JUDGMENT V. GOPALA GOWDA, C.J. - Challenge in this writ petition by the petitioner is to the legality of the notice of special meeting to move no - confidence motion issued by the Collector, Dhenkanal on 12.10.2010 under the Orissa Municipal Act, 1950 and the Rules framed thereunder on the ground that the said notice of meeting to move no-confidence motion against the petitioner on the basis of requisition submitted by opposite party Nos. 5 to 10 along with the proposed resolution dated 1.10.2010 against him to the Collector on 6.10.2010 has been submitted by invalid and disqualified councillors. 2. It may be mentioned here that the writ petition was earlier heard by a learned Single Judge of this Court and by judgment dated 13.7.2011 on an analysis of fact and the law, the learned Single Judge dismissed the writ petition holding that there is no illegality in the notice issued for special meeting for moving No-confidence Motion against the petitioner and directed publication of the result of the No-confidence Meeting. Being aggrieved by the said decision, the petitioner filed RVWPET No. 152 of 2011. While making submission, the learned counsel for the review petitioner brought to the notice of the learned Single Judge that the matter related to No-Confidence Motion against the petitioner-Chairperson of the N.A.C., Bhuban under the Orissa Municipal Act, 1950 and, therefore this writ petition cannot be heard by a learned Single Judge as per the assignment of roster. The learned single Judge referred to the decision of this Court in the case of Sri Darasingh Kumbhar v. State of Orissa and two others, 2004 (II) OLR 707 - where it was categorically laid down the law that a matter to be dealt with by a Division Bench if has been disposed of by a learned Single Judge, the said judgment is without jurisdiction and is liable to be set aside. Holding that at the time of hearing it was not brought to the notice of the Court that the matter should be dealt with by a Division Bench and the judgment, was passed erroneously, the leaned Single Judge vide order dated 23.2.2012 passed in the review petition recalled the judgment dated 13.7.2011 which was sought to be reviewed in its entirety along with all orders passed earlier; and directed the Registry to place the matter before the assigned Division Bench. That is how, this writ petition is listed before this Bench. 3. Before proceeding further, it would be necessary to narrate the brief facts leading to filing of this writ petition which are as under : On 19.9.2008 election to the office of the Chairperson of Bhuban Notified Area Council of Dhenkanal district was held and the petitioner was elected as the Chairperson. The allegation of the petitioner is that on 1.10.2010, six out of the total number of 15 councillors moved a no-confidence proposal against him and submitted a requisition to the Collector on 6.10.2010 along with the proposal dated 1.10.2010. Pursuant to such requisition sent along with the proposal, the Collector issued notice on 12.10.2010 to all the 15 councillors to attend the meeting to be held on 10.11.2010 in the meeting hall of the Bhuban N.A.C. to move no confidence motion against the petitioner. The allegation of the petitioner is that on 12.10.2010 the Chairman of the NAC in an adjourned meeting vide resolution No. 6(1), disqualified O.P. No. 10 (Councillor) in presence of other three councillors, pursuant to which resolution, the Executive Officer, Bhuban NAC requested the O.P. No. 2, Director, Municipal Administration to take necessary action regarding disqualification of O.P.10 (Councillor), which is pending and no action till date has been taken by the Director, Municipal Administration. Challenging the same, opposite party No.10 filed W.P.(C) No. 18087 of 2010 in this Court .which was subsequently withdrawn on 29.10.2010 to take recourse to Section 38 of the OMC Act. The petitioner preferred the present writ petition, i.e. W.P.(C) No. 18662 of 2010 on 29.10.2010. On 30.10.2010 O.P. No. 10 filed Election Misc. Case No. 265 of 2010 before the learned District Judge, Dhenkanal which was subsequently dismissed, as the opposite party No.10-the petitioner therein did not press the same any further. The opposite party Np.10 had also filed another Election case, i.e. Election Misc. Case No. 232 of 201 o before the District Judge, Dhenkanal against O.Ps. 5 and 6, which was also subsequently dismissed, as the opposite party No.10-petitioner therein did not press the same any further. The opposite party Np.10 had also filed another Election case, i.e. Election Misc. Case No. 232 of 201 o before the District Judge, Dhenkanal against O.Ps. 5 and 6, which was also subsequently dismissed, as the opposite party No.10-petitioner therein did not press the same any further. On 9.11.2010 this Court issued notice in the writ petition and passed interim direction to the effect that "No Confidence Motion" pursuant to the notice dated 12.10.2010 scheduled to be held on 10.11.2010 may be held but result thereof shall not be published by the Collector, Dhenkanal without leave of this Court. It is the case of the petitioner that O.P. No. 10 did not attend four consecutive meetings of the Council held on 1.6.2010, 9.9.2010/14.9.2010, 24.9.2010/28.9.2010 and 8.10.2010/12.10.2010 and, therefore, he ceased to hold the office of Councillor from 13.10.2010 under Section 17(i) of the Act and he had no locus standi to file Election Misc. Case No. 232 of 2010. It is the further case of the petitioner that the opposite party Nos. 5 and 6 incurred disqualification under Section 16(1)(viii) of the Act and were liable for disqualification under Section 8 of the Act. When the proceedings under Section 38-A were commenced by the Government, opposite party No. 10 filed Election Misc. Case No. 232 of 2010 with a prayer that the election of Ward Nos. 1 and 5 may be declared as void. However, such petition was dismissed as indicated earlier. It is further alleged that opposite party nos. 5 and 6 were disqualified as Councillors as they had subsisting contracts with the NAC Opposite party Nos. 8 and 9 having resigned, they were no more Councillors of the NAC. The case of the petitioner is that out of the six Councillors who moved the vote of No-Confidence, opposite party Nos. 5 and 6 were disqualified as Councillors as-they had subsisting contract with the NAC and opposite party No.10 was disqualified having not attended four consecutive meetings of the NAC and opposite party Nos. 8 and 9 have tendered resignation which have been accepted. Since opposite party Nos. 5 and 6 were not qualified to be elected as a Councillors of the NAC on account of disqualification suffered under Section 16(1)(viii) of the Act, there was a statutory bar for them to contest the election of the council of the said NAC. 8 and 9 have tendered resignation which have been accepted. Since opposite party Nos. 5 and 6 were not qualified to be elected as a Councillors of the NAC on account of disqualification suffered under Section 16(1)(viii) of the Act, there was a statutory bar for them to contest the election of the council of the said NAC. They suppressed the relevant factual aspect and gave false declaration to the Returning Officer while submitting their nomination. Hence, their election is void ab initio in law and, hence, they could not have continued as the Councillors and even if they have signed the requisition notice dated 1.10.2010, the same could not be taken into consideration by the District Collector to count that 1/3rd of the total strength of 15 Councillors have signed the requisition to move no confidence motion against the petitioner. Hence, the requisition submitted by the requisitionist to the District Collector, is not valid. On the basis of the said fact, the District Collector should not have issued the notice for special meeting to the councillors of NAC under Section 54(2) of the Act to consider the proposed resolution of no confidence motion against the petitioner. 4. Counter-statement on behalf of opposite party No.3-District Collector being sworn to by the Deputy Collector, (Gen. & Misc.), Dhenkanal, has been filed in this writ petition. The allegation of the petitioner that the notice for special meeting of no confidence motion to be moved against the petitioner was issued by invalid and disqualified Councillors has been denied in the counter statement stating that the above concerned councillors have not been declared as disqualified by either the Election Tribunal or State Government as per the provisions of the Act. It is further stated that this Court in Misc. Case No. 16904 of 2010 arising out of W.P.(C) No.1089 of 2010 has directed opposite party Nos. 8 and 9 to continue till disposal of the misc. case. No comment has been offered with regard to the averments made in paragraphs 3 to 7 of the writ petition. With regard to the allegation petition of Tiku Nayak and Ajay Kumar Sethi as averred in paragraph 8 of the writ petition, it is submitted in the counter affidavit that those allegations of the writ petition were referred to opposite party No.3 for enquiry and submit report. With regard to the allegation petition of Tiku Nayak and Ajay Kumar Sethi as averred in paragraph 8 of the writ petition, it is submitted in the counter affidavit that those allegations of the writ petition were referred to opposite party No.3 for enquiry and submit report. Opposite party No.3 submitted report to opposite party No.2 for consideration and the same is under consideration. In paragraph 7 of the counter statement the fact of acceptance of the resignation tendered by opposite party Nos. 8 and 9 vide resolution dated 12.10.2010 has been accepted but then it is stated that the same has been suspended by the State Government represented by Housing and Urban Development Department vide letter No. 23706 dated 1.12.2010 vide Annexure-C/3. With regard to the allegation made in paras 16 to 20 of the writ petition, it is submitted that the mater of disqualification of opposite party Nos. 5 and 6 is subjudice in the Court of learned District Judge vide Misc. Case No. 265 of 2010 and their disqualification under Section 38A is subsequent to the no confidence motion requisition submitted by them to the District Collector and, therefore, it has no relevance with regard to the validity of the requisition. Therefore, the same will not come in the way, of the District Collector to issue the notice to the councillor for special meeting. It is on record that a memo was filed on 2.5.2011 along with copy of the order No.10403 issued by the Housing and Urban Development Department dated 25.4.2011 under which the State Government cancelled the council resolution No.5 and 6 (1) dated 12.10.2010 of the Bhuban NAC accepting the resignation of opposite party Nos. 8 and 9 and disqualifying opposite party No.10. In that view of the matter, the contention urged by Mr. Y. Das, learned senior counsel on behalf of the petitioner that requisition submitted to the District Collector by invalid and disqualified Councillors, is wholly untenable in law and cannot be accepted by this Court. 5. Separate counter affidavit has also been filed on behalf of opposite party Nos. 1 and 2 sworn to by the Under Secretary to Government, Housing and Urban Development Department. 5. Separate counter affidavit has also been filed on behalf of opposite party Nos. 1 and 2 sworn to by the Under Secretary to Government, Housing and Urban Development Department. In the said counter affidavit, it is inter alia stated that the Notified Area Council has no power under the Orissa Municipal Act, 1950 and rules framed thereunder to declare any elected Councillor of the Urban Local Body as disqualified, as the same power lies with the District Judge concerned under Section 38(3) and the Government in the Housing and Urban Development Department under Section 38-A of the Act. It is stated in the counter affidavit that the matter regarding disqualification of opposite party Nos. 5 and 6 are now pending for decision with the District Judge, Dhenkanal in Election Misc. Case No. 265 of 2010 and, hence as per the aforesaid provision of the Act, opposite party Nos. 1 and 2 have no scope at this stage to take decision for their disqualification. It is further stated that in view of the provision in Section 17 of the Orissa Municipal Act, the councillorship of opposite party No.7 cannot be declared as void. It is stated that no petition praying to disqualify opposite party Nos. 5 and 6 was filed before the District Judge upto August, 2010. The issue was raised only when the proposal for no confidence was mooted by filing petition before opposite party No.2 and also Election Petition No. 265 of 2010 was filed before the District Judge, Dhenkanal which is sub-judice. It is further submitted that pending such decision, the Councillor shall be entitled to act as if they are not disqualified and the State Government has no scope to take any decision in the said allegation under Section 38-A of the Orissa Municipal Act. 6. Counter affidavit has also been filed on behalf of opposite party Nos. 5, 6 and 7 denying the allegations made in the writ petition against them. Their specific case is that they had no subsisting contract with the NAC. The work order which was alleged to have been executed by them is in relation to the work which was to be executed from out of the MLA LAD and MP LAD fund and the Bhuban NAC has simply asked them to execute the work but it had not disbursed any funds for the execution of the said work to them. On the request of the local public, opposite party Nos. 5 and 6 looked after the contract on behalf of the executing authority. In that view of the matter, their contention is that the execution of that work will not come under the disqualification clause of Section 16(1)(vii) and Section 17(d) of the Act. Therefore, it is contended by them that they were not disqualified to contest the election in respect of the councillors of the NAC. It is further stated by them that they were not interested in any subsisting contract given by the NAC. If at all they were interested in any work, they cannot be declared as disqualified unless and until they were declared as such by the competent authority in exercise of power under the relevant provisions of the Act and till then they will be taken as valid members. Opposite party No.10 has also filed a counter affidavit mainly denying the allegation of not attending four consecutive meetings of the councilor NAC. Since an attempt has been made by the petitioner to disqualify him on the false allegation of not attending four consecutive meetings of the council, he has approached the District Judge, Dhenkanal praying pot to disqualify him which has been registered as Misc. Case No. 265 of 2010. As per Section 38 of the Act, he has also filed Election Misc. Case No. 265 of 2010 which is pending. His case is that on 1.6.2010 he was absent. He was on leave from 6.9.2010 to 30.9.2010 with intimation to the petitioner and other authorities of the NAC with request not to take any decision of the NAC during the said period. However after Earning that the meeting scheduled for 24.9.2010 has been adjourhed to 28.9.2010, he came along with other councillors to attend the meeting but was obstructed by the petitioner and his henchmen from attending the meeting. For the aforesaid act, one Indramani Mohapatra has lodged FIR before IIC, Bhuban. Councillor Khageswar Sethy also filed objection before the Executive Officer of the NAC. The further case of opposite party No.10 is that challenging the letter dated 12.10.2010 issued by the Executive Officer, NAC, Bhuban. On 29.10.2010, the said writ petition was disposed of as withdrawn to take recourse to Section 38 of the Orissa Municipal Act, 1950. On 30.10.2010 he filed Election Misc. The further case of opposite party No.10 is that challenging the letter dated 12.10.2010 issued by the Executive Officer, NAC, Bhuban. On 29.10.2010, the said writ petition was disposed of as withdrawn to take recourse to Section 38 of the Orissa Municipal Act, 1950. On 30.10.2010 he filed Election Misc. Case No. 265 of 2010 before the District Judge, Dhenkanal which is now pending. Under Sub-section (3) of Section 38, pending such decision the Councillor shall be entitled to act as if• he were not disqualified. In view of the above he cannot be treated as disqualified. Since the resolution and requisition for moving the no-confidence motion against the petitioner has been legally moved against the petitioner by valid and requisite number of members of the Council the same cannot be said to be un-sustainable in the eye pf law. Opposite party Nos. 8 and 9 have also filed a separate counter affidavit. Their case is that they have not tendered any resignation from the Councillorship and the alleged resignation is a manufactured and fraudulent one manipulated at the behest of the petitioner with a view to fake untenable defence regarding the proposed no confidence motion to be moved against him. Coming to Know of such fraudulent resignation; they lodged objection before the Executive Office Bhuban NAC; Pursuant to the notice dated 10.10.2010 published by the Executive Officer of the NAC in Oriya daily, the "Khabar", they have filed their of objection and affidavit before the Executive Officer and they have also got published news item in Odisha Bhaskar dated 12.10.2010 declaring that they have never tendered resignation from membership of the Council and the so called resignations are false and fabricated. 7. Mr. Y Das, learned senior counsel for the petitioner questioned, the legality of the impugned notice issued by the District Collector for convening the special meeting to move the no-confidence motion against the petitioner on the basis of the requisition submitted by opposite party Nos. 5 to 10. He submitted that opposite party Nos. 5 and 6 were disqualified to hold the elected office in view of Section 16(1)(viii) of the Act as they had undisputedly had contract work with the NAC, Bhuban at the time of filing nomination for contesting the election. 5 to 10. He submitted that opposite party Nos. 5 and 6 were disqualified to hold the elected office in view of Section 16(1)(viii) of the Act as they had undisputedly had contract work with the NAC, Bhuban at the time of filing nomination for contesting the election. Therefore, they were ineligible to contest in the election and continue in office after their election as they had kept back their statutory ineligibility from the election office to contest in the election by giving wrong declaration in the nomination papers and the affidavits dated 21.8.2008 and 23.8.2008 which nullifies the election as ab initio void. In support of this contention, he has placed reliance upon the judgment of the Supreme Court in the case of K. Venkatachalam v. A. Swamickan and another, reported in (1999) 4 SCC 526 paragraphs 24 to 28 in support of the legal proposition that if a person lacked the basic qualification under Clause (c) of Article 173 of the Constitution read with Section 5 of the Representation of People Act, 1951 which mandated that a person to be elected from an Assembly Constituency has to be an elector of that constituency. In the said case though the election was never challenged by filing election petition under Section 81 of the Representation of People Act, the said person knew that he was disqualified. With regard to interpretation of Article 226, in paragraph 27 the apex Court observed that Article 226 is couched in the widest possible terms and unless there is a clear bar to jurisdiction of the High Court its power under Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief. In the circumstances of that case, it was further observed that the bar of Article 329(b) of the Constitution will not come into play when the case falls under Articles 191 and 193 and the whole of the election process is over. Consider the case where the person elected is not a citizen of India, would the Court allow a foreign citizen to sit and vote in the Legislative Assembly and in circumstances whether the High Court would decline to exercise power under Article 226 of the Constitution or not. Consider the case where the person elected is not a citizen of India, would the Court allow a foreign citizen to sit and vote in the Legislative Assembly and in circumstances whether the High Court would decline to exercise power under Article 226 of the Constitution or not. Further he has placed reliance upon the judgment of the Supreme Court in the case of Ramachandra Ganpat Shinde and another v. State of Maharashtra and others reported in (1993) 4 SCC 216 to substantiate his contention that Section 16(1) (viii) is a clear legal bar for the opposite party Nos. 5 and 6 to contest in the election and get elected as Councillors of the NAC. Whether such person initiating proceedings by submitting requisition to move no-confidence motion against the petitioner is renderep. illegal from inception as their election itself is void, non-existent in the eye of law. Therefore, initiation of the proceedings from the inceptionls-bad in law. He has further placed reliance on the judgment of the Supreme Court in A.V. Payappa Sastry and others v. Government of A.P. and others, (2007) 4 SCC 221 in support of the proposition of law that opposite party Nos. 5 and 6 played fraud upon the election officer by suppressing the relevant material fact of having contract work with the NAC, Bhuban. Therefore, the process of no confidence motion continues to be void. He has also placed reliance on the judgment of the Supreme Court in the case of Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj Developers and others, (2003) 6 SCC 659 in support of his contention that two principles of construction one relating to casus omissus and the other in regard to reading the statute as a-whole to achieve the object and intendment of the Act appear to be well settled. The aforesaid legal submission is made in support of his contention that the statutory voidness of the election of opposite party Nos. 5 and 6 to the Councillorship of Bhuban NAC as on the date of submission of their nomination they were statutorily debarred to contest. Non-disclosure of the relevant material fact of having contractual relationship with the NAC debars them to contest. 5 and 6 to the Councillorship of Bhuban NAC as on the date of submission of their nomination they were statutorily debarred to contest. Non-disclosure of the relevant material fact of having contractual relationship with the NAC debars them to contest. Though there is no statutory provision in the OMC Act that getting elected as councillors on account of non-disclosure of such material fact, the election would be ab initio void, those missing words can be read into the statutory provision by applying the interpretation principle regarding "casus omissus" with a view to achieve the object and intendment of the Act, as held by the Apex Court in the case referred to supra, and proposed resolution to be passed against the petitioner, opposite party Nos. 5 and 6 continued as the Councillors. Hence the contention urged by Mr. Y. Das, learned senior counsel is wholly untenable in law. In so far as the resignation of opposite party Nos. 8 and 9 is concerned, the resolution of the NAC in this regard has been cancelled by the Government. Therefore, the resignation of the Councillors was not accepted. In so far as resolution passed against O.P. No. 1 is concerned in removing him from the membership of the Council, has also been cancelled by the Government in exercise of its statutory power mentioned above. In that view of the matter, the contention of the petitioner is not factually correct and legally not tenable. Hence, the same are liable to be rejected. 9. Aforesaid submission is endorsed by Mr. J. Patnaik, learned Senior Advocate appearing on behalf of the opposite parties 5 to 10 strenuously contending that the legal contention urged on behalf of the petitioner placing reliance upon Section 16(1)(viii), is wholly untenable in law and further contended that the ground for setting aside the election of the elected members of the N.A.C., viz. opposite parties 5 and 6 who are alleged to be interested in subsisting contracts of NAC may be available but that by itself does not prohibit them from moving the no confidence motion against the petitioner until their membership to the councillorship of NAC is declared as null and void by the competent Election Tribunal under the provisions of the Act. That has not been done in the instant case as on the date of submission of requisition to the District Collector against the petitioner. That has not been done in the instant case as on the date of submission of requisition to the District Collector against the petitioner. Therefore, the legal contention urged by the learned Senior Counsel on behalf of the petitioner is wholly untenable in law. In respect of the alleged admission made by the O.Ps. 5 and 6 that they had subsisting contract as on the date of contesting election, is a misreading of the affidavit, which is not factually correct. Even admitting that they had subsisting contract with the NAC their election was not declared as null and void as on the date of submission of the requisition to the District Collector proposing to move the "No confidence motion against the petitioner", the same is valid in law. Therefore, he has prayed for dismissal of the writ petition. 10. With reference to the above said rival legal contentions, following points would arise for consideration of this Court. (i) Whether the requisition along with the proposed resolution by the opposite parties 5 to 10, i.e. out of 15 members of the NAC to the District Collector to move "no confidence motion" against the petitioner, is a valid requisition? (ii) Whether the opposite parties 5 and 6 suffered disqualification under Section 16(1)(viii) for making wrong declaration in their nomination forms suppressing material aspect that as on the date of filing of nomination they had subsisting contract of work with the NAC and therefore their councillorship is void ab initio even though such declaration is not made in election dispute under Section 38 or the State Government has not removed them from Membership of the Council in exercise of its power under Section 38-A of the Act? (iii) Whether there is any statutory voidness of the election of opposite party Nos. 5 and 5 as Councillors of the NAC under Section 16(1)(viii) of the OMC Act? (iv) What order? 11. The aforesaid points are inter-related with each other. Therefore, they are answered together against the petitioner by assigning the following reasons. 12. It is an undisputed fact that the opposite parties 5 and 6 were elected as Councillors of Bhuban NAC in the election held in on 19.9.2008. It is also an undisputed fact that the no-confidence proposal was moved on 1.10.2010. The election of opposite party Nos. Therefore, they are answered together against the petitioner by assigning the following reasons. 12. It is an undisputed fact that the opposite parties 5 and 6 were elected as Councillors of Bhuban NAC in the election held in on 19.9.2008. It is also an undisputed fact that the no-confidence proposal was moved on 1.10.2010. The election of opposite party Nos. 5 and 6 was neither challenged under Section 38 or 38-A of the Act till the proposal for no - confidence was moved. The legal contention urged by Mr. Y. Das, learned Senior Counsel appearing on behalf of the petitioner is that the elected councillors (O.Ps. 5 and 6) had subsisting contract of works with the Notified Area Council of Bhuban on the date of filing of their nomination and therefore they were statutorily disqualified under Section 16(1)(viii) of the Act from contesting the election for membership of the Council. 5 and 6) had subsisting contract of works with the Notified Area Council of Bhuban on the date of filing of their nomination and therefore they were statutorily disqualified under Section 16(1)(viii) of the Act from contesting the election for membership of the Council. Let us know what Section 16(1)(viii) of the Act provides which reads as follows: (viii) is interested in a subsisting contract, either directly or indirectly made with or any work being done for the Municipality, except as shareholder in a registered joint stock company or co-operative society, constituted under the laws for the time being in force; Provided that a person shall not be deemed to have any interest in such contract or work by reason only of his having share or interest in – (a) any lease, sale or purchase of immovable property or any agreement for the same; or (b) any agreement for the loan of money or any security for the payment of money only; or (c) any news paper in which any advertisement relating to the affairs of the Municipality is nor may be inserted; or (d) the sale to the Municipality of any article in which he regularly trades or the purchase from the Municipality of, any article to a value of in either case, not exceeding fifteen hundred rupees in the aggregate, in any year during the period of the contract or work;" Section 17 of the Act deals with disqualification of Councillor which provides that a Councillor shall cease to hold his office he subject to the proviso to Clause (viii) of Sub-section (1) of Section 16, quoted above, acquire any interest in any subsisting contract, either directly or indirectly made with or work, being done for, the Municipality except as share-holder in a registered joint-stock company or a co-operative society, constituted under the laws for the time being in force. The second proviso to Clause (viii) of Subsection 16 clearly stipulates that if any question arises, either before or after an election whether any person is or not disqualified under the said clause, the question shall be referred to the State Government whose decision shall be final. The second proviso to Clause (viii) of Subsection 16 clearly stipulates that if any question arises, either before or after an election whether any person is or not disqualified under the said clause, the question shall be referred to the State Government whose decision shall be final. The provision of Section 17 is subject to the provisions of Section 38 which says that whenever any person, who has been elected as Councillor is disqualified under Section 16 or 17 and such person does not admit the allegation or whenever any Councillor himself is in doubt, whether or not he has become disqualified for office under Section 16 or 17, such Councillor or any other Councillor may, and the Chairperson at the request of the Municipality shall apply to District Judge of the district in which the Municipality area is situated. On such application being made, the District Judge after making such inquiry as he deems necessary shall determine whether or not such person is disqualified under Section 16 or 17 and his decision shall be final. Sub-section (3) of Section 38 says that pending such decision, the Councillor shall be entitled to act as if he were not disqualified. It may be stated here that Election Misc. Case No. 265 of 2010 was filed by opposite party No.10 after 29.10.2010 after withdrawal of Writ Petition No. 18087 of 2010 filed by him in this Court. Therefore by the time the proposal for no-confidence motion was moved, neither any action under Section 38 or Section 38-A had been initiated by any Councillor against opposite party Nos. 5 and 6. No decision had also been taken by the District Judge whether or not opposite party Nos. 5 and 6 were disqualified. Therefore, in view of Sub-section (3) of Section 38 they were entitled to act as if they were not disqualified. Similarly due to pendency of petition under Section 38, the State Government could not take any decision with regard to the disqualification of opposite party Nos. 5 and 6 by the time the no-confidence motion was proposed and passed. 13. From a careful reading of the decision of the apex Court in Shiv Shakti Co-op. Similarly due to pendency of petition under Section 38, the State Government could not take any decision with regard to the disqualification of opposite party Nos. 5 and 6 by the time the no-confidence motion was proposed and passed. 13. From a careful reading of the decision of the apex Court in Shiv Shakti Co-op. Housing Society (supra) upon which reliance has been placed by the learned counsel for the petitioner with regard to the interpretation of Sections 16(1)(viii) of the Act, it is clear that the statutory provision must be given the interpretation by this Court to achieve the intent and object of the enactment. In Shiv Shakti Co-op. Housing Society the apex Court has held that "casus omissus" shall be applied while interpreting statutory provision of the Act to achieve the object of the Act. Mr. Das, learned Senior Counsel contended that as per the statutory provision (supra) the O.Ps. 5 and 6 were not qualified to contest the election to the seat of councillor of Bhuban NAC as they had subsisting contract as on the date of submission of the nomination and, therefore, their election is void ab initio in law. The above said contention of the learned Senior Counsel cannot be accepted by this Court for the reason that the election of O. Ps. 5 and 6 to the seats of councillors may be void for tt1e reason that they had subsisting contract with the Bhuban NAC on the date of submission of nomination by them but they were permitted to contest the election, got elected and their election' on the ground available under Section 17(d) of the Act that they were disqualified to contest in the election for the seat of councillors was not immediately challenged either by the unsuccessful candidates or any voter by filing election dispute before the learned District Judge under Section 38 of the Act or moving the State Government seeking disqualification of their membership on the ground that they were statutorily disqualified to contest in the election. Such declaration cannot be said to be automatic. It will only be done after following the provisions of the Act referred to above. Therefore, their election as councillors of Bhuban NAC cannot be said to be void ab initio in law by this Court in this proceedings. Such declaration cannot be said to be automatic. It will only be done after following the provisions of the Act referred to above. Therefore, their election as councillors of Bhuban NAC cannot be said to be void ab initio in law by this Court in this proceedings. In the case on hand, the order passed under Section 38-A of the Act by the State Government subsequent to the passing of the no confidence motion has been stayed by the District Judge in the proceeding under Section 38 which stay order is still in force. Therefore, they are entitled to subscribe their signatures to the requisition submitted to the District Collector proposing to move no confidence motion against the petitioner with the proposed resolution. Hence, the legal contention urged by Mr. Y. Das, learned Senior counsel for the petitioner that opposite party Nos. 5 and 6 were statutorily disqualified under Section 16(1)(viii) of the Act and their election is void ab initio in law and the requisition submitted to the District Magistrate inter alia signed by them is not tenable in law under Section 54, cannot be accepted by this Court as the said contention is wholly untenable in law. Therefore, subscribing their signatures to the requisition submitted by them to the District Magistrate to call for the meeting to move 'No confidence Motion' against the petitioner and on the basis of the said requisition convening a special meeting of the NAC under Section 54(2) of the Act by him to move the no confidence motion against the petitioner is perfectly legal and valid. The motion of no confidence moved on the basis of the requisition and no confidence motion notice issued by the Collector and passing of the resolution against the petitioner are perfectly legal and valid which do not call for our interference in this proceeding. 14. Reliance placed by Mr. Y. Das, learned senior counsel for the petitioner, on the decision in K. Venkatachalam (supra) is of little assistance because in that case not only the appellant lacked the basic qualification of being an elector of the constituency from which he was elected as required by the Constitution, he also impersonated another person in his nomination for which he was also criminally liable. From the finding recorded by the High Court the apex Court found that the appellant in his nomination form impersonated a person known as "Venkatachalam, s/o. Pethu" taking advantage of the fact that such a person bears his first name and if in such circumstances he was allowed to continue to sit and vote in the Assembly his action would be a fraud on the Constitution. In the case of Ramchandra Ganpat Shinde (supra), relied on by the learned Senior Counsel for the petitioner, a collusive order obtained by abuse of the process of the High Court by playing fraud On the Court because foundation to conduct elections to the Managing Committee of the Society circumventing the mandate of Rule 4(1) of the Maharashtra Specified Co-operative Societies Election Rules, 1971. The apex Court held that election based on High Court's order obtained by abuse of judicial process is contrary to statutory provision. The erroneous order can only be corrected by the High Court itself or on appeal by the Supreme Court. Hence reliance on the above decision is misconceived. Learned senior counsel for the petitioner has also placed reliance on A.V. Papayya Sastry (supra) wherein it was held that a judgment, decree or order obtained by playing fraud on the Court, tribunal or authority is a nullity and non est in the eye of law. Such a judgment, decree or order by the first Court or by the final Court has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or-even in collateral proceedings. In the case at hand, no such judgment, decree or order has been obtained by playing fraud on Court and therefore the decision is of no assistance to the petitioner. 15. On a careful reading of the provisions of Sections 16 (1)(viii), 17(d), 38 and 38-A of the Act, it is abundantly clear that there is no statutory voidness under Section 16(1)(viii) of the Act if a member of the Council who has suffered disqualification under the above provision of the Act at the time of filing nomination to contest in the election to the Councillorship of N.A.C./Municipality his/her election as member of the NAC/Municipality shall be statutorily void without there being challenge to the election of such councillorship of the NAC/Municipality. Therefore, we do not find any good reason whatsoever to interfere either with the impugned notice or the resolution passed against the petitioner. We are, therefore, of the view that the writ petition is liable to be dismissed and is accordingly dismissed. Consequently, the interim order of this Court staying the resolution which has been passed on 10.11.2010 is dissolved. The opposite parties are directed to proceed further in the matter in accordance with the resolution passed in the No-confidence Motion meeting held on 10.11.2010. I agree Petition dismissed