SCA/7396/2008 4/ 4 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7396 of 2008 ========================================================= BHANUBHAI RAMBHAI DUDHAT - Petitioner(s) Versus AMRELI DISTRICT PANCHAYAT & 3 - Respondent(s) ========================================================= Appearance : MR SP MAJMUDAR for Petitioner(s) : 1,MR SHAKTI S JADEJA for Petitioner(s) : 1, MR HS MUNSHAW for Respondent(s) : 1 - 3. NOTICE SERVED BY DS for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 11/06/2008 ORAL ORDER
1. Mr.
S.P. Majmudar learned advocate appears for the petitioner. After
hearing him notice was issued by order dated 22nd May
2008. Subsequently, on 3rd June 2008 the proceedings were
adjourned to enable the respondents to file reply affidavit.
Thereafter respondent Nos 2 and 3 have filed their separate reply
affidavits.
2. One
of the contentions raised against maintainability of the petition is
on the ground of alternative remedy. The said contention has been
raised in the light of provisions under section 68(4) of the Act.
The respondents further urge that after the resolution dated 3rd
May 2008 and the order dated 8th May 2008 accepting the
resignation the Vice President has taken over the charge and
presently the Vice President is holding, on temporary basis, the
charge of the President.
3. The
case of the petitioner is to the effect that on 1st April
2008, he tendered a resignation, however, immediately thereafter on
4th April 2008 i.e much before it came to be accepted he
informed that he is withdrawing his resignation. It is pertinent to
note that before 4th April 2008 or even on 4th
April 2008 the resignation was not even considered and/ or accepted.
Mr Majmudar has relied upon the provisions contained under section
68(1) and submitted that the resignation would take effect only
after the same is accepted by the competent authority and since, the
same was not accepted on or before 4th April 2008, it was
eminently open to him to withdraw the same. Thus, when he had
withdrawn the resignation by his communication dated 4th
April 2008 there was no occasion or justification for the respondent
Panchayat to proceed to take the same into consideration during the
meeting on 3rd May 2008 i.e almost after one month and/
or decide to accept the same when the same was already withdrawn by
the petitioner on 4th April 2008. Mr Majmudar has also
tried to draw the contradistinction by referring to provisions
contained under section 68(3) as per which the resignation tendered
by a member comes into effect immediately when the same is received
by the President. On the basis of the aforesaid submissions Mr.
Majmudar has assailed the action of the respondent Panchayat of not
allowing withdrawal of his resignation and not allowing him to act
as President.
4. As
noted above, the respondents No. 2 and 3 have opposed the petition
mainly on the ground of alternative remedy and also on the ground
that once the resignation is submitted then, even if it is
subsequently withdrawn, it is within the discretion of the Panchayat
either to accept the resignation or to accept the request for
withdrawal. Mr Munshaw has contended that in the facts of the case
the action of the respondents cannot be said to be illegal or
un-justified and therefore does not call for any interference.
5. From
the reply affidavits by the respondents vis-a-vis the averments in
the petition, one aspect which becomes clear is that there are no
disputed facts involved in this matter. In other words, facts are not
in dispute, hence, at this stage the Court is not of the view that
the petitioner should be relegated to alternative remedy. Hence,
Rule.
6. So
far as interim relief is concerned Mr Munshaw has submitted that
Vice President has been assigned the charge and he has taken over
the charge. He has submitted that the election for the post of
President is not under contemplation at present within short time or
during the pendency of this petition. Mr. Munshaw has submitted that
steps for holding election have not been taken, in view of the
pendency of the petition. Hence Rule returnable on 20th
June 2008 for final hearing. Mr. Munshaw learned advocate waives
service of notice of Rule on behalf of Nos. 1 to 3. Direct service
for No. 4 is permitted.
(K.M.
Thaker,J)
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