- (1.) This appeal is directed against the order dated 26.10.2006 passed by learned Single Judge of the Punjab & Haryana High Court whereby the learned Single Judge held that the appellant- Som Lal was holding the whole-time salaried office of a statutory body as he was on the rolls of the Market Committee, Sirsa as Fireman on 29.6.2003 and he was disqualified from contesting the election as Sarpanch, Gram Panchayat, Village Dhobra on 29.6.2003. Therefore, he has been rightly held to be disqualified by the Election Tribunal. Accordingly, the learned Single Judge upheld the order of the Election Tribunal whereby the election of the appellant was set aside. Aggrieved against this order dated 26.10.2006 passed by the learned Single Judge of the High Court of Punjab & Haryana the present appeal was filed.
(2.) Brief facts which are necessary for disposal of this appeal are that the appellant contested the election of Sarpanch on 29.6.2003 of Village Dhobara, Tehsil Pathankot, and the appellant was elected and the opponent- Vijay Laxmi lost. Total votes polled -800; 411 votes were polled in favour of the appellant- Som Lal; 376 votes were polled in favour of Vijay Laxmi and 13 votes were cancelled. Hence, the appellant was declared elected. The election of the appellant was challenged by the respondent- Vijay Laxmi by filing an election petition. The main ground taken by the respondent was that the appellant was working as a Fireman in the Haryana State Agricultural Marketing Board and he was posted at Sirsa. Therefore, he was disqualified from contesting the election as he was holding the office of profit. The plea of the appellant was that he was an employee of the Haryana State Agricultural Marketing Board but he had left the job about 7-8 years prior to the conduct of the election. Therefore, he did not suffer from any disqualification. The respondent contended before the Election Tribunal that as per Section 208 (1)(g) of the Punjab Panchayati Raj Act, 1994 (Punjab Act 9 of 1994) [hereinafter to be referred to as "the Punjab Act 9 of 1994"],a person who 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, is disqualified for being chosen as and for being a member of a Panchayat and since the appellant was an employee of the Market Committee, therefore, he was disqualified. As against this, it was contended by the appellant that Section 11 of the Punjab State Election Commission Act,1994( Punjab Act 19 of 1994)[hereinafter to be referred to as "the Punjab Act No.19 of 1994] which came into force with effect from 19th September, 1994 after the Punjab Act 9 of 1994 which came into force with effect from 21.4.1994, which deals with disqualification, says that a person shall be disqualified for being chosen as and for being a member of a Panchayat or a Municipality if he holds an office of profit under a Panchayat or a Municipality; or he holds an office of profit under the Government of India or any State Government and not for holding office of profit under local authority and being a member of the Marketing Board. Therefore, as per Section 11 of the Act of 19 of 1994 an incumbent is not disqualified to contest the election. The Election Tribunal after recording necessary evidence found that the appellant was an employee of the Haryana State Agricultural Marketing Board, Sirsa and therefore, he was disqualified from contesting the election for Sarpanch, Gram Panchayat of village Dhobra. Hence, the Election Tribunal by order dated 13.12.2004 set aside the election of the appellant before us and allowed the election petition of the respondent- Vijay Laxmi and declared her as elected to the Office of Sarpanch. Aggrieved against this order the appellant filed an appeal before the High Court of Punjab & Haryana. Since there was a conflict between the two provisions, learned Single Judge referred the matter to the Division Bench for adjudicating the following question of law: " 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 the Punjab State Election Commission Act, 1994 - Learned Division Bench answered the question by order dated 22.1.2006 in this very case which reads as follows: " 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 a Panchayat if, he incurs any of the disqualifications enlisted in Section 208 of the Punjab Panchayati Raj Act, 1994 and/or section 11 of the Punjab State Election Commission Act, 1994."
(3.) Now, the question before us is whether the disqualifications enumerated in Section 208 of the Act 9 of 1994 shall prevail or the disqualifications mentioned in Section 11 of the Act 19 of 1994. Both the provisions are quoted below for the sake of convenience. "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 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 (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 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 (g) if he holds an office of profit under the Government of India or any State Government; or (h) xx xx xx" Both the provisions bearing on the subject have been quoted and the disqualifications given in both the provisions make it clear that so far as Act 9 of 1994 is concerned, there any person holding office of profit under the local authority, statutory corporation or Board or a Co-operative society or under the State Government or the Central Government has been disqualified whereas under Section 11 (f) & (g) of Act 19 of 1994, a person shall be disqualified for being chosen as and for being a member of a Panchayat or a Municipality if he holds an office of profit under a Panchayat or a Municipality; or under the Government of India or any State Government. Therefore, it is to be seen whether this disqualification which has come into force under the Act 19 of 1994 i.e. on 19.9.1994 will prevail or the earlier disqualifications as prescribed in Section 208 of Act 9 of 1994 will prevail. In this connection, the important provisions which have substantial bearing on the subject are Sections 142 and 143 of the Act 19 of 1994 are relevant which read as under : " 142. Over-riding effect.- The provisions of this Act shall have over-riding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force relating to the conduct of elections to the Panchayats or Municipalities or any incidental matter thereto. 143.Repeal and savings.- The provisions of any State Law corresponding to the provisions of this Act are hereby repealed: Provided that such repeal shall not attect- (a) the previous operation of the corresponding provisions of any State Law so repealed or anything duly done or suffered thereunder; or (b) any right, privilege, obligation or liability occurred, accrued or incurred under the corresponding provisions of any State Law so repealed; or (c) any penalty, forfeiture or punishment incurred in respect of any offence committed against the corresponding provisions of any State Law so repealed; or (d) any legal proceedings, investigation or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such legal proceedings, investigation or remedy may be instituted or continued or enforced and any such penalty, forfeiture or punishment may be imposed as if this Act had not been passed. (2) Notwithstanding such repeal, anything done or any action taken under the corresponding provisions of any State Law so repealed (including any notification, order, notice issued, application made or permission granted, if any) which is not inconsistent with the provisions of this Act, shall be deemed to have been done or taken under the corresponding provisions of this Act, as if this Act was in force at the time, such thing was so done or action so taken and shall continue to be in force unless and until superseded by anything done or any action taken under this Act.";