Dipak Misra, J.
1. Pregnability of the decision dated 14-8-97 passed in Writ Petition No. 1378/97 by a learned Single Judge of this Court is called in question by the appellant invoking the jurisdiction under Clause 10 of the Letters Patent.
2. The respondent No. 5 and respondent No. 6, the Vice-president and a Councillor of Deori Municipality respectively approached this Court under Article 226 of the Constitution seeking writ of mandamus directing the competent authority to hold election in accordance with Sub-section (4) of the Section 43 of the M. P. Municipalities Act, 1961 (hereainafter referred to as 'the Act'), as a vacancy had occurred in the office of the President in the Municipal Council due to the resignation of the President, the respondent No. 4 therein. The fact situation as have been uncurtained in the writ petition are that an election of the councillors was held in the year 1994 for the Municipal Council, Deori (in short 'the Council') and subsequently in January, 1995 the appellant herein was elected to the Office of the President which was reserved for woman candidate belonging to other backward class. The respondent No. 5 was the Vice-President of the Council and the respondent No. 6 was a woman member belonging to backward class. It was set forth in the petition that the respondent No. 4 therein resigned from her office by tendering her resignation on 23-12-96 to the Chief MunicipalOfficer who on receipt of the resignation informed the Collector by his memo No. 301/RA/ 96 indicating that a vacancy had occurred due to the resignation of President. On 24-12-96 he asked the respondent No. 4 therein to handover charge to the Vice-President. The elected President handed over charge of her office to the Vice-President on 26-12-96. The original resignation was forwarded by the Chief Municipal Officer to the Collector, Sagar with a covering letter dated 26-12-96, as the Collector desired that original letter of resignation should be placed before him. A meeting of the council was held on 26-12-96 to discuss the agenda 'Naveen Bus Stank Ki Dukano Ki Nilami Ki Karyavahi Ke Sambandh Me Vichararth'. In the said meeting 14 Councillors including the present appellant were present. The meeting was presided over by the Vice President. Some of the Councillors including the appellant herein suggested that the meeting of the Council should be convened only after the elec-lion of the new President. The minutes were duly signed by the appellant. By memo dated 28-12-96 the Chief Municipal Officer again requested the competent authority for initiation of steps for holding of the election. The appellant also agitated her grievance for non-holding of the election of the new President. The Collector issued order dated 17-3-97 appointing the Sub-Divisional Officer as Presiding Officer for holding the election of the President. In the meantime, as putforth by the writ petitioners, the respondents Nos. 5 and 6 herein, that the election was delayed and at that juncture an amendment in the Act came into existence whereby the tenure of the President was extended from 2 1/2 years to 5 years. Because of the changed situation the respondent No. 4 therein on 27-2-97 made a representation to the State Government alleging, inter alia, that she had not tendered her resignation from the office and the letter of lesignation was written under coercion. The State Government invited comments of the Chief Municipal Officer and, eventuality, by order dated 9-4-97 the State Government arrived at the conclusion that there was no valid resignation in law and no vacancy had been caused in the office of the President. Accordingly a direction was issued for restoration of the charge of the office to the appellant. The order passed by the State Government to this effect was the subject matter of the challenge in the writpetition. As the fact situation exposits it was contended before the learned single Judge that resignation tendered to the Chief Municipal Officer did not require any acceptance under the provisions existing at the relevant time and there was no question of the same having been withdrawn as it came into effect immediately upon its receipt by the Chief Municipal Officer. It was , also canvassed that the fact of resignation was affirmed by the subsequent conduct of the respondent No. 4 therein as she participated in the adjourned meeting of the Councillors and as, an actual fact, raised an issue with regard to the holding of election to fill up the vacancy in the office of the President. On behalf of the respondent No. 4 therein it was proposed before the learned single Judge that resignation tendered to the Chief Municipal Officer of the Municipality was of no consequence and meaningless in law. It was also highlighted that no action of respondent No. 4 could be a substitute for the requirement of notice in writing to be tendered to the Municipal Council as that is the mandate of law. It was urged that mere participation of the said respondent in adjourned meeting of the Council which did not have the relevant subject in its agenda could not be deemed to have conformed to the requirement of the statute. It was also putforth that no orders were necessary from the Government to the effect that the respondent No. 4 would continue to hold her office notwithstanding her resignation submitted to the Chief Municipal Officer as the letter of resignation was not addressed to the Municipality.
3. The learned single Judge addressed himself to two issues, namely, whether the notice tendered to the Chief Municipal Officer of the Municipal Council fulfils the requirement as envisaged in law and whether the respondent No. 4 by her subsequent conduct hand, in fact, became instrumental in compliance with the requirement of law abandoning her right to challenge the letter of resignation in any manner whatsoever. The learned Single Judge placed reliance on two decisions rendered in W. P. No. 3162/96 (Amrit Chandra Rajpal v. State of M. P. and Ors.) decided on 9-10-96 and W. P. No. 439/97 (Laxmi Narayan Dubey v. Nagar Panchayat Bodiri and Anr.) dated 20-2-97 and came to hold that if a letter of resignation required to be submitted to the Municipality hasbeen tendered to the Chief Municipal Officer the same cannot be said to be non-est in the eye of law. With regard to the second aspect, the learned single Judge has held that the obtaining circumstances speak eloquently that Municipal Council had due notice of resignation and by her subsequent conduct the respondent No. 4 had accepted the fact that she had resigned from her office and a vacancy had been caused.
4. Assailing the aforesaid order Mr. Ravindra Shrivastava, learned counsel for the appellant has contended that the requirement of law is that the resignation is to be given by notice in writing to the Municipality by the President and addressing of the same to the Chief Municipal Officer does not amount to valid notice of resignation. The learned counsel has canvassed that when there is no concept of acceptation of letter of resignation the provision has to be strictly construed and the letter of resignation has to be addressed to the Municipality. It is highlighted by Mr. Shrivastava that if a particular act is required to be done in a particular manner the same has to be done in the manner envisaged or not at all. Pyramiding his argument Mr. Shrivastava has contended that the judgments on which reliance have been placed by the learned single Judge do not lay down the correct law inasmuch as the learned single Judge in the case of Amrit Chandra (supra) has taken the view on the reasoning that as the law does not require resignation to be accepted by the Municipal Council and C. M. O. being the Chief Executive Officer, letter addressed to him cannot be regarded as non-est in the eye of the law though non acceptance is of no consequence when a statute mandates a notice to be sent in writing to a specified authority. The learned counsel has submitted that the reliance placed on the decision rendered in the case of Om Prakash Choudhary v. Collector, Guna, 1987 MPLJ 369 : (AIR 1988 Madh Pra 255) by the learned Judge is not correct as the provisions interpreted in the aforesaid decision related to a different realm. Mr. Shrivastava has also urged that the decision rendered in the case of Laxmi Narayan Dubey (supra) does not also correctly propound the law as the learned single Judge has proceeded on the basis that the Municipal Council is a body of persons and Section 87 of the Act stipulates that the Chief Municipal Officer is the Principal Executive Officer of the Council and has theauthority to perform various functions and he can receive the relevant papers on behalf of the Municipal Council, and hence, a letter of resignation addressed to him meets the requirement of law, though as per the law a Municipal Council is a body corporate having an independent distinct entity and a notice to municipality cannot be construed as a notice addressed to the Chief Municipal Officer.
5. Mr. Gohil, learned Deputy Advocate General, has supported the order passed by the State Government contending, inter alia, that the State Government had rightly interpreted the provision that the notice to municipality cannot be regarded as notice to the Chief Municipal Officer and accordingly it passed an order directing the present appellant to assume charge.
Mr. Vivek K. Tankha, learned counsel appearing for respondent No. 5, has contended that on a reading of the provisions enshrined under Sections 87 and 92 of the Act it is crystal clear that the Municipal Council functions through the Chief Municipal Officer, and hence, tender of her resignation to the said authority has to be given due effect in law and the learned single Judge has rightly decided the lis. It is further canvassed by the learned counsel that the present appellant had participated in the subsequent meeting and vide Annexure-P-4 dated 26-12-96 had written to the Collector, Sagar that she had resigned from her office and appropriate steps should be taken. Submission of Mr. Tankha, learned counsel, is that when the factum of resignation has been accepted by the appellant she cannot be permitted to somersault and raise a plea that it was not a resignation in accordance with law. It is argued by Mr. Tankha, learned counsel, that the respondent No. 4 was holding an office and was expected to conduct herself with positive responsibility and utmost sincerity and should not have made a mockery of democracy by taking different stands at different times.
6. We shall deal with the first contention first. The core controversy relates to the fact whether a notice of resignation addressed by the President of Municipal Council to the Chief Municipal Officer meets requirement of law as provided under the Act. The relevant provision is Sub-section (7) of Section 43 of the Act. At the relevant time it stood as under :
'(7). The Vice-President may resign his of-fice at any time by notice in writing to the President and the President may resign his office at any time by notice in writing to the Municipality.'
The learned single Judge relying on the decision rendered in the case of Amrit Chandra Rajpal (supra) has held that a notice tendered to the Chief Municipal Officer would constitute a notice within the meaning of Sub-section (7) of Section 43. We have perused the decision rendered in the case of Amrit Chandra Rajpal (supra). In the said case the learned single Judge has held that as Chief Municipal Officer, is the Chief Executive Officer of the Municipal Council and resignation tendered by the President is not required to be accepted by the Municipal Council, the resignation addressed to the Chief Municipal Officer cannot be regarded as non-est in the eye of law. In this context he has made a reference to the decision, rendered in the case of Om Prakash Chandra (supra). In the case of Laxmi Narayan Dubey (supra) after referring to the definition of 'Municipality' and role ascribed to the Chief Municipal Officer and considering the status of Municipal Council under the scheme of the Act the learned Judge has held that the notice to Chief Municipal Officer would be legal and valid. Mr. Shrivastava has persuasively contended that the decisions rendered in the aforesaid cases do not lay down the law correctly.
Before we address ourselves to the soundness of the aforesaid judgments we feel obliged to refer to the various provisions of the Act. Section 3(18) defines the 'Municipality' as under :--
'3(18).-- 'Municipality' means a Municipal Council or a Nagar Panchayat constituted under Section 5 of this Act.'
Section 18 of the Act deals with the incorporation of Municipalities and it reads as follows :--
'18. Incorporation of Municipalities.--Every Municipality constituted under Section 5 of the Act, shall be a body corporate by the name of the Municipal Council or Nagar Panchayat, as the case may be, and shall have perpetual succession and a common seal, with power to acquire and hold property, both movable and immovable and subject to the provisions of this Act or any rules made thereunder, to transfer any property held by it and to contract and to do all other things necessary for the purposes of this Act and maysue and be sued in its corporate name.'
Section 19 lays down the Composition of Municipal Council or Nagar Panchayat. The said provision reads as under :--
'19. Composition of Municipal Council or Nagar Panchayat. (1) A Municipal Council or a Nagar Panchayat, shall consist of-
(a) President, that is Chairperson, elected by direct election from the Municipal area;
(b) Councillors elected by direct election from the wards;
(c) Not more than four persons in the case of Municipal Councils and not more than two persons in the case of Nagar Panchayats having special knowledge or experience in Municipal Administration nominated by the State Government :
Provided that only a person residing within the Municipal area and being otherwise not ineligible for election as a Councillor may be nominated. (d) Members of the House of the people and the Members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the municipal area;
(e) Members of the Council of State registered as electors within the municipal area.
(2) The persons nominated under Clause (c) of Sub-section (1) shall hold office during the pleasure of the State Government.
(3) Persons referred to in Clauses (c), (d) and (e) of Sub-section (1) shall be deemed to be Councillors, but shall not have the right to vote in the meetings of the Council.
(4) If any municipal area fails to elect a President or any ward fails to elect a Councillor, fresh election proceedings shall be commenced for such municipal area or ward, as the case may be, within six months to fill the seat, and until the seat is filled it shall be treated as casual vacancy : Provided that proceedings of election of Vice-President, or any of the Committees under the Act shall not be stayed, pending the election of such seat.'
We may also refer to the provisions enshrined under Sections 87 and 92 of the Act as they deal with the role ascribed to the Chief Municipal Officer. The provisions read as under :--
'87. Chief Municipal Officer.-- (1) There shall be a Chief Municipal Officer to every Council who shall be the principal executive officer of the Council and all other officers and servants of the Council shall be subordinate to him.
(2) The Chief Municipal Officer of a Council shall be a member of the State Municipal Service (Executive) and shall be appointed by the State Government.
92. Special functions of Chief Municipal Officer.-
(1) The Chief Municipal Officer shall-
(a) subject to the general control of the President, watch over the financial and executive administration of the Council and perform all the duties and exercise all the powers specially imposed or conferred upon him, by or delegated to him, under this Act,
(b) give effect to the decisions taken, in accordance with the provisions of this Act and the rules or bye-laws made thereunder by the Council and submit periodical reports, if the Council so directs, regarding the progress made in respect thereto.
(2) Any of the powers, duties or functions conferred or imposed upon or vested in the Chief Municipal Officer by this Act may be exercised, performed, or discharged under the Chief Municipal Officer's control and subject to his superintendence to such conditions and limitations, if any, as he may think fit to prescribe, by any Municipal Officer may generally whom the Chief Municipal Officer may generally or specially empower, in writing in this behalf.'
The aforesaid provisions are relevant to understand the status of Municipality and the Chief Municipal Officer as envisaged under the Act. The significant provision in this regard is Section 18 as it stipulates that a Municipality shall be a body corporate by the name of Municipal Council. A body corporate has a different connotation and meaning in law. It is not merely a body of persons. By virtue of incorporation of Municipality as a body corporate the statute confers on it a distinctive legal status. In this context we may profitably refer to the Halsbury's Law of England 4th Edition Volume IX wherein in paragraph 1201 where the term 'Corporation' has been described as under :-
'1201. Corporations and unincorporated associations. A corporation may be defined as a body of persons (in the case of a corporation aggregate) or an office (in the case of corporation sole) which is recognised by the law as having a personality which is distinct from the separate personalities of the members of the body or the personality of the individual holder for the time being of the office in question. There are many associations and bodies of persons that are not corporation. Some of these, such as registered friendly societies, may be quasi-corporations, as they have some of the usual attributes of corporations, such as the possession of a name in which they may sue or be sued, and the power (independently of any contract between the members) to hold property for the purposes defined by their objects and constitutions. Partnerships are not usually regarded as quasi-corporations, although, if carrying on business in England or Wales, they may sue and sued in the firm name. Subject to the exceptions mentioned above, unincorporated associations cannot sue or be sued in their own name nor (unless their purposes are charitable) can property be held for their purposes otherwise than by virtue of a contract between the members for time being. The Crown has power by letters patent to grant to any company or body of persons associated together for any trading or other purposes, although not incorporated, any privileges which, according to the rules of common law, it would be competent for the Crown to grant to any such company or body of persons in and by any charter of incorporation. Such letters patent may provide that actions by or against the company or body of persons shall be carried on in the name of one or two officers to be appointed for that purpose and may limit the individual liability of the members.'
In paragraph 1202 in the said volume there has been a classification of 'Corporation' into two classes, namely, 'Corporation aggregate' and 'Corporation sole.' 'Corporation aggregate' has been explained in paragraph 1204 which is as under:--
'1204. Meaning of Corporation aggregate. A Corporation aggregate has been defined as a collection of individuals united into one body under a special domination, having perpetual succession under an artificial form, and vested by the policy of the law with the capacity of actingin several respects as an individual, particularly of taking and granting property, of contracting obligations and of suing and being sued, of enjoying privileges and immunities in common and exercising a variety of political rights, more or less extensive, according to the design of its institution, or the powers conferred upon it, either at the time of its creation or at any subsequent period of its existence.'
In paragraph 1205 there has been further explanation of 'Corporation aggregate' which we may usefully reproduce :--
'1205. Composition and capacity.
A Corporation aggregate may be either a mere body, composed of constituent parts no one of which differs essentially from another or it may be a body with a head or other distinct member, the existence of which is essential to the vitality, so to speak, of the body as a whole. A corporation aggregate has only one capacity, namely its corporate capacity: so that a conveyance to a corporation aggregate can only be to it in its corporate capacity.'
In paragraph 1206 'Corporation Sole' has been explained. It reads as under :--
'1206. Definition, capacity and presumption of due appointment. A corporation sole is a body politic having perpetual succession, constituted in a single person who in right of some office or function, has a capacity to take, purchase, hold and demise (and in some particular instances, under qualifications and restrictions introduced by statute, power to alienate) real property, and now, it would seem, also to take and hold personal property, to him and his successors in such office for ever, the succession being perpetual, but not always uninterruptedly continuous; that is, there may be and often are, periods in the duration of a corporation sole, occurring irregularly, in which there is a vacancy, or on one in existence in whom the corporation resides and is visibly represented.
Unlike Corporation aggregate, a Corporation sole has a double capacity, namely, its corporate capacity and its natural or individual ca-pacity: so that a conveyance to a corporation sole may be in either capacity.
A Corporation sole appears now to be capable of taking personality in succession. The occupantof a corporation sole is presumed to have been duly in possession of his office until the contrary is proved.'
Thus, on a fair analysis of the aforesaid paragraphs it emerges that in the characteristics of Corporation concept of its continuity and distinct entity are inhered. In paragraph 1209 of the said Volume it has been explained that the Corporation is a distinct juristic entity. It is worthwhile to reproduce the same :--
'1209. Corporation a distinct entity. The nature of a corporation may be shown by contrasting it, as a legal conception, with the individuals in which it resides. In law the individual corporators, or members, of which it is composed are something wholly different from the corporation itself: for a corporation is a legal person just as much as an individual. If a man trusts a corporation, he trusts that legal person, and must look to its assets for payment; he can only call upon individual members to contribute it the Act or charter creating the corporation has so provided. The liability of an individual member is not increased by the fact that he is the sole person beneficially interested in the property of the corporation, and that the other members have become members merely for the purpose of enabling the corporation to become incorporated and possess but a nominal interest in its property, or hold their interest in trust for him. Notice to an individual who happens to be a member of a corporation aggregate but has no authority to receive notices is not equivalent to notice to the corporate body; and where an action is maintainable by and in the name of a corporation, it cannot be maintained by individual members of the corporation. After the dissolution of a corporation the members, in their natural capacities, can neither recover debts which are due to the late corporation nor be charged with debts contracted by it.'
In paragraph 1211 it has been stipulated that name is essential to a 'Corporation' and in the case of a Corporation created by grant of Charter or by Special Act the name must be either expressed in the grant or the Act or implied from the nature of it. In this context, we may refer to the decision rendered in the case of Board of Trustees, Ayurvedic and Unani Tibia College, Delhi v. State of Delhi (New Delhi Administration),AIR 1962 SC 458. In the said case their Lordships of the Apex Court were dealing with the question whether the Board of Trustees which was originally registered under the Societies Registration Act, 1860 and a New Board of Trustees which was incorporative by an Act of the Legislature called Tibbia College Act, 1952 by which the old Board was dissolved and a New Board was constituted was a Corporation. It was ruled that the old Board was not a Corporation but the New Board was. While dealing with the question what is a Corporation their Lordships expressed thus :--
'A corporation aggregate has therefore only one capacity, namely, its corporate capacity. A corporation aggregate may be a trading corporation or a non-trading corporation. The usual examples of a trading corporation are (1) charter companies, (2) companies incorporated by special acts of Parliament, (3) companies registered under the Companies Act, etc. Non-trading corporations are illustrated by (1) Municipal Corporations, (2) district boards, (3) benevolent institutions, (4) universities etc. An essential element in the legal conception of a corporation is that its identity is continuous, that is. that the original member or members and his or their successors are one. In law the individual corporators, or members, of which it is composed are something wholly different from the corporation itself; for a corporation is a legal person just as much as an individual. Thus, it has been held that a name is essential to a corporation; that a corporation aggregate can, as a general rule, only act or express its will by deed under its common seal; that at the present date in England a corporation is created by one or other of two methods, namely, by Royal Charter of incorporation from the Crown or by the authority of Parliament that is to say, by or by virtue of statute. There is authority of long standing for saying that the essence of a corporation consists in (1) lawful authority of incorporation, (2) the persons to be incorporated, (3) a name by which the persons are incorporated, (4) a place, and (5) words sufficient in law to show incorporation. No particular words are necessary for the creation of a corporation; any expression showing an intention to incorporate will be sufficient.'
The view taken in the aforesaid case wasfollowed in the decision rendered by the Constitution Bench in the case of Daman Singh v. State of Punjab, AIR 1985 SC 973 wherein their Lordships after referring to the case of Board of Trustees, Ayurvedic and Unani Tibia College, Delhi (supra) and scanning Section 30 of the Punjab Cp-operative Spcieties Act, 1961 held as under
'6. We have already extracted Section 30 of the Punjab Act which confers on every registered cooperative society the status of a body corporate having perpetual succession and a common seal, with power to hold property, enter into contracts, institute and defend suits and other legal proceedings and to do all things necessary for the purposes for which it is constituted. There cannot, therefore, be the slightest doubt that a cooperative society is a corporation as commonly understood. Does the scheme of the Constitution make any difference? We apprehend not.'
Their Lordships further proceeded to State thus :--
'According to Mr. Ramasmurthi the Statement of Objects and Reasons and the report of the Joint Select Committee show that initially it was proposed to give protection to legislation pertaining to amalgamation of companies only but later it was thought fit to extend the protection to statutory corporations also and therefore the expression 'corporations' was substituted in the Act in the place expression 'companies' which had been mentioned in the Bill. There is no substance in this submission. It was obviously thought by the Parliament that the protection should not be confined to companies only but should extend to all corporations which would naturally include Statutory Corporations. The more generic expression 'corporations' was used so that all companies statutory corporations and the like may be brought in. There is no indication that notwithstanding the use of the generic expression 'corporation,' the expression was intended to exclude corporations other than companies and statutory corporations. Parliament apparently chose the broader expression not with a view to limit the protection of the legislation relating to amalgamation to any class of corporation pertaining to amalgamation of all classes of corporations.'
Thereafter, their Lordships dealt with various provisions of the Constitution and ruled asunder :--
'The registration of a co-operative society shall render it a body corporate by the name under which it is registered having perpetual succession and a common seal, and with power to hold property, enter into contract, institute and defend suits and other legal proceedings and to do all things necessary for the purposes for which it is constituted.'
7. Testing on the aforesaid touchstone, it is graphically clear that the Municipality having been incorporated as abody corporate has to have its distinct name and separate legal entity. It is a body corporate for which the name is a sine qua non. The councillors who are elected as members of Municipality are members of a body corporate and their individual identity is merged in the body corporate. Being a body corporate it has to be given the status of distinctive juristic personality having separate existence in law.
8. The requirement of law as mandated under Section 43(7) is that the President may resign his office at any time by notice in writing to the Municipality. In view of this requirement of law the sap of the matter is whether the resignation addressed to the Chief Municipal Officer meets the requirement. In the case of Amrit Chandra Rajpal (supra) reliance has been placed on the decision rendered in the case of Om Prakash Choudhary (AIR 1988 Madh Pra 255) (supra). In the aforesaid case their Lordships while interpreting Section 40(1) of the M.P. Municipality Act, 1961 which provided that resignation was to be given by the Vice-president or Council by tendering the same in writing to the President who was required to forward it to the prescribed authority. Contention was raised before the Court that resignation was not given to the President and, therefore, it was invalid. The Court repelled the aforesaid contention on the ground that the President of the Municipality had no positive role to play except to act like a conduit pipe as the ultimate authority of acting upon letter of resignation vested in the prescribed authority. Keeping the said envisagement in view this Court held that provision to be directory. In this context, we may profitably refer to the decision rendered in the case of Raghuvans Prasad v. Mahendra Singh, 1967 MPLJ 941. In the said case a Division Bench of this Court was required to interpret the provision which provided that any councillormay resign his office by tendering his resignation, in writing, to the President and his seat shall there upon become vacant. In the said case the letter was addressed to the Chief Municipal Officer and sent to him. The Court held that there was no valid tender of resignation in writing to the President. We may profitably quote their Lordships :--
'11. It is not necessary to examine whether the letter which the Chief Municipal Officer received on 18th November, 1966 really bore the signature of the respondent No. 10 and whether ' the statement made by the then President on 19th November, 1966 that he had failed in his attempts to persuade the respondent No. 10 to withdraw his resignation is correct, or whether the true position was as stated in the respondent No. 10's letter dated 21st November, 1966 addressed to the President. Even if it be assumed that the communication which the Chief Municipal Officer received was really from the respondent No. 10 about his resignation from the office of a Councillor, that communication cannot be regarded as a valid resignation of the respondent No. 10. Section 40(1) requires a Councillor desiring to resign his office to do so 'by tendering his resignation, in writing, to the President.' Now, 'to tender' means 'to make a formal offer.' A Councillor may offer his resignation in writing to the President personally or he may convey that offer to the President through post or by a messenger. Where the writing containing the resignation is sent by post or by. a messenger, it should at least be addressed to the President in order to make it a valid resignation under Section 40(1). In the present case, the communication dated 18th November, 1966 relied on by the petitioner as containing the respondent No. 10's resignation was neither addressed to the President nor delivered to him inperson. It was addressed to the Chief Municipal Officer and sent to him. It cannot, therefore, be held that there was a valid tender of resignation in writing to the President.'
9. It is to be noted here that the provision which was interpreted in the aforesaid case contemplated automatic consequence, and therefore, it was held to be mandatory. When the decision was rendered in the case of Om Prakash Choudhary (AIR 1988 Madh Pra 255) (supra) there was a change in the said provision. Keepingthe language employed this Court held that the President had become a conduit pipe. In this regard we usefully refer to the Section 18 of the Municipal Corporation Act, 1956. It reads as under :--
'18, Resignation of Councillor--- Any Councillor may resign his office by giving notice in writing to that effect to the Mayor and his seat shall there upon become vacant.'
The said provision came to be interpreted in the case of Muncipal Corporation, Bhopal v. State of M.P. (1988) 2 MPLJ 513 wherein a councillor had addressed her letter of resignation to the Commissioner and not to the Mayor as required under the said provision. The Court distinguishing the principle enunciated in the case of Om Prakash Choudhary (AIR 1988 Madh Pra 255) (supra) held as under :
'From the aforesaid it is perceptible that the role of the President under the Municipalities Act is different than that of the Mayor under the Municipal Corporation Act as the Mayor is not a conduit pipe because once a letter of resignation in writing is submitted to the Mayor by a Councillor the seat falls vacant. In fact, it contemplates automatic consequence. The other role ascribed to Mayor is to forward the same to the Government and the fact is to be notified in the Gazette. It is to be borne in mind that the Government does not have any positive role in its acceptance. Mr. Singh, learned counsel for the petitioner has drawn the analogy by submitting that when the letter of resignation was addressed to the Commissioner and endorsed by the Mayor, the prescribed authority, it is to be construed that there has been due resignation by the respondent No. 2. It may be noted here that in the case of Om Prakash (supra) this Court while interpreting the provision envisaged under Section 40 of the Municipalities Act interpreted the same as directory and the same being for convenience, accepted the role of the President as a conduit pipe. But under Section 18 of the Act the mandate is, the Councillor is required to resign from his office by giving notice in writing to that effect to the Mayor. Admittedly, in the case at hand the letter was addressed to the Commissioner and not to the Mayor. It is well settled in law that when the statute requires a particular thing to be done in a particular manner, it has to be done in that manner or not at all. In view of the aforesaid analysisI am of the humble view that the letter of resignation addressed to the Commissioner is not in accordance with the requirement of Section 18 of the Act and the endorsement by the Mayor on the letter does not save the situation.'
10. In this context, we may profitably refer to the decision rendered in the case of Moti Ram v. Param Dev (1993) 2 SCC 725 : (AIR 1993 SC 1662 at p. 1668) wherein it has been held as under :
'16. As pointed out by this Court, 'resignation' means the spontaneous relinquishment of one's own right and in relation to an office, it connotes the act of giving up or relinquishing the office. It has been held that in the general juristic sense, in order to constitute a complete and operative resignation there must be the intention to give up or relinquish the office and the con-comitant act of its relinquishment. It has also been observed that the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. (See Union of India v. Gopal Chandra Misra.) If the act of relinquishment is of unilateral character, it comes into effect when such act indicating the intention to relinquish the office is communicated to the competent authority.''
The purpose of referring to the aforesaid decision is that their Lordships of the Apex Court while dealing with the resignation which is unilateral in character have observed that it comes into effect when the intention is to relinquish the office is communicated to the competent authority.
11. The controversy can be viewed from another angle. As postulated under Section 319 a notice is required to be served on the Municipality before a suit or proceeding is instituted under the M.P. Municipalities Act. Similar provisions are noticed in various statutes relating to Municipality and the Courts had occasion to interpret the effect, impact and requirement of the aforesaid provision. In this context we may refer to the decision rendered in the case of Nathubhai Dhulaji v. Municipal Corporation, Bombay, AIR 1959 Bom 332 wherein a Division Bench of Bombay High Court has held that the Corporation is a body corporate and Section 527 of the Act requires no suit shall be instituted against the Corporation oragainst the Commissioner, the General Manager or a Deputy Commissioner or against any Municipal Officer or servant in respect of act done in pursuance of execution or intended execution of this act or in respect of any alleged neglect or default in the execution of the Act. In the said case the notice was served on the Municipal Commissioner. The Court held that the suit was not maintainable for want of proper notice. We may profitably quote their Lordships :--
'The provision contained in Section 527 is, therefore, mandatory and the language would seem to be similar to the language used in Section 80 of the Code of Civil Procedure. As observed by their Lordships of the Privy Council in the case reported in Bhagchand v. Secretary of State, 29 Bom LR 1227 : AIR 1927 PC 176, Section 80 is expressed, explicit and mandatory, and it admits of no implications or exceptions. If, therefore, one of the duties cast upon a Corporation is to secure or remove dangerous buildings, there can be no question that the person to be sued is not the Municipal Commissioner but the Corporation and it is not sufficient compliance with Section 527 to say that a suit would be filed against the Municipal Corporation. It may be that the objection is one of technicality, but if a certain form is prescribed, according to which anotice is to be given in a particular form, I think it is essential that the form prescribed should be strictly adhered to, because, after all, the object of giving a notice is not merely to show as to what claim the plaintiff is making in the suit but also to show against whom the claim is made. Moreover, the learned Judge was right in taking the view that the Municipal Commissioner was not the proper person to be sued. The Municipal Commissioner is not a body corporate. He could not, therefore, be sued. It is not, therefore, sufficient, compliance with Section 527 to give notice to the Municipal Commissioner and not to give notice to the Municipal Corporation.'
Similar view was reiterated in the case of Shridhar Atmaram Ghadgay v. Corporation of the City of Nagpur, AIR 1971 Bom 273. In this context, we may usefully refer to the decision rendered in the case of Narayana Pillai v. Easwara Pillai, AIR 1961 Ker 258 wherein a learned Judge of Kerala High Court while dealing with the claim against a Co-operative Society held that when a Society was not impleaded the suitwas not maintainable. It was held therein that the members of Managing Committee are not competent to represent the Co-operative Society as Society is a Corporation and has a legal personality and has to be construed in its corporate name only.
In view of the preceding analysis it is amply clear that the Municipality being a body corporate has its own juristic personality, and therefore the requirement of law that President intending to resign has to give a notice in writing to the Municipality, means, it has to be addressed to the Municipality. It may be delivered to the Chief Municipal Officer or any other person who has been authorised to receive it on behalf of the Municipality but the notice has to be addressed to the Municipality not to the Chief Municipal Officer. The Chief Municipal Officer may be the Chief Executive Officer of the Municipality and might have given authority to perform various functions but he cannot be substituted for the Municipality. It has been observed in the case of Laxmi Narayan Dubey (supra) that he has the duty to receive papers for or on behalf of the Municipality. In this regard we may say that the Chief Municipal Officer of the Council might have the authority to receive papers for or on behalf of the Municipal Council but when a notice is to be given in writing to the Municipality, though there is no explicit expression, it has to be addressed to the Municipality. It is inhered in the language employed as it has to be addressed to the Municipality which is a body corporate. In view of the analysis we are of the considered view that the decision rendered in the case of Amrit Chandra Rajpal (supra) and Laxmi Narayan Dubey (supra) do not lay down the correct law to the effect that notice on the Municipal Officer is notice to the Municipality. As the learned single Judge in the instant case has relied on the aforesaid decisions and has arrived at the conclusion that notice on the Chief Municipal Officer has been properly served on the Municipality, we are not able to subscribe to the said view. Resultantly, our view is that the requirement of the statute is that the notice in writing has to be addressed to the Municipality and a notice to the Chief Municipal Officer does not meet the requirement of law.
12. Now we shall proceed to deal with the second aspect of the case on which the learnedcounsel for both the parties have laid immense emphasis. Submission of Mr. Shrivastava is that once the notice has not been addressed to the Municipality it is inoperative in law and, in fact, is non est, and therefore, it should be construed that the appellant had never tendered her resignation, and therefore, should be allowed to con-tinue in office. Mr. Tankha, per contra, has urged with vehemence that the conduct of the appellant clearly demonstrates her intention and her subsequent conduct and does not entitle her to get any relief. To appreciate the rival submissions raised at the Bar we have bestowed our anxious consideration on the factual matrix and the reasonings recorded by the learned single Judge in this regard. True it is, the petitioner had not addressed the letter of resignation to the Municipality but when a meeting was held on 26-12-1996 she had expressed her opinion in categorical terms before the Council that the meeting should be convened after the election of the new President. She is a signatory to the said resolution. Quite apart from the above, by letter dated 26-12-1996 she had requested the Collector, Sagar that she had submitted her resignation. It is worth noting here that that the appellant himself requested the Collector vide her letter dated 16-1-1997 to hold the election to fill up the vacancy at the earliest. The said letter has been brought on record as Annexure P-8 and it has not been controverted by the present jappellant. In view of the aforesaid conduct we are of the considered view that the learned single Judge has rightly held that the fact of resignation was accepted by the respondent No. 4 therein, in unequivocal terms,-and considering her admission, participation and request for fresh election she could not be permitted to turn around and take shelter on a technical plea. Being of this view the learned single Judge has directed that the State Government has erred in passing the order contained in Annexure P-14 to the writ petition, and accordingly, directed to hold a fresh election in accordance with law. Thus while not concurring with the view taken by the learned single Judge in regard to the notice to the Chief Municipal Officer in writing should be construed as the notice to the Municipality, we find that the analysis made by the learned single Judge in the obtaining factual matrix in relation to the conduct of the present appellant is absolutely impeccable.
13. Taking stock of the fact situation andresume of the chronological events, we unhesitatingly hold that the appellant had accepted the fact of resignation in entirety and, spoken eloquently about it. The eloquence, the publicity, the populist approach and the dominating element of perpendicular pronoun 'I' in every action cannot be totally brushed aside, we cannot be oblivious of the factual backdrop.
14. In the result the appeal fails and the same is dismissed. However, the cost imposed by the learned single Judge is made easy. There shall be no order as to costs in this appeal.