Usman M.A.M. vs Divisional Commissioner, Mysore and Others

The petitioner in this case is a Muncipal Councillor of a Town Municipal Council constituted for Shanivarasanthe in the Dist of Kodagu. According to the petitioner in accordance with the provisions of Sec. 40 of the Karnataka Municipalities Act, 1964, in or about the year 1973 he decided to tender resignation to the office of the Municipal Councillor to which he was elected and handed-over a letter of resignation addressed to the Municipal President. But later he did not press the resignation and continued to be a Municipal Councillor for more than four years. According to the petitioner, all of a sudden he received a communication from the Deputy Commissioner, Kodagu Dist, d|. 30-12-77 (Ext.D). The said letter reads as follows:

"The resignation tendered by Sri MAM. Usman, Councillor TMC Shanivarasanthe is accepted with effect from 17-12-77 under the provisions of Sec. 40(2) of the KM. Act 1964."

In the preamble to the aforesaid communication, there is a reference to the letter d|. 7-12-77 of the President TMC Shanivarasnthe. Obviously this letter has been sent along with the alleged letter of resignation to the Deputy Commissioner and the Deputy Commr calculating ten days from 7-12-77 accepted the resignation with effect from 17-12-77.

Thereafter the petitioner presented a revision petition purporting to be under Sec. 322 of the Act before the Divl Commr and the Divl Commissioner admitted the revision petition, but refused to grant an interim order as prayed for by the petitioner. In these circumstances, the petitioner has presented this writ petition.

Though the prayer of the petitioner is directed against the order of the Deputy Commr accepting the resignation, in substance the case of the petitioner is that he has not tendered the resignation in terms of S. 40 of the Act and that the letter of acceptance sent by the Deputy Commr purporting to accept the resignation is invalid and the petitioner has a right to continue as a Municipal Councillor. Sec. 40 of the Act before its amendment by Act 83/76 which came into force on 8th Decr 1976, a Municipal Councillor who intended to resign was required to address his resignation to the President and according to the said provision, the resignation would become effective after ten days on which the resignation was addressed and tendered before the President of the Municipal Council. The said Sec. 40 was substituted by Act 83/76. Under the said provision, a Municipal Councillor intending to resign is required to give notice of resignation to the Deputy Commr and further the resignation takes effect on the expiry of 10 days after the receipt of the notice by the Deputy Commissioner unless withdrawn in the meanwhile.

Therefore the question for consideration is whether the petitioner has tendered the resignation in accordance with Sec. 40 of the Act as amended by Act 83/76. In order that the resignation should be valid and effective, the concerned Municipal Councillor has to address his resignation to the Deputy Commr. In the present case, it is not disputed that the letter of resignation was addressed to the President and not to the Deputy Commr. Therefore, the letter or notice of resignation given by the petitioner being not in accordance with the provisions of Sec. 40 of the Act, it cannot bring about cessation of his term of office after the 10th day from the date on which the resignation letter is said to have been given.

The petitioner has made an allegation that he had given a letter of resignation four years ago to the hands of the President and the President has now misused the same. But the said allegation is strongly refuted by the President. It is unnecessary to go into this allegation, because the peitioner is entitled to succeed on the ground that the letter of resignation was not addressed to the Deputy Commissioner.

Sri Kadidal Manjappa, learned Counsel for respondent-3, raised a preliminary objection to the maintainability of the petition on the ground that as the petitioner had presented a revision petition before the Divl Commr under Sec. 322 of the Act. the writ petition is not maintainable. I am unable to accept the contention for the reason that there is no decision against which a revision could be filed under Sec. 322 of the Act by the petitioner. Under Sec. 40 of the Act, the decision to resign is that of the Municipal Councillor concerned and no decision is required to be given by the Deputy Commr accepting the resignation. If the Municipal Councillor gives notice of resignation to the Deputy Commr, after ten days he ceases to be a Municipal Councillor by the force of provisions of Sec. 40 of the Act and no order of the Deputy Commr accepting the resignation is necessary. Therefore the Deputy Commr under mistaken impression accepted the resignation of the petitioner and the petitioner also under mistaken impression thinking that there is a decision of the Deputy Commr presented a revision petition. Further as held earlier, in the present case there was no letter of resignation addressed by the petitioner to the Deputy Commr. Hence the revision petition presented by the petitioner before the Divl Commr cannot be considered as an alternative remedy. Therefore, there is no substance in the preliminary objection raised for respondent-3 and the same is rejected.

For the reasons stated above, the Rule is made absolute and a declaration is given to the effect that the so called resignation given by the peitioner to the office of Municipal Councillor of Shanivarasanthe Town Municipal Council is no resignation in accordance with Sec. 40 of the Act and therefore he continues to be a Municipal Councillor until his term comes to an end in accordance with law. No costs.