Rakesh Kumar Jain, J.
1. This appeal is directed against the order of Election Tribunal-Additional Deputy Commissioner, Sangrur dated 22.12.2008 whereby an election petition filed by the appellant to set aside election of respondent No. 1 has been dismissed.
2. The core issue involved in this appeal is as to whether respondent No. 1, who was in unauthorised possession over the panchayat/shamlat land was entitled to contest election.
3. The learned Tribunal rejected the contention of the appellant by observing as under:
I have carefully considered arguments advanced by learned Counsel for the parties and gone through the evidence on record. From a perusal of documentary evidence on the file, I find that alleged possession of Major Singh on some Shamlat land had been approved and regularised by the District Dev. & Panchayat Officer, Sangrur who ordered him to deposit its cost as per the rates approved by the Collector and in turn Major Singh deposited a sum of Rs. 20,000/-. Though the said order of the D.D. & P.O. was set aside by the Joint Dev. Commissioner Punjab vide order dated 30.4.2008 but it is also a fact that Major Singh was not a party to it nor was it conveyed to him. In this way, possession of Major Singh on some shamlat land had been regularised under orders of competent authority and in no way he can be held to be in unauthorized occupation of the same. It is also proved from the evidence on record that Major Singh respondent No. 1 has since surrendered possession of shamlat land in dispute as reported by the B.D. & P.O. Malerkotla-I vide his letter No. 1731 dated 10.12.2008 addressed to the D.D.& P.O. Sangrur. Also Major Singh has since been elected as Sarpanch of Gram Panchayat, Sarwarpur by majority of its elected members, which speaks of his popularity. I am, therefore, of the considered view that simply on a technical ground of alleged unauthorised occupation of Shamlat land, which had later on been regularised and approved by competent authority, election of respondent No. 1 cannot be set aside particularly when Major Singh has since been elected as Sarpanch of Gram Panchayat, Sarwarpur. Therefore, this petition merits to be rejected.
4. Learned Counsel for the appellant has submitted that in terms of Section 208(1)(k) of The Punjab Panchayati Raj Act, 1994 (for short 'the Act') the appellant is disqualified to have been chosen as a Panch and then as a Sarpanch.
5. In reply, learned Counsel for the respondent has submitted that Provisions of the Act are not applicable because there is no provision of such a disqualification in The Punjab State Election Commission Act, 1994 (for short 'the Act of 1994').
6. I have heard learned Counsel for the parties and have gone through the record with their assistance.
7. Before adverting to the facts of this case, it is necessary to refer to the provisions of both the Act as well as the Act of 1994.
Section 208 (1)(k) of the Act
Disqualification for Membership.- (1) A person shall be disqualified for being chosen as and for being a member of a Panchayat if,-
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(k) is in unauthorised occupation of property belonging to any local authority
Section 11 of the Act of 1994
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 acknowledgment 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 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) if he is interested in any subsisting contract made with, or any work being done for, that Panchayat or Municipality except as a share-holder (other than a Director) in an incorporated company or as a member of a co-operative society; or
A person shall be disqualified for being chosen as, and for being a member of a Panchayat or a Municipality
8. Learned Counsel for the respondent has pointed out disqualification being in unauthorised occupation of the Panchayat land is not provided in Section 11 of the Act of 1994. He further submits that since Act of 1994 is later than the Act, therefore, the provisions of the Act of 1994 would apply over and above the provisions of the Act. In this regard, he refers to the decision of the Apex Court in the case of Som Lal v. Vijay Laxmi and Ors. : A.I.R. 2008 S.C. 2088 : (2008)11 S.C.C. 413 in which similar controversy was there as to whether 'Election of Sarpanch of Gram Panchayat can be set aside on the basis of disqualification contemplated under Section 208(1)(k) of the Punjab Panchayati Raj Act, 1994 or it can be set aside only on the basis of disqualification enumerated in Section 11 of The Punjab State Election Commission Act, 1994. The Hon'ble Supreme Court laid down the law as under:
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 disqualification 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.
9. In view of the aforesaid law, mere is no room for the argument which has been raised by the learned Counsel for the appellant as by virtue of the aforesaid judgment, judgment of Single Bench as well as Division Bench of this Court were over ruled.
In view of the above, the present appeal is found to be without any merit and the same is hereby dismissed. No costs.