Ramkisan Onkarmal Agrawal v. State Of Maharashtra

H.W. DHABE, J.

( 1 ) THE petitioner who was the President of Municipal Council, Achalpur, district Amravati has challenged in this writ petition the order of the Collector, Amravati dated 16-12-1992 informing him that the resignation tendered by him of his office as President of the aforesaid Municipal Council, Achalpur has been accepted from 16-12-1992 and consequently the request to withdraw the same cannot be acceded to.

( 2 ) BRIEFLY the facts are that the petitioner was elected as President of the Municipal Council Achalpur, district Amravati on 15-12-1992. He addressed a letter to the Collector, Amravati, by which he tendered resignation of the post of the President of the Municipal Council, Achalpur, to be effective from 16-12-1992. He thus requested him to accept his said letter of resignation dated 15-12-1992. The said letter of resignation dated 15-12-1992, although addressed to the Collector, was actually handed over to the Additional Collector, Amravati, by the petitioner at Achalpur Circuit House. However, on 16-12-1992, he addressed another letter to the Collector, Amravati, by which he withdrew his letter of resignation dated 15-12-1992. According to the petitioner, the said letter of withdrawal of resignation dated 16-12-1992 was received by the Additional Collector, Amravati, at 1-05 p. m. on the said date i. e. on 16-12-1992. The respondents dispute the fact that the letter of withdrawal of resignation dated 16-12-1992 was received by the Additional Collector, Amravati, at 105 p. m. on 16-12-1992. According to them, the said letter was received by him at about 3 p. m. i. e. after the letter dated the same i. e. 16-12-1992 was issued by him to the petitioner informing him that his resignation had become effective.

( 3 ) FEELING aggrieved by the above letter of the Additional Collector, Amravati, dated 16-12-1992, the petitioner has preferred the instant writ petition in this Court on or about 21-12-1992. On 21-12-1992 an interim order was passed by which it was directed that the result of election of the new President of the Municipal Council, should not be declared until further orders. However, thereafter, on 11-1-1993 when Rule was issued in this writ petition, the above interim order was modified and the result of the election of the New President of the Municipal Council was allowed to be declared but it was made clear that his election would be subject to the result of the petition. The new President has thereafter intervened and is allowed to be and is joined as respondent No. 7 in this writ petition.

( 4 ) THE learned counsel for the petitioner has urged before us that the Collector is a Persona Designata under Section 53 of the Maharashtra Municipalities Act, 1965 (for short "municipalities Act"), and therefore, it is only on tendering resignation in writting to the Collector as provided in sub-sec. 1 thereof that the resignation of the President of the Municipal Council becomes effective as provided in sub-sec. 2 thereof when it is received by him. The submission is that, the receipt of such resignation by the Additional Collector cannot make the resignation effective under sub-sec. (2) of S. 53 of the Municipalities Act. It is then urged that before his resignation could become effective, the petitioner had withdrawn the same by his letter dated 16-12-1992 and, therefore, he would continue to be the President of the Municipal Council, Achalpur. The learned counsel appearing for the contesting respondents have vehemently contested the above contention raised on behalf of the petitioner. The learned counsel appearing for the respondent No. 7 has also urged before us that the petitioner cannot get any relief in this petition, unless the election of the new President is challenged by taking recourse to the remedy of the election petition provided under the Municipalities Act.

( 5 ) AT the outset, considering the preliminary objection raised on, behalf of the respondent No. 7 in regard to the existence of an alternative remedy by way of election petition, it is pertinent to see that the existence of an alternative remedy is no bar to the exercise of jurisdiction by this Court under Art. 226 of the Constitution. Further, the instant writ petition is preferred prior to the election of the New President and there is a specific order by this Court on 11-1-1993 that the election of the new President would be subject to the result of the instant writ petition. Moreover, it is possible that the ground which is raised in this writ petition about the withdrawal of the resignation by the petitioner may not be a ground upon which the election of the President can be challenged in the election petition. The above preliminary objection raised on behalf of the respondent No. 7 deserves to be and is rejected.

( 6 ) AS regards the main contention urged on merits on behalf of the petitioner viz. that the Collector is persona designata under S. 53 of the Municipalities Act in the sense that his power cannot be exercised by any other officer or authority, the learned counsel for the respondents 2 and 6 have brought to our notice sub-sec. (3) of S. 13 of the Maharashtra Land Revenue Code, 1966 (for short "the Code") to show that the power conferred upon the Collector under the Code or any other law for the time being in force can be exercised by the Additional Collector also if there is a notification issued by the State Government in the official gazette in that behalf. It is brought to our notice that on 22-7-1986, in exercise of the powers conferred by the aforesaid sub-see. (3) of S. 13 of the Code, the State Government has issued Notification whereby it has directed that the Additional Collectors of all the districts should within their respective jurisdictions exercise all the powers and should discharge all the duties and functions of the Collector under the provisions of the Code and under any law for the time being in force. The learned counsel for the State has urged before us that the above Notification dated 22-7-1986 is published in the official gazette as per its decision taken on 22-7-86 vide Ann. R 6-II of the return filed on behalf of the respondent No. 6.

( 7 ) WITHOUT prejudice to his contention that the provisions of the Code cannot be resorted to determine whether the Collector is persona designata under S. 53 of the Municipalities Act since it is a special enactment, the learned counsel appearing for the petitioner has urged before us that there is a subsequent circular issued by the State Government under the Code which confers power in relation to the affairs of the Municipalities upon the Collectors only. In this regard he has brought to our notice the circular of the State Government issued on 30-4-1992 by which it has decided to and has distributed between the Collector and the Additional Collectors the subjects to be dealt with by them as given in Anns. A and B thereto. Thereafter, by the circular dated 26-6-1992 it is decided by the Government that in spite of the distribution of the subjects as per Annexures A and B to the said circular dated 30-4-1992, since the Additional Collectors are subordinate to and are under the control of the Collector, the Collector can deal with, supervise and control the work in regard to the subjects allotted to the Additional Collectors as per Ann. B of the above circular dated 30-4-1992. There is also corrigendum to the Anns. A and B effected by the aforesaid circular dated 26-6-1992 by which the item No. 17 in Ann. B is deleted and is brought within the jurisdiction of the Collector as item No. 29 in Ann. A.

( 8 ) THE learned counsel for the petitioner has then brought to our notice that at Sr. No. 23 of Annexure a of the said circular dated 30-4-1992 relating to the subject matters to be dealt with by the Collector, there is an entry relating to Municipal administration which would show that the matters relating to Municipal administration can be dealt with by the Collector only. According to him, Annexure b of the said circular dated 30-4-1992 gives the subjects to be dealt with by the Additional Collector but it does not contain any subject relating to Municipal administration. The submission on behalf of the petitioner on the basis of the above circular dated 30-4-1992 is that the said circular is a later circular and would therefore modify the aforesaid Government Resolution dated 22-7-1986 so far as the distribution of subjects is concerned and, therefore, as shown above, the subject of Municipal Administration can be dealt with by the Collector only who is thus alone competent to receive the resignation of the petitioner as President of the respondent Municipal Council.

( 9 ) IT is, however, pointed out to us on behalf of the contesting respondents that the said distribution of subjects under the circular dated 30-4-1992 is not published in the official gazette as required by sub-section (3) of Section 13 of the Code, and hence it cannot prevail over the G. R. dated 22-7-86 which empowers the Additional Collectors to exercise all the powers and discharge all the functions of the Collector within their respective jurisdictions. The learned counsel appearing for the contesting respondents have then urged before us that even assuming that the circular dated 30-4-1992 is applicable, still according to entry at Sr. No. 25 in Ann. b of the said Circular dated 30-4-1992 there is a residuary power with the Commissioner to assign other subjects also to the Additional Collector.

( 10 ) THE learned counsel for the contesting respondents, have also urged before us that assuming that the Circular dated 30-4-1992 is applicable when the Collector is working, in his absence as provided in Section 10 of the Code, the Additional Collector can function as Collector during his absence. In this behalf, the letter of the Commissioner dated 12-12-1992 is brought to our notice, by which the Commissioner has granted casual leave to the Collector, Amravati from 15-12-1992 to 18-12-1992. It is stated in the said letter that he should give necessary instructions to the Additional Collector, Amravati about the duties of the Collector. The submission thus is that the Additional Collector concerned was discharging the duties of the Collector during the period the Collector was on casual leave and as such the letter of resignation of the petitioner which is received by the Additional Collector while he was functioning as Collector, would be a letter which is validly received by the Collector within the meaning of Section 53 (2) of the Municipalities Act and the same would thus be effective from 16-12-1992.

( 11 ) IN the view which we are inclined to take in this matter on the question of applicability of Section 10 of the Code, it is not necessary for us to consider the question whether the Circular of the State Government dated 30-4-1992 can prevail over its G. R. dated 22-7-1986 issued under Section 13 (3) of the Code. It is material to see that the expression "collector" is not defined in the Municipal Act. Therefore, to understood its meaning for the purposes of the said Act, we have to look to its definition given in Section 3 (11) of the Bombay General Clauses Act, 1904. The said definition is as follows :"collector" shall mean, in the City of Bombay, the Collector of Bombay, and elsewhere the Chief Officer in charge of the revenue administration of a district. " we can, for its meaning also usefully refer to Section 7 (1) of the Code according to which the State Government is empowered to appoint a Collector for each district (including the City of Bombay) who would be in charge of the revenue administration thereof. In our view in the absence of any definition of the expression "collector" in the Municipalities Act, the said expression used in the said Act has to be understood in the sense in which it is understood in the Code i. e. a person who is appointed as Collector by the State Government under Section 7 (1) of the Code i. e. the highest revenue officer in the District in charge of the revenue administration thereof.

( 12 ) IT is then pertinent to see that the Code enacts a general law relating to revenue administration of the State for which it creates a hierarchy of Revenue Officers as provided in Chapter II thereof. The said Chapter II of the Code also deals with the question of the powers to be exercised and the duties to be performed by them. A judicial notice can be taken of the fact that apart from the Code there are many other enactments which also confer powers and duties upon the Revenue Officers appointed under Chapter II of the Code, one such enactment being the Municipalities Act. This aspect is taken note of in Section 13 of the Code dealing with the powers and duties of the Revenue Officers when it speaks not only of their powers and duties under the Code but also about their powers and duties under any law for the time being in force. It has, therefore, to be seen that when a provision such as Section 10 thereof in the Code is dealing with the question of exercise of power or of performance of any duty by a Revenue Officer, unless otherwise indicated, it would include the power exercised by such Revenue Officer or the duty performed by him under any law for the time being in force. We have to construe Section 10 of the Code keeping in mind the fact that when it refers to the Collector being disabled from performing his duties, it include his duties to be performed by him under the Code as well as under any law for the time being in force.

( 13 ) THERE is nothing to indicate in the provisions of the Municipalities Act that although Chapter II of the Code makes provision in relation to the powers exercised and the duties performed by the Revenue Officers including the Collector under any law for the time being in force which would include the Municipalities Act, the Municipalities Act either by express provision or by necessary intendment such as being inconsistent therewith would exclude its applicability. Perusal of the provisions of the Chapter II of the Code would show that they are enacted for having smooth and efficient working of the revenue administration in the State including continuity therein as is clear from Section 10 thereof. There is, therefore, no reason why Section 10 of the Code which has behind it a wholesome principle of continuity in administration i. e. avoiding any vaccum in the functioning in the office of the Collector, or the Tahsildar should not be held to be applicable so far as the question of the duties to be performed by the Collector under Section 53 of the Municipalities Act is concerned.

( 14 ) TURNING now to the contention raised by the learned counsel appearing for the contesting respondents based upon Section 10 of the Code, what is urged by them is that when the Collector is on leave, he is disabled from performing his duties as a Collector and, therefore, as provided in Section 10 of the Code, the Additional Collector can function as a Collector temporarily till the Collector returns back from leave and resumes his office. The learned counsel appearing for the petitioner has, however, controverted the construction sought to be placed by the contesting respondents upon Section 10 of the Code. It is urged by him that when the Collector is on Casual Leave, he cannot be said to have given up the charge of his post. It is also urged by him that any of the contingencies contemplated by Section 10 of the Code and in particular the contingency about the Collector being disabled from performing his duties relied upon on behalf of the contesting respondents, does not cover a case where the Collector proceeds on Casual Leave.

( 15 ) FOR proper appreciation of the rival submissions, Section 10 of the Code is reproduced below for ready reference :-"if a Collector or Tahsildar is disabled from performing his duties or for any reason vacates his office or leaves his jurisdiction or dies - (a) the Additional Collector, and if there be no Additional Collector, the Assistant or Deputy Collector of the highest rank in the district, (b) the Additional Tahsildar, and if there be no Additional Tahsildar, the Naib-Tahsildar or the senior most Subordinate Revenue Officer in the taluka, shall unless other provision has been made by the State Government, succeed temporarily to the office of the Collector, as the case may be, of the Tahsildar and shall be held to be the Collector or Tahsildar under this Code, until the Collector, or Tahsildar resumes charge of his district or taluka, or until such time as a successor is duly appointed and takes charge of his appointment. "

( 16 ) AS the heading of Section 10 denotes, it deals with temporary vacancies in the office of the Collector or the Tahsildar, as the case may be. The four contingencies, in which the Additional Collector or the Additional Tahsildar, is allowed to succeed temporarily to the office of the Collector or the Tahsildar, as the case may be, are: the Collector or the Tahsildar, (1) is disabled from performing his duties, (2) for any reason vacates his office, (3) leaves his jurisdiction, or (4) dies. It is clear from Section 10 of the Code that the Additional Collector or the Additional Tahsildar, can function as the Collector or the Tahsildar, as the case may be, for a temporary duration till the Collector or the Tahsildar resumes charge of his office or till his successor is duly appointed and assumes his office.

( 17 ) AS hereinbefore observed, the purpose of Section 10 of the Code is to provide for continuity and to avoid any vacuum in the functioning of the office of the Collector or the Tahsildar as the case may be. It is a well settled canon of construction that the mischief rule requires a purposive construction to be given to a statute. Section 10 of the Code has, therefore, to be construed in a manner which would further its above object of having continuity in the office of the Collector or the Tahsildar so that the powers conferred upon the Collector or the Tahsildar continue to be exercised or the duties to be performed by them continue to be discharged during the period of their absence from the office.

( 18 ) THE crucial expression which needs to be construed in the facts and circumstances of the instant case is "disabled from performing his duties" occurring in Section 10 of the Code because the submission on behalf of the contesting respondents is that when the Collector is on casual leave, he is disabled from discharging his duties within the meaning of the said expression used in Section 10 of the Code. As already pointed out, the submission on behalf of the petitioner is that the word "disabled" denotes some physical disability and would not therefore, cover the case where the Collector is not able to discharge his duties when he proceeds on casual leave. Looking to the object of enactment of Section 10 of the Code, we do no think that the word "disabled" should be so literally or narrowly construed. In our view, what it denotes is that the Collector is not able to perform his duties because of some or other reason which would prevent him from discharging the same. A similar view is taken by the Full Bench of the M. P. High Court in the case of Girja Shankar Shukla v. Sub-Divisional Officer, Harda, AIR 1973 MP 104 [LQ/MPHC/1973/8] . In fact, as we shall show hereinafter, the ratio of the said decision is squarely applicable to the instant case also.

( 19 ) IT may be seen that the same contention viz. that the Collector is a persona designata under the relevant provisions of the Municipalities Act, and hence his powers cannot be exercised and his duties cannot be performed by any other officer was raised in the above case cited decided by the Full Bench of the M. P. High Court. The exact question which was raised in the said case was whether the duty imposed upon the Collector to preside over the meeting of the Municipal Council for election of Vice-President under Section 55 (3) of the M. P. Municipalities Act, 1961 could be performed by the Sub-Divisional Officer when after issuing the notice of the said meeting the Collector had proceeded on leave. The Full Bench of the M. P. High Court held that the function dealt with in Section 55 (3) is not that of a persona designata but is of such a nature that it can be exercised by an officer who is placed in the current charge of the duties of the Collector of the District, particularly by virtue of a statutory provision in Section 26 of the M. P. Land Revenue Code which enables him to perform the duties of the Collector by succeeding to his office during his absence. It is material to see that Section 26 of the M. P. Land Revenue Code pressed. into service in the above judgment is pari material with the provisions of Section l0 of the Code relied upon in the instant case.

( 20 ) AS regards the other submission made on behalf of the petitioner viz. that the expression "resumes charge of his district" in Section 10 of the Code cannot cover a case where the Collector is on leave because he cannot then be said to have given up the charge of his District, it is again necessary to see that the expression "charge of his district" should not be construed literally or narrowly even assuming that proceeding on casual leave does not involve the giving up of the charge of the District by the Collector in the technical sense in which it is understood in service parlance. The Dictionary meaning of the word "charge" so far as it is material for our purpose includes one of its meaning as a "task" or "duty", apart from custody. The expression "to take charge" means "to take control". (Vide Oxford Reference Dictionary, 1986 Edition ). However, when the said expression or the expression "to resume charge" is used in the context of a post or office, it would imply starting or resuming to perform the duties of the post or the office. The expression "resumes charge of his district" would, therefore mean "resuming to perform the duties as Collector. "

( 21 ) IT is also pertinent to see that the said expression "resumes charge of his district" is and can be applied in Section 10 of the Code in the case of only one of the four contingencies viz. disabled from performing his duties" because in the cases of the remaining three contingencies it is clear that a Successor would be required to be appointed to the Collector. If the expression "resumes charge of his district" has to be construed in the context of the contingency of the Collector being "disabled from performing his duties", the expression "resumes charge of his district" can only mean that after the disability in question which prevents him from performing his duties ceases, he is again able to perform his duties.

( 22 ) THUS, the expression "resumes charge of his district" used in Section 10 of the Code would only mean that the Collector assumes office and starts performing his duties. The above construction would also be in consonance with and further the object of Section 10 of the Code which is intended to cover all contingencies in which the Collector is not able to discharge the duties of his office. The above construction sought to be placed on behalf of the petitioner upon Section 10 of the Code cannot therefore, be accepted.

( 23 ) AS regards the question as to what is meant by the expression "persona Designata", the learned counsel for the petitioner has brought to our notice the judgment of the Supreme Court in the case of Central Talkies Ltd. Kanpur v. Dwarka Prasad, AIR 1961 SC 606 [LQ/SC/1961/20] : (1961 (1) Cri LJ 740 ). In para. 9 of the said judgment a persona designata is described as a person who is pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character. It may be seen that as provided in Section 15 of the Bombay General Clauses Act, 1904, when a power to appoint any person or to fill in any vacancy or to execute any function is conferred by any Bombay enactment, then, unless otherwise expressly provided, such appointment can be made by name or by virtue of office. A persona designata can therefore, be either by name or by office. In the instant case the functions under Section 53 of the Municipalities Act are assigned to the Collector by reason of his office. When it is so, in view of the statutory provision made under Section 10 of the Code, the duty imposed upon him can be performed by a person who succeeds to him in his office as hereinbefore shown. The judgment of the Supreme Court cited supra is therefore of no assistance to the petitioner in the instant case and hence the submission based upon the same cannot be accepted.

( 24 ) TURNING to the factual aspect, it appears from Rule 9 (22) read with Appendix II (See entry No. 4 in relation to the Revenue and Forests Deptt.) of the Maharashtra Civil Services (Conditions of Service) Rules, 1982, the Commissioner is the "head of the Department" in the Amraoti Division and is therefore, competent to sanction leave of the Collector as provided in Rule 29 read with item 6 of Appendix I of the M. C. S. (Leave) Rules, 1981 relating to authority competent to sanction leave of the Gazetted Officers. As the Head of the department, it is open to him to make necessary officiating arrangement during the period of leave of the Collector. As such by the letter dated 12-12-1992, while sanctioning his casual leave, he has directed the Collector, Amraoti to give instructions to the Additional Collector about his duties to be performed by him. The above letter would therefore, clearly show that the Additional Collector Amraoti was functioning as Collector during the period of casual leave of the Collector, Amravati. If it was so, the letter of his resignation dated 15-12-1992 handed over to him by the petitioner was in his capacity as the Collector Amraoti. It has thus reached the Collector within the meaning of Section 53 (2) of the Municipalities Act, and therefore, it cannot be said that there is invalidity in the receipt of the letter of resignation handed over by the petitioner.

( 25 ) IF the said letter of resignation has validly reached the Collector, then as per the said letter dated 15-12-92, it becomes effective from 16-12-1992 which means after the midnight of 15th. Although there is no definition of the word "day" given in the Bombay General Clauses Act, 1904, the said word has to be understood according to English Calendar according to which the official business is transacted and according to which the words "month" and "year" are defined in the Bombay General Clauses Act, 1904. The word "day" as per the English Calendar begins at midnight and covers a period of 24 hours thereafter. Since the day 16-12-92 begins from the midnight between 15th and 16th, the resignation of the petitioner would become effective after the midnight hour between 15th and 16th of December, 1992 because the petitioner wanted his resignation to be effective from 16/12/1992. The subsequent letter of withdrawal of resignation submitted by the petitioner on 16-12-1992 whether at 1. 05 p. m. or 3. 00 p. m. would not be of any avail to the petitioner, because after his resignation had become effective, it would not have been withdrawn by him.

( 26 ) IN this view of the matter, the instant writ petition fails and is dismissed. No order as to costs. Petition dismissed.