Aminuddin alias Yamin v. U. P. State — 1991 DIGILAW 1198 (ALL)

JUDGMENT S.C. Mathur, J. - This petition is directed against the order of the State Government restoring sixth respondent Laxman Prasad to the Office of President, Municipal Board, Moradabad resulting in the ouster of the petitioner who had been holding that office in acting capacity. The real dispute in the petition is whether the motion of no confidence tabled against the sixth respondent had been carried through by the majority perscribed in the U.P. Municipalities Act 1916 (U. P. Act No. II of 1916), for short Act. The answer to this question is dependent on answer to another question viz, that was at the relevant time total membership of the Board-48 or less. If the total membership was 48 the motion could not be said to have been carried through, if it was less, it had to be held that it had been carried through. Subsidiary points raised by the learned counsel for the parties will, of course, have to be dealt with. Municipal Boards in various cities of the State of Uttar Pradesh are constituted in accordance with the provisions of the Act under the Act the city is divided into Wards and each ward elects its representative who is called member or sabhasad. Depending upon the population one Ward may elect more than one representative. Section 9 of the Act provides for ex. officio and nominated members. The members elect a President who need not be one of them. Under Section 49 the president is ex. officio member of the Board. Vice-President or Vice-Presidents are elected from amongst the members. After the nominations and elections have taken place the State Government notifies constitution of the Board under Section 56 of the Act. Under Section 48 the elected President is liable to be suspended or removed from office by the State Government. He can also be removed from office by adoption of motion of no confidence in the manner provided for in Section 87-A read with Section 47-A of the Act. 2. Under Section 48 the elected President is liable to be suspended or removed from office by the State Government. He can also be removed from office by adoption of motion of no confidence in the manner provided for in Section 87-A read with Section 47-A of the Act. 2. In the present case the plea of the petitioner is that the sixth respondent had been removed from office by adoption of no confidence motion in accordance with the procedure prescribed in the Act and the State Government had accepted that position and notified casual vacancy and thereafter it rescinded the notification of casual vacancy which has the effect of restoring the sixth respondent to the office of the President which, according to him, is illegal. 3. The facts about which there is either no dispute or which stand established from the record are as follows : For constituting the Municipal Board, Moradabad, Ward elections were held on 3-1-1989 at which the petitioner was elected from Ward No. 22. Election for the office of President took place on 26-12.989 when the sixth respondent Laxman Prasad was elected. The State Government notified the constitution of the Board under Section 56 on 28-2-1989. On 7-7-1989 elections were held to the office of Senior and Junior Vice-Presidents when the petitioner was elected Senior Vice-President. As stated by the petitioner in paragraph-7 of the Writ petition the original Board comprised 47 member as follows :- (i) President, Ex-officio Member; (ii) Forty elected members; (iii) One nominated Member of Safi Class; (iv) Five Ex-officio Member; (a) One MLA from Moradabad, 33 Assembly Seat), (b) One MLA from Moradabad, 32 Assembly Seat), (c) One MLA from Moradabad, 7 Lok Sabga Seat), (d) One MLC from Rohil Khund Teachers Constituency), and (e) One MLC from Rahil Khund Graduate Constituency. On 15-2-1990 the Act was amended through the Uttar Pradesh Urban Local Self- Government Laws (Amendment) Ordinance 1990 (U.P. Ordinance No. 2 of 1990). By Section 2 of this ordinance the first proviso to Section 9 was amended. The original first proviso empowered the State Government to nominate a woman as a member of the Board if no woman had been elected at the General Election. By the Amendment the State Government was empowered to nominate two women to the Board if none or only one woman had been elected at the General Election. The original first proviso empowered the State Government to nominate a woman as a member of the Board if no woman had been elected at the General Election. By the Amendment the State Government was empowered to nominate two women to the Board if none or only one woman had been elected at the General Election. The Board at Moradabad had only one woman member, namely. Smt. Ram Dulari. In exercise of the power conferred by the amended first proviso to Section 9 the State Government nominated Smt. Mahejbin Begum as a member of the Board. The consequence of this nomination was that the original strength of the Board which was 47 stood increased to 48 including the president. Prior to 26-5-1990 twenty six members of the Board signed a motion of no confidence in the president of the Board and the same was delivered to the District Magistrate in accordance with Section 87-A(2). The District Magistrate convened meeting of the Board for 4th June, 1990 at I 1 a.m. in the office of the Municipal Board, Muradabad to consider the said no confidence motion and issued notices to the president and 47 members of the Board on 26-5-1990. Notices were thus issued to 48 members including the sixth respondent. 4. On 22-5-1990 the sixth respondent filed writ petition No. 15963 of 1990 in this Court at Allahabad to challenge the said notice. Along with the writ petition he also moved an application for interim relief seeking stay on consideration of the motion of no confidence. This petition was filed before the learned Vacation Judge, as on 29-6-1990 the Court was in summer recess. The learned Vacation Judge heard arguments on 1-6-1990 and reserved orders, passing no interim order immediately. In the absence of any interim order the meeting was held on 4-6-1990 and the motion of no confidence was put to vote. This meeting was presided over by Sri K. P. Singh, Civil Judge, Moradabad, nominated to preside over the meeting by the learned District Judge, Moradabad, under Section 87-A(4). The minutes of the meeting held on 4-6-1990 drawn by Sri K. P. Singh are on record. From these minutes it appears that the sixth respondent did not attend the meeting. Twenty four persons voted in favour of the motion. The minutes of the meeting held on 4-6-1990 drawn by Sri K. P. Singh are on record. From these minutes it appears that the sixth respondent did not attend the meeting. Twenty four persons voted in favour of the motion. The learned Civil Judge was of the opinion that the president did not have the right to cast vote on the motion and, therefore, the total membership of the Board was treated to be as 47. As 24 was more than 50% of 47 he declared the motion as carried through. 5. On 6-6-1990 the sixth respondent filed the second writ petition at Allahabad, Civil Misc. Writ petition No. 15962 of 1990. This petition was also filed before the learned Vacation Judge as the summer recess was continuing. This petition was also accompanied with an application for interim relief. On 6-6-1990 itself interim order was passed to the following effect:- "Issue notice. Until ordered otherwise, the operation of the impugned resolution of non-confidence dated 4th June, 1990 passed against the petitioner shall remain suspended." On 8-6-1990 interim order was passed on the sixth respondent's earlier writ petition No. 15963 of 1990- ".....in case the motion of no-confidence has been passed against the petitioner, the same shall not be given effect to. However, it is ordered that the petitioner may continue to function as chairman in case the motion of non-confidence has been passed but he shall not sanction or pass orders regarding financial matters exceeding Rs. 1,000/-." On 11-6-1990 the District Magistrate, Moradabad submitted report to the State Government making comments regarding the no-confidence motion which had been declared as carried through by the learned Civil Judge. In his report the District Magistrate opined that the action of the learned Civil Judge in excluding the president from the membership of the Board while counting strength of the Board was contrary to law. 6. On 11-7-1990 the sixth respondent filed application in his second writ petition - Writ petition No. 15963 of 1990 praying for dismissal of the application for interim relief as the same had become infructuous. This application was dealt with on 18-7-1990 when it was rejected as not pressed resulting in vacation of the interim order dated 8-6-1990. 7. 6. On 11-7-1990 the sixth respondent filed application in his second writ petition - Writ petition No. 15963 of 1990 praying for dismissal of the application for interim relief as the same had become infructuous. This application was dealt with on 18-7-1990 when it was rejected as not pressed resulting in vacation of the interim order dated 8-6-1990. 7. On 8-8-1990 two persons claiming themselves to be members of the Board filed Contempt Application No. 636 of 1990 alleging that between 9-6-1990 and 17-7-1990 the sixth respondent issued several cheques of diverse amounts exceeding Rs. 1,000/ - which was in violation of the terms of the Court's interim order dated 8-6-1990. On 10-6-1990 contempt notice was issued on this application. 8. On 22-2-1991 the State Government issued notice under Section 48(2) of the Act to the sixth respondent requiring him to show cause against his proposed removal from the Board. On the same day the State Government passed another order under Section 48(3) placing the sixth respondent under suspension. With a view to implementing the orders of the State Government the District Magistrate passed consequential order on 23- 2-1991 directing the sixth respondent to hand over charge to the petitioner, the Senior Vice-President. 9. The aforesaid action of the State Government and the District Magistrate resulted in filing of third writ petition by the sixth respondent at Allahabad Civil Misc. Writ Petition No. 5350 of 1991. Through this writ petition he challenged the State Government's order of suspension as also the District Magistrate's order requiring him to hand over charge to the petitioner. Along with this petition also application for interim relied was filed. On 27-2-1991 the following interim order was passed :- ".....Meanwhile we suspend the operation of the order dated 22nd February, 1991 passed by the State Government suspending the petitioner as president of the Municipal Board, Moradabad. The learned counsel appearing for the respondent stated that the newly added respondent had taken over charge as Acting President of the Board, if it is so, we direct that he shall forthwith hand over the charge to the petitioner. This interim order shall continue for a period of five weeks from today. It is directed that the petitioner shall not draw the amount of more than Rs. 1,000/-. So far as the payment of salary to the employees is concerned, same shall be disbursed by the District Magistrate. This interim order shall continue for a period of five weeks from today. It is directed that the petitioner shall not draw the amount of more than Rs. 1,000/-. So far as the payment of salary to the employees is concerned, same shall be disbursed by the District Magistrate. It is further directed that the proceedings for removal of the petitioner before the State Government shall continue and it will be open to the respondents to pass appropriate order. In case any order of removal is passed, this order shall cease to be effective." 10. The aforesaid three writ petitions and the contempt application came up for hearing before a Division Bench of this Court at Allahabad on 1-4-1991. The Division Bench heard all the four cases together and pronounced judgment on 11-4-1991. The first writ petition viz. Writ Petition No. 15963 of 1990 was dismissed as not pressed. The contempt application was allowed and the sixth respondent was convicted and sentenced to pay the fine of Rs. 1,000 - and in default of payment of fine to undergo simple imprisonment in civil prison for two weeks. In view of this conviction and also in view of suppression of material facts in the second writ petition viz., Writ Petition No. 15962 of 1990, this petition was dismissed without going into its merit. The Bench was of the opinion that the conduct of the sixth respondent had been unfair and, therefore, he was not entitled to any equitable relief from the Court. With this observation the second writ petition was dismissed. Regarding the third writ petition viz. Civil Misc. Writ Petition No.5350 of 1991 it was observed that its consideration on merit was necessary as by the mere dismissal of the earlier two petitions the sixth respondent cannot be ousted from the office of president the procedure prescribed in the Act will have to be followed. After examining the merits of the third petition the Bench came to the conclusion that the State Government's order suspending the sixth respondent was unsustainable and so was the consequential order of the District Magistrate. Accordingly the third Writ Petition No.5350 of 1991 was allowed and the two orders mentioned herein were quashed. 11. After examining the merits of the third petition the Bench came to the conclusion that the State Government's order suspending the sixth respondent was unsustainable and so was the consequential order of the District Magistrate. Accordingly the third Writ Petition No.5350 of 1991 was allowed and the two orders mentioned herein were quashed. 11. After the disposal of the four cases by a Division Bench of this Court at Allahabad by judgment and order dated 11-4-1991 the State Government issued notification on 16-5-1991 declaring the office of the Chairman, Nagar Palika, Moradabad to be vacant. Although the provision of law under which the notification had been issued is not maintained it is referable to Section 56 read with Section 47-A(b). 12. Against the judgment of this Court the sixth respondent preferred Special Leave petition No. 10347 of 1991 and Civil Appeal No.2624 of 1991. The leave petition arises from writ petition No. 15962 of 1990 and the appeal arises from the the contempt application. On 13-6-1991 their Lordships of the Supreme Court passed interim order in the appeal to this effect - "There will be interim stay pending notice." In the Special leave petition there is no interim order. Only notices have been issued. 13. On 1-8-1991 the District Magistrate, Moradabad wrote letter to the State Government inviting letter's attention to Section 44-A whereunder the election was to be held for filling the vacant office of president within three months from the date of occurrence of vacancy and pointing out that vacancy having been declared on 16-5-1991 the period of three months would be expiring on 15-8-1991. The State Government instead of taking steps to hold election issued notification on 13-8-1991 rescinding the notification dated 16-5-1991 whereby vacancy in the office of president had been declared. A copy of this notification is Annexure-VII to the writ petition. On the same day another notification was issued by the State Government in which it was provided that the sixth respondent shall be deemed to be continuing in office as President a copy of this order is Annexure-VIII. On 14-8-1991 the District Magistrate, Moradabad passed consequential order requiring the petitioner to hand over charge of the office of President to the sixth respondent copy of the order issued on behalf of the District Magistrate is Annexure-IX. On 14-8-1991 the District Magistrate, Moradabad passed consequential order requiring the petitioner to hand over charge of the office of President to the sixth respondent copy of the order issued on behalf of the District Magistrate is Annexure-IX. The notifications and the order contained in Annexures VII, VIII and IX are the subject matter of challenge in the present writ petition which was filed on 20-8-1991. In this writ petition interim order was passed on 20-8-1991 to the following effect :- "In the meantime operation of the impugned orders dated 13-8-1991 contained in Annexures VII and VIII (both passed by the State Government and the order dated 14-8-1991 passed for and on behalf of District Magistrate, Moradabad contained in Annexure-IX shall remained stay and the petitioner who is Sentior Vice-President and is continuing as officiating President, shall be allowed to continue as such till 27-8-1991." 14. In the present writ petition appearance was put in by opposite-party No. 6 through Sri Pradeep Kant who filed only a short counter-affidavit and relied upon the material already on record for opposing the writ petition. To this short counter-affidavit the sixth opposite-party has filed affidavit dated 10-9-1991 annexing therewith four papers. Arguments in the case started on 28-8- 1991 and concluded on 10-9-1991, with break in between. After conclusion of arguments on 10-9-1991 judgment was reserved to be pronounced on 17-9-1991 and the time bound interim order was directed to continue till the pronouncement of judgment. On the next day ie. on 11-9-1991 the petitioner filed affidavit dated 10-9-1991 sworn at 2-35 p.m. copy of which had been supplied earlier to the learned counsel for the sixth respondent. 15. In the writ petition it is asserted that the impugned notifications of the State Government and the order of the District Magistrate are violative of Article 14 of the Constitution. It is also asserted that the motion of no confidence became final with the issue of notification dated 16-5-1991 and thereafter the State Government became functus officio in the matter and it had no jurisdiction to issue any notification sub-sequently including the notification dated 13-8-1991 rescinding the notification dated 16-5-1991 and providing that the sixth respondent shall be deemed to be continuing in office. It is stated in the grounds that the sixth respondent having failed to attend the meeting held on 4-6-1990 and having failed to prefer any representation against the declaration of result by the Presiding Officer has no right to challenge the same. The State Government is alleged to have issued the impugned notifications without application of mind and under political pressure. It is also pleaded that the matter is sub judice before the Supreme Court. During the course of argument the learned counsel for the petitioner did not accept that the membership of the Board was 48. However, his stand on the actual membership of the Board was not consistent and at one stage he went to the extent of submitting that the strength of the Board was only 44. For reducing the strength of the Board to 44 he mainly relied upon the averments made by the sixth respondent in his writ petitions filed at Allahabad. His submission was that these writ petitions contain admissions of the sixth respondent from which he cannot resile. 16. The sixth respondent was holding an elected office and he can be ousted therefrom only in accordance with the procedure prescribed in the Act. The procedure is prescribed in Section 87-A. Sub-section (2) of this section requires the motion of no confidence to be signed by not less than one-half of the total number of members of the Board. The motion, as alleged by the petitioner, was signed by 26 members. Whether the total membership is treated to be 44 or 48 requirement of this sub-section in fulfilled. Sub-section (12) which is material for the purposes of the present writ petition reads as follows : "The motion shall be deemed to have been carried only when it has been passed by a majority of more than one-half of the total number of members of the Board." The majority Contemplated by this sub-section is of "more than one-half". It is not disputed that only 24 members voted in favour of the resolution. Twenty four is exact one-half of forty-eight which is alleged by the sixth respondent to be the total membership of the Board but it is to "more than one-half" which is the requirement of sub-section (12). Accordingly if the total membership of the Board is 48 the motion cannot be said to have been carried through. Twenty four is exact one-half of forty-eight which is alleged by the sixth respondent to be the total membership of the Board but it is to "more than one-half" which is the requirement of sub-section (12). Accordingly if the total membership of the Board is 48 the motion cannot be said to have been carried through. However, if the membership is treated to be 47 only, the motion will have to be treated as having been carried through as one-half of 47 would be 23-50 and 24 would be more than that. The margin in the present case is very slender and, therefore, the exact number of the membership of the Board assumes importance and will have to be determined. 17. The minutes of the meeting dated 4-6-1990 drawn by the Civil Judge, Moradabad are on record. They were filed as Annexure R-l to the counter affidavit of Sri Rakesh Kumar, City Magistrate, Moradabad filed in Special Leave Petition No. 10347 of 1991. From these minutes it is apparent that the only reason for reducing the number of members from 48 to 47 was that the learned Civil Judge was of the opinion that the President against whom the motion of no confidence had been tabled was not entitled to cast his vote. Our attention has not been drawn to any provision of the Act under which the president is not entitled to cast his vote. Even if it is held that he is not entitled to cast his vote thereby the total membership of the Board will not be altered in the absence of any specific provision in the Act. We are, therefore, of the opinion that the learned Civil Judge committed obvious error in declaring the motion as carried through only and the ground that the total membership of the Board was to be treated as 47 and as one-half of this number had cast their vote in favour of the motion it has to be treated as complying with sub-section (12) is a basic requirement to oust the president from the Board and if this basic requirement is lacking the president cannot be ousted from the office. 18. Let us now examine the petitioner's plea that the total membership of the Board was not 48 but less. In paragraph-7 of the writ petition he has indeed shown that the Municipal Board as constituted comprised 47 members. 18. Let us now examine the petitioner's plea that the total membership of the Board was not 48 but less. In paragraph-7 of the writ petition he has indeed shown that the Municipal Board as constituted comprised 47 members. The petitioner was very well aware of the names of 48 members to whom notices were issued by the District Magistrate for the meeting of 4th June 1990 at which the motion of no confidence was allegedly adopted but he did not in the petition state that notice was wrongly issued to any of those 48 persons. During the course of arguments he submitted that Sint. Mahejbin Bebum could not be treated to be a validly nominated member of the Board as the right of the State Government to nominate a woman as a member of the Board was confined to one under the first proviso to Section 9 and such right of nomination was available only if no woman member had been elected. He*had pointed out that Sint. Ram Dulari was already a member of the Board. However, learned counsel for the sixth respondent invited our attention to the amendment of the first proviso to Section 9 through U.P. Ordinance No. 2 of 1990.1t is not the case of the petitioner that Smt. Mahejbin Begum was not dominated by the State Government. Her nomination, in view of the first proviso to Section 9, is not invalid. Learned counsel, however, submitted that the sixth respondent had himself in his writ petition at Allahabad challenged the membership of Smt. Mahejbin Begum. In the present petition we are not considering the action of the sixth respondent but of the State Government. Anything said by the sixth respondent in his earlier petition is not binding upon the State Government. Learned counsel for the petitioner has submitted that the sixth respondent was bound by the admissions made by him in his earlier petitions. We reiterate that the admissions of the sixth respondent do not bind the State Government. 19. In the same strain learned counsel invites our attention to certain paragraphs of writ petition No. 15963 of 1990 filed by the sixth respondent at Allahabad wherein he challenged the right of certain members to be given notice of no confidence motion and of their participation in the meeting. A copy of the said writ petition was filed as Annex. In the same strain learned counsel invites our attention to certain paragraphs of writ petition No. 15963 of 1990 filed by the sixth respondent at Allahabad wherein he challenged the right of certain members to be given notice of no confidence motion and of their participation in the meeting. A copy of the said writ petition was filed as Annex. D to the petitioner's affidavit dated 10th September 1990. Later in the supplementary affidavit of the same date filed on 11th September 1990 it was stated that Annex. D was not a complete copy and certain material paragraphs of the writ petition had been omitted therefrom. These paragraphs have now been mentioned in paragraphs 5 onwards to the petitioner's subsequent affidavit dated 10th September 1990. It appears from these paragraphs that one of the pleas of the sixth respondent in the writ petition filed at Allahabad was that three nominated members had not taken oath of office and, therefore, they were not entitled to participate in the no confidence motion. From the judgment of this Court rendered at Allahabad, copy of which is Annexure-2 to the present writ petition, it appears that contradictory pleas had been raised by the sixth respondent in his three petitions filed at Allahabad. The Bench has noticed the contradictory stand by observing". It is thus evident that Sri Agarwal took contradictory stand in writ petitions No. 15963 of 1990 and 15962 of 1990". It may be that the sixth respondent challenged t e right of certain members to participate in t, e no confidence motion but it is not the petitioner's case that the said persons were ineligible. The petitioner does not appear to have raised any dispute regarding the ineligibility of any of the 48 persons to whom notices were issued by the District Magistrate. He is now trying to take advantage of the contradictory pleas raised by the sixth respondent in order to rave himself from the difficult situation in which he finds himself. Obviously the petitioner finds that the action of the learned Civil Judge is unsupportable. He therefore, tries to rely upon untenable pleas raised by the sixth respondent in his petitions at Allahabad. We decline to entertain at the instance of the petitioner any plea relating to total membership of the Board as he never raised the same at any earlier stage. 20. He therefore, tries to rely upon untenable pleas raised by the sixth respondent in his petitions at Allahabad. We decline to entertain at the instance of the petitioner any plea relating to total membership of the Board as he never raised the same at any earlier stage. 20. The learned counsel now submits that once vacancy has been declared there is no power left in the State Government to nullify that vacancy and issue fresh notification recognising right of the sixth respondent to continue in the office of president. This takes us to the question whether the State Government was competent to correct an obvious error by rescinding its earlier notification dated 16th May 1991. In view of our finding that the total member-ship of the Board was 48 and the motion had not been carried by more than one-half of the total membership the sixth respondent could not be treated to have been ousted from office. On this finding the declaration of vacancy by notification dated 16th May 1991 was also illegal. By issuing the impugned notifications dated 13th August 1991, the State Government has corrected an obvious error. 21. Learned counsel for the petitioner is correct in submitting that the Act does not contain any specific provision empowering the State Government to nullify its earlier notification of vacancy. Section 21 of the U.P. General Clauses Act reads as follows :- "21. Where, by any Uttar Pradesh Act, a power to issue statutory instruments is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions, if any, to add, amend, vary of rescind and statutory instruments so issued." Section 47-A(a) of the Act requires the President against whom motion of no confidence has been adopted to resign within three days of the receipt of communication or to represent to the State Government to supersede the Board stating his reason therefor. The period of three days is to be computed from the receipt of communication of adoption of no confidence motion. In the present case no such communication was officially made to the petitioner. The period of three days is to be computed from the receipt of communication of adoption of no confidence motion. In the present case no such communication was officially made to the petitioner. Clause (b) of the same sub-section lays down that unless the president resigns under clause (a) he shall cease to hold office on the expiry of three days after the date of receipt of communication and thereupon a casual vacancy shall be deemed to have occurred in the office of the President within the meaning of Section 44-A, Section 56 provides that every vacancy in the office of member or president shall be notified in the official gazette. Accordingly the notification dated 16th May, 1991 is referable to Section 56 of the Act. In this manner the notification dated 16th May, 1991 is a statutory instrument. If Section 21 of the General Clauses Act applies the State Government would be competent to amend, vary or rescind this notification. Now the authorities on the basis of which the learned counsel excludes the applicability of Section 21 of the General Clauses Act may be noticed. 22. In State of Bihar v. D.N. Ganguly, AIR 1958 SC 1018 their Lordships were dealing with a notification issued by the Bihar Government whereby reference of an industrial dispute which was pending adjudication before an Industrial Tribunal constituted for the purpose was superseded. Reference of the dispute to the Industrial Tribunal had been made under Section 10(1)(d) of the Industrial Disputes Act, 1947. In paragraph 9 of the Report their Lordships have considered the scope of Section 21 and have observed :- "It is well settled that this section embodies a rule of construction and the question whether or not it applies to the provisions of a particular statute would depend on the subject-matter, context and the effect, of the relevant provisions of the said statute. In other words it would be necessary to examine carefully the scheme of the Act, its object and all its relevant and material provisions before deciding whether by the application of the rule of construction enunciated by Section 21, the appellant's contention is justified that the power to cancel the reference made under Section 10(1) can be said to vest in the appropriate Government by necessary implication. If we come to the conclusion that the context and effect of the relevant provisions is repugnant tote application of the said rule of construction, the appellant would not be entitled to invoke e assistance of the said section......" (Emphasised) 23. In the above paragraph their Lordships have laid down that Section 21 of the General Clauses Act will not operate where the scheme of the enactment runs counter tot he rule of construction laid down by that Section. We have, therefore, to see whether the scheme of the U.P. Municipalities Act runs counter to the rule of construction laid down in Section 21 of the General Clauses Act. 24. The Act under Section 56 required certain things to be notified. The things required to be notified are every election, every nomination of a member, election of President of a Board, the due constitution of the Board, and every vacancy occurring in the office of member or president. After making this provision the Act does not lay down either that the notification may be amended or rescinded or that it will not be amended or varied once it has been issued. Thus, the Act itself does not contain any prohibition against the amendment or rescission of notification issued under Section 56. In the absence of restriction on the power of amendment or rescission we see no reason to deprive the State Government of the exercise of power available under Section 21 of the General Clauses Act. 25. In D. N. Ganguly's case (supra) their Lordships' examined the scheme of the Industrial Disputes Act and found that after reference had been made and the same had become pending before the Industrial Tribunal the State Government ceased to have seizin of the case and it was the Tribunal who had the seize in and all orders up to the stage of termination of the reference could be passed only by the Tribunal except orders relating to impleadment of parties. No such scheme is discernible in the U.P. Municipalities Act. Therefore, by application of the law laid down in this case the State Government cannot be denied the power to rescind notification of vacancy. 26. Rajdendra Tripathi v. Deputy Director of Education Gorakhpur, (1976) 1 All LR 518, was a case which arose under the provisions of U.P. Intermediate Education Act, 1921. Therefore, by application of the law laid down in this case the State Government cannot be denied the power to rescind notification of vacancy. 26. Rajdendra Tripathi v. Deputy Director of Education Gorakhpur, (1976) 1 All LR 518, was a case which arose under the provisions of U.P. Intermediate Education Act, 1921. In this case the petitioner was promoted from L. T. Grade to Lecturer's Grade after his selection had been approved by the District Inspector of Schools. He commenced functioning as such.Two unsuccessful candidates made representations to the Regional Deputy Director of Education who directed the District Inspector of School to review and recall his order granting approval to the appointment of the petitioner. He also directed the Managing Committee to hold fresh selection. The District Inspector of Schools in obedience to the orders of the Regional Deputy Director recalled his order of approval and required the Managing Committee to hold fresh selection. This had the result of ousting the petitioner from the post to which he had been appointed with the approval of the District Inspector of Schools who was the competent authority to give the approval. The petitioner challenged the order of the Deputy Director as well as of the District Inspector of Schools passed in obedience thereto. Allowing the writ petition a learned single Judge of this Court held. "It is well settle principle that a public authority while exercising statutory powers is entitled to review its orders if it is satisfied that the order was obtained by fraud or misrepresentation. If an order is obtained by practising fraud or misrepresentation, the order is nullity and as such the authority concerned is empowered to review its order and pass afresh order. But in a case where the order is not obtained by fraud or misrepresentation the statutory authority has no jurisdiction to review its order unless provision to that effect is contained in the Act or the Rules". This case has no application to the facts of the present case. The Intermediate Education Act provides a forum for making representation against the order of the District Inspector of Schools granting the approval and also prescribes party who could avail of that forum. This case has no application to the facts of the present case. The Intermediate Education Act provides a forum for making representation against the order of the District Inspector of Schools granting the approval and also prescribes party who could avail of that forum. The forum, namely the Regional Deputy Director, was approached by the party who was not entitled under the Act to approach him and, therefore, the order of the Deputy Director was without jurisdiction and so was the order of the District Inspector of Schools. It is in this context that the above observations were made. According to the learned counsel this authority lays down the limitations on the exercise of the power under Section 21 of the General Clauses Act. He submits that the power under Section 21 can be exercised only when the earlier order had been obtained by fraud or misrepresentation. In our opinion, no such limitation can be read in the above authority. Reference to fraud and misrepresentation has been made on the facts of that case. It also needs to be pointed out that it was a case where the right of the petitioner to hold a post was affected. A person who was holding a post could not be deprived of that post without following the principles of natural justice. In our opinion, the power under Section 21 can always be exercised where there has been violation of a statutory provision at the stage of passing the earlier order or issuing the earlier notification. In the case on hand in view of our finding there was violation of statutory provision contained in Section 87-A(12). 27. The rule that an order once made cannot be reviewed in the absence of specific power in that behalf applied only to judicial and quasi-judicial orders as is apparent from the following observation made by their Lordships of the Supreme Court in State of U.P. v. Maharaja Dharmendra Prasad Singh, (1989) 2 SC Cases 505 : AIR 1989 SC 997 . "It is erroneous to equate the powers under Sections 14 and 15 of the Act with judicial power, which in the absence of express provisions, could not enable the review of a judicial order after its exercise on the principle of functus officio." (Paragraph-53) The exercise of power under Section 56 is not judicial or quasi-judicial. "It is erroneous to equate the powers under Sections 14 and 15 of the Act with judicial power, which in the absence of express provisions, could not enable the review of a judicial order after its exercise on the principle of functus officio." (Paragraph-53) The exercise of power under Section 56 is not judicial or quasi-judicial. It is purely administrative, rather ministerial, as the State Government just has to notify something which already exists. 28. AIR 1971 SC 2147 Municipal Board, Kannauj v. State of U.P. and AIR 1977 All 302 Har Pal Singh v. State of U.P. have no bearing on the facts of the present case as they deal with the power of the State Government under Section 34 (1 B). This provision empowers State Government prohibit the execution or further execution of a resolution or order passed or made under the Act by the Board or a committee of a board or a joint committee thereof or any officer or servant of a Board or of a Joint Committee. This provision does not deal with the power of the State Government to modify or rescind its own order or notification. 29. The learned counsel repeatedly submitted that the findings recorded by the Division Bench at Allahabad are binding upon the sixth respondent. There is no finding recorded by the Division Bench at Allahabad which disentitles the sixth respondent to continue in the office of the president. The argument of the learned counsel is, therefore, misconceived. 30. Much stress was laid by the petitioner's learned counsel on the conviction of the sixth respondent for contempt of Court. For committing contempt of this Court he has already been punished. Apart from punishment he has not been heard in one of the petitions. Even after convicting the sixth respondent for contempt the Division Bench proceeded to decide his last petition on merit. If his last petition could be heard and decided on merit, we see no reason to debar the sixth respondent from contesting the petitioner's claim raised in the present petition. In the present case Laxman Prasad is not petitioner but respondent. Even if we do not hear him the petitioner will be able to get relief only when he is able to show that the no confidence motion had been carried against the sixth respondent by the prescribed majority. This the petitioner has failed to establish. 31. In the present case Laxman Prasad is not petitioner but respondent. Even if we do not hear him the petitioner will be able to get relief only when he is able to show that the no confidence motion had been carried against the sixth respondent by the prescribed majority. This the petitioner has failed to establish. 31. Learned counsel for the petitioner as also vehemently submitted that neither he State Government nor the District Magistrate had the right to comment on the reservations of the Civil Judge who presided very the meeting held for consideration of he no confidence motion. We are unable to gree with the submission of the learned counsel. The learned Civil Judge was at that time not discharging judicial function. He as discharging only an administrative unction. If he did not act in accordance with he statutory provisions his action could be commented upon by the District Magistrate. The District Magistrate exercises some sort of control in the constitution and running of Municipal Boards. It is he who entertains the motion of no confidence motion and it is he who convenes the meeting for consideration of the motion and issues notices to the members. If on the question of membership error has been committed by the Civil Judge it could be commented upon by the State Government as well as by the District Magistrate. However, in the present case we are not concerned with the propriety of the comment. We are concerned with enforcement of law as contained in the Act. 32. In view of the above, the petition lacks merit and is hereby dismissed but without any order as to costs. Interim order is discharged.