Devi Dayal Singh vs Bhajan Kaur And Others on 3 February, 2012

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Punjab-Haryana High Court

Devi Dayal Singh vs Bhajan Kaur And Others on 3 February, 2012

Bench: Rakesh Kumar Jain

FAO No.2361 of 2011 (O&M)                              -1-




      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                      CHANDIGARH

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                                      FAO No.2361 of 2011 (O&M)
                                   DATE OF DECISION:03.02.2012

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Devi Dayal Singh

                                                         . . . . Appellant

                                  Vs.

Bhajan Kaur and others

                                                      . . . . Respondents

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CORAM : HON'BLE MR.JUSTICE RAKESH KUMAR JAIN

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Present:    Mr.R.K. Shukla, Advocate,
            for the appellant.

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RAKESH KUMAR JAIN J. (ORAL)

This appeal is directed against order of the Election Tribunal, Patiala dated 15.9.2010 whereby an election petition filed by the appellant to challenge the election of Bhajan Kaur (respondent No.1) on the ground that she was in illegal possession of Shamlat land and was disqualified under Section 208(1)(k) of the Punjab Panchayati Raj Act, 1994 (hereinafter referred to as 'Act No.9 of 1994). The said election petition was, however, dismissed by the learned Election Tribunal on the ground that the disqualification provided under Section 208(j)(k) of the Act No.9 of 1994 is conspicuous by its absence in Section 11 of the Punjab State Election Commission Act, 1994 (hereinafter referred to as 'Act No.19 of 1994).

Learned counsel for the appellant has submitted that the learned Tribunal has erred in relying upon the decision of FAO No.2361 of 2011 (O&M) -2- Supreme Court in "Som Lal Vs. Vijay Luxmi and others" 2008(2) LAR 556 because in that case the issue was as to whether the elected candidate, who was holding office of profit in the Statutory Corporation/Board of the State Government is disqualified for contesting the election of the Panchayat. He submits that Section 208(1)(g) of the Act No.9 of 1994 provides a disqualification with regard to 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 whereas section 11(g) of the Act No.19 of 1994 provides disqualification in respect of a person who actively holds an office of profit under the Government of India or any State Government. He submits that the provision of Section 11 of the Act No.19 of 1994 is consistent with Section 208(1)(g) of the Act No.9 of 1994, therefore, the judgment is not applicable.

I have heard learned counsel for the appellant and perused the record.

The Act No.9 of 1994 was notified on 31.4.1994 whereas Act No.19 of 1994 was notified on 19.9.1994 therefore Act No.19 of 1994 is later in time. The Supreme Court in the case of Som Lal (Supra) has concluded that "the disqualifications are only mentioned in Section 208 of the Act No.9 of 1994 and the intention of the legislature is very clear and Section 11 of the Act No.19 of 1994 being in later point of time stating therein what are the disqualifications, therefore, the disqualifications mentioned in Section 11 of the Act No.19 of 1994 will prevail and not the disqualifications mentioned in Section 208 of the Act No.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."

While deciding the case of Som Lal (Supra), the Supreme Court had found that office of profit is provided in Section 208(1)(g) of the Act No.9 of 1994 with regard to local authority, Statutory Corporation or Board or a Co-operative Society as well which is not provided in Section 11(g) of the Act No.19 of 1994 as it pertains to office of profit under the Government of India or any State Government meaning thereby, office of profit with regard to FAO No.2361 of 2011 (O&M) -3- local authority, Statutory Corporation or Board or a Co-operative Society registered under the Punjab Co-operative Societies Act, 1961 is not provided under Section 11(g) of the Act No.19 of 1994.

In this way, the argument raised by learned counsel for the petitioner is unacceptable because provisions of Section 208 of the Act No.9 of 1994 would prevail if they are consistent with the provisions of Section 11 of the Act No.19 of 1994 and if any provision is not provided in section 11 of the Act No.19 of 1994 which though is provided in Section 208 of the Act No.9 of 1994 then the provisions of Section 11 of the Act No.19 of 1994 would prevail and not the provisions of Section 208 of the Act No.9 of 1994.

In view of the above, I do not find any merit in the present appeal. Hence, the same is hereby dismissed.



                                          (RAKESH KUMAR JAIN)
FEBRUARY 03, 2012                               JUDGE
Vivek

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