S.S. Jha, J.

Preliminary objection is raised by the respondents that the writ petition as filed by the petitioner is not maintainable as the petitioner has alternative remedy of election petition, therefore, petition as filed was not maintainable and consequently, this letters patent appeal arising out of the order passed in the writ petition is also not available and the appeal be dismissed.

Brief facts of the case are that the appellant (petitioner before the Writ court) was elected as Sarpanch of the Municipal Council, Sabalgarh. After his election, the Councillors moved an application for recalling the appellant as President of the Municipal Council under the provisions of section 47 of the Madhya Pradesh Municipalities Act, 1961 (hereinafter, referred to as the Act). Section 47 of theis reproduced below:

"Recalling of President.-- (1) Every President of a Council shall forthwith be deemed to have vacated his office if he is recalled through a secret ballot by a majority of more than half of the total number of voters of the municipal area casting the vote in accordance with the procedure as may be prescribed:

Provided that no such process of recall shall be initiated unless a proposal is signed by not less than three forth of the total number of the ELECTED Councillors and presented to the Collector:

Provided further that no such process shall be initiated:--

(i) within a period of two years from the date on which such President is elected and enters his office;

(ii) if half of the period of tenure of the President elected in a by-election has not expired;

Provided also that process for recall of the President shall be initiated once in his whole term.

(2) The Collector, after satisfying himself and verifying that the three fourth of the Councillors specified in sub-section (1) have the proposal of recall, shall send the proposal to the State Government and the State Government shall make a reference to the State Election Commission.

(3) On receipt of the reference, the State Election Commission shall arrange for voting on the proposal of recall in such manner as may be prescribed."

It is clear from the proviso to the said provision that said process shall not be initiated within a period of two years from the date on which said President is elected and enters his office and if half of the period of the tenure of the President elected in a by-election has not expired. It further provides that the process for recalling of the President shall be initiated once in his whole term. The essential condition is that no such process shall be initiated unless proposal is signed by not less than 3/4th of the total number of elected Councillors and presented to the Collector of the district.

Only contention of the appellant is that 3/4th of the total number of elected Councillors have not signed the requisition for recalling the appellant as President. Admittedly, the Municipal Council consists of 15 Councillors and strength of 3/4th Councillors is 12. The requisition Annexure P/6 annexed with the writ petition was signed by 12 members. Out of 12 one elected Councillor namely Shrimati Lali Devi Pandey submitted an affidavit before the Collector that she has not asked for recalling the President. She was misled in signing the papers for recalling the President on the pretext that a representation was submitted for development of the city. This affidavit was filed immediately on the subsequent day after presentation of the requisition. However, the Collector forwarded the requisition to the State Government and the State Government thereafter forwarded the papers to the Election Commission for recalling the President.

Counsel for the respondents submitted that after the amendment in Madhya Pradesh Nagarpalika Nirvachan Niyam, 1994, (hereinafter, referred to as the Rules) election will include recall of the President. He invited attention to the definition of "election" under Rule 2(d) of the Rules and submitted that election means an election to fill a seat or seats in a Municipality and includes the election in relation to recall the Mayor of a Municipal Corporation or the President of a Municipality or Nagar Panchayat from his office as the case may be. Counsel for the respondents submitted that the definition of the word "election" is clear and specific, therefore, in the light of said definition, once elections for recall have been held and petitioner has been recalled his remedy is not by way of writ petition but his remedy lies in filing an election petition.

Counsel for the respondents then invited attention of this Court to the provisions of section 20 of thewherein it is provided that no election or nomination under the be called into question except by a petition presented in accordance with the provisions of this section. He further invited attention to the Court to Article 243ZG of the Constitution of India and submitted that there is specific bar against interference by the Court in electoral matters. Article 243ZG(b) of the Constitution provides that no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State. Counsel for the respondents therefore submitted that writ petition as filed by the petitioner was not maintainable and the Learned Single Judge has not committed any error in dismissing the petition.

Counsel for the appellant/petitioner submitted that the petition is not dismissed on the ground that the writ petition as filed is not maintainable, but on the contrary finding is recorded by the Learned Single Judge that the requisition Annexure P/6 was submitted to the Collector and after verification, said papers were forwarded to the State Government by the District Collector, and the learned Single Judge held that it cannot be believed that signatures of respondent No. 6 Shrimati Lali Devi Pandey were obtained by practicing fraud upon her. Counsel for the appellant submitted that in view of the said finding, petitioner has no other remedy but to file this letters patent appeal. Counsel for the appellant further submitted that in the facts of the case, petitioner has no remedy of election petition.

Counsel for the appellant invited attention to sections 21 and 22 of theand submitted that under section 21 of the Act, only relief which can be claimed by the petitioner is regarding declaration that the election of the returned candidate is void and section 22 relates to ground for declaring the election or nomination to be void.

Sections 21 and 22 of therefer to returned candidate. Similarly, section 24 of theprovides for decision for declaring election of all or any of the returned candidates to be void. Counsel for the appellant submitted that the grounds of corrupt practices referred in section 22 of theare in section 28 of theand submitted that in the aforesaid section, no grounds for filing election petition is available.

Counsel for the appellant submitted that for challenging the proceedings under section 47 of the Act, remedy of election petition is not available to him. Counsel for the appellant submitted that proceedings under section 47 of thehave been challenged by him. Counsel for the petitioner submitted that once it comes within the knowledge of the District Collector that one of the Councillors has not signed the requisition for recall voluntarily it was his duty to examine the question. The Collector kept the papers pending with him for about 18 days and then forwarded them to the State Government which resulted into miscarriage of justice. Counsel for the appellant submitted that since 3/4th of the total number of the elected Councillors have not signed the requisition, question of recall does not arise in the case. Even otherwise, proprietary or regularity of the said recall can only be examined in the writ petition as petitioner has no remedy of election petition.

Counsel for the appellant petitioner submitted that the definition of the "returned candidate" brought out in the Rules has no bearing unless specific amendments are carried out in the. Rules will not override the. Counsel for the appellant further submitted that the Rules have been framed under sub-section (6) of section 29 read with section 355 of the. After sub-section (6) is repealed in the year 1995, the Rules have no force of law and the respondents cannot take shelter of the Rules to argue that the orders for recall is also an election and it can be questioned only in an election petition. Counsel for the appellant further submitted that until and unless the provides for challenge to the election for recalling by way of election petition, petitioner has no alternative remedy but to file writ petition.

It is true that sub-sections (5) and (6) of section 29 of thewere repealed by amending Act No. 12 of 1995. Only question which requires to be " examined is whether said repeal will amount to repeal of the Rules. In the amending Act No. 12 of 1995, no repeal or saving is provided. Therefore, the question of repeal is to be examined under Madhya Pradesh General Clauses Act, 1957. Section 10 of the aforesaid Act refers to effect of repeal and section 11 refers to repeal of enactment making textual amendment in any Act.

We have examined the case. In the writ petition petitioner has prayed for stay of orders Annexure P/1 and P/2. Annexure P/1 is an election programme. It is a settled position that the election process commences after election programme is notified, therefore it cannot be called in question unless entire elections are over. appellant/petitioner though challenge the proceedings under section 47 of the Act, but while the petition was pending, elections for recall have been held and in the election, petitioner was recalled by majority of votes.

Considering the facts of the case, Rules are framed under section 29(6) and section 355 of the Act, therefore, they will not be repealed ipso facto by repeal of sub-section (6) of section 29 of the. Rules shall remain in existence. Elections were held after preparation of electoral roll. The Notification Annexure P/1 was issued on 23/1/2002. Petition was filed on 1/2/2002. In the said facts of the case, petition challenging the proceedings under section 47 of thewill not be the subject matter of election petition. As such, the date on which the petition was filed, it was maintainable. But after elections of recall have been held, petition will not be maintainable as petitioner has to challenge the election or irregularity in the election by way of election petition. Considering the facts of the case, since the appellant/petitioner has been recalled by majority of votes in the general elections of the municipality, it will not be appropriate to interfere in the matter in exercise of extra ordinary jurisdiction. However, it will be open for the appellant to challenge the proceedings and raise objections regarding the proceedings for recalling in an election petition. We set aside the finding of the learned Single Judge about withdrawal of signatures by one of the Councillors. Such dispute shall be examined in an election petition by the competent Court.

In the result, since the appellant/petitioner has an alternative remedy of election-petition, this appeal is not maintainable and is dismissed.