FAO No.5309 of 2009 (O&M) - 1 - ***** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.5309 of 2009 (O&M) Date of decision:25.08.2010. Sodhi Ram ...Appellant Versus Election Tribunal-cum-Sub Divisional Magistrate, Payal, District Ludhiana and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Vikas Mehsempuri, Advocate, for the appellant. Mr. Ram Lal Gupta, Addl. A.G., Punjab. Mr. Swaran Sandhir, Advocate, for respondent No.3. ***** RAKESH KUMAR JAIN, J. Challenge in this appeal is to the order dated 09.09.2009 passed by the Election Tribunal-cum-Sub Divisional Magistrate, Payal [for short “Election Tribunal”] by which election of the appellant has been set aside in terms of Section 208(c) of the Punjab Panchayati Raj Act, 1994 [for short “Act No.9 of 1994] on the ground that the appellant has been convicted and sentenced with fine of Rs.500/- under Section 13(A) of the Public Gambling Act, 1867 [for short “Gambling Act”]. FAO No.5309 of 2009 (O&M) - 2 - ***** In short, appellant was elected as a Panch from the reserved category having been polled 69 votes as against Gurmit Singh (respondent No.3) who secured 57 votes. His election was challenged by respondent No.2 Joginder Singh etc. on the ground that in a case registered vide FIR No.142 dated 25.09.2006, under Section 13(A) of the Gambling Act at Police Station Gobindgarh, the appellant was convicted on confession of his guilt and was sentenced with fine of Rs.500/- vide order dated 20.07.2007. His election was challenged in terms of Section 208(c) of the Act No.9 of 1994 which has been accepted by the Election Tribunal. Learned counsel for the appellant has vehemently argued that conviction and sentence under Section 13(A) of the Gambling Act does not amount to moral turpitude. He has relied upon the decisions of this Court in the cases of Mukhtiar Singh v. State of Punjab and others, 2007(2) RSJ 261, Narain Singh v. N.S.Cheema, 1978 P.L.R. 149 and also the decision of Apex Court in the case of K.L.Narasimha Rao v. State of A.P. 2001(10) S.C.C. 561. Besides this, it is also submitted that the provisions of Section 208(c) of the Act No.9 of 1994 would not be applicable in view of the subsequent Legislation of Punjab State Election Commission Act, 1994 [for short “Act No.19 of 1994”] in which disqualifications are provided under Section 11. It is also submitted that the provisions of Act No.19 of 1994 would apply over and above the provisions of Act No.9 of 1994. On the contrary, learned counsel for the respondent has argued that conviction and sentence of a person under the Gambling FAO No.5309 of 2009 (O&M) - 3 - ***** Act shocks the conscious of the society and is, thus, amounts to moral turpitude. I have heard both the learned counsel for the parties and have perused the record with their able assistance. The question in this case, as to whether the conviction and sentence under the Gambling Act would amount to moral turpitude or not, is not required to be decided and is left open because the appeal could be decided on the ground as to whether the provision of Section 208(c) of the Act No.9 of 1994 is applicable or not. It is now well settled by the Apex Court that provisions of Section 208 of the Act No.9 of 1994 would not be applicable in the presence of provisions of Section 11 of the Act No.19 of 1994 as Act No.19 of 1994 is a subsequent Legislation, however, provisions of Section 208 of the Act No.9 of 1994 would apply provided the disqualifications are consistent in Section 208 of Act No.9 of 1994 and Section 11 of the Act No.19 of 1994. Indisputably, the disqualification provided under Section 208(c) of the Act No.9 of 1994 is conspicuous by its absence in Section 11 of the Act No.19 of 1994, therefore, Election Tribunal has committed a patent error of law in relying upon the provisions of Section 208 of the Act No.9 of 1994 which are not per se applicable. In view thereof, the impugned order is held to be patently illegal and is, thus, set aside. The appeal filed by the appellant is hereby allowed with cost throughout. August 25, 2010 (RAKESH KUMAR JAIN) vinod* JUDGE