FAO No.4823 of 2009 and -1- FAO No.5305 of 2009 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** FAO No.4823 of 2009 (O&M) DATE OF DECISION: 16.02.2010 **** Jawala Singh . . . . Appellant VS. The Election Tribunal-cum-Additional Deputy Commissioner, Barnala (Punjab) and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.Pawan Kumar, Sr. Advocate with Mr.Saqib Ali Khan, Advocate for the appellant. None for respondent No.4. **** FAO No.5305 of 2009 (O&M) DATE OF DECISION: 16.02.2010 **** Harbhajan Singh . . . . Appellant VS. The Election Tribunal-cum-Additional Deputy Commissioner, Barnala (Punjab) and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: None for the appellant. Mr.Pawan Kumar, Sr. Advocate with Mr.Saqib Ali Khan, Advocate respondent No.4. **** RAKESH KUMAR JAIN J. FAO No.4823 of 2009 and -2- FAO No.5305 of 2009 By this common order I shall be disposing of two appeals, namely, FAO No.4823 of 2009 titled as “Jawala Singh Versus The Election Tribunal-cum-Additional Deputy Commissioner, Barnala (Punjab) and others” and FAO No.5305 of 2009 titled as “Harbhajan Singh Versus The Election Tribunal-cum-Additional Deputy Commissioner, Barnala (Punjab) and others” as both the appeals have arisen out of the order of Additional Deputy Commissioner-cum- Election Tribunal, Barnala dated 27.8.2009. The facts, however, are being extracted from FAO No.4823 of 2009. The contest in this case is between Harbhajan Singh (election petitioner) and Jawala Singh. In brief, the facts of the case are that election for the Constitution of Gram Panchayat Badatte was held on 26.5.2008 to elect 7 members of the Panchayat, out of which 2 seats were reserved for members of Scheduled Castes 4 seats were reserved for General Candidates and one seat was reserved for woman candidate. The appellant (Jawala Singh) secured 635 votes whereas respondent No.4 (Harbhajan Singh-election petitioner) polled 323 votes. The appellant was further elected as Sarpanch of the Gram Panchayat and is still holding the post. Respondent No.4 had challenged his election on the ground that the appellant was in illegal possession over the Panchayat land measuring 3 Kanal 4 Marla and was thus not eligible to contest. The learned Election Tribunal framed various issues and ultimately concluded that appellant was found to be in illegal possession over the Panchayat land which though claimed to have been purchased by the appellant as he had entered into an agreement to sell with the Panchayat and the said agreement to sell was placed on record as FAO No.4823 of 2009 and -3- FAO No.5305 of 2009 Mark ‘A’ but the same was not accepted by the Tribunal and held that the appellant being in illegal possession of the Panchayat land was not eligible to contest the election. Consequently, the election of appellant was declared illegal and while deciding issue No.2, it was held that as the election petitioner did not raise any objection at the time of scrutiny of nomination papers, he could not be declared as elected. It was, thus, held that election of one member of Gram Panchayat Badatte is required to be re-held. In the aforesaid two appeals, FAO No.4823 of 2009 titled as “Jawala Singh Versus The Election Tribunal-cum-Additional Deputy Commissioner, Barnala (Punjab) and others” is directed against that part of the order of the Election Tribunal whereby election of the appellant – Jawala Singh has been held to be illegal and in FAO No.5305 of 2009 titled as “Harbhajan Singh Versus The Election Tribunal-cum-Additional Deputy Commissioner, Barnala (Punjab) and others” the appeal is against that part of the impugned order whereby the election petitioner has not been declared to have been elected in place of Jawala Singh. FAO No. 4823 of 2009 was earlier filed than FAO No.5305 of 2009. On 8.10.2009, in FAO No.4823 of 2009, following order was passed by this Court: - “Learned counsel for the appellant states that the appellant was polled 635 votes, whereas, the respondent was polled 323 votes. His nominations were accepted after due scrutiny. No objection was raised. Thereafter, the election petition was filed. His election was set aside on the ground that he is in the FAO No.4823 of 2009 and -4- FAO No.5305 of 2009 illegal possession of the panchayat land. It is stated that the said land is in possession on account of an agreement arrived at between him and the panchayat way back in the year 1990. The same has not been taken into consideration. Even otherwise, it is stated that the said ground is available under Section 208 of the Punjab Panchayat Raj Act but the same is not applicable and the petition is not maintainable under the said provision in view of Section 11 of the Punjab State Elections Commission Act, 1994. In order to substantiate the submission, learned counsel for the appellant relies on the judgment of the Hon'ble Apex Court, rendered in the case Som Lal vs. Vijay Laxmi reported in 2008(3) Vol. CLI PLR 435, wherein, it is held that the disqualifications mentioned in Section 11 of the Act 19 of 1994 will prevail and not the disqualifications mentioned in Section 208 of Act 9 of 1994 being later in point of time. Notice of motion for 14-12-2009. Meanwhile, the impugned order dated 27-08-2009 passed by ADC-cum-Election Tribunal, Barnala, shall remain stayed.” Whereas in FAO No.5305 of 2009, on 09.11.2009, following order was passed: - “Notice of motion to respondents No.1 to 4 for 14.12.2009. To be heard alongwith FAO No.4823 of 2009.” Since, FAO No.5305 of 2009 was ordered to be heard along with FAO No.4823 of 2009 vide order dated 09.11.2009, therefore, both the appeals are being disposed of by this common order. FAO No.4823 of 2009 and -5- FAO No.5305 of 2009 Opening his argument, learned counsel for Jawala Singh (returned candidate) has submitted that though the appellant has not been in illegal possession over the Panchayat land and the evidence has been misread by the Tribunal in this regard yet, for the sake of argument, though not admitted, it is argued that even if it is presumed as such, the Tribunal has no jurisdiction to entertain and decide the election petition against the appellant on a ground, which is not available under the Punjab State Election Commission Act, 1994 (for short ‘Act No.19 of 1994). It is submitted that possessing land of Gram Panchayat illegally is a disqualification in Section 208(1)(k) under the Punjab Panchayati Raj Act, 1994 (for short ‘Act No.9 of 1994), which is conspicuously absent in Section 11 of Act No.19 of 1994. It is submitted that since Act No.19 of 1994 is later in time, therefore, the provisions of Act No.9 of 1994, which are not consistent with the provisions of Act of 19 of 1994 would not be applicable. To support his argument, learned counsel for the appellant has relied upon a decision of the Supreme Court in the case of “Som Lal Versus Vijay Laxmi and others” 2008(2) RCR (Civil) 760. In this case, the facts were that Som Lal was holding a whole-time salaried office of a statutory body as he was on the rolls of the Market Committee, Sirsa as Fireman at the time of election and was not qualified to contest the election of Sarpanch of Gram Panchayat, village Dhobra. His election was set aside by the Tribunal and the same was upheld by the Single Bench of the High Court. Case of Vijay Laxmi was that Som Lal was not qualified to contest election in view of Section 208(1)(g) of the Act No.9 of 1994 whereas case of Som Lal was that there is no such disqualification provided under Section 11 of the Act No.19 of 1994, which came into FAO No.4823 of 2009 and -6- FAO No.5305 of 2009 force on 19.9.1994 whereas Act No.9 of 1994 came into force w.e.f. 21.4.1994. The Election Tribunal disqualified the candidature of Som Lal in view of Section 208(1)(g) of Act No.9 of 1994 and declared Vijay Laxmi as elected to the office of Sarpanch. The matter was put up before Division Bench of the High Court on a question of law i.e. “Whether election of Sarpanch/Member of a Gram Panchayat can be set aside on the basis of disqualifications contemplated under Section 208 of the Punjab Panchayati Raj Act, 1994 or it can be set aside only on the basis of disqualifications enumerated in Section 11 of Punjab State Election Commission Act, 1994?” The Division Bench of the High Court, vide its order dated 22.1.2006, held as under: - “In view of, what has been discussed above we hold that a person shall be disqualified for being chosen and for being a member of Panchayat, if he incurs any of the qualifications enlisted in Section 208 of the Punjab Panchayati Raj Act, 1994 and/or Section 11 of the Punjab State Election Commission Act, 1994?.” The Hon’ble Apex Court, iron out the crease by interpreting both the provisions of Section 208 of the Act No.9 of 1994 and Section 11 of the Act of 1994, which are reproduced as under: - " 208. 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 FAO No.4823 of 2009 and -7- FAO No.5305 of 2009 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 Zilla Parishad; (c) has been convicted of any offence involving moral turpitude or an offence implying of any defect of a Sarpanch or Panch or 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 FAO No.4823 of 2009 and -8- FAO No.5305 of 2009 (h) is registered as a habitual offender xx xx xx 11. 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 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 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 of section 376A of 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 FAO No.4823 of 2009 and -9- FAO No.5305 of 2009 (g) if he holds an office of profit under the Government of India or any State Government; or (h) xx xx xx" After a detailed discussion, the Hon’ble Apex Court has held that the view taken by the learned Single Judge of the High Court, on the basis of Division Bench judgment of the High Court cannot not be sustained. It was held that “The disqualifications are only mentioned in Section 208 of the Act 9 of 1994 and the intention of the legislature is very clear and Section 11 of the Act of 1994 being in later point of time stating therein what are the disqualifications, therefore, the disqualifications mentioned in Section 11 of the Act 19 of 1994 will prevail and not the disqualifications mentioned in Section 208 of Act 9 of 1994. The disqualifications mentioned in Section 208 which are consistent with Section 11 of Act 19 of 1994 can only survive and not other disqualifications.” In view of the above discussion, as a matter of fact, disqualification provided under Section 208(1)(k) of Act No.9 of 1994 is not consistent with disqualification provided under Section 11 of Act No.19 of 1994, therefore, election of the appellant cannot be set aside on the ground of disqualification which is only provided under Section 208(1)(k) of Act No.9 of 1994. Thus, I find force in the appeal, filed by the appellant, and as such the impugned order passed by the Tribunal is set aside and the appeal, namely, FAO No.4823 of 2009 is hereby allowed whereas the second appeal, namely, FAO No.5305 of 2009 vide which the FAO No.4823 of 2009 and -10- FAO No.5305 of 2009 election petitioner is claiming himself to be declared as elected is dismissed. No costs. (RAKESH KUMAR JAIN) February 16, 2010 JUDGE vivek