JUDGMENT
Ginwala, J.
1. The petitioner was directly elected as President of the Malkapur Municipal Council under S. 51, Maharashtra Municipalities Act, 1965 (the Act for short) as it stood before its amendment under Maharashtra Act No. XIX of 1981 which came into force on 28-4-1981. In this petition he alleges that about two years before the petition was filed on 22-11-1982 he had met with an accident in which he sustained a brain injury resulting in paralytical condition in the left side of his body. He, therefore, apprehending that he would not be able to discharge his duties as President ever after his recovering wrote a document purporting to be resignation of the office of President and kept it with himself in the hope that he would tender it if he would not fully recover from his paralytical condition. The petitioner further alleges that he had come out of illness without any damage and in the first week of September, 1982 he suddenly remembered that he had written his resignation and had kep it somewhere. He searched for it, but he could not trace it and therefore apprehending that it may be sent to the Collector by some persons adversely interested in him, he intimated the latter by his letter dt. 7-10-1982 that he should not act on it in case it was sent to him by mischief.
2. Apprehending that if the said resignation reaches the Collector, the latter may act upon it, the petitioner filed this petition on 22-11-1982 as stated above. The Collector is the only respondent in this petition. The petitioner seeks a declaration from this Court to the effect that the resignation which he had written was never executed by signing the same and it was not in accordance with law, that it had been withdrawn and was therefore of consequence even in it was received by the Collector, and that the petitioner continues to be the President of the said Municipal Council. The Collector did not appear in this Court in response to the notice before admission or even after the rule had been issued.
3. During the pendency of this petition four persons who claimed to be Councillors of the Municipal Council sought petition and they have been permitted to do so. Consequently, they have filed their submissions and they state that the said letter of resignation had reached the hands of the collector on 21-12-1982. They contend that the question whether the said letter of resignation was tendered by the petitioner as the President of the said Municipal Council would be question of fact which cannot be decided by this Court under Art. 226 of the Constitution and it can be decided by the Collector after making proper inquiry.
4. Section 53 of the Act which provides for resignation of President of a Municipal Council is in the following terms :
“53. (1) the President may resign his office by tendering his resignation in writing to the Collector.
(2) Such resignation shall take effect on the receipt thereof by the Collector.” A bare reading of the section would indicate that the resignation has not only to be received by the Collector, but such resignation has to be tendered by the President and hence if it is disputed as to whether the letter which purports to be a letter of resignation from the President has been tendered by him to the Collector, the latter would have to hold an inquiry and decide the question before he acts upon it. The occasion for the Collector to act upon such a letter would also arise under sub-sec. (8) of S. 51 o the Act which provides that if during the term of a council there is a vacancy in the office of the President due to any reason whatsoever, a special meeting for election of the President is to be called by the Collector within twenty five days from the date on which the vacancy occurs. It is therefore clear that before calling the special meeting the Collector has to satisfy himself that there is a vacancy in the office of the President and if such a vacancy arises due to the fact that the President has tendered his resignation, the Collector will have to make an inquiry to determine whether the resignation has been tendered as provided in S. 53 (1) of the Act or if the document which he receives is a letter of resignation at all, in case the President disputes this. It may be that in a given case before the letter of resignation is received by the Collector the President may intimate to the collector that he has withdrawn it and in that case it would not be for the Collector to act upon it. In case the Collector receives the letter of resignation after the letter of withdrawal and there is a dispute as to whether the resignation can be said to be effective or not, the Collector will have to hold an inquiry. It is, therefore, not possible to say that merely because some document which is termed as resignation of the President reaches the hands of Collector, it becomes effective irrespective of the fact that the President disputes its tender or genuineness or says that he had withdrawn it before it was tendered. Such a narrow construction cannot be put on the provisions of sub-sec. (2) of s. 53 of the Act. In this connection we may refer to decision of a division Bench of this Court in gangabai v. President, Municipal council. Tumsar in which the provisions of the Act relating to resignation of a Municipal Councillor were considered. We may note here that Section 41 of the Act provides for resignation of Councillors and it is in pari materia with S. 53 which, as we have stated above, makes provision for resignation of President, Considering S. 41 and also s. 48 of the Act which deal with filling in the office of a Municipal Councillor and further referring to an earlier decision of a Division Bench of this Court in Ramkrishna v. secretary, village Panchayat, Borjai the Division Bench observed as follows (at pp. 175, 176) :
“In our opinion, the situation arising under the provisions of the Municipalities act under S. 48 is not different and the duty to hold a by-election on the ground that there has been a resignation of the office by a Councillor must imply a duty to be satisfied that there has been a valid vacancy on account of a valid resignation. It is true that the Legislature considered it necessary to make specific provisions for inquiry into dis-qualifications resulting in unseating of a Councillor under S. 44 or to provide for a special machinery by way of election petition to challenge the initial election petition to challenge the initial election, co-option or nomination of a councillor, we are not inclined to agree with the contention that those are the only two contingencies in which an inquiry need be made. If it is correct to say that there can be no by-election unless there is a vacancy in the office of a Councillor. So far as the vacancy in the office of a Councillor, then we must find some authority within the Act itself or the rules competent to decide whether there has occurred a vacancy in the office of a Councillor. So far as the vacancy occuring as a result of resignation is concerned, S. 41 makes no provision giving any discretion to the President either to accept or not to accept the resignation. The resignation, according to S. 41, sub-sec. (2), becomes effective on its mere receipt by the President. Therefore, there is no means at that stage, even if the President were so inclined, to find out whether the resignation is genuine, bona fide, valid or otherwise in conformity with the provisions of law. When a piece of paper is brought to the President purporting to be a resignation of a Councillor, possibly the president acts as a matter of course receiving it as he must receive any other paper addressed to him, and as soon as such a communication is received, it has the legal effect of resignation being effective. In our opinion, the Legislature could never have intended that in case of a dispute arising or a doubt arising whether a person who has achieved franchise and has acquired the status of a Councillor has, in fact tendered resignation of his office, no machinery should exist to adjudicate when such a question or doubt is raised. That adjudication is possible under the provisions of the Act and the rules when the question of a by election on account of the alleged tender of resignation arises. The duty to hold a by-election on account of the alleged tender of resignation arises. The duty to hold a by-election having been cast on the collector, the collector in his turn must be satisfied on proper inquiry that in fact the office of the Councillor has become vacant by a valid resignation.”
5. What has been stated by the Division Bench in relation to the resignation of a Municipal councillor would in our view apply with equal for ce where the President of Municipal Council is alleged to have tendered the resignation of his office. We therefore find that in case of a dispute with regard to the fact whether the President has or has not resigned his office or whether he has withdrawn the resignation before it is tendered to the Collector, the Collector will have to hold an inquiry at least for the purpose of finding out whether there is a vacancy of the office of President which necessitates him to call a special meeting as provided under sub-sec. (8) of S. 51. Since the Collector has not appeared, before us it is nt possible to say whether he would accept the letter of resignation which has fallen in his hands and act upon it without any further inquiry. It is for this reason that we have stated the law in this judgment. We would therefore direct the collector to hold an inquiry with respect to any objection which may be taken in respect of the alleged resignation by the petitioner or anyone else, including the question whether the petitioner has validly withdrawn the resignation before it came in his hands.
6. In the result the writ petition is allowed and the rule is made absolute as above. In the circumstances of the case, there shall be no order as to costs.
7. Petition allowed.