In the High Court of Punjab and Haryana at Chandigarh ...... F.A.O. No.3502 of 2010 (O&M) ..... Date of decision:9.9.2011 Sucha Singh .....Appellant v. Mohinder Singh and others .....Respondents .... CORAM : HON'BLE MR. JUSTICE MOHINDER PAL ..... 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the reporters or not? 3. Whether the judgment should be reported in the digest? ...... Present: Mr. Rajnish Jindal and Mr. Ashok Khichi, Advocates for the appellant. Mr. O.P. Kamboj, Advocate for respondent No.1. None for other respondents. ..... Mohinder Pal, J. This appeal is directed against the order dated 29.4.2010 passed by the Presiding Officer, Election Tribunal-cum-Deputy Director, Urban Local Bodies, Ferozepur (for short - `the Tribunal'), vide which election of respondent No.3-Sucha Singh (appellant herein) as Panchayat Member of Village Megha Panj Garian Hithar, Block Jalalabad, District Ferozepur has been set aside on the ground that he was convicted under F.A.O. No.3502 of 2010 (O&M) [2] Sections 323, 324 and 34 IPC on 20.5.2004 and as per Section 208 of the Panchayati Raj Act, 1994 (Punjab Act No.9 of 1994 ) (hereinafter referred to as `the Act of 1994) he was disqualified for being elected. Petitioner-Mohinder Singh (respondent No.1 herein) filed election petition under Section 76 of the Punjab State Election Commission Act, 1994 (Punjab Act No.19 of 1994) (hereinafter referred to as `the Election Act') read with Sections 50 to 52 of the Punjab Panchayati Election Rules, 1994 (hereinafter referred to as `the Rules) against the declaration of the appellant and other respondents as Members of the Panchayat from the general category of Village Megha Panj Garian Hithar. It was main contention of the petitioner before the Tribunal that the present appellant was not qualified being elected as per provisions of Section 208 of the Act of 1994. Resultantly, the Tribunal appointed the next candidate in serial order to be the Panch. I have heard learned counsel for the parties and have gone through the records of the case. Learned counsel for the appellant has raised two-fold arguments. It has been submitted that Section 208 of the Act of 1994 has been repealed by Section 11 of the Election Act which is later in time and has overriding effect and express repealing provisions. It is further submitted that even in Section 208 of the Act of 1994 there was requirement of offences involving moral turpitude whereas the same has neither the effect nor even alleged nor even touched by the Tribunal. On the other hand, learned counsel representing respondent No.1 has reiterated the grounds taken by the Tribunal and has contended that the present appeal is F.A.O. No.3502 of 2010 (O&M) [3] liable to be dismissed. Before proceeding further with this case the Constitutional and various other legal provisions applicable in this situation require to be analysed. Article 243-F of the Constitution of India deals with the disqualification for membership, which reads as under:- “243F. Disqualifications 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) xx xx xx xx” Article 191(1)(e) is reproduced below:- “191. Disqualifications for membership.- (1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State - (a) to (d) xx xx xx xx (e) if he is so disqualified by or under any law made by Parliament.” Representation of the People Act, 1951 also deals with the F.A.O. No.3502 of 2010 (O&M) [4] disqualification on conviction for certain offences (of MPs & MLAs). Section 8(3) of the same reads as under:- “8. Disqualification on conviction for certain offences (Of MPs & MLAs).- (1) and (2) xx xx xx xx (3) A person convicted of any offence and sentenced to imprisonment for not less than two years [other than any offence referred to in sub-section (1) or sub-section (2)] shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.] Punjab Panchayati Raj Act, 1994 (Act 9 of 1994) also deals with the disqualification for membership. Section 208 (c) of the same is reproduced below:- “208. Disqualification for Membership.-- (1) A person shall be disqualified for being chosen as and for being a member of a Panchayat if,- (a) and (b) xx xx xx xx (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) to (o) xx xx xx” The Punjab State Election Commission Act, 1994 (Act 19 of 1994) also deals with disqualifications for membership of a Panchayat or a F.A.O. No.3502 of 2010 (O&M) [5] Municipality. Sections 11 (e), 142 and 143 of the same read as under:- “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 Municipality,- (a) to (d) xx xx xx xx (e) if he has been found guilty of any offence punishable under Section 153A or section 171E or Section 171 F 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 a period of six years has elapsed since the date of such conviction, or (f) to (j) xx xx xx xx 142. Over-riding effect.-- The provisions of this Act shall have overriding 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. 143. Repeal and saving.-- (1) The provisions of any State Law corresponding to the provisions of this Act are hereby repealed: Provided that such repeal shall not affect - (a) the previous operation of the corresponding provisions of any State Law so repealed or anything duly done or suffered thereunder; or F.A.O. No.3502 of 2010 (O&M) [6] (b) to (d) and (2) xx xx xx” A perusal of the above referred provisions shows that the case of the appellant does not fall under Section 8(3) of the Representation of the People Act, 1951 as conviction was less than two years as the appellant had been sentenced for one and a half years. Section 208 of the Act of 1994 stands repealed by virtue of Section 11 of the Election Act as also by virtue of above referred Sections 142 and 143 of the said Act which specifically give this Act an overriding effect and expressly repeal all the corresponding provisions in any other law. Moreover, whether the controversy of disqualifications enumerated in Section 208 of the Act of 1994 shall prevail or the disqualifications as mentioned in Section 11 of the Election Act came up for hearing before the Supreme Court in Som Lal v. Vijay Laxmi and others, 2008 (2) RCR (Civil) 760 and it has been held that this is also a fact that the Act 9 of 1994 came into effect on 21.4.1994 and the Act 19 of 1994 came into effect on 19.9.1994. Act 19 of 1994 is definitely later in point of time and here under Section 11(f) & (g) the disqualifications have been prescribed. Though similar disqualifications existed under Section 208 of the Act of 9 of 1994 but subsequently the legislature in its wisdom has reduced the disqualifications and confined only to the area that one should not hold office of profit under a Panchayat or a Municipality or under the Government of India or any State Government. Thus, the legislature in it wisdom has not considered it proper to continue with the disqualification of being an employee of any local authority, Statutory Corporation or Board or a Co-operative Society. Had that been the intention of the legislature then F.A.O. No.3502 of 2010 (O&M) [7] perhaps they would have specifically provided the disqualifications under Section 11 of the Act 19 of 1994. But in the subsequent Act 19 of 1994 the area of disqualification has been narrowed down. Since the Act 19 of 1994 is subsequent in point of time and it also has the provisions of Sections 142 and 143 which clearly contemplate that it shall have the complete over- riding effect. In the present case, the question is whether the provisions contained in Section 208(c) of the Act of 1994 shall prevail or the corresponding provisions contained in Section 11 (e) of the Election Act. Therefore, by using the same logic given by the Supreme Court, the provisions of Election Act shall prevail. Consequently, the order of the Tribunal of setting aside the election of the appellant on the ground of its being violative of Section 208 of the Act of 1994 is null and void and it is liable to be set aside. Otherwise also, even Section 208 (c) of the Act of 1994 provides disqualification for offences involving moral turpitude which is not the case in the present case. The election seems to have been challenged only due to political defeat as the respondent No.1 secured 78 votes and the appellant had secured 89 votes in the Panchayat election. For the aforesaid reasons, this appeal deserves acceptance. The same is, accordingly, allowed, the impugned order passed by the Election Tribunal is set aside. September 9, 2011. (Mohinder Pal) Judge *hsp*