FAO No.5110 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.5110 of 2009 (O&M) Date of Decision: 18.3.2010 Roop Singh ..Appellant. Vs. Presiding Officer and others ..Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.N.P.S.Mann, Advocate for the appellant. Ms.Sushma Chopra, Advocate for the respondents. RAKESH KUMAR JAIN, J. Challenge in this appeal is to the order passed by the Presiding Officer-Election Tribunal–cum-Deputy Commissioner, Patiala dated 4.8.2009 whereby an election petition filed under Section 76 of the Punjab State Election Commission Act, 1994 (for short 'the Act No.19 of 1994') read with Rule 50 of the Punjab Panchayati Raj Election Rules, 1994 (for short `the Rules') has been allowed. In brief, the facts of the case are that general election to constitute panchayats in the State of Punjab were held on 28.5.2008. Election of the Gram Panchayat village Barsat, Block Tehsil and District Patiala was also held in which seven members of Panchayat were elected out of which respondent No.7 (Roop Singh) was elected from reserved category. His election has been challenged by the Election Petitioner, FAO No.5110 of 2009 (O&M) -2- Karnail Singh on the ground that Roop Singh was in illegal possession over the land of Gram Panchayat and was not qualified to contest election in view of Section 208(1)(k) of the Punjab Panchayati Raj Act, 1994 (for short `the Act No.9 of 1994). The learned Tribunal, on facts, found that Roop Singh (Returned candidate) was in unauthorised possession of the Panchayat land, therefore, his election was set aside and the election petitioner was declared elected. Learned counsel for the appellant has, inter alia, argued that the election of the appellant could not have been challenged on the ground of his being in unauthorised possession of the Gram Panchayat land as the said ground is not available in Section 11 of the Act No.19 of 1994. It is further submitted that even if the said ground is provided under Section 208(1)(k) of the Act No.9 of 1994, the same is not consistent with the provisions of Section 11 of the Act No.19 of 1994 which is later in time, therefore, his election could not have been challenged. In this regard, he has relied upon decision of the Supreme Court in the case of Som Lal Vs. Vijay Laxmi and others AIR 2008 SC 2088. On the other hand, learned counsel for the respondents has vehemently argued that once the appellant has been found in unauthorised possession of the land of panchayat, his election has been rightly set aside in view of Section 208(1)(k) of the Act No.9 of 1994. I have heard learned counsel for the parties and have perused the record. It is now settled by the Apex Court in the case of Som Lal (supra) that Act No.19 of 1994 is later in time and shall prevail over and above the Act No.9 of 1994, which is prior in time. It is also held that FAO No.5110 of 2009 (O&M) -3- disqualification provided under Section 208(1)(k) of the Act No.9 of 1994 would prevail only if they are consistent with the disqualification provided under Section 11 of the Act No.9 of 1994. Incidentally, the disqualification provided in Section 208(1)(k) of the Act No.9 of 1994 is not provided in Section 11 of the Act No.19 of 1994, therefore, the election of appellant could not have been challenged by the defeated candidate on the said ground by filing a petition under Section 76 of the Act No.19 of 1994. In view of the above discussion, the present appeal is allowed and the impugned order is set aside. No costs. (Rakesh Kumar Jain) 18.3.2010 Judge Meenu