FAO No.4227 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.4227 of 2009(O&M) Date of Decision: December 13,2011 Balbir Singh ....Appellant Versus Karnail Singh & others ....Respondents CORAM : HON'BLE MR. JUSTICE MOHINDER PAL Present:- Mr.G.S.Gill, Advocate for the appellant. Mr.Sanjiv Gupta, Advocate for the respondent. --- Mohinder Pal, J. This appeal is directed against the order dated 04.08.2009 passed by the Presiding Officer, Election Tribunal-cum-Deputy Commissioner, Patiala (for short 'the tribunal') whereby the election petition filed by Karnail Singh respondent number 1 under section 76 of the Punjab State Election Commission Act read with Rule 50 of the Punjab Panchayat Election Rules, 1994 for setting aside the election of Balbir Singh appellant as Panch of village Dharamheri, Tehsil and District Patiala was accepted as Panch was set aside , declaring Karnail Singh respondent number 1 as elected Panch. Short facts necessary for disposal of this appeal are given as under:- The General Elections, in the State of Punjab, for the Gram FAO No.4227 of 2009 2 Panchayats, were held on 26-05-2008. Kashmir Singh, Balbir Singh, Paramjit Kaur wife of Gurnam Singh, Hamir Singh, Paramjit Kaur wife of Lakhwinder Singh were elected as members of the Gram Panchayat village Dharamheri, Tehsil and District Patiala. Karnail Singh respondent number 1 and Balbir Singh appellant-both filed nomination papers for the solitary post of Panch reserved for the member of a Scheduled caste. However, Balbir Singh was elected for this reserved seat. Returning Officer issued Notification to this effect as is evident from Annexure A-1. Aggrieved by his defeat Karnail Singh respondent number 1 preferred to file election petition. On the petition of Karnail Singh the Election Tribunal set aside the election of Balbir Singh as member panchayat and in his place Karnail Singh was declared as elected panch vide order dated 23-09-2008. Appellant challenged this order in the Hon' ble High Court and case was remanded back for fresh decision by this court vide order dated 8-12-2008. Then the present order dated 4-8-2009 was passed by the Tribunal, which is now under challenge before this court. Election Petition preferred by Karnail Singh was accepted by the Tribunal mainly on the ground that appellant was in illegal and unauthorized possession of Panchayat land. Secondly, It was observed by the Tribunal in its order that as per Sub-section (i) (k) of Section 208 of the Panchayati Raj Act, 1994 a person who is in unauthorized occupation of the property belonging to any local authority shall be disqualified for being a member of the Gram Panchayat. This provision was discussed and upheld by the Hon'ble Punjab and Haryana High Court in Somnath Vs Vijay Lakshami etc. reported as 2006(1) (LAR) 376. It was further observed by the Tribunal that unauthorized possession of panchayat land is clearly a disqualification FAO No.4227 of 2009 3 for contesting and holding the post of member of Gram Panchayat. I have heard learned counsel for the parties and have gone through the record very carefully. While arguing before me , Learned counsel for the appellant has submitted that the appellant was not found in possession of Panchayat land at any point of time, as claimed by respondent no.1. He added that infact the Panchayat land was in possession of Kaura Singh brother of the appellant. It was claimed that Gram Panchayat had filed ejectment petition under section 7 of the Punjab Village Common Land ( Regulation ) Act 1961 for ejectment against Kaura Singh, brother of the appellant and name of the appellant was added lateron by manipulating the revenue record. It was contended that the conclusions of Tribunal were manifestly erroneous and arrived at without a complete and comprehensive of relevant aspects of the case in their proper perspective and consequently liable to be set aside. On the other hand, learned counsel for respondent number 1 has argued that there is overwhelming material available on the file in the shape of revenue entries-which according to learned counsel, rightly found favour of acceptance with the Tribunal, and therefore, no interference by this court is called for. After considering the rival contentions of both the parties and having perused the Judgment of the Tribunal, I am fully convinced that this appeal is liable to be accepted. Main controversy raised in the election petition is whether the appellant was in unauthorized possession of the Gram Panchayat land or not. If it is so, whether this can be a legal disqualification from contesting and holding the post of member panchayat. Respondent- Karnail Singh claims the FAO No.4227 of 2009 4 appellant to be in unauthorized possession of Panchayat Land at the time of filing nomination papers and took help of certain revenue entries whereas the appellant claims that he never came into possession of Panchayat land but it is in possession of his brother for which ejectment proceedings were initiated by the Gram Panchayat. Thus both the parties are disputing with regard to possession of land. There is no finding of the civil court on this point. It is pertinent to mention here that appellant filed an application for placing on record certain documents Annexes A-1 to A-5 vide CM No.13801-802-CII of 2010. The same were taken on record being helpful for just decision of the case. As per Annexure A-4 , Tehsildar after spot inspection given report that Balbir Singh was not in possession of the Panchayat Land but it is in possession of Jawala Singh lease holder. The controversy regarding possessing panchayat land unauthorizedly by the member panchayat was held to be one of the disqualification under Sub -section (i)(k) of Section 208 of the Panchayati Raj Act,1994 (hereinafter referred to the Act 9 of 1994) has been set at rest by the Hon'ble Supreme Court of India in case Som Lal Vs Vijay Laxmi and others 2008 (2) RCR ( Civil) 760 wherein it was held that disqualification mentioned in Section 208 of the Act 9 of 1994 would not be operative in the face of disqualification provided under section 11 of the Punjab State Election Commission Act, 1994 ( for short Act No.19 of 1994) unless and until they both are consistent. Possessing land of the Gram Panchayat illegally is a disqualification in section 208 (i)(k) of the Act 9 of 1994 which is conspicuously absent in Section 11 of Act No.19 of 1994. Since Act No.9 of 1994 is later in in time, therefore, the provision of Act No. 9 of 1994, which are not consistent with the provisions of Act of 19 of 1994 would not be applicable. This FAO No.4227 of 2009 5 proposition of law is not disputed before me by the learned counsel for the respondent number 1 rather admitted that Tribunal has not appreciated the correct law and based his decision on authority 2006 (1)LAR 376 which has been over ruled now . Further, it is proved fact that appellant secured 230 votes against respondent no.1 who secured only 170 votes and considering this position result was declared by the Returning Officer and he had taken the oath for the post of Panch. Even otherwise, it is also admitted fact that at the time of filing of nomination papers by the appellant No Objection Certificate was issued to the appellant by the Block Development and Panchayat Officer which was attached by the appellant alongwith papers and the same was accepted by the competent authority but at that time no objection was raised by the respondent no.1 regarding holding of Panchayat land unauthorizedly by the appellant which was the right stage and he remained silent for the reasons best known to him and now it can not lie on his mouth to take such objection. The respondent no.1 has no case to stand and his purpose was to delay the matter which he remained successful to some extent and the findings of the Tribunal are factually and legally wrong and are liable to be set aside. In view of my above discussions, the appeal filed by the appellant is accepted. Impugned order passed by the Tribunal is set aside. Consequently, the election petition filed by Karnail Singh respondent no.1 is dismissed. (MOHINDER PAL) JUDGE December 13, 2011 p.singh