FAO No.5854 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.5854 of 2009 (O&M) Date of Decision: 18.3.2010 Harminder Singh ..Appellant. Vs. Rajinder Singh and others ..Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Rajnish Narula, Advocate for the appellant. Mr.Pankaj Sharma, Advocate for the respondents. RAKESH KUMAR JAIN, J. This appeal is directed against the order of Additional Deputy Commissioner-cum-Election Tribunal, Rupnagar dated 23.9.2009 vide which election of appellant Harminder Singh has been set aside at the instance of the election petition filed by respondent No.1 (Rajinder Singh) on the ground that the appellant being a defaulter of The Charian Agricultural Cooperative Service Sabha Ltd., Charian was disqualified to contest the election, therefore, his nomination paper has been illegally accepted and has been illegally declared as elected. Brief facts of the case are that elections for the Gram Panchayat Brahman Majra were held on 26.5.2008. The petitioner was elected as a Panch in the said election defeating his nearest rival who has challenged his election by filing the present election petition under Section 76 of the FAO No.5854 of 2009 (O&M) -2- Punjab State Election Commission Act, 1994 (for short `the Act No.19 of 1994') on the following grounds: (a) That on the day of election the respondent No.1 was not qualified to be chosen to fill the seat as member of Gram Panchayat Brahman Majra. The respondent No.1 was defaulter of the Charrian Agricultural Coop.Service Sabha Ltd. Charrian for a sum of Rs.54,135/-. b) That a corrupt practice has been committed by the respondent No.1. In the affidavit, the respondent No.1 has stated wrong facts. In his affidavit the respondent No.1 has stated that he is not defaulter of any bank or society. If he had stated the true facts that he is defaulter of the Charrian Agricultural Coop.Service Sabha Ltd. Charrian, then certainly the competent authority might have rejected his nomination papers. The concealment of true facts had rendered his nomination papers improperly accepted. c) That the respondent No.1 has not come in the fray of election with clean hands and he has concealed the true facts by not stating that he is defaulter of The Charrian Agricultural Coop.Service Sabha Ltd., Charrian. The certificate issued by the Secy. The Charrian Agricultural Coop.Service Sabha Ltd., is enclosed herewith.” The aforesaid averments made in the election petition were replied by the appellant as under : (a) That sub para of the petition is wrong. As per the certificate of Secretary, The Charrian Agricultural Coop.Service Sabha Ltd., Chharian nothing is outstanding. A copy of the certificate issued by The Charrian Agricultural Coop.Service Sabha Ltd. is attached herewith. (b) That sub-para of the petition is totally wrong. The petitioner is filing false and frivolous petitions out of personal enmity and party fraction against the respondent, which is totally wrong. Nomination papers filed by the respondent No.1 FAO No.5854 of 2009 (O&M) -3- were absolutely correct and nobody had raised any objection against the respondent No.1 and in the absence of any objection, the respondent No.1 was found eligible to contest the election. (c) That this para of the petition is wrong.” Learned counsel for the appellant submits that during the course of hearing, certificate dated 21.7.2008 purported to have been issued by the Secretary of The Charrian Agricultural Coop.Service Sabha Ltd. Charian, as per which the loan amount of Rs.54,135/- which was outstanding against the appellant for the period from 15.6.2007 to 26.7.2007, was already waived off by the Government and was so published in the newspapers. It is submitted that while even considering the said certificate (Ex.P1), the learned Tribunal has held that the appellant was a defaulter of the Cooperative Society of short term crop loan, therefore, he was disqualified from contesting the election and as such his election was upset. It is further submitted that in the election petition, the election petitioner/respondent No.1 has failed to indicate the provisions of law to challenge the election of the appellant, which provides disqualification. It is submitted that even if for the sake of argument, though not admitted, it is presumed that appellant was defaulter of the loan amount as far as Cooperative Society is concerned, even then same is not a ground for disqualification either under Section 208 of the Punjab Panchayati Raj Act, 1994 (for short Act No.9 of 1994) or under Section 11 of the Act No.19 of 1994. In reply, learned counsel for the respondents has read over the order of the Tribunal and submitted that the appellant has been duly disqualified. FAO No.5854 of 2009 (O&M) -4- I have heard learned counsel for the parties and have perused the record. Before adverting to the arguments raised by the counsel for the appellant, it would be relevant to refer to the provisions of Section 208 of the Act No.9 of 1994 and Section 11 of the Act No.19 of 1994, which are reproduced as under: Section 208 of the Act No.9 of 1994 : 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, FAO No.5854 of 2009 (O&M) -5- 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” Section 11 of the Act No.19 of 1994 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) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment 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 undischarged 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 a period of six years has elapsed since the date of such conviction; or (f) if he holds an office or 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” FAO No.5854 of 2009 (O&M) -6- On a careful reading of the aforesaid two provisions, which provides disqualification for a member to contest an election of a Gram Panchayat or of Block Samiti, the ground of being a defaulter to a Cooperative Society is conspicuously absent in both the aforesaid provisions. Therefore, I am in agreement with the argument raised by learned counsel for the appellant that though the appellant is not a defaulter as per document Ex.P1 yet if it is presumed to be such, the said ground is not a ground of disqualification provided either under Section 208 of the Act No.9 of 1994 or Section 11 of the Act No.19 of 1994. The learned Tribunal has committed a patent error of law in its appreciation not only of facts available on record but also in reading the relevant provisions of law. In view of the above discussion, the present appeal is allowed and impugned order passed by the election Tribunal is set aside. Since, the election petition was totally frivolous, therefore, the appeal is allowed with costs of Rs.10,000/-. (Rakesh Kumar Jain) 18.3.2010 Judge Meenu