavi v. State of Gujarat

¶69

passed in Special Civil Application No.535 of 2018
vide an order dated 22.01.2018, had an occasion to
examine the provisions of section 35 of the Gujarat
Municipalities Act pertaining to the resignation of
President, Vice President and the councilor of the
Municipality. It was observed that sub-section (3)
of section 35 does not require that the resignation

¶70

Page 9 of 15

¶71

C/SCA/8704/2018 ORDER

¶72

tendered by the councilor should be accepted by the
President for it becoming effective. The provision
clearly provides that the resignation shall take
effect on the date on which it is received by the
President. For the resignation to become effective
therefore what is essential is, it is received by the
President and not its acceptance.

¶73

16.The provisions of section 68(3) of the Act being
similar to section 35(3) of the Municipalities Act,
above observations will apply to our case also. To
this extent, we have no dispute with the legal
proposition raised by the counsel for the petitioner.
Sub-section (3) of section 68 of the Act nowhere
requires that the resignation tendered by a member of
a Panchayat to the President must be accepted by the
President before it becomes effective. The receipt
of the resignation by the President is sufficient and
therefore crucial.

¶74

17.In the present case, this itself is a matter of
dispute. The petitioner contends that the resignation
tendered by the respondent no.5 was received by the
President on 01.05.2018 and therefore its withdrawal

¶75

Page 10 of 15

¶76

C/SCA/8704/2018 ORDER

¶77

under letter/affidavit dated 02.05.2018 was wholly
impermissible. We do not find any conclusive
evidence to accept such a contention. The note put
by the President on the resignation letter of
respondent no.5 does not suggest that the President
received the letter of resignation on 01.05.2018. He
has only stated that the respondent no.5 had tendered
the resignation under communication dated 01.05.2018.
He thereafter recorded that she has also applied for
its withdrawal under affidavit dated 02.05.2018.
Nowhere, the President in this note or anywhere else

¶78

from the documents supplied before us, accepts the
position that the letter of resignation was received
by him on 01.05.2018. In fact, in the affidavits
filed by respondent nos.4 and 5 they have taken a
specific stand that the letter of resignation as well
as its withdrawal were placed before the President
simultaneously on 02.05.2018. We are neither

¶79

accepting nor rejecting such a theory. We are only
concluding that in view of such conflicting stands

¶80

taken by the petitioner and the contesting
respondents, the disputes with respect to the
resignation of the respondent no.5 and it becoming

¶81

Page 11 of 15

¶82

C/SCA/8704/2018 ORDER

¶83

effective have arisen. Such dispute can be resolved
only by the competent authority in terms of sub-
section (4) of section 68 of the Act.

¶84

18.Before closing, a few peripheral aspects may be
disputed of. Firstly, we wonder whether the District
Development Officer had the authority to seek
guidance from the Development Commissioner in this
respect. Secondly, the petitioner has not raised any
specific request for referring the dispute under sub-
section (4) of section 64 of the Act. Nevertheless,
his objection to the resignation having been treated
as withdrawn is sufficient to treat it as a dispute
which needs to be decided by the competent authority
under sub-section (4) of section 68 of the Act.

¶85

19.Lastly, the petitioner has contended that in
absence of any provision for withdrawal of
resignation, the respondent no.5 could not have been
exercised any such option. Section 68 of the Act
makes no provision for withdrawal of resignation once
it is effective. This is what the learned Single
Judge of this Court in case ofShirishkumar

¶86

Mayachandbhai Modi (supra) also held in context of

¶87

Page 12 of 15

¶88

C/SCA/8704/2018 ORDER

¶89

the Gujarat Municipalities Act. However, this is not
the same thing as to suggest that a resignation which
is put in motion, cannot be recalled before it is
effective. Whether there is any stage for acceptance
of resignation as in the case of President or Vice
President of a Panchayat or in case of a member where
no such stage is envisaged, there is nothing in the
statute to prevent the person who tendered the
resignation to change his or her mind before the
resignation has become effective. This would not
tantamount to withdrawal of resignation which has
become effective, but amounts to not tendering the
resignation altogether. The statute does not compel

¶90

an elected member of a Panchayat to resign once any
such thought is harbored and also put in writing. If
such person for whatever reason has a second thought
and acts on it before resignation becomes effective,

¶91

the statute does not prevent its withdrawal.
Situation in such a case would be that no such
resignation was ever tendered. A registration which
has not been tendered cannot become effective nor any
authority can accept such a resignation which is not
tendered. We may recall, Shri Desai had argued that

¶92

Page 13 of 15

¶93

C/SCA/8704/2018 ORDER

¶94

the President of the Panchayat had rejected the
resignation though he had no such power. In our
opinion, however, the President merely used incorrect
language. What we have held is that it was within

¶95

the power of respondent no.5 to withdraw the
resignation before it became effective. The
President of the Panchayat under such circumstances,
could not have accepted it, of course, if the facts
are such. His mere communication that it is
rejected, would not change this legal position.

¶96

20.Under the circumstances, the petitioner's

¶97

request for a declaration that respondent no.5 has
vacated the post of member of Panchayat is not
accepted. However, the Development Commissioner
shall treat the petitioner's objection letter dated
16.05.2018 as raising a dispute with respect to the
resignation of the respondent no.5 and decide such a
dispute in terms of sub-section (4) of section 68 of
the Act. We clarify, with respect to the main
factual disputes as to when were the resignation
letter of the respondent no.5 and the withdrawal were
received by the President, we have expressed no
opinion.

¶98

Page 14 of 15

¶99

C/SCA/8704/2018 ORDER

¶100

21. Petition is disposed of accordingly.

¶101

(AKIL KURESHI, J)

¶102

(B.N. KARIA, J)

¶103

ANKIT SHAH