FAO No.1147 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** FAO No.1147 of 2010 DATE OF DECISION: 10.12.2010 **** Paro Bai . . . . Appellant Vs. Bimla Rani and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.M.K. Sajjan, Advocate for the appellant. Mr.Suresh Aneja, Advocate for respondent No.1. **** RAKESH KUMAR JAIN J. The important question involved in this appeal is “as to whether a person, who has not attained the age of 21 years is eligible to contest the election for the post of Panch under the provisions of Punjab Panchayati Raj Act, 1994 (for short ‘the Act No.9 of 1994) or the Punjab State Election Commission Act, 1994 (for short ‘the Act No.19 of 1994) or the Constitution of India (for short ‘the Constitution’)? The 5 members Gram Panchayat, Gagan Ke, Block and Tehsil Fazilka, District, Ferozepur comprises of 2 posts for Woman (General), 2 posts for Male (General) and 1 post for Backward Class. The elections were held to constitute the Panchayat on 26.5.2008 in which appellant/election petitioner (Paro Bai) and respondent No.1 (Bimla Devi) contested for the post meant for Woman (General) in which respondent No.1 was declared elected. The appellant had challenged the election of respondent No.1 by way of the election petition, inter alia, on the ground that respondent No.1 had not completed the minimum age of 21 years on the day when she had filed her nomination papers, therefore, she was not eligible to contest the election for the post of Panch in terms of Section 208(1)(a) of the Act No.9 of 1994. It was, thus, prayed that her election may be set aside. In support of her case, the appellant examined herself, Sumer Singh, FAO No.1147 of 2010 -2- Reshma Bai (respondent No.3), Darshan Singh (respondent No.4) and Swaran Chand (respondent No.6) besides producing Duli Chand, Maths Teacher, Govt. High School, Kirianwali, Tehsil Fazilka, who had stated that as per school record the date of birth of respondent No.1 (Bimla Devi) is 20.04.1989. Nomination papers of respondent No.1 was summoned and produced by Pawan Kumar Dhawan, Returning Officer (respondent No.17) in which she had entered her age as 19 years and a copy of the Matriculation Certificate (Ex.A-5) bearing her date of birth as 20.4.1989. On the other hand, respondent No.1 besides examining herself and Gurnam Singh, Member Panchayat, Gagan Ke (respondent No.11) had produced a copy of the voter list of the year 2002 of her parental Village Tarobari in which her age was recorded as 19 years and claimed to have completed more than 21 years on the date of filing of nomination paper besides producing a copy of the order passed by the High Court dated 16.7.2008 in CWP No.12153 of 2008. It was alleged before the Election Tribunal that age of respondent No.1 was 19 years at the time of filing of nomination papers which is so recorded in the nomination papers itself and that the appellant had raised objection about the age of respondent No.1 on 17.5.2008 along with the Matriculation certificate bearing her age but she was allowed to contest the election by the Returning Officer, which is contrary to the provisions of Section 208(1)(a) of the Act No.9 of 1994, however, the learned Election Tribunal dismissed the election petition on the ground that the age of respondent No.1 is recorded as 19 years in the voter list of the year 2002, therefore, she is presumed to have attained the age of 21 years during the election held in the year 2005. The appellant had not raised any objection at the time of scrutiny of nomination papers and above all the High Court has held her to be eligible candidate in terms of its order passed in CWP No.12153 of 2008 dated 16.7.2008. Aggrieved against the order of the Election Tribunal, the present appeal has been filed in which it is argued by learned counsel for the appellant that there is a palpable error in the appreciation of evidence by the Tribunal and that the order passed by the High Court in CWP No.12153 of 2008 has been misconstrued. It is submitted that Duli Chand, Maths Teacher, Govt. High School, Kirianwali, Tehsil Fazilka has proved FAO No.1147 of 2010 -3- from the admission register of the School, the date of birth of respondent No.1, as 20.4.1989. Moreover, the date of birth of respondent No.1 is recorded as 20.4.1989 in the Matriculation Certificate (Ex.A-5) and that respondent No.1 herself had recorded her age as 19 years in the nomination papers in the present election. He has also referred to her admission in the cross-examination which reads as under: - “It is correct that in the receipt form, my vote number is mentioned as 264. I have seen my affidavit dated 16.5.2008 which is attached with the nomination paper of the summoned record which bears my signatures, I identified the same. It is correct that in my affidavit dated 16.5.2008, I have mentioned my age as 19 years” “I have passed my matriculation examination from Govt. High Secondary School, Kirianwala, Tehsil Fazilka. The name of my mother is Reshma Rani and name of my father is Lal Singh.” Learned counsel for the appellant has further submitted that the Tribunal has erred in relying upon the voter list of the year 2002 of Village Tarobai, Tehsil Farilka in which the age of respondent No.1 is recorded as 19 years and on that it is presumed that her age in the present election is more than 21 years. He submits that the age recorded in the voter list would not have any precedence over and above the age recorded in the Matriculation certificate much less the School register, which has not been disputed by respondent No.1. Insofar as order passed in CWP No.12153 of 2008 is concerned, the said order has been totally misinterpreted and misconstrued by the Election Tribunal because after her election as Panch, respondent No.1 had filed the aforesaid writ petition in this Court with a prayer to direct State Government to conduct the election for the post of Sarpanch. In this regard, the following order was passed by the Division Bench of this Court which reads thus: - “This petition is disposed of with the observation that Bimla Rani petitioner No.1 is FAO No.1147 of 2010 -4- eligible candidate having been elected as Panch. She shall have the liberty to contest the election for the post of Sarpanch. Direction is issued to respondents No.2 to 6 to ensure that free and fair election of Sarpanch is held and all the Panches are permitted to exercise their franchise. This petition stands disposed of. Copy of this order be given Dasti under the signature of the Bench Special Secretary.” From the perusal of the aforesaid order, it is clear that the question of eligibility was not before the Division Bench of this Court in the said writ petition because in that case only direction was sought for free and fair election of Sarpanch. The question as to whether respondent No.1 was qualified to contest the election of Panch or not was not decided in the said case. Therefore, in my view, the order passed by the Tribunal, in this regard, is patently erroneous and illegal. The question further arises as to whether there is a disqualification provided under the law for a person to contest the election if he or she is below 21 years of age? No doubt that Section 208(1)(a) of the Act No.9 of 1994 provides that “Disqualification for Membership. (1) A person shall be disqualified for being chosen as and for being a member of a Panchayat if,- (a) he is so disqualified by or under any law for the time being in force for the purpose of elections to the Legislature of the State. Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years. This disqualification is provided under the Act No.9 of 1994 but it is conspicuously absent in Section 11 of the Act No.19 of 1994 whereas it is now well settled that the provisions of Section 11 of the Act No.19 of 1994 would prevail over and above provisions of Section 208 of the Act No.9 of 1994 unless provisions of Section 11 of the Act No.19 of 1994 are consistent with the provisions of Act No.19 of 1994. Faced with this situation, learned counsel for the appellant has referred to Article 243F of the Constitution of India which reads as under: - FAO No.1147 of 2010 -5- 243F. Disqualification for membership: (1) A person shall be disqualified for being chosen as, and for being, a member of a Panchayat— (a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned: Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years; (b) if he is so disqualified by or under any law made by the Legislature of the State. (2) If any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide.” It is submitted by learned counsel for the appellant that election of the returned candidate can be called into question for the purpose of declaring it to be void under Section 89(1)(a) of the Act No.19 of 1994 which provides that “that on the date of his election, a returned candidate was not qualified, or was disqualified to be chosen to fill the seat under the Constitution of India or under this Act.” It is alleged that on the date of election, respondent No.1 had not completed 21 years of age in view of her own admission in her cross- examination, Matriculation certificate and nomination papers in which she had recorded her age to be 19 years, therefore, she was not qualified under Article 243F of the Constitution and as such her election was liable to be declared to be void in terms of Section 89(1)(a) of the Act No.19 of 1994. FAO No.1147 of 2010 -6- The submission made by learned counsel for the appellant could not be controverted by learned counsel for respondent No.1, who had rather argued that the age of respondent No.1 was more than 21 years of age in terms of the voter list of the year 2002 of Gram Panchayat, Tarobai, Tehsil Fazilka. I am afraid that this argument cannot be accepted because the age recorded in the voter list cannot take precedence over and above the age recorded in the Matriculation certificate which has more probative and evidentiary value. Insofar as the order passed by the High Court, which is largely relied upon by the learned Election Tribunal, is concerned that has already been clarified that it was all because of misreading of the order. Thus, in the totality of circumstance, I find this appeal to be meritorious and as such the same is hereby allowed. It is held that a person, who is less than 21 years of age, is not eligible to contest the election for the seat of Panch in terms of Article 243F of the Constitution. Resultantly, the election of respondent No.1 to the post of Panch and subsequently to the post of Sarpanch is set aside. Parties are directed to bear their own costs. (RAKESH KUMAR JAIN) December 10, 2010 JUDGE Vivek