S. Sharbudeen vs C. Ramadoss and Another

Veeraswami, C.J.—The Chairman of the Municipal Council, Kumbakonam, addressed a letter dated 18th January, 1975, to the Municipal

Commissioner of that municipality stating that thereby he tendered his resignation from the chairmanship of the Kumbakonam Municipal Council

from that day. He, in that letter, requested the Commissioner to place his letter of resignation before the municipal council for information of the

members. The letter wound up by a further request to the Commissioner to convey his thanks for the co-operation and support extended to him

previously by the vice-chairman, members of the municipal council and other members and employees of the municipality. Copies of this letter

were sent to the Director of Municipal Administration, Madras, the District Collector, Thanjavur, the Assistant Collector, Kumbakonam, and the

vice chairman of the municipal council. On the 24th of that month, the municipal council met. 24 members attended including the chairman. The

council recorded its acceptance of resignation. The next day he relinquished his office and the vice-chairman assumed charge. On record is the

letter from the Deputy Secretary to Government dated 8th May, 1975 addressed to the chairman who had sent the letter of resignation. This letter

pointed out that a municipal chairman may resign his office by giving notice to the council and that it would be effective from the date on which it

was placed before the council; since the meeting had not yet been convened in the council, it would not be possible for the vice-chairman to step in

his place. It appears that the vice-chairman had called the meeting. The letter had also the following:

It may be mentioned that your failure to convene the meeting of the Kumbakonam Municipal Council and to place your resignation before it as

provided under the Act, has created a stalemate in the municipal council and to place your resignation before it as provided u/s 31 of the Act.

After this, a petition under Article 226 of the Constitution in the nature of que warranto has been taken out to the respondents. That was dismissed.

This appeal arises from it.

Section 31 of the Madras District Municipalities Act, 1920, says that the Chairman may resign ''by giving notice to the council'' and that such

resignation shall take effect from the date on which it is placed before the council. It is clear, therefore, that the statutory requirement is that the

resignation to take effect must be by notice and the notice should be to the council and lastly, it should be placed before the council, so that from

the time of doing so, the resignation may take effect.

In this case, as we saw already, the first respondent resigned by giving notice not to the council but to the Commissioner of the Municipality. We

say that not merely because the letter of resignation was addressed to him, but the contents of the letter also unmistakably show that the notice was

meant for him and he was asked to place the letter before the council.

The contention of the appellant is that there was substantial compliance with Section 31 because the Commissioner through the vice-chairman

who convened the meeting had placed the letter of resignation before the council on the 24th of January. We are unable to accept this contention.

When a statute requires a certain specified procedure to be followed for resignation of the office of chairman to take effect, it has to be complied

with. If the notice was not addressed to the council but only to the Commissioner, that will not be compliance with the requisite statutory

procedure. It is no doubt true that the Commissioner as the executive authority transacts executive business on behalf of the council as provided by

Sections 13-A and 13-B. But that will not make any difference to the requisite that the resignation notice should be to the council. Chapter III

which deals with municipal authorities differentiates the authorities as a council, a chairman, and an executive authority. Section 7 deals with the

constitution of council. So, when Section 31 speaks of resignation by giving notice to the council, we cannot take a notice to the Commissioner as

compliance or sufficient compliance.

The decision in In Re: T. Sivasankaram Pillai and Others, . dealt with a different situation. The President of a local board had the notice of his

resignation circulated to individual members of the Board, each of whom acknowledged its receipt. The question was whether the resignation took

effect. Curgenven, J., held that it did not. The learned Judge was there concerned with Section 16 of the Madras Local Boards Act, which enabled

the President to resign by ''giving notice to the local board.'' When such a notice was contemplated, the learned Judge pointed out that Section 6 of

the Act declared the local board to be a body corporate with perpetual succession and a common seal as in the case of municipality under the Act

we are concerned with and vests it with the capacity of suing or being sued in its corporate name, it would follow upon general principles and by

analogy with other bodies corporate that such a body can transact business only at duly constituted meetings and that this was so was borne out by

the provisions ef the Act and the rules framed thereunder. The learned Judge could not, therefore, hold that by issuing notice to each member and

upon its receipt by each member his resignation of the office of president took effect.

Though the above case is not precisely to the point, it did hold that when a statute prescribes a certain procedure for resignation, it should be

complied with strictly.

Our attention was, however, invited to the decision in Y.K. Mathur and Another Vs. The Commissioner Municipal Corporation of Delhi, . for

the appellant. That was a case of resignation by a councillor. Section 33 of the Delhi Municipal Corporation Act provided that a ''councillor could

resign his seat by writing under his hand addressed to the Mayor and delivered to the Commissioner''; upon such delivery his seat would become

vacant. The letter of resignation in that case was under the hand of the councillor and it was also addressed to the Mayor; but its delivery was to

the Deputy Commissioner of the Municipality. The resignation was, however, collected by the Private Secretary to the Commissioner? and it was

delivered to the Commissioner later. Rajindar Sachar, J., as he then was, and T.V.R. Tatachari, J., held that ''deliver'' meant to hand over, transfer,

commit to another''s possession or keeping to give or distribute to the proper person or quarter, which is the Oxford English Dictionary meaning

and that accordingly, when the letter of resignation of the councillor reached the hands of the Commissioner, is could be taken as delivered to him.

The situation is different in the instant case. When the statute says that the resignation should be by notice to the council, we cannot say that

resignation by notice to the Commissioner, though it was eventually placed before the council, is sufficient compliance with the statute.

Mr. Venugopal for the appellant contends that the first respondent himself was present at the meeting convened and participated in its

proceedings ending in the recording of his resignation and if this is borne in mind, there was sufficient compliance with the statute. We are unable to

agree.

The appeal is dismissed. No costs. Appeal dismissed.