FAO No. 5198 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 5198 of 2009 (O&M) Date of decision: 2.2.2011 Boor Singh .. Appellant v. Election Tribunal-cum- Additional Deputy Commissioner/ Presiding Officer, Jalandhar and others .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Vijay Rana, Advocate for the appellant. Mr. C. L. Premy, Advocate for respondent No. 3. ... Rajesh Bindal J. Aggrieved against the order dated 10.8.2009, passed by Election Tribunal, Jalandhar (for short, `the Tribunal') setting aside the election of the appellant as Panch of village Beetla, Tehsil Nakodar, District Jalandhar, he is in appeal before this court. Briefly, the facts, as are evident from the record, are that election for the Gram Panchayat of village Beetla was held on 26.5.2008. The Gram Panchayat consisted of five Panches. Respondent No. 3- Lachhman Singh filed election petition before the Tribunal praying for setting aside the election of the appellant as Panch of Gram Panchayat, Beetla on the ground that he had won over the voters by adopting undue means and further that he had concealed true facts regarding his conviction at the time of filing his nomination papers and also in the affidavit filed alongwith. The Tribunal found that conviction of the appellant under Section 61(1)(b) of the Punjab Excise Act, 1914 was a disqualification under Section 208(1)(c) of the Punjab Panchayati Raj Act, 1994 (hereinafter referred to as `Act No. 9 of 1994'). The election of the appellant was FAO No. 5198 of 2009 [2] declared null and void and another candidate, namely, Piara Singh, who secured next higher votes from amongst the total contesting candidates, was declared elected. It is this order, which is under challenge before this Court. Learned counsel for the appellant submitted that the ground on which the election of the appellant as Panch of Gram Panchayat, Beetla has been set aside is totally illegal. The Tribunal had placed reliance upon the provisions of Section 208(1)(c) of Act No. 9 of 1994, whereas the disqualifications were 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”). The ground on which the election of the appellant has been set aside is not available under Act No. 19 of 1994. He further argued that provisions of Section 208 of Act No. 9 of 1994 are not applicable in the present case, as it would be Section 11 of Act No. 19 of 1994, which would be applicable. It has been so opined 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. He further submitted that the appellant at the time of filing of his nomination papers was required to submit application on statutory Form No. IV. None of the column thereof required the appellant to furnish any information regarding his involvement in a criminal case or conviction. He further submitted that he was required to file an affidavit at the time of filing of his nomination papers, in which there were two columns requiring information with regard to conviction of the candidate contesting the election and the land owned by him. The appellant was convicted under the provisions of the Punjab Excise Act, 1914 and sentenced to undergo imprisonment for a period of six months with fine, which had been suspended in the aforesaid case. This fact was not required to be disclosed even in terms of the requirements in the affidavit. Further relying upon a judgment of this court in Narain Singh v. Shri N. S. Cheema, P.C.S., Sub Divisional Magistrate, Fazilka and others, 1977 PLJ 472, it was submitted that conviction under Section 61(1)(a) of the Punjab Excise Act, 1914 does not involve moral turpitude and the same FAO No. 5198 of 2009 [3] is not a disqualification for being a member of the Gram Panchayat. Reference was also made to another judgment of this court in Sodhi Ram v. Election Tribunal-cum-Sub Divisional Magistrate, Payal, District Ludhiana and others, 2010(4) RCR (Civil) 754 to submit that even conviction under the Public Gambling Act, 1867 was not held to be a disqualification under Section 11 of Act No. 19 of 1994. In addition to the aforesaid submissions which, according to learned counsel for the appellant, are sufficient for setting aside the order passed by the Tribunal, still further it was submitted that the election petition filed by respondent No. 3 itself was not maintainable as all the necessary parties had not been impleaded therein. Section 77 of Act No. 19 of 1994 provided that in case there is a challenge to the election of one or more of the Panches, all the elected candidates are required to be impleaded as respondents in the petition. In the present case, respondent No. 3 filed the election petition merely impleading the appellant, whose election was under challenge in the Gram Panchayat consisting of five Panches. None of the other elected Panch was impleaded as a party respondent therein. On account of failure to comply with the mandatory requirement, the election petition itself was required to be dismissed and in fact should be dismissed by this court on this ground alone. Reference was made to Section 80 of Act No. 19 of 1994. In response to the contentions raised by learned counsel for the appellant, at the very out-set, learned counsel for respondent No. 3 was fair enough to admit that in view of the judgment of this court in Harbhajan Singh's case and Jawala Singh's case (supra) for considering the disqualifications for contesting elections for Gram Panchayat, the provisions of Section 11 of Act No. 19 of 1994 will be applicable and not the provisions of Act No. 9 of 1994. Learned counsel for respondent No. 3 submitted that the appellant was totally ineligible to contest election as Panch of Gram Panchayat Beetla, as he concealed material facts regarding his involvement and conviction in two cases registered against him under the Punjab Excise Act, 1914. He submitted that it was the duty of the appellant to have disclosed these facts at the time of filing his nomination papers so that the FAO No. 5198 of 2009 [4] same could be considered by the Returning Officer to find out as to whether he was eligible to contest the election or not. In support of his submissions, he relied upon S. P. Chengalvaraya Naidu (dead) by LRs v. Jagannath (dead) by LRs and others, AIR 1994 SC 853 and Holy Health and Educational Society (Regd.) v. Delhi Development Authority, 1999(3) RCR (Civil) 531. However, on a query by the court as to whether conviction under the Punjab Excise Act, 1914 is one of the disqualifications mentioned in Section 11 of Act No. 19 of 1994 on account of which the appellant was ineligible to contest the election, learned counsel fairly submitted that the same has not been specifically provided for therein. He further submitted that election of the appellant otherwise was also required to be set aside on account of corrupt practice adopted by him. Section 208(1)(b) of Act No. 9 of 1994 and Section 11 (d) of Act No. 19 of 1994 read with Section 108 thereof clearly provide this to be a good ground for setting aside the election of a Panch. The appellant in his cross- examination had admitted that he had used unfair means for eluring the voters to vote for him which amounts to corrupt practice. However, on the asking of the court, learned counsel for respondent No. 3 was candid in saying that no specific issue was framed by the Tribunal on this point and no evidence in affirmative was led by him. It was only in the cross- examination of the appellant that he had made certain statement, which respondent No. 3 seeks to rely upon to prove his allegation of corrupt practice. He further contended that the Tribunal having not recorded any finding regarding maintainability of the election petition on account of violation of Section 77 of Act No. 19 of 1994, the appellant should not be permitted to raise this issue before this court. However, he could not dispute the fact that legal requirement is that in the circumstances of the case, all the contesting candidates were required to be impleaded as respondents in the election petition. In response to the contentions raised by learned counsel for respondent No. 3, learned counsel for the appellant submitted that the reply filed by the Returning Officer to the election petition filed by respondent FAO No. 5198 of 2009 [5] No. 1 is on record, wherein it has specifically been stated by him that there was no concealment made by the appellant in the nomination papers. Respondent No. 3 did not raise any objection at the time of acceptance of his nomination papers. As regards the allegation of corrupt practice, the submission was that this point was not pressed by respondent No. 3 before the Tribunal as no issue pertaining to that was framed and no evidence was led by respondent No. 3, hence, should not be permitted to be raised at this stage. Heard learned counsel for the parties and perused the relevant referred record. As far as the issue raised by learned counsel for the appellant regarding application of the provisions of Act No. 19 of 1994 over and above Act No. 9 of 1994 for the purpose of consideration of disqualifications for being elected as Panch in a Gram Panchayat election is concerned, the parties are ad idem as it could not be disputed that the claim made by the appellant in that regard is squarely covered by the judgment of Hon'ble the Supreme Court in Som Lal v. Vijay Laxmi and others, 2008(2) RCR (Civil) 760, which was later on followed by this Court in Harbhajan Singh's and Jawala Singh's cases (supra). Accordingly, it is held that as far as the factors, which are to be considered for disqualification of a person to be a Member of Panchayat are concerned, it is only the provisions of Section 11 of Act No. 19 of the 1994, which would be applicable. Though apparently constitutional mandate under Article 243F has been ignored while framing these provisions, but still this court is not considering that issue in this case but the same is left open to be considered in an appropriate case where the facts so demand. Immediately the issue arises as to whether the appellant was disqualified for being elected as a Member of Panchayat in terms of the provisions of Section 11 of Act No. 19 of 1994. The contention raised by learned counsel for the appellant was that he had not concealed any material fact either in his nomination papers or in the declaration, which was required to be filed at that time. Whatever information was sought, the same was furnished. Even otherwise, the conviction of the appellant under the Punjab Excise Act, 1914 does not involve moral turpitude. The FAO No. 5198 of 2009 [6] conviction was merely for a period of six months. Against the conviction, the appeal was pending in which the sentence had been suspended. Section 11 of Act No. 19 of 1994 debars any person from being chosen and for being a Member of the Panchayat or Municipality only 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 a period of six years has elapsed since the date of such conviction. The conviction under the Punjab Excise Act, 1914 does not debar the appellant from contesting or being elected as Member of the Panchayat. The fact that conviction under the Punjab Excise Act, 1914 is not one of the disqualifications under Act No. 19 of 1994 for contesting election for membership of a Panchayat was not even disputed by learned counsel for respondent No. 3, as is even borne out from the plain reading of the relevant provisions. The contention of learned counsel for respondent No. 3 that even though it may not be a disqualification for the purpose of contesting election, still the appellant was required to disclose this fact as the Returning Officer could have rejected his nomination papers on that ground, is merely to be noticed and rejected. Once the conviction of the appellant under the Punjab Excise Act, 1914 is admittedly not a disqualification, its mentioning or not mentioning at the time of filing nomination papers would be totally irrelevant, especially when the same was not required to be mentioned. It will not amount to concealment of facts. Concealment would be something on account of non-disclosure of the some information, the decision of an authority to whom that information has not been furnished could be different. Further when such an information had been asked for. But in the present case, the situation is not that. Further, a perusal of statutory Form No. IV, as prescribed in Punjab Panchayat Election Rules, 1994 does not show that there is any column provided in the nomination papers which required a candidate to furnish any information about his conviction. The only information required to be furnished is as under: FAO No. 5198 of 2009 [7] “ Form IV [See rule 9(1)] Nomination Paper Name of Gram Sabha/Constituency area................ Name of office....................... Name of the Candidate.................... Father's or husband's Name...................... Age...................................... Occupation............................. Address.................................. Whether the candidate is a member of the Scheduled Castes, the particular caste to which the candidate belongs_______________ Serial Number of the candidate on the electoral poll pertaining to the Gram Sabha/Constituency area is_________________ Name of the Proposer............................... Number of the Proposer on the electoral roll pertaining to the Gram Sabha/Constituency area....................... (Signature of the Proposer) Name of the Seconder........................................ Number of the Seconder on the electoral roll pertaining to the Gram Sabha/Constituency area.......................... (Signature of the Seconder) DECLARATION BY CANDIDATE I hereby declare that I agree to this nomination. Signature of candidate” In addition to the aforesaid nomination papers, what was referred to at the time of hearing from the record by learned counsel for the appellant was a declaration which was furnished by the appellant at the time FAO No. 5198 of 2009 [8] of filing of nomination paper. In the declaration, the appellant furnished certain information: The text of the declaration which was furnished by Boor Singh at the time of filing of nomination paper is extracted below:- “I, Boor Singh son of Bhagwan Singh aged 47 years, resident of village/block Nakodar, a candidate for the abovesaid election solemnly affirm and declare as under (strike off which is not applicable) :- 1. A) I have never been accused or convict of 2 years or more sentence including the following offences for which the allegations have been levelled. Description whereof is as under:- i) Section of the Act and the description of that offence for which the hearing has been given. ii) The Court which gave the hearing. iii) Case No. iv) Date of order of the Court for hearing. No Sir B) I have been held/not held guilty (except those offences, by which the sentence renders me ineligible for contesting election) for which sentence of 1 year or more has /have not been awarded and description thereof is as under:- i) Section of Act and the description of the offence for which the hearing has been given. ii) The Court which gave the hearing. iii) Case No. iv) Date of order of the Court for hearing. v) Description of appeal (appeals), Application (Applications) if any, for revision against the aforesaid order of hearing. No Sir 2. That I/my wife/ my husband/ my dependents FAO No. 5198 of 2009 [9] including HUF own the following immovable property (including the property under joint ownership). a) Lands i) Agricultural Lands, name of the owner, where situated (location), boundary including market value and description of the relationship of the candidate with the owner. 3 Killas, Boor Singh, Beetla ii) The name of the owner of the urban lands, place, area, market value and description showing the relationship of the candidate with the owner. No Sir” Even in terms of the aforesaid declaration, the only information required was about the cases in which the candidate had been sentenced for imprisonment for one year or more. The appellant in the present case was admittedly sentenced for a period of six months. Hence, even in terms of the aforesaid declaration, it cannot be said that there was any concealment of information which could debar the appellant from contesting the election for the panchayat. The argument raised by learned counsel for respondent No. 3 that election of the petitioner otherwise also deserved to be set aside on account of his indulging in corrupt practices, is also to be noticed and rejected. Firstly, challenge to the election of a Member of Panchayat on the allegation of use of corrupt practice is an independent ground which is required to be pleaded and proved with cogent evidence. In the present case, though respondent No. 3 had raised a plea in his election petition about the corrupt practices used by the appellant, however, there are no details. The pleadings are vague. There is no issue framed on this and no evidence was led by respondent No. 3 in affirmative. The only reliance sought to be placed is on some lines stated by the appellant in his cross-examination regarding use of liquor in the election. The aforesaid material, in my opinion, cannot be said to be sufficient for holding a candidate guilty of FAO No. 5198 of 2009 [10] corrupt practice. Accordingly, the contention of respondent No. 3 to that extent is rejected. Even otherwise, the election petition filed by respondent No. 3 was liable to be rejected, being in violation of the provisions of Section 77 of Act No. 19 of the 1994, as all the returned candidates had not been impleaded. In the present case, he had only impleaded the appellant as one of the respondent in the election petition as his election was under challenge. In the election petition, prayer of respondent No. 3 was for setting aside of the election of the appellant as Panch of Gram Panchayat. In terms of the provisions of Section 77 of Act No. 19 of 1994, the petitioner in an election petition was required to implead all the returned candidates as respondents. On his failure to do so, the petition was liable to be dismissed in terms of Section 80 of Act No. 19 of 1994, the defect being incurable. Similar view was expressed by 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. For the reasons mentioned above, the present appeal is accepted. The impugned order passed by the Tribunal is set aside and consequently the election petition filed by respondent No. 3 is dismissed. ( Rajesh Bindal ) Judge 2.2.2011 mk (Refer to Reporter)