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Daya Prasad Mohanlal v. Election Officer And Others
Structured Summary of the Opinion
Factual and Procedural Background
Multiple petitions including the present petition and Misc. Petitions Nos. 1635/83, 1636/83, 1637/83, 1639/83, 1640/83, 1649/83, 1671/83, 1677/83, 1693/83, 1699/83, 1704/83 and 1713/83 raised a common preliminary question. Notices were issued to the respondents and a return was filed raising a preliminary objection to the maintainability of these petitions under Article 226 of the Constitution on the ground that Section 117 of the Madhya Pradesh Panchayat Adhiniyam, 1981 provides an alternative efficacious remedy to challenge elections or co-options. Learned counsel for petitioners and the learned Government Advocate were heard on this preliminary question.
Legal Issues Presented
- Whether petitions under Article 226 are maintainable in view of the alternative remedy provided by Section 117 of the M.P. Panchayat Adhiniyam, 1981 (i.e., whether election or co-option under the Act may be called into question only by a petition to the prescribed authority).
- Whether rules governing election petitions made under the earlier M.P. Panchayats Act, 1962 (in particular rules made under Section 357 of the 1962 Act) continue in force by operation of Section 25 of the M.P. General Clauses Act and thus render the alternative remedy under Section 117 efficacious.
- Whether the absence of rules framed specifically under Section 117 of the 1981 Act (or differences between the 1962 and 1981 provisions) prevents the alternative remedy from being an efficacious remedy, i.e., whether lack of fresh rules deprives the tribunal of competence to entertain or dispose of election petitions on grounds, parties, or procedure.
Arguments of the Parties
Government Respondent's Arguments (as represented by learned Government Advocate)
- Section 117 of the M.P. Panchayat Adhiniyam, 1981 provides the exclusive mode to challenge an election or co-option — by petition to the prescribed authority; the prescribed authority has been notified.
- Although rules under Section 117 have not been framed, an authority to entertain petitions has been designated; therefore, election matters should be challenged by filing petitions as provided by Section 117.
- A Division Bench decision in Misc. Petition No. 1566/83 (decided 21‑6‑1983) followed Sudhir Kumar v. Municipal Corporation, Jabalpur (1978 MPLJ 9; AIR 1978 Madh Pra 65) and held that, absent framed rules, enquiries should be conducted reasonably in accordance with general procedural principles and natural justice; thus the alternative remedy is available.
- Section 25 of the M.P. General Clauses Act saves the rules framed under the earlier M.P. Panchayats Act, 1962; reliance was placed on Laxmansingh Roopsingh v. State of M.P. (1978 MPLJ 761; AIR 1979 Madh Pra 13) and Malam Singh v. Collector, Sehore (1971 MPLJ 531; AIR 1971 Madh Pra 195) to support the proposition that where an alternative efficacious remedy is available (an election petition), the High Court ordinarily should not exercise its discretionary writ jurisdiction under Article 226.
Petitioners' Arguments
- Section 117 may provide for an election petition, but the 1981 Act does not specify the grounds on which such a petition can be filed, who may challenge the election, or the detailed procedure for disposal; therefore, in absence of rules under Section 117 the alternative remedy is not sufficiently defined or efficacious.
- The Division Bench decision (Misc. Petition No. 1566/83) and the Full Bench decision in Sudhir Kumar (relied upon by respondents) are of limited relevance because Sudhir Kumar addressed consultation requirements and not the broader issue of what rules must contain for election petitions.
- Section 25 of the General Clauses Act should not operate to save the rules made under the 1962 Act because the 1981 Act is an altogether new law (not a re-enactment with or without modifications) and because the 1962 Act was repealed by an ordinance whose saving clause was not preserved when the ordinance was repealed; reliance was placed on the Statement of Objects and Reasons and on Harish Chandra v. State of M.P. (AIR 1965 SC 932) to support this view.
- Even accepting that the 1962 rules might exist, in absence of rules framed under Section 117 the tribunal cannot properly be said to have an efficacious remedy available; accordingly the High Court in its discretion should entertain petitions under Article 226.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sudhir Kumar v. Municipal Corporation, Jabalpur (1978 MPLJ 9; AIR 1978 Madh Pra 65) (Full Bench) | Held that in absence of rules, enquiries may be made in a reasonable manner consistent with settled principles of general procedure and natural justice. | Cited by respondents and a Division Bench; the court noted the limited scope of that decision (consultation aspect) but recognized the general proposition that absence of rules does not automatically preclude enquiry being conducted reasonably. |
| Laxmansingh Roopsingh v. State of M.P. (1978 MPLJ 761; AIR 1979 Madh Pra 13) | Affirmed that interference under Article 226 in election matters is not appropriate where remedy of an election petition is available. | Relied upon by respondents to support the proposition that the availability of the election petition is a bar to exercising writ jurisdiction; the court treated this authority as supportive of the general rule that alternative adequate remedy precludes writ interference. |
| Malam Singh v. Collector, Sehore (1971 MPLJ 531; AIR 1971 Madh Pra 195) (Full Bench) | Stated that where an adequate remedy in the form of an election petition exists, the High Court ordinarily should not exercise powers under Articles 226 and 227, except in very exceptional circumstances. | Applied by the court to reinforce the discretionary exercise against entertaining writ petitions where an efficacious election petition remedy remains available. |
| Harish Chandra v. State of Madhya Pradesh (AIR 1965 SC 932) | Considered the analogous Section 24 of the Central General Clauses Act and discussed limits on invoking the saving provision to preserve pre-existing orders or rules. | Discussed by petitioners; the court considered the decision but concluded it did not preclude application of Section 25 of the M.P. General Clauses Act to save rules made under the 1962 Act. |
| Chief Inspector of Mines v. Karam Chand Thapar (AIR 1961 SC 838) | Recognized that regulations framed under certain sections survive repeal and re-enactment by operation of the General Clauses Act; explained purpose of the General Clauses Act. | Used by the court to support the proposition that rules made under the repealed 1962 Act continue in force by virtue of Section 25 of the M.P. General Clauses Act and are to be read into the re-enacted provisions. |
| Mohan Lal v. State of West Bengal (AIR 1961 SC 1543) | Applied precedent on survival of regulations/rules after repeal and re-enactment. | Cited in support of the view that rules framed under earlier enactments survive repeal and are saved where not inconsistent with re‑enacted provisions. |
Court's Reasoning and Analysis
The court proceeded through a sequence of statutory interpretation and comparative textual analysis:
- Textual interpretation of Section 117 (1981 Act): the court quoted the full wording of Section 117(1)–(3). It noted that Clause (1) makes election or co-option challengeable only by petition to the prescribed authority; Clause (2) provides a 15‑day limitation; Clause (3) states that "Such petition shall be enquired into or disposed of according to such procedure as may be prescribed." The court emphasized that Clause (3) contemplates not only procedure but also the manner of disposal and thus may include grounds for setting aside an election and the persons entitled to bring petitions.
- Comparison with the 1962 Act: the court compared Section 117 of the 1981 Act with Section 357 of the 1962 Act (which provided a detailed scheme for election petitions — parties, contents, grounds, and persons entitled to challenge). The court found the language substantially identical in purpose and effect (save minor phrasings) and concluded there was no inconsistency between the provisions.
- Application of Section 25 (M.P. General Clauses Act): the court analyzed Section 25 which preserves rules and regulations made under a repealed enactment when re‑enacted unless inconsistent with the re‑enacted provisions. It considered and rejected two principal contentions raised by petitioners: (a) that the 1981 Act was an entirely new Act (not a re‑enactment with or without modifications) and therefore Section 25 would not apply — the court rejected this by referring to the preamble and Statement of Objects and Reasons showing the 1981 Act was intended to consolidate and amend existing panchayat law with modifications; (b) that the 1962 Act had been repealed by an ordinance which had a saving clause and that the saving clause was not continued in the 1981 Act — the court explained that the ordinance's saving clause kept the 1962 rules in force until the 1981 Act, and when the 1981 Act repealed the ordinance, Section 25 operates to save the rules so long as they are not inconsistent.
- Reliance on higher authority: the court reviewed Supreme Court authorities (e.g., Chief Inspector of Mines v. Karam Chand Thapar; Mohan Lal) and the logic of the General Clauses Act to support the proposition that rules/regulations framed under the repealed Act survive and are to be treated as made under the re‑enacted provisions so long as they are not inconsistent.
- Conclusion on efficacy of alternative remedy: because the rules framed under Section 357 of the 1962 Act continue to operate by virtue of Section 25 and because those rules provide a detailed and complete scheme for election petitions (parties, grounds, procedure and disposal), the court held that Section 117 read with those rules provides a complete and efficacious alternative remedy to challenge elections or co-options under the 1981 Act.
- Discretion under Article 226: relying on established authority (including Malam Singh and Laxmansingh Roopsingh) that where an adequate alternative remedy exists an exercise of writ jurisdiction is ordinarily inappropriate, the court concluded it should not exercise its discretionary jurisdiction under Article 226 in these matters.
- Ancillary observations: the court stated it was unnecessary to further examine the Division Bench decision in M.P. No. 1566/83 (21‑6‑1983) once it concluded the rules were saved and an alternative remedy was available.
Holding and Implications
Holding:
DISPOSED OF — The court accepted the preliminary objection and dismissed the petitions for want of maintainability under Article 226 in view of the availability of an alternative efficacious remedy under Section 117 read with the rules saved by Section 25 of the M.P. General Clauses Act.
Direct consequences:
- The petitions before the court were dismissed.
- Parties were directed to bear their own costs.
Broader implications (as expressed or necessarily confined to what the opinion states):
- The court applied and affirmed the established discretionary principle that the High Court will ordinarily not entertain a writ petition under Article 226 where an adequate and efficacious statutory remedy (here, an election petition to the prescribed authority under Section 117 read with saved rules) is available.
- The court held that rules framed under the earlier M.P. Panchayats Act, 1962 continue in force under Section 25 of the M.P. General Clauses Act insofar as they are not inconsistent with the 1981 Act and therefore supply the requisite detailed scheme for election petitions until fresh rules are framed under Section 117.
- No new legal principle was announced beyond applying established interpretative principles relating to saving provisions and the existing discretionary approach to writ jurisdiction in election matters; the decision operates as an application of those principles to the facts before the court.
This summary is prepared strictly from the text of the provided opinion and does not include any information or inference that is not present in that opinion.
1. This petition and Misc. Petitions Nos. 1635/83, 1636/83, 1637/83. 1639/83. 1640/83. 1649/83. 1671/83. 1677/83, 1693/83. 1699/83. 1704/83 and 1713/83 raise a common preliminary question and in view of this, notices were issued to the respondents. In response to the notice, a return has been filed raising a preliminary objection about the maintainability of these petitions in view of. Section 117 of the M. P. Panchayat Adhiniyam. 1981. contending that as an alternative efficacious remedy for challenging the election of pancha-yat is available Under Section 117. the petition under Article 226 is not maintainable. Learned counsel for various petitioners therefore, were heard on this question and the learned Government Advocate was also heard.
2. It was contended by the learned Government Advocate that although under Section 117 of the M. P. Panchayat Adhiniyam. 1981 rules have not been framed but the officer who can entertain the petition has been notified and. therefore, an election or co-option under this Act could only be challenged by filing a petition as contemplated in Section 117 of the M. P, Panchayat Adhiniyam. It was also contended that a Division Bench of this Court in Misc. petition No. 1566/83 decided on 21-6-1983 has considered this question and following Sudhir Kumar v. Municipal Corporation, Jabalpur 1978 MP LJ 9: (AIR 1978 Madh Pra 65) (FB) it has been held that although the rules are not framed still the enquiry will be made in a reasonable manner consistent with the settled principles of general procedure and it was, therefore, contended that in view of this decision, as the alternative remedy is available to the petitioner, this petition under Article 226 of the Constitution, could not be entertained.
3. Alternatively, it wts contended that Section 25 of M. P. General Clauses Act saves the rules framed under the M. P. Panchayats Act, 1962 and those rules provide a complete procedure for conduct of election petition and, therefore, there being an alternative efficacious remedy available to the petitioners, this petition is not maintainable. Reliance was placed on the decision reported in Laxmansingh Roopsingh v. State of MP. 1978 MPLJ 761 : (AIR 1979 Madh Pra 13).
4. The learned Government Advocate also placed reliance on the decision reported in Malam Singh v. Collector, Sehora, 1971 MPLJ 531: (AIR 1971 Madh Pra 195) which is a Full Bench decision, and contended that even if under Article 226, there is no bar for entertaining such petitions, it has been held that in cases where an alternative remedy by way of election petition is available, this Court ordinarily will not exercise discretion in entertaining the petition.
5. Learned counsel for the petitioner, on the other hand, contended that Section 117. no doubt, provides for an election petition but on what grounds an election petition could be filed has not been provided in this Act and even if the forum is notified, still, in absence of rules, it is not only the question of procedure but various questions arise which have not been provided; as to who can challenge the election has not been provided in this section. It has not been provided as to the grounds on which an election could be set aside in a petition under Section 117 and in this view of the matter, it was contended that the decision on which, reliance has been placed by the learned Government Advocate i. e. the decision in Misc. Petition No. 1566/83, decided on 21-6-1983. is of no consequence.
6. It was contended that unfortunately in this decision, their Lordships have followed Sudhir Kumar v. Municipal Corporation. Jabalpur. 1978 MPLJ 9: (AIR 1978 Madh Pra 65) which is, no doubt; a Full Bench decision but there the question only was about the consultation and in view of the absence of rules, the Full Bench held as to how consultation with the Public Service Commission can be made in absence of rules, it was observed that even in absence of rules, the consultations could be made with the public Service Commission and following this decision, it was contended by learned counsel that it appears that the learned Judges felt that what was expected to be provided in the rules under Section 117 (3) was only procedure and in absence of that procedure being prescribed, it was observed :--
"......only requires the enquiry to be conducted in the manner prescribed, which means that if and when rules are framed, laying down the procedure, that will be followed and till then the enquiry will be made in a reasonable manner nsistent with the settled principles of general procedure, principles of natural iustice."
But it was contended that Under Section 117. it is not only that procedure has to be prescribed under the rules but even grounds on which the election petition could be filed will have to be prescribed. It is also contended that who can challenge the election also has to be prescribed in the rules framed Under Section 117. Although even the grounds on which the election could be challenged may be said to be a matter of procedure but in absence of the rules it will not be possible for the Tribunal to entertain a petition on any ground whatsoever. It was. therefore, contended that this decision is not of much help in deciding this preliminary objection.
7. As regards Section 25 of the General Clauses Act. it was contended that the 1962 Act was repealed by an ordinance and in the ordinance a specific provision was made for saving of the rules which were made under the 1962 Act. In spite of this specific provision in the ordinance, when the ordinance was repealed by the present Act i. e. M. P. Panchayat Adhiniyam. 1981. no provision has been made for saving of these rules and it was, therefore, contended that this indicates the intention of the Legislature not to save the rules framed under the 1962 Act and, therefore, with the aid of Section 25 of the General Clauses Act. it could not be said that the rules are saved. Reliance was placed by the learned counsel on the decision reported in Harish Chandra v. State of Madhya pradesh, AIR 1965 SC 932 wherein their Lordships were considering analogous provision of the General Clauses Act i, e. Section 24 of the Central Act.
8. It was also contended by the learned counsel for the petitioners that the language of Section 25 saves rules and regulations framed under the earlier Act if the latter Act is only a modification of the earlier Act. But the new Panchayat Act i, e, M. P. Panchayat Adhiniyam, 1981. according to the learned counsel, is altogether a new law and it is in no case a modification of the old Panchayats Act. The scheme of the law itself has been altered and it has been based on altogether new concepts and. therefore, it was contended that in view of the scheme of the M. P. Panchayat Adhiniyam. 1981, it could not be said that the new Act is a modified form of the old Act and in absence of this, provisions of Section 25 of the General Clauses Act could not be made applicable.
9. It was also contended that the decision reported in Laxmansingh Roop-singh v. State of M. P., 1978 MPLJ 761: (AIR ]979 Madh Pra 13). which is a Full Bench decision holding that because of alternative remedy. petition could not be entertained, is a decision on the basis of Clause (3) of Article 226 which has specifically barred a petition under Article 226 in cases where there was an alternative remedy. But Article 226 now as it stands, does not have Clause (3) and, therefore, this Full Bench decision is of no avail. Learned counsel, however, frankly conceded that the decision in Malani Singh v. Collector. Sehore, 1971 MP LJ 531 : (AIR 1971 Madh Pra 195) no doubt, lays down that in cases where there is an efficacious alternative remedy available this Court ordinarily will not entertain a petition under Article 226 as it is a discretionary remedy but it was contended that in absence of rules, although Section 117 is on the statute book and the authority who is supposed to entertain the petition has been notified, still without the rules it could not be said that there is an alternative efficacious remedy available and. therefore, it was contended that this Court, in its discretion. will not refuse to entertain a petition under Article 226.
10. Learned counsel in support of his contention that this Act is altogether a new Act and not a modification of the earlier Act has placed reliance on the Statement of Objects and Reasons stated in the Act.
"Statement of Objects and Reasons:--The Madhya Pradesh Panchayats Act, 1962 provided for three tier of Panchayat system. The Act was voluminous and contained 393 sections. Need for short and simple Act on the subject had all along been felt by all concerned Accordingly Madhya Pradesh Panchayat Vidheyak. 1981 (No. 20 of 1981) was introduced in the February-April, 1981 session of the Legislative Assembly but for want of time it could not be enacted. As the matter was urgent and the Legislative Assembly was not in session, the Madhya Pradesh Panchayat Adhyadesh. 1981 (No. 6 of 1981) was promulgated. As certain other provisions were urgently required to be incorporated therein the Madhya Pradesh Panchayat (Sansho-dhan) Adhyadesh. 1981 (No. 8 of 1981) was also promulgated. It is now proposed to replace the said Ordinances by an Act of the State Legislature with certain modifications."
11. Section 117 of the Madhya Pra-desh Panchayat Adhiniyam. 1981 reads;--
"117. Election Petition. -- (1) An election or co-option under this Act shall be called into question only by a petition presented to the prescribed authority, and not otherwise.
(2) No such petition shall be admitted unless it is presented within fifteen days from the date on which the election or co-option in question was notifled.
(3) "Such petition shall be enquired into or disposed of according to such procedure as may be prescribed."" This provides for the only way to challenge an election or co-option under this Act by way of petition presented to the prescribed authority and not otherwise. Clause (2) of this section provides limitation and Clause (3) speaks of the enquiry and disposal in accordance with such procedure as may be prescribed. The language of Clause (3) significantly uses the words "enquired into or disposed of." It appears that it contemplates not only the rules for procedure but the manner in which a petition could be disposed of and this contemplates that when and under what circumstances an election could be set aside and it appears that what was contended by learned counsel for the petitioners has some substance that the rules have not only to provide for the procedure but also the grounds on which a petition could be entertained and the grounds on which an election could be set aside.
12. A perusal of rules framed under the 1962 Act go to show that a detailed scheme has been provided for the rules about the parties to the petition, the contents of the petition, the grounds on which the election could be set aside and the persons who are entitled to challenge the election or co-option. It is, therefore, clear that what is contemplated under Clause (3) although has been described as the procedure but the procedure even includes the procedure for disposal and also for enquiry and as indicated above, it does contemplate a situation about the grounds on which an election could be challenged and even parties who could challenge the election or co-option, as the case may be.
13. It is in this context that it was contended by the learned counsel for the petitioners that the decision of the Division Bench on which reliance is placed by the learned Government Advocate is not of much consequence. In this decision i. e. M. p. No, 1566/83. decided on 21-6-1963. it has been observed: --
"The prescribed authority to an election petition is required to be presented under Section 117 (1) has been designated. There is thus no difficulty in presentation of the election petition, to the prescribed authority. Section 117 (3) lays down that the petition shall be enquired into or disposed of according to 'such' procedure as may be prescribed. Section 117 (3), therefore, only requires the enquiry to be conducted in the manner prescribed. which means that if and when rules are framed, laying clown the procedure, that will, be followed and till then the enquiry will be made in a reasonable manner consistent with the settled principles of general procedure, principles of natural justice. It does not mean that till the framing of fresh rules, no election petition can be filed under Section 117 nor can jt be tried. See Sudhir Kumar v. Municipal Corporation, Jabal-pur, 1978 MP LJ 9 : ( AIR 1978 Madh Pra 65) (FBI. This contention has, therefore, no merit."
These observations indicate that as the authority who is to hear an election petition as contemplated under Clause (1) has been notified. what remains is to prescribe the procedure in accordance with which the petition could be enquired into. It appears that it was not brought to the notice of the Division Bench that Sub-Clause (3) of Section 117 contemplates procedure for enquiry or disposal, as the language in Clause (3) reads :--
"Such petition shall be enquired into or disposed of according to such procedure as may be prescribed."
For disposal of a petition, it may be necessary to lay down the grounds on which a petition could be allowed or grounds on which an election could be set aside and in this view of the matter therefore, in our opinion, it is not necessary to go into the question in the light of the discussion which follows.
14. Section 25 of the M. P. General Clauses Act reads :--
"25. Continuation of orders, etc., issued under enactments repealed and re-enacted.--
Where any enactment is repealed and re-enacted by a Madhya Pradesh Act with or without modification, then, unless it is otherwise expressly provided any appointment. notification. order, scheme, rule, regulation, form or bye law made or issued under the repealed enactment shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted unless and until it is superseded by any appointment, notification, order, scheme, rule, regulation form or bye-law made or issued under the provisions so re-enacted."
This provision clearly saves the rules, regulations and bye-laws made under the repealed Act so far as they are not inconsistent and it is, therefore, plain that by this provision, the rules framed under the 1982 Act, so far as election petition is concerned, are clearly saved as they are in no way inconsistent with the provisions of Madhya Pradesh Pan-chayat Adhiniyam, 1981 and in order to escape this consequence, two contentions have been raised by the learned counsel for the petitioners, (l) that the 1931 Act is not a re-enactment of the repealed Act With or without modifications but is altogether a new Act and, therefore, the provisions of section 26 are not attracted. and (2) that the 1962 Act was repealed by the Ordinance and is not repealed bv the present enactment. The present enactment repeals the ordinance and the ordinance had a specific provision saving the rules under the 1962 Act and, therefore, by the repeal in this Act, even that savins clause in the ordinance is also repealed and on that basis, it was contended that it indicates the intention of the Legislature not to save the rules.
15. Apart from these two contentions, an attempt was also made on the basis of comparison of the language of Section 117 of the 1981 Act with Section 357 of the 1962 Act to contend that they are not consistent and on that basis an attempt was made to suggest that the rules not being consistent with this Act, will not be saved. section 357 of the 1962 act reads :--
"357. Election petition -- (1) No election. or co-option notified under Sections 20, 113, 170 and 216 shall be called into question except by a petition presented to the prescribed authority.
(2) No such petition shall be admitted unless it is presented within fourteen days from the date on which the election or co-option was notified.
(3) Such petition shall be enquired into or disposed of according to such summary procedure as may be prescribed."
The language of these two sections i. e. Section 357 of the 1962 Act and Section 117 of the 1981 Act are exactly similar except that in 1962 Act (Section 357) it has been stated that no election or co-option shall be called into question except by a petition; whereas in Section 117, the language used is that an election or co-option shall be called into question only by a petition. It is only two ways of saying the same thing Sub-clause (2) and (3) practically are identical. It, therefore, could not be said that there is any inconsistency. The rules are contemplated Under Section 117 practically for the same purpose for which they were made in exercise of powers Under section 357 of the 1962 act.
16. The first contention advanced by the learned counsel for the petitioners was that the present Panchayat Act i. e. the 1981 Act, is altogether a new Act and. therefore, it could not be said to be a re-enactment of an old enactment which is repealed with or without modifications. In order to consider this contention, it will be worthwhile to refer to the preamble to the Madhya Pradesh Panchayat Adhiniyam. 1981 which reads:--
"An Act to consolidate and amend the law relating to establishment of Panchayats with a view to simplify the law for the purpose of ensuring efficient panchayat administration in the State."
And similarly, the statement of objects and reasons also clearly indicates that this Act is nothing more than a re-enactment of the old law no doubt, with some modifications and an attempt to make it simple. The contention, therefore, that this is altogether a new law and, therefore, it will not fall with in the language of Section 25 of the M. F. General Clauses Act cannot be accepted. It is well known that some kind of panchayat law has been in existence for all these years and it has been amended and modified on a number of occasions and in order to consolidate and simplify with some modifications, this Act was enacted. It, therefore, squarely attracts the provisions of Section 25 of the M. P. General Clauses Act.
17. The second contention advanced is that the 1962 Act was repealed by an ordinance and in that ordinance a specific provision was made for saving of these rules. It is clear that in view of the language of Section 25. if the ordinance had not provided for saving of the rules, it may be contended that as the ordinance is not an Act enacted as contemplated under Section 25, the rules may not be saved and. therefore, when the ordinance repealed the 1962 Act. the effect of the saving clause was that although the 1962 Act stood repealed but the rules framed under the 1962 Act continued to be in force and these rules, therefore, remained in force till the Act of 1981 was enacted. In the 1981 Act. the repealing section i. e. Section 124 repealed the ordinance and implied-ly. therefore, repealed the saving clause which saved the rules under 1962 Act. In substance, therefore, this repeal repeals the 1962 Act and also the ordinance which had taken its place and, therefore, this Act of 1981 is now the law enacted and thus it squarely falls within the ambit of Section 25 of the M. P. General Clauses Act and. therefore, the rules framed under the repealed Act i. e. 1962 Act which were continued because of ordinance are saved and, therefore, they are in force til] rules are framed under Section 117 of the M. P. Panchayat Adhiniyam, 1981-
18. Learned counsel for the petitioners placed reliance on the decision reported in Harish Chandra v. State of Madhya Pradesh. AIR 1965 SC 932 to contend that Section 24 of the Central Act which is analogous to Section 25 of the State Act was considered in this decision and in their Lordships' opinion that provision of the central act could not be used to save what was done under the old Act. In fact, it was because of the language of Section 24 that the observations were made as it was observed by their Lordships as under (at p. 938):--
"We consider that this submission is entirely without force. Mr. Agarwala fairly conceded that the language of Section 24 would not cover a repeal of the Madhya Bharat Scrap Order by the introduction into the Madhya Bharat territory of the Indian Scrap Order 1943 but he suggested that even though the section was in terms inapplicable, he could invoke the principle underlying it. But this argument, however, proceeds on assuming that Section 24 was declaratory of the common rule of interpretation and that even in the absence of Section 24 the same principle of law would apply. The position apart from a statutory provision such as is found in Section 24 of the General Clauses Act. is thus summarised in Craies on Statute Law fith Edn 334:
"The present is a case, where tlte Mines Act, 1923. was repealed, and was re-enacted with modifications as the Mines Act, 1952: Section 29 of the 1923 Act empowering the central Government to make regulations consistent with the Act for specified purposes was re-enacted in the 1952 Act as Section 57: regulations were made in 1926 under Section 29 of the 1923 Act, but at the relevant date, in 1955. no regulations had been made under Section 57 of the 1952 Act, so that in 1955 the Mines Regulations, 1926. had not been .superseded by any regulations made under the re-enacted provisions of Section 57 of the 1952 Act. Therefore, if Section 24 of the General Clauses Act is operative, the Mines Regulations, 1926, were in force at the relevant date in 1955. and shall be deemed to have b°"n made under Section 57 of the 1952 Act, as there is no provision express or otherwise, in the later Act to the contrary, and the regulations are not inconsistent with the re-enacted provisions."
And following this in Mohan Lal v. State of West Bengal, AIR 1961 SC 1543 their Lordships observed fat p. 1545):--
"In Chief Inspector of Mines v. Karam Chand Thapar, AIR 1961 SC 838, we have decided that regulations framed under & 29 of the Mines Act. 1923, -survive the repeal of that Act. The same reasons which form the basis of that decision apply to the rules framed under Section 30 of the Mines Act, 1923: and so, the first contention raised on behalf of the appellants must be rejected as unsound."
20. It is, therefore, clear that there is nothing in the decision of their Lordships of the Supreme Court on the basis of which it could be contended that Section 25 of the M. P. General Clauses Act could not be invoked for saving the rules framed under the M. P. Panchayats Act, 1962. In Chief Inspector of Mines v. Karam Chanrt Thapar, AIR 1961 SC 838 their Lordships also considered the purpose of the General Clauses Act and it has been observed (at p. 843):--
"In attempting to answer this question, it will be profitable to remember that the purpose of the General Clauses Act is to place in one single statute different provisions as regards interpretations of words and legal principles which would otherwise have to be specified separately in many different acts and regulations. Whatever the General Clauses Act says, whether as regards the meanings of words or as regards legal principles, has to be read into every statute to which it applies. The Mines Act. 1923. bemg a Centra! Act, Section 24 of the General Clauses Act, 1897. applies to it. so that we have to read in the Mines Act, 1923. an additional provision embodying the word of Section 24 of the General Clauses Act. The result is that we have in this Mines Act of 1923 on the one hand the provision that the regulations made under Section 29 of the Act will have effect as if enacted in the Act and on the other, the further provision, that regulations made under Section 29 shall continue to remain in force when this Act is repealed and re-enacted and be deemed to have been made under the re-enacted provisions, it is otherwise expressly provided, unless and until susperseded by regulations made under the reenacted provisions."These observations, in terms, could be applied in regard to the M. P. General Clauses Act and, therefore, it could not be doubted that by application of Section 25 of the General Clauses Act. rules framed under section 357 of the 1962 act are saved and they are still in force.
21. It is, therefore, clear that an alternative remedy Under Section 117 read with rules framed Under section 357 of the 1962 act. provides a complete and efficacious remedy for challenging the election or co-option held under this Act and in view of this alternative efficacious remedy available to the petitioners, in our opinion, we should not exercise discretion in enter-taining a petition under Article 226 of the Constitution.
22. In view of our conclusions with regard to existence of rules with aid of Section 25 of the M. P. General Clauses Act, it is not necessary for us to dilate on the question about the Division Bench decision in M. P. No. 1566/83 decided on 21-6-1983.
23. Learned Government Advocate in Order to support this contention has placed reliance on a decision reported in Laxmansingh Roopsingh v. State of M. P., 1978 MPLJ 761 : (AIR 1979 Madh Pra 13). In this decision, a Division Bench of this Court observed (a PP. 14-15):--
"Interference under Article 226 in election matters where remedy of an election petition is available is, therefore, not appropriate. In view of this position of the law, with regard to the writ jurisdiction under Article 226 of the Constitution prior to its amendment by the Constitution (42nd Amendment) Act, 1976, there can hardly be any room for doubt after the amendment introducing Clause (3) in Article 226 containing the inhibition, that such a petition cannot be entertained under Article 226 in view of the remedy of election petition available to the petitioner under the Act."
Learned counsel for the petitioners rightly contended that this decision barring the remedy under Article 226 absolutely, in view of Clause (3) of Article 226, as it stood then, could not be availed of now in absence of such inhibition as that Clause f3) does not exist. But apart from this, the Full Bench of this Court in Malam Singh v. Collector. Sehore, 1971 MPLJ 531: fAIR 1971 Madh Pra 195) held (at p. 200>:-
"In view of the provisions of the Madhya Pradesh panchayats "
Act, 1962 which provided for an adequate remedy, namely, the remedy of an election petition to be presented after the election 5s over, lor all grievances wheher grounded on the ultimate result of the election or upon any interlocutory order passed in the process of election, we are of the view that, where that remedy is available, it would not be proper for the High Court to exercise its undoubted powers under Arts. 226 and 227 of the Constitution for interfering with an interlocutory order passed during the process of election, save m very exceptional circumstances." And it is in this view of the matter, in our opinion, therefore, that it is not proper to entertain these petitions in exercise of discretionary Jurisdiction, under Article 226 when an efficacious remedy of election petition is still available to the petitioner.
24- In the. light of the discussion above, therefore, in our opinion, the preliminary objection raised by the respondent has to be accepted. We, therefor?, see no reason to entertain this petition. It is, therefore, dismissed. In the circumstances of the case, parties are directed to bear their own costs.
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