FAO No.1702 of 2010 (O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on August 06,2010 Joginder Singh and another --Appellants vs. Balwinder Singh and others -- Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.P.S.Sekhon,Advocate, for the appellants Mr.G.S.Toor,Advocate,for respondent No.1. Rakesh Kumar Jain, J, This appeal is directed against the order passed by Election Tribunal-cum-Deputy Commissioner, Barnala, dated 16.11.2009, by which the election petition filed by respondent No.1.Balwinder Singh has been allowed, the election of appellant Joginder Singh as Panch of the Gram Panchayat village Khudi Kalan is set aside and Balwinder Singh has been declared as elected member. Brief facts of the case are that Balwinder Singh filed an election petition challenging the election of Joginder Singh and Hardev Singh on the ground of corrupt practice. The election petitioner led evidence FAO No.1702 of 2010 (O&M) 2 to prove the corrupt practice whereas the respondents led evidence to contradict it. In addition, the election petitioner proved that Joginder Singh respondent No.1 was convicted and sentenced for a period of 10 years and fined Rs. one lac by the Court of Addl.Sessions Judge, Barnala, vide his order dated 02.3.1994 in a case of his involvement in the sale of narcotics and that order was upheld by the High Court on 5.12.2008. The election of Joginder Singh was set aside on the ground that he was unqualified and appellant was declared elected in his place as he was having the highest votes amongst the candidates who had lost Learned counsel for the appellants,inter-alia, argued that sentence of 10 years in a case registered under the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short, NDPS), is not a disqualification under Section 11 of the Punjab State Election Commission Act,1994 (for short, the Act) and that the elecion petitioner could not have been declared elected under Section 90 of the Act because the election of the appellant has not been set aside on the ground of corrupt practice. In reply, learned counsel for the respondents has submited that no doubt conviction under the NDPS Act is not a disqualification under Section 11 of the Act, but according to Article 243-F of the Constitution of India, the appellant would not be eligible to contest the election for the post of Panch or being a member of panchayat, if he is so disqualified under any law for the time being inforce for the purpose of election to the Legislature of the State Concerned. He further submitted that Members of the State Legislative Assembly are elected in terms of the provisions of the Representation of People Act,1950 (for short, Act of 1950) in which certain disqualifications are provided in Section 8, which includes FAO No.1702 of 2010 (O&M) 3 disqualification in Clause 8 (i) (f) pertaining to conviction under NDPS Act. It is, therefore, submitted that the appellant was ineligible or unqualified for the purpose of contesting election for the post of Panch having been convicted already under the NDPS Act on 2.3.1994 i.e. before the date of election on 26.5.2008, whose appeal was dismissed by the High Court on 5.12.2008. Secondly, in respect of declaration of election petitioner election in terms of Section 90, it is submitted that even if election of the returned candidate is not set aside on the ground of corrupt practice, the Election Tribunal can still declare the election petitioner elected if it is found by the Election Tribunal that the election petitioner or any other candidate had received majority of votes. He also referred to Section 87 of the Act in this regard where powers of the Election Tribunal are provided. I have heard both the learned counsel for the parties and perused the record with their assistance. Insofar as the facts of the case are concerned, election to constitute Gram Panchayat, village Khudi Kalan was held on 26.5.2008 in which Joginder Singh (appellant No.1) was declared elected and Balwinder Singh (respondent No.1) was the looser. It is not disputed that Joginder Singh was convicted and sentenced by the Addl.Sessions Judge, Barnala on 2.3.1994 for a period of 10 years with a fine of Rs.one lac for the commission of offence under the NDPS Act and his appeal against the said order of conviction and sentence was dismissed by the High Court on 5.12.2008. It is also not in dispute that amongst the candidates who had lost, respondent No.1/election petitioner had secured the highest number of FAO No.1702 of 2010 (O&M) 4 votes. It is equally true that conviction for an offence under the NDPS Act, is not a disqualification under Section 11 of the Act, though, it is provided under Section 8 (i) (f) of the Act of 1950. The question then arises for consideration is as to whether (i) election of the appellants could be set aside on the ground of disqualification which is not provided under Section 11 of the Act but provided under Section 8 (i) (f) of the Act of 1950 and (ii) whether in case of upsetting the election of the appellants, respondent No.1, could be declared as elected under Section 90 or 87 of the Act ?. In order to appreciate the respective contentions of learned counsel for the parties and the questions of law involved in this appeal, it would be worth-while to refer to the relevant provisions of law first:- Chapter IV : DISQUALIFCATION 11.Disqualification 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 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 FAO No.1702 of 2010 (O&M) 5 corrupt practice; or (e) if he has been found guilty of any offence punishable under section 153A or section 171E or section 161F 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 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) of he is interested in any subsisting contract made with, or any work being done for, that Panchayat or Municipality except as a shareholder (other than a Director) in an incorporated company or as a member of a co-operative society. (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 FAO No.1702 of 2010 (O&M) 6 proceedings 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 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 208 of the Punjab Panchayati Raj Act,1994, Disqualification For Membership.---(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 purpose 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 year; (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 FAO No.1702 of 2010 (O&M) 7 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 (l) 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 FAO No.1702 of 2010 (O&M) 8 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 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 FAO No.1702 of 2010 (O&M) 9 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”. “ 87.Decision of the Election Tribunal : -At the conclusion of the trial of an election petition, the Election Tribunal may make an order for: - (a) dismissing the election petition; or (b) declaring the election of all or any of the returned candidates to be void; or (c) declaring the election of all or any of the returned candidates to be void and the petitioner and any other candidate to have been duly elected.” “ 90.Grounds for which a candidate other than the returned candidate may be declared to have been elected: If any person who has filed an election petition has in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the Election Tribunal is of the opinion: (a) that in fact the petitioner or such other candidate received a majority of the valid votes; or (b) that but for the votes obtained by the returned candidate by corrupt practices, the petitioner or such other candidate would have obtained a majority of the valid votes; FAO No.1702 of 2010 (O&M) 10 the Election Tribunal shall, after declaring the election of the returned candidate to be void, declare the petitioner or such other candidate, as the case may be, to have been duly elected.” “ Article 243-F Dis-qualifications for membership: - (1) A person shall be disqualified for being chosen as, and for being, a member of a Panchayat-- (a) If 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 concerned: 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) If he is so disqualified by or under any law made by the Legislature of the State. (2) If any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in clause (1) the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide”. “The Representation of the People Act,1950 8.Disqualification on conviction for certain offences: - (1) a person convicted of an offence punishable under: - (a) section 153A (Offence of FAO No.1702 of 2010 (O&M) 11 promoting enmity between different groups on ground of religion, race, place of birth, residence, language etc., and doing acts prejudicial to maintenance of harmony) or section 171E (Offence of bribery) or section 171F (Offence of undue influence or personation at an election) or sub- section (1) or sub-section (2) of section 376 or section 376A or section 376B or section 376C or section 376D (offences relating to rape) or section 498A (offence of cruelty towards a woman by husband or relative of a husband) or sub-section (2) or sub- section (3) of section 505 (offence of making statement creating or promoting enmity, hatred or ill-will between classes or offence relating to such statement in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies) of the Indian Penal Code (45 of 1860) or: (b) x x x x (c) x x x x (d) x x x x (e) x x x x (f) the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) (g) x x x x (h) x x x x (i) x x x x (j) x x x x (k) x x x x (l) x x x x (m) x x x x (n) x x x x (shall be disqualified, where the FAO No.1702 of 2010 (O&M) 12 convicted person is sentenced to- (i) only fine, for a period of six years from the date of such conviction; (ii) imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.]” (2) A person convicted for the contraventions of-- (a) any law providing for the prevention of hoarding or profiteering , or (b) any law relating to the adulteration of food or drugs; or (c) any provisions of the Dowry Prohibition Act,[1961 (28 of 1961], 2 (***) and sentenced to imprisonment for not less than six months, shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release”. The Act was enacted in terms of provisions of Part IX and 1Z- A of the Constitution of India, which received the assent of the Governor of Punjab on 7.9.1994 and was notified on 19.9.1994 . It is now well settled by the Hon'ble Supreme Court that since the Act is subsequent to the Punjab Panchayati Raj Act, 1994, which received the assent of the President of India on 20.4.1994 and was notified on 21.4.1994, therefore, disqualification provided under Section 11 of the Act, would prevail over and above the disqualification provided under Section 208 of the Punjab Panchayati Raj Act,1994, unless and untill disqualifications in both the provisions, namely Section 208 and 11 are consistent. FAO No.1702 of 2010 (O&M) 13 The question then arises as to whether provisions of the Act of 1950 could be made applicable for the purpose of upsetting the election of the Panch who is convicted and sentenced under the provisions of NDPS Act.? Article 243-F of the Constitution of India, categorically provides that a person shall be disqualified for being chosen as and for being a member of a Panchayat (a) if 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 concerned like the Punjab Panchayati Raj Act,1994 or the Punjab State Election Commission Act, 1994 if he is so disqualified by or under any law made by the Legislature of the State for the time being in force for the purpose of election to the Legislature of the State concerned i.e. The Representation of People Act,1950. Interpretation of Article 243-F would be that the Election Tribunal can consider the disqualification for the purpose of unseating an elected member panchayat if he is so disqualified either under the Act of the State or under the Representation of People Act, 1950, meant for the election of the Legislature. Thus, in my view, the present case is covered by Article 243-F (i) (a) of the Constitution of India read with Section 8(i) (f) of the Act of 1950 and as such, the appellant being a convict for 10 years under the NDPS Act, was not entitled to be considered eligible for contesting the election as a members of the panchayat and has rightly been held to be disqualified and removed. Insofar as the second question is concerned, Section 87 gives powers to the Tribunal either to dismiss the election petition or declare the FAO No.1702 of 2010 (O&M) 14 election of all or any other returned candidates to be void and declare the election petitioner or any other candidates to be duly elected. Thus even if the case of appellant No.1 is not covered, for the sake of arguments, under Section 90 of the Act, as suggested by learned counsel for the appellants that it pertains specifically to the case of corrupt practice, the Election Tribunal has the jurisdiction under Section 87 to declare the election petitioner/respondent No.1.as an elected Panch instead of the appellant. No other point has been raised. In view of the above discusssion, I do not find any merit in this appeal and the same is hereby dismissed with costs. August 06,2010 (Rakesh Kumar Jain) RR Judge