Bombay High Court: In the present case, the petitioner challenged order dated 07-06-2024 passed by the Collector, Raigad for declaring that a vacancy had occurred on the post of Sarpanch of village Ainghar, Roha, Raigad, and appointing returning officer to conduct elections for vacant post of Sarpanch. The petitioner was aggrieved by the Collector’s action in treating that her resignation on the post of Sarpanch had taken effect under the provisions of Section 29 of the Maharashtra Village Panchayats Act, 1959 (‘the 1959 Act’), even though she had withdrawn the resignation during the meeting of the Gram Panchayat convened for verification of her resignation.
A Single Judge Bench of Sandeep V. Marne, J., opined that the resignation could be withdrawn when the agenda for verification of resignation was taken up for discussion in the meeting of the Panchayat and held that the petitioner’s resignation did not take effect on account of its withdrawal by her during the meeting held on 15-03-2024 and the Collector had erroneously arrived at a conclusion that post of the Sarpanch had fallen vacant without appreciating the position that resignation was already withdrawn. Thus, the Collector’s order dated 07-06-2024 about the post of Sarpanch becoming vacant was illegal and liable to be set aside.
Background
The election of Gram Panchayat was conducted in February 2021 and the petitioner was elected as a Sarpanch from amongst elected Members of the Gram Panchayat on 10-02-2021. The petitioner stated that she was forced to resign from the post on 05-03-2024 and submitted her resignation letter to the Chairman of the Panchayat Samiti (‘the Chairman’). Similarly, Upa-sarpanch also resigned on the same day.
The resignation submitted by Upa-sarpach was scrutinized and confirmed, however, when the petitioner’s resignation letter was taken up for discussion, she withdrew the same during the meeting dated 15-03-2024. Accordingly, minutes of the meeting were sent to the higher authorities for taking further action. On 15-03-2024 itself, petitioner as Sarpanch and the Gram Vikas Officer, jointly submitted letter dated 15-03-2024 to Block Development Officer (‘BDO’) informing him about withdrawal of the petitioner’s resignation and forwarded to him the minutes of the meeting dated 15-03-2024. The petitioner, on an assumption that her resignation had not taken effect on account of its withdrawal, continued functioning as a Sarpanch and participated in the meeting held on 08-04-2024 in which a new Upa-sarpach was elected.
The Collector passed order dated 07-06-2024 recording that the petitioner’s resignation was accepted by the Chairman, and that the posts of Sarpanch and Upa-sarpanch were vacant on 13-06-2024. Thus, the petitioner was aggrieved by the Collector’s order dated 07-06-2024 and filed the present petition.
Analysis, Law, and Decision
The first issue for consideration was “whether a Member, Upa-sarpanch or Sarpanch tendering resignation under the provisions of Section 29 and/or Section 34 of the 1959 Act are entitled to withdraw the same?”.
The Court observed that the statutory scheme under Sections 29 and 34 of the 1959 Act did not really recognize an express right of withdrawal of resignation as Section 29 dealt with resignation by a Member and Sarpanch whereas Section 34 dealt with resignation by a Sarpanch or Upa-sarpanch.
The Court stated that as per Section 29, a Member, Sarpach, or Upa-sarpanch desirous of tendering resignation could tender the letter/notice of resignation to the prescribed authority and so far as Sarpanch was concerned, he/she could tender resignation to the Chairman under Section 34(1). Further, upon receipt of resignation by a Sarpanch, the Chairman was to forward the same within a period of 7 days to the Secretary, who then had to place the same before the meeting of the Panchayat Samiti.
The Court observed that Section 29(2) stated only the mere placing of the resignation before the meeting of the Panchayat and neither the Chairman nor the Gram Panchayat had been conferred with power to take a decision on such resignation tendered by Sarpanch. The moment the resignation was placed in the meeting before the Panchayat Samiti, the resignation took effect on expiry of period of 7 days under the provisions of Section 29(6)(a) of the 1959 Act if there was no dispute about the genuineness of resignation. Thus, where there was no dispute about the genuineness of the resignation, no overt act was needed on the part of any authority in relation to resignation tendered by Sarpanch.
The Court opined that in the present case, the Collector erroneously recorded a finding that the Chairman accepted the petitioner’s resignation as under Section 29, the Chairman was not vested with jurisdiction, power, or authority to take any decision on resignation so tendered. The Chairman was to merely accept and acknowledge the resignation and hand it over to the Secretary within a period of 7 days. The role of the Chairman ended the moment he/she handed over the resignation to the Secretary. Thus, the resignation, having no dispute about the genuineness, automatically came into effect after expiry of period of 7 days from the date of holding of the meeting in which it was placed by the Secretary.
The Court opined that taking effect of resignation was automatic and a deeming fiction without requiring any overt act on the part of any person or authority. When the person tendering resignation wants to dispute its genuineness, he could file a Dispute before the Collector within a period of 7 days from the date of the meeting i.e., before the resignation takes effect. The Collector then adjudicates as to whether the resignation was genuine or not and after expiry of period of 7 days from the date of such adjudication by Collector the resignation took effect. Even during pendency of appeal before the Divisional Commissioner, taking effect of resignation gets suspended and the moment the Appeal was rejected, the resignation immediately took effect.
The Court relied on Kumudini Ratilal Bhagat v. State of Maharashtra, 1987 SCC OnLine Bom 106; Babanrao Uttamrao Jadhav v. the Collector, Writ Petition No. 9577 of 2012, decided on 05-08-2016 (Aurangabad Bench); and Mina Kalyan Devdhe v. Commissioner, Nashik Division, 2018 SCC OnLine Bom 12186, where the right of Member, Upa-sarpanch, and Sarpanch to withdraw the resignation was expressly recognised.
The Court also relied on Rajesh v. Village Panchayat, Wadi, 1986 SCC OnLine Bom 316 and opined that the resignation could be withdrawn when the agenda for verification of resignation was taken up for discussion in the meeting of the Panchayat. Thus, the Court held that the petitioner was justified in withdrawing her resignation during the meeting held on 15-03-2024.
The second issue was “for preventing the resignation to take effect, whether filing of Dispute under the provisions of Section 29(3) of the 1959 Act is necessary by a Sarpanch who has already withdrawn the resignation?”.
The Court rejected the contention that mere withdrawal of resignation by the petitioner was not sufficient, and she ought to have created a Dispute before the Collector to stop the resignation from taking effect. The Court opined that once the resignation was withdrawn, there was nothing to be discussed by in the Gram Panchayat meeting and the meeting qua the subject of resignation must be terminated immediately after desire for withdrawal for resignation was expressed.
The Court held that the petitioner’s resignation did not take effect on account of its withdrawal by her during the meeting held on 15-03-2024 and the Collector had erroneously arrived at a conclusion that post of the Sarpanch had fallen vacant without appreciating the position that resignation was already withdrawn. The Collector’s findings in the order dated 07-06-2024 about the post of Sarpanch becoming vacant was illegal and liable to be set aside. Consequently, the election of Respondent 4 effected vide resolution adopted by the Gram Panchayat in its meeting dated 13-06-2024 was also ab initio void, since the petitioner did not vacate the post of Sarpanch, there was no question of election of Respondent 4 to that post.
[Kalavati Rajendra Kokale v. State of Maharashtra, Writ Petition No.14121 of 2024, decided 29-01-2025]
Advocates who appeared in this case:
For the Petitioner: Drupad S. Patil, i/b. Namit Kumar S. Pansare for the Petitioner.
For the Respondents: Dhruti Kapadia, AGP for Respondent -State.
