ORDER S.C. Mathur, A.C.J.
1. By our short order dated 5th July, 1993 we had dismissed this writ petition reserving reasons. We now proceed to give the reasons.
2. Sri Shyama Charan Gupta, Mayor of Allahabad has directed this petition against entertainment of notice of motion of no confidence by the Commissioner, Allahabad Division. His plea is that earlier also motion of no confidence was brought against him but the same was lost on 14th February, 1992 and since then two years have not elapsed and, therefore, the present notice is incompetent and illegal in view of the law contained in the Uttar Pradesh Nagar Mahapalika Adhini' yam, 1955 (U.P. Act No. 2 of 1959), for short Act.
3. For deciding the controversy raised in the petition only a few facts stated therein need to be stated.
4. Sri Shyama Charan Gupta was elected Mayor on 28th August, 1989. On 18th April, 1991 notice of no-confidence motion against him was given by some Corporators to the Commissioner, Allahabad Division.
The Commissioner fixed 21st May, 1991 for consideration of the motion. The meeting started on this date but on account of surcharged atmosphere the Presiding Officer adjourned the meeting. 5th June, 1991 was fixed as the date of the adjourned meeting. The Mayor Sri Shyama Charan Gupta filed Writ Petition No. 15844 of 1991 to challenge fixation of the date. It appears that one of the grounds raised was that on 21 st May, 1991 the quorum was not complete and, therefore, the motion of no confidence brought against him had to be treated as lost. On the application for interim relief this Court directed that meeting may be held and votes may be cast by secret ballot but the result of the voting will not be declared till further orders of the Court. Since the holding of meeting was not stayed by this Court the meeting was held and votes were cast. This Court by judgment and order dated 31st January, 1992 allowed the writ petition in part and quashed the proceedings dated 5th June, 1991. The District Judge was directed by this Court to fix date and time of the adjourned meeting, 14th February, 1992 was fixed as the date of adjourned meeting and motion of no confidence was taken up on that date but was declared lost for want of quorum. On 5th June, 1993 fresh notice of motion was presented to the Divisional Commissioner by a few Corporators. Before the Commissioner could fix a date on this notice for consideration of the motion of no confidence the Mayor Sri Shyama Charan Gupta and a Corporator Sri Raghuraj Kishore Mishra filed the instant petition impleading initially (1) the State of U. P. through the Principal Secretary, Local Self Government, Lucknow;
(2) the Commissioner, Allahabad Division and (3) the Additional Commissioner (Admn.) Allahabad Division, Allahabad and subsequently, through amendment implead-ing the Corporators who sponsored the notice of no confidence motion namely; (4) Jamuna Prasad; (5) Sri Saiduddin Siddique; (6) Sri Salamat Ali; (7) Sri Master Munni Lal (8) Sri Ram Babu Agrahari; (9) Sri Bodhi Lal, and (10) Sri Athar Raza Ladly, claiming the following reliefs:
"(i) a writ, order or direction in the nature of certiorari quashing the telex order dated 14-12-1992, Annexure II;
(ii) a writ, order or direction in the nature of certiorari quashing the order/letter of respondent No. 3 dated 18th June, 1993, Annexure IV;
(iii) a writ, order or direction in the nature of mandamus commanding the respondents not to issue notice fixing date of meeting for consideration of motion of no confidence submitted to respondent No. 2 on 5th June, 1993; and
(iv) a writ, order or direction in the nature of mandamus commanding the respondents not to interfere with the functioning of petitioner No. 1 as Nagar Pramukh (Mayor) Nagar Mahapalika, Allahabad."
5. Through interim order the Commissioner was sought to be restrained from fixing date for consideration of the motion of no confidence. There was no interim order accordingly the Commissioner by notice dated 25th June, 1993 fixed 6th July, 1993 as the date for consideration of the motion of no confidence. The writ petition ultimately came up for hearing as regards admission on 5th July, 1993, when, after hearing Sri L. P. Naithani, learned counsel for the petitioners and ShriJ. N. Tiwari, learned counsel for the subsequently added Corporators, we dismissed the writ petition reserving reasons.
6. From the above facts, it would be seen that the impugned notice of motion dated 5th June, 1993 has indeed been given within two years of the loss of the earlier motion of no confidence. Now we may examine the provisions of the Act to determine the legality of the notice.
7. Section 15(1) prescribes the term of office of the Mayor and Deputy Mayor; it lays down that the term is conterminous with the term of the Mahapalika (Municipal Corporation). Sub-section (3) lays down that unless the Mayor or Deputy Mayor resigns or ceases to be qualified or becomes disqualified, he continues in office until his successor assumes office. Section 16 provides for motion of no-confidence against Deputy Mayor. The original Act did not contain any provision for the ouster of Mayor by adoption of motion of no-confidence. Such a provision was made by amendment of the Act through U.P. Act No. 41 of 1976 which became effective from 15th Sept., 1976. Through this amending Act, Section 15-A was added which made Section 16 applicable to the office of Mayor also. Thus with effect from 15th Sept., 1976 right was conferred upon the Corporators to oust Mayor also from office by adoption of motion of no-confidence. Section 16 prescribes in detail the procedure for giving notice of motion, fixing date of meeting for consideration of the motion and other matters. Sub-section (16) as originally enacted was as follows:--
"If the motion is carried as aforesaid, or if the meeting cannot be held for want of quorum, no notice of any subsequent motion of no-confidence for the same U.P. Nagar Pramukh, shall be received until after expiry of the period of 12 months from the date of motion". In view of this provision, fresh notice of motion of no-confidenee could not be given within a period of 12 months from the date of the meeting at which a similar motion had been lost. This period of 12 months was amended by U.P. Act No. 41 of 1976 and instead of 12 months two years was provided. Thus the waiting period was enhanced from 12 months to 2 years. The Act was again amended with effect from 24th July, 1990 by U. P. Urban Local Self Government Laws (Amendment) Act, 1990(U. P. Act No. 13 of 1990). By Section 8 of the Amending Act, Section 16(16) was amended and the words "2 years" were replaced by the words "1 year". Thus the original waiting period of one year was restored. Yet another amendment in the Act was made through U.P. Urban Local Self Government Laws (Amendment) Ordinance, 1992 (U. P.
Ordinance No. 23 of 1992). By amendment of Section 16(16) the words "1 year" were replaced by the words "2 years". This ordinance was not laid before the State Legislature within 6 weeks from the reassembly of the Legislature and therefore it ceased to operate under clause (2) of Article 213 of the Constitution.
8. On 14th December, 1992 telex was issued by the State Government addressed to all the Divisional Commissioners and District Magistrates in the State saying that the Ordinance has ceased to be operative from 9th December, 1992 and therefore provisions of the Act as existing prior to the promulgation of the Ordinance have revived, meaning thereby that the period of embargo for giving notice of motion of no confidence will again be one year and not two years.
9. Petitioners contend that the theory of revival propounded in the telex message is wholly untenable and the interpretation of the legal position therein is mala fide and the same has been done to prejudice the Bhartiya Janta Party of which he is a member and to advance the chances of Congress(l) party to grab the local bodies. The learned counsel for the petitioners submits that except as to duration of operation there is no difference between an Act passed by the Legislature and an Ordinance promulgated by the Governor, both being of equal efficacy. The arguments continues that the Act or an ordinance may deal with substantive matters or with procedural matters; provisions made by an ordinance in respect of procedural matters may lapse on the ordinance ceasing to be operative but the provisions creating substantive rights do not lapse; they survive. According to the learned counsel the embargo prescribed by Section 16(16) falls in the category of substantive law and not procedural law and therefore the amendment made through the Ordinance will survive on the lapsing of the ordinance. He submits that by providing the embargo of time for giving fresh notice security of tenure has been provided to the incumbent of the office so that he may discharge the duties of his office efficiently and effectively. Security of tenure, he con-
tends, is a substantive right.
10. During the course of arguments the learned counsel invited our attention to Section 3 (2) and Section 6 of the U. P. General Clauses Act, 1904 (U. P. Act No. 1 of 1904) and submitted that the aid of these provisions cannot be taken for sustaining the theory of revival propounded in the State Government's telex. It is submitted that these provisions apply to Acts framed by the U. P. Legislation and they do not apply to Ordinances issued under Article 213 of the Constitution. The learned counsel submits that when an Ordinance lapses what has been already done by it is not nullified. Accordingly, the learned counsel submits, the amend-ment of the waiting period mentioned in Section 16(16) is also not lost when the Ordinance in question ceased to be operated. It is contended that rights acquired under an Ordinance are not lost when the Ordinance lapses under clause (2) of Article 213. In support of the proposition that the law prevailing before the enforcement of the Ordinance is not revived, the learned counsel has cited the following authorities:
(1) State of Orissa v. Bhupendar Kumar; AIR 1962 SC 945, (2) Firm Mehtab Majid and Co. v. State of Madras; AIR 1963 SC 928, (3) Koteswar v. K. R. B. and Co., AIR 1969 SC 504, (4) T. Venkata Reddy v. State of A.P., AIR 1985 SC 724 : 1986 Lab 1C 357) and (5) I. E. Newspapers (Bombay) P. Ltd. v. Union of India, AIR 1986 SC5I5 :(1985Tax LR2451): 1985 (1) SCC 630.
11. Sri J. N. Tewari learned counsel appearing for the respondent Corporators disputes the claim of the learned counsel for the petitioners that the waiting period prescribed in Section 16(16) creates substantive right in favour of the incumbent of the office. He submits that the entire Section 16 of the Act deals with procedure for bringing motion of no-confidence and a statute of procedure cannot be said to create substantive rights. In support of the proposition that a statute of limitation does not create substantive rights, the learned counsel has cited (1) Ram Karan v. Ram Das : AIR 1931 All 635 : (1931 ALJ 1018) (FB), (2) Bankey Lal v. Babu, AIR 1953 All 747 : 1953 All LJ 349 (FB) and (3) Beepa-thuma v. Shankarnarayana, AIR 1965 SC 241.
12. It is next submitted by Sri Tewari that an Act passed by the Legislature is permanent while an Ordinance is temporary and the effect of enforcement of a temporary enactment is that the permanent enactment on the same subject remains temporarily eclipsed and is revived when the temporary Legislation lapses or is withdrawn. In support of this proposition, he has cited (1) Goodharam & Worts v. C.B. Corporation, AIR 1949 PC 90 and (1) D.C. Wadhwa v. State of Bihar, , AIR 1987 SC 579.
13. The learned consel has distinguished the authorities cited by the learned counsel for the petitioners Sri L.P. Naithani and has submitted that those authorities deal with abstract proposition of law and are not based on specific law now contained in Sections 6C and 30 of the U.P. General Clauses Act. According to him the entire issue is clinched by these two provisions.
14. Clause (I) of Art. 213 confers upon Governor the power to promulgate Ordinance when the Legislature is not in session. Sub-clause (a) of Clause 2 obligates that the Ordinance so promulgated shall be laid before the Legislature. It further provides that if it is not laid before the Legislature, it shall cease to operate at the expiration of six weeks from the reassembly of the Legislature. After making this provision the consequences of the Ordinance ceasing to operate have not been elaborated. This led to judicial research of those consequences. The judicial research reflected in judicial decisions will have application only in the absence of specific statutory provisions. If a specific statutory provision has been made, the same will prevail subject to the interpretation of that provision by Courts. This brings us to a consideration of the provisions of the Uttar Pradesh General Clauses Act. 1904 (U.P. Act No. 1 of 1904) for short Clauses Act.
15. Section 3 of the Clauses Act provides for applicability of the Act to other enactments. Under sub-section (1) of the provisions of the Act apply to the Act itself and to all Uttar Pradesh Acts, whether made before or after the commencement of the Act. Section 6 deals with the effect of repeal of an enactment by any Uttar Pradesh Act. The consequences of the1 repeal are provided in clauses (a) to (e). These consequences flow unless a different intention appears. In the Central General Clauses Act, 1897, the effect of repeat is provided for in Section 6. Section 6 of the U.P. Act uses the word "Act" only while Section 6 of the Central Act uses the word "Regulation" also. Section 6 of the Central Act has been considered by their Lordships of the Supreme Court in State of Orissa v. Bhupendra Kumar (supra) and it has been held that the same does not apply to a temporary Act. It cannot be disputed that an Ordinance is temporary. Accordingly in view of the law laid down in this case, Section 6 of the U.P. Act will not be attracted in the present case.
16. In T. Venkata Reddy (supra) their Lordships were dealing with a case where the post of village officer was abolished through an Ordinance. This Ordinance was not replaced by an Act of the Legislature embodying the terms of Odinance. Their Lordships held that the post of the village officer was not revived when the Ordinance lapsed. After laying down this law, their Lordships have observed in paragraph 20 of the report as follows:
"We do not, however, mean to say here that Parliament or the State Legislature is powerless to bring into existence the same state of affairs as they existed before an ordinance was passed even though they may be completed and closed matters under the Ordinance. That can be achieved by passing an express law operating retrospectively to the said effect, of course, subject to the other constitutional limitations. A mere disapproval by Parliament or the State Legislature of an ordinance cannot, however, revive closed or completed transactions."
17. In the U.P. General Clauses Act, a second amendment was made through U.P. Act No. 54 of 1975. By this amendment, apart from other sections Section 6C was inserted. Sub-section (1) of this section provides that where any Uttar Pradesh Act amends the text of any Uttar Pradesh Act or Regulation by the express omission, insertion or substi-
tution of any matter, and the amending enactment is subsequently repealed, the repeal shall not affect the cotinuance of any such amendment made by enactment so repealed and in operation at the time of such repeal. This provision deals with amendment of an Act of the Legislature or Regulation through a subsequent Act of the Legisltaure and the consequences of the repeal of the subsequent Act. The consequences of amendment of a text by a temporary Act or Ordinance and the lapsing of such temporary Act or Ordinance has been dealt with in subsection (2) which reads as follows:
"Where any such amendment of text is made by any temporary Uttar Pradesh Act or by an Ordinance or by any law made in exercise of the power of the State Legislature by the President or other authority referred to in sub-clause (a) of clause (1) of Art. 357 of the Constitution, and such Act, Ordinance or other law ceases to operate without being re-enacted (with or without modifications) the amendment of text made thereby shall also cease to operate.
18. In view of the emphasised portion of Isub-section (2) the amendment effected through Ordinance also ceases to operate meaning thereby that it is obliterated from the section. As held by their Lordships of the iSupreme Court in T. Venkata Reddy's case (supra), it was possible for the Legislature to make such a provision. In view of this provi-sion it is is idle for the petitioners to contend that the amendment of the waiting period made through the Ordinance survives despite the fact that the Ordinance has ceased to operate.
19. Firm Mehtab Majid & Co. Koteswar and I.E. Newspapers (supra) do not directly deal with the question involved in the present case. In those cases, their Lordships were not dealing with any provision similar to Section 6C. Accordingly, these cases do not require detailed examination.
21. When specific statutory provision has been made prescribing the effect of an Ordinance ceasing to operate, it is not necessary to consider the various questions raised by the learned counsel for the parties and the several authorities cited by them. Section 6C and Section 30 contain complete answer of the arguments raised on behalf of the petitioners.
22. In view of the above, the writ petition is dismissed in limine.
23. Petition dismissed.