Daya Prasad and anr. Vs. Election Officer-cum-b.D.O. and ors. - Court Judgment

G.L. Oza, J.

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:

'If the statute under which bye -laws are made is repealed. those bye-laws are impliedly repealed and cease to have any validity unless the repealing statute contains some provision preserving the validity of the bye-law from the rule......when an Act of Parliament is repealed it must be considered (except to transactions passed and closed) as if it had never existed.' This submission has, therefore, no merit and must be rejected.'

19. Learned Government Advocate, on the other had, placed reliance on decisions reported in Mohan Lal v. State of West Bengal. AIR 1961 SC 1543 and Chief Inspector of Mines v. Karam Chand Thapar. AIR 1961 SC 838. it was observed (at p. 642) :--

'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.