FAO No. 3912 of 2010 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 3912 of 2010 (O&M) Date of decision: 22.2.2011 Jagtar Singh and others .. Appellants Tarlochan Singh and another .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. K.S. Boparai, Advocate for the appellants. Mr. S.S. Toor, Advocate for respondent No. 1. ... Rajesh Bindal J. This order will dispose of two appeals bearing FAO Nos. 3912 and 3913 of 2010 as common questions of facts and law are involved therein. In an election petition filed by respondent No.1, Tarlochan Singh in FAO No.3912 of 2010 and in an election petition filed by Bhag Singh, respondent No.1 in FAO No.3913 of 2010, the election of appellants No.1 & 2 as Panches of Gram Panchayat, Pohir, Block Dehlon, Tehsil and District Ludhiana, having been set aside by the Presiding Officer, Election Tribunal-cum Deputy Director, Urban Local Bodies, Ludhiana (for short, `the Tribunal'), vide order dated 21.4.2010, the appellants are before this court. The facts have been extracted from FAO No.3912 of 2010. Briefly, the facts of the case are that election for Gram Panchayat of Pohir, Tehsil and District Ludhiana was held on 26.05.2008 in which the appellants were elected as Panches. The election of appellants No.1 and 2 was challenged by respondent No. 1 on the ground that they were in illegal possession of the panchayat land, which was meant to be used for common purposes. It was alleged that the sole motive of appellants No. 1 and 2 to contest the election was to misappropriate the property of the panchayat. The Tribunal holding that in terms of the provisions of Section FAO No. 3912 of 2010 [2] 208(1)(k) of the Punjab Panchayati Raj Act, 1994 (hereinafter referred to as “Act No. 9 of 1994”), appellants No.1 and 2 being disqualified from contesting the election, set aside their election as they were found to be in illegal possession of the land belonging to a local authority. Learned counsel for the appellants raised two-fold submissions. Firstly, relying upon a judgment of Hon'ble the Supreme Court in Som Lal 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 appellants No.1 and 2 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 appellants No.1 and 2 are 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, appellant No.1 filed a suit for correction of Khasra Girdawari before the Assistant Collector, Grade-II, who visited the spot and corrected Khasra Girdawari from the name of appellant No.1 to the name of Gram Panchayat and therefore, he is not in unauthorized occupation of Panchayat land. 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 appellant No.1 was in illegal possession of shamlat land measuring 0-3 comprised in Khewat No.744 Khatauni No.789 Khasra No. 36//11/12 belonging to the Gram Panchayat and appellant No.2 was found to be in unauthorised possession of land for shamlat well of village Pohir, Tehsil and District Ludhiana. 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. FAO No. 3912 of 2010 [3] 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 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 FAO No. 3912 of 2010 [4] (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 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 FAO No. 3912 of 2010 [5] 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, 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 FAO No. 3912 of 2010 [6] 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 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 FAO No. 3912 of 2010 [7] 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, Jawala Singh v. The Election Tribunal-cum- Additional Deputy Commissioner, Barnala (Punjab) and others , 2010(3) RCR (Civil) 368 and FAO No.4570 of 2009 titled as Mohinder Singh Vs. Gurmeet Singh and others decided on 01.02.2011. Accordingly, the finding recorded by the Tribunal setting aside the election of appellants No.1 and 2 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, appellants No.1 and 2 were not disqualified to be elected as Panches. For the reasons mentioned above, the present appeals are accepted. The impugned orders passed by the Tribunal are set aside and consequently the election petition filed by respondent No. 1 in both the appeals are dismissed. ( Rajesh Bindal ) Judge 22.2.2011 sharmila