FAO No. 4570 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 4570 of 2009 (O&M) Date of decision: 1.2.2011 Mohinder Singh .. Appellant v. Gurmeet Singh and others .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Parminder Singh Sekhon, Advocate for the appellant. Mr. G. S. Sidhu, Advocate for respondent No. 1. ... Rajesh Bindal J. The election of the appellant as Panch of Gram Panchayat, Kalajhad, District Sangrur, having been set aside by the Presiding Officer, Election Tribunal (Deputy Commissioner) Sangrur (for short, `the Tribunal'), vide order dated 21.7.2009, he is in appeal before this court. Briefly, the facts of the case are that election for Gram Panchayat, Kalajhad, District Sangrur was held in July, 2008 in which the appellant was elected as one of the Panch. The election of the appellant was challenged by respondent No. 1 on the ground that he was in illegal possession of the panchayat land, which was meant to be used for common purposes. The sole motive of the appellant to contest the election was to misappropriate the property of the panchayat. The Tribunal holding that in terms of the provisions of Section 208(1)(k) of the Punjab Panchayati Raj Act, 1994 (hereinafter referred to as “Act No. 9 of 1994”), the appellant being disqualified from contesting the election, set aside his election as a Panch as he was found to be in illegal possession of the land belonging to a local authority. A direction was issued for holding fresh election to fill in the vacancy. It is this order which is impugned in the present appeal. Learned counsel for the appellant raised two-fold submissions. Firstly, relying upon a judgment of Hon'ble the Supreme Court in Som Lal FAO No. 4570 of 2009 [2] v. Vijay Laxmi and others, 2008(2) RCR (Civil) 760, it was submitted that disqualifications for a candidate for contesting the election are to be considered in terms of the provisions of Section 11 of the Punjab State Election Commission Act, 1994 (hereinafter referred to as “Act No. 19 of 1994”) and not in terms of Act No. 9 of 1994. In the present case, patent illegality committed by the Tribunal in declaring the election of the appellant as void is that reliance was placed upon the provisions of Act No. 9 of 1994, whereas in Section 11 of Act No. 19 of 1994, unauthorised occupation of land of the panchayat is not one of the disqualifications for contesting the election. Elaborating further, he submitted that even the finding recorded by the Tribunal to hold that the appellant is in illegal possession of the panchayat land is totally erroneous. The material before the Tribunal was not sufficient for recording such a finding. In fact, the land in question was given to Harijans of the village by the Gram Panchayat by passing a resolution on 7.8.1998 to enable them to construct their houses thereon. The orders against the appellant, which have been referred to by the Tribunal in its order, are in fact subject-matter of challenge in C.W.P. No. 1827 of 2005, which is pending in this Court and dispossession of the petitioners therein has been stayed. He further submitted that the Tribunal has committed a patent illegality in entertaining the petition filed by respondent No. 1, as the same was not maintainable having not been filed strictly in terms of the provisions of Section 77 of Act No. 19 of 1994 by impleading the necessary parties. In terms of Section 77, where the prayer in the election petition is for declaring the election of any of the Panches as void, all the elected Panches were to be impleaded as party. Respondent No. 1 having not complied with the mandatory provisions of Section 77 of Act No. 19 of 1994, the election petition itself deserved to be dismissed. On the other hand, learned counsel for respondent No. 1 submitted that from the material on record, as was available before the Tribunal, it was fully established that the appellant was in illegal possession of 37 Bighas and 2 Biswas of land belonging to the Gram Panchayat. The case was filed by District Development and Panchayat Officer-cum- Collector, Sangrur against the appellant, which was decided in favour of the FAO No. 4570 of 2009 [3] Panchayat on 31.8.1998. Even the appeal against the aforesaid order was dismissed on 13.8.2004. However, he did not have any answer to the proposition of law laid down by Hon'ble the Supreme Court in Som Lal's case (supra) pertaining to the application of the provisions of Act No. 19 of 1994 over and above Act No. 9 of 1994 to see the disqualification for contesting election as Member Panchayat. As far as the issue raised by learned counsel for the appellant regarding non-impleadment of necessary parties in the election petition filed by respondent No. 1 is concerned, the submission was that no such objection having been raised before the Tribunal, the same should not be considered at this stage. Heard learned counsel for the parties and perused the relevant referred record. Relevant provisions of Act No. 9 of 1994 and Act No. 19 of 1994 are reproduced hereunder: “Section 208 of Act No. 9 of 1994 208. 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 purposes 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; (b) has been found guilty of any corrupt practice in any election of a Gram Panchayat, Panchayat Samiti or Zila Parishad; (c) has been convicted of any offence involving moral turpitude or an offence implying of any defect of a Sarpanch or Panch of Gram Panchayat or member of a Panchayat Samiti or Zila Parishad, unless a period of five years has elapsed since his conviction; or (d) has been convicted of an election offence; or (e) has been ordered to give security for good behaviour under FAO No. 4570 of 2009 [4] section 110 of the Code of Criminal Procedure, 1973; or (f) has been notified as disqualified for appointment as public servant except on medical grounds; or (g) is a whole-time salaried employee of any local authority, Statutory Corporation or Board or a Co-operative Society registered under the Punjab Co-operative Societies Act, 1961, or of the State Government or the Central Government; or (h) is registered as a habitual offender under the Habitual Offenders (Control and Reforms) Act, 1952, or any other law for the time being in force; or (i) has not paid the arrears of tax imposed by a Gram Panchayat, Panchayat Samiti or Zila Parishad, as the case may be; or (j) is a tenant or lessee or contractor or share-holder in any property of the Gram Panchayat, Panchayat Samiti and Zila Parishad; or (k) is in unauthorised occupation of property belonging to any local authority; or (l) being a Sarpanch has cash in hand exceeding the amount permitted under the rules made under this Act; (m) is member of either House of Parliament or of the Legislature of the Punjab State: Provided that a member of either House of the Parliament or Legislature of Punjab State may be elected as a Sarpanch or member of Gram Panchayat, Panchayat Samiti or Zila Parishad if, along with his nomination paper gives undertaking to the effect that he shall resign the membership of either House of Parliament or of the Legislature of the Punjab State, as the case may be, and so resigns before taking the oath or making affirmation for taking over the office of Sarpanch of a Gram Panchayat or a member of any Gram Panchayat, the Panchayat Samiti and Zila Parishad. (n) has been convicted of an offence under the protection of FAO No. 4570 of 2009 [5] the Civil Rights Act, 1955 within a period of five years immediately preceding the last date of the filing of the nomination papers; or (o) being a Sarpanch or Panch does not attach certificate with his nomination papers to the effect that he has handed over to the Block Development and Panchayat Officer complete charge of the record of the Gram Panchayat and of the cash, if any, with him. Sections 11 and 142 of Act No. 19 of 1994 11. Disqualifications for membership of a Panchayat or a Municipality-- A person shall be disqualified for being chosen as, and for being a member of a Panchayat or a Municipaity.- (a) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State; or (b) if he is of unsound mind and stands so declared by a competent court; or (c) if he is an undercharged insolvent; or (d) if he has in proceedings for questioning the validity or regularity of an election, been found guilty of any corrupt practice; or (e) if he has been found guilty of any offence punishable under Section 153A or Section 171E or section 171F or section 376 or Section 376A or section 376B or section 376C or section 376D or section 498A or section 505 of the Indian Penal Code, 1960 or any offence punishable under Chapter XIII of this Act unless for a period of six years has elapsed since the date of such conviction; or (f) if he holds an office of profit under a Panchayat or a Municipality; or (g) if he holds an office of profit under the Government of India or any State Government; or (h) if he is interested in any subsisting contract made with, FAO No. 4570 of 2009 [6] or any work being done for, that Panchayat or Municipality except as a share-holder (other than a Director) in an incorporated company or as a member of a co-operative society; or (i) if he is retained or employed in any professional capacity either personally or in the name of a firm in which he is a partner, or with which he is engaged in a professional capacity, in connection with any cause or proceeding in which the Panchayat or the Municipality is interested or concerned; or (j) if he, having held any office under the State Government or any Panchayat or any Municipality or any other State level authority or any Government company or any corporate body owned or controlled by the State Government or Government of India, has been dismissed from service, unless a period of four years has elapsed since his dismissal. Section 142 of Act No. 19 of 1994 142. Over-riding effect. -- The provisions of this Act shall have over-riding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force relating to the conduct of elections to the Panchayats or Municipalities or any incidental matter thereto.” A perusal of the provisions of Section 208(1)(k) of Act No. 9 of 1994, which came into force on 21.4.1994, shows that a person is disqualified for being chosen as and for being a member of a Panchayat if he is in unauthorised occupation of property belonging to any local authority. However, in Section 11 of Act No. 19 of 1994, which came into force on 19.9.1994, no such disqualification has been mentioned. Section 142 of Act No. 19 of 1994 provides that the provisions of this Act shall have over-riding effect notwithstanding anything inconsistent contained in any other law for the time being in force relating to the conduct of elections to the Panchayats or Municipalities. The issue as to the disqualifications mentioned in which of the aforesaid two Acts are to be considered for the purpose of elections to the FAO No. 4570 of 2009 [7] Gram Panchayats has been gone into by Hon'ble the Supreme Court in Som Lal's case (supra) and it has been opined that it would be the disqualifications, as mentioned in Section 11 of Act No. 19 of 1994, which are to be considered and not what is provided for in Section 208 of Act No. 9 of 1994. The relevant passage therefrom is extracted below: “The disqualifications are only mentioned in Section 208 of the Act 9 of 1994 and the intention of the legislature is very clear and Section 11 of the Act of 1994 being in later point of time stating therein what are the disqualifications, therefore, the disqualifications mentioned in Section 11 of the Act 19 of 1994 will prevail and not the disqualification mentioned in Section 208 of Act 9 of 1994. The disqualifications mentioned in Section 208 which are consistent with Section 11 of Act 19 of 1994 can only survive and not other disqualifications.” Similar view was expressed by this Court in Harbhajan Singh v. Major Singh and others, 2010(2) RCR (Civil) 517 and Jawala Singh v. The Election Tribunal-cum- Additional Deputy Commissioner, Barnala (Punjab) and others, 2010(3) RCR (Civil) 368. Accordingly, the finding recorded by the Tribunal setting aside the election of the appellant by placing reliance upon Section 208(1)(k) of Act No. 9 of 1994 is liable to be set aside as in terms of the provisions of Section 11 of Act No.19 of 1994, the appellant was not disqualified to be elected as a Panch. Though learned counsel for the appellant has sought to raise the issue regarding maintainability of the election petition before the Tribunal, the same being in violation of Section 77 of Act No. 19 of 1994 as all the elected candidates had not been impleaded, but this court need not to go into that issue even though meritorious and supported by the judgments of this Court in Manjit Kaur v. Deputy Commissioner-cum-Election Tribunal, Fatehgarh Sahib and others, 2010(4) RCR (Civil) 784; FAO No. 5413 of 2010 –Ranjit Kaur v. Election Tribunal and others, decided on 13.1.2011 and FAO No. 4459 of 2009 –Smt. Bhajan Kaur and another v. Gurmej Kaur and another, decided on 1.2.2011. For the reasons mentioned above, the present appeal is accepted. The impugned order passed by the Tribunal is set aside and FAO No. 4570 of 2009 [8] consequently the election petition filed by respondent No. 1 is dismissed. ( Rajesh Bindal ) Judge 1.2.2011 mk