Rakesh Kumar Jain, J.@mdashThis order shall dispose of two appeals bearing FAO No. 5853 of 2009 titled as Surinder Kaur v. Kulwant Kaur and Ors. and FAO No. 5852 of 2009 titled as Rajinder Kaur v. Rano and Ors.. Since identical question of law is involved in both the appeals, therefore, these appeals are being disposed of by this common order.
2. The question of law involved in these appeals is "whether election of a lady Panch can be set aside on the ground of her husband being in unauthorised possession of the panchayat land ?
3. For the sake of convenience, facts are being extracted from titled as Surinder Kaur v. Kulwant Kaur and Ors. FAO No. 5853 of 2009. To constitute Gram Panchayat Tanda Churian, Tehsil Mukerian, District Hosiarpur, election was held on 26.5.2008. Both the Appellants Surinder Kaur and Rajinder Kaur were elected as members Panchayat (General Category-lady reserve). After her election, Respondent No. 1 Kulwant Kaur filed a frivolous complaint against the Appellant to the Director, Rural Development and Panchayats, Punjab with regard to her husband being in unauthorised possession over the panchayat land. A preliminary enquiry was conducted by the District Development and Panchayat Officer, Hoshiarpur, who after enquiry advised to conduct disciplinary proceedings against the Appellant vide his letter dated 1.8.2008. The Appellant was placed under suspension by the Director, Rural Development and Panchayats vide his order dated 17.3.2009. The Appellant challenged the said order in appeal before the Financial Commissioner who disposed of the appeal with a direction that regular enquiry against the Appellant be conducted and concluded within a period of three months. Regular enquiry was marked by the Director, Rural Development and Panchayats to the Addl. Deputy Commissioner, Hoshiarpur, who had found that the Appellant is not in illegal possession of the panchayat land and as such, the charge framed against her was not proved.
4. In pursuance of the aforesaid detailed regular enquiry, the Director, Rural Development and Panchayats, reinstated the Appellant on the post of Member Panchayat vide his order dated 11.8.2009.
5. In the meantime, while the enquiry was pending Respondent Kulwant Kaur filed the election petition against the Appellant on 30.6.2009 under the provisions of the Punjab State Election Commission Act, 1994 (for short, Act No. 19 of 1994) on the ground that husband of the Appellant is in unauthorised possession of the panchayat land. In the said election petition, report was obtained from Tehsildar, Mukerian, who reported that in column No. 4, Panchayat Deh is recorded as owner of Kh. Nos. 6//2(4-0) and in column No. 5, Bhupinder Singh, Rajinder Singh and Harjinder Singh sons of Balbir Singh, in equal shares, have been recorded as Gair Marusi. It was thus found that Bhupinder Singh, husband of the Appellant was in unauthorised possession over the panchayat land. The Election Tribunal while relying upon the order passed by this Court in, Ranjit Singh v. State of Punjab, C. W.P. No. 16591 of 2004 -.2005(3) R.C.R.180 order passed by the Director, Rural Development and Panchayats, and also Section 208(1)(j) and (k) of the Punjab Panchayati Raj Act, 1994 (for short Act No. 9 of 1994), set aside the election of the Appellant.
6. Mr. Akshay Bhan, learned Counsel for the Appellant has vehemently argued that the impugned order passed by the Election Tribunal, is patently illegal and is unsustainable in the eyes of law. He submits that provisions of Section 208 of Act No. 9 of 1994 are not applicable in view of the provisions of Section 11 of Act No. 19 of 1994, which is an Act subsequent to Act No. 9 of F994 and as such the provisions of Section 208 of Act No. 9 of 1994 which are inconsistent with the provisions of Section 11 of Act No. 19 of 1994 would not be applicable.
7. Besides this, he drew attention of this Court to Section 208(1)(j) and (k) of Act No. 9 of 1994 to contend that a person is not entitled to contest election if he is disqualified for any of the reasons given in Section 208. It is submitted that person means a candidate who has contested the election and not his family members. He has relied upon a Division Bench judgment of this., Court in the case of Anguri Devi v. State of Haryana 1997(3) R.C.R. 236:1997 (3) P.L.R. 218 in support of his contention.
8. Secondly, it is argued that the judgment passed in Ranjit Singh v. State of Punjab, C. W.P. No. 16591 of 2004 would not be applicable because in that case, Sarpanch himself alongwith his family members was in illegal possession of shamlat land.
9. Thirdly and finally, in respect of suspension order dated 17.3.2009, it is submitted that the said order does not survive at all after the Appellant having been reinstated by the Director, Rural Development and Panchayats vide his order dated 11.8.2009 as she has been absolved from the charge in the regular enquiry dated 16.7.2009.
10. On the other hand, learned Counsel for the Respondents has submitted that even if husband of the Appellant is in unauthorised possession of panchayat land, usufructs of the land are also being enjoyed by the Appellant, therefore, she has earned disqualification in terms of Section 208 and as such, there is no error in the order of learned Election Tribunal.
11. In FAO No. 5852 of 2009, election of the Appellant has been challenged by Rano wife of Girdhari Lal, only on the ground that the Appellant''s husband Mohinder Singh is in unauthorised possession of the panchayat land as per report of the Tehsildar, Mukerian, who has stated that in column No. 4 of jamabandi, Panchayat Deh is recorded as owner of Kh. Nos. 1/18,23/8//2,3, and in column No. 5 Saudagar Singh, Bahadur Singh sons of Himmat Singh 1/4 share, (Arjan Singh son and Sawaran Kaur daughter and Isri, widow of Mangal Singh son of Maru equal shares), 1/4 share, Joginder Singh son of Harbans Singh 1/8 share as Gair Marusi Awwal and Saran Singh Gairmarusi Doem, have been recorded.'' It was also reported that Arjan Singh Gair Marusi has since expired and now his sons Mohinder Singh, Dilawar. Singh, Budh Singh, Nuirmal Singh and Gagan Singh are cultivating the land pertaining to the share of their father. Out of the aforesaid persons, Mohinder Singh son of Arjan Singh is the husband of the Appellant Rajinder Kaur, therefore, she was disqualified from being chosen as and for being member of the Panchayat.
12. I have heard learned Counsel for both, the parties and have perused the record with their assistance.
13. The question involved in these appeals has already been mentioned in the opening part of the judgment.
14. Admittedly, the Appellants in both the appeals are lady Panches who themselves are not recorded in the revenue record in unauthorised possession of the land of the Gram Panchayat. Undisputedly, the I case set up by the Respondents against both the Appellants is that their husbands are in unauthorised possession over the panchayat land. The learned Election Tribunal while relying upon the provisions of Section 208 of Act No. 9 of 1994 has set aside the election of both the Appellants. Section 208(1)(j)(k) are relevant in these cases which are reproduced below:
208. 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 years;
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(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 property belonging to any local authority".
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15. It is now well settled by the Supreme Court that provisions of Section 208 of Act No. 9 of 1994 would not be applicable in the present case over and above the provisions of Section 11 of Act No. 19 of 1994 unless and until provisions in both the sections are consistent. Undoubtedly, there is no provisions u/s 11 of Act No. 19 of 1994 which provides for disqualification if a Panch or Sarpanch is found to be in unauthorised possession over the panchayat land. But the question in the present case is as to whether election of the Appellant could be set aside if her husband is found to be in unauthorised possession of the panchayat land. In this regard, reference could be made to a Division Bench judgment of this Court in Anguri, Devi''s Case (Supra) in which provisions of explanation (ii) to Section 175 of the Haryana Panchayati Raj Act, 1994 was held to be ultravires of the Constitution of India, being arbitrary and against spirit of fair and free election in a democracy. The said provisions is reproduced below:
(ii) but the failure to pay the arrears or the sum suffered to in Clause (i) of this Sub-section to the Gram Panchayat, Panchayat Samiti or Zila Parishad by a member of an undivided Hindu family or by a person belonging to 4 group or unit, the members of which are by custom joint in estate or resident all such members/persons shall be deemed to be disqualified.
Democracy is a basic feature of the Constitution of India and in turn, fair and free election is an essential feature of the democracy. Right to vote and right to contest an election has been given to an individual and he can be disqualified to contest or continue in an elected office if he has incurred a disqualification because of his/her own/his agent''s action. He could not be made liable for the action of others especially where (as in this case) the provision is vague and indeterminate. A reading of Explanation 2 (ii) would show that if a member of an, undivided Hindu family or a person belonging to a group or unit, the members of which are by custom joint in estate or residence, has failed to pay the arrears or the sum referred to in Clause (i) of Section 175(1), then all such members/persons incur the disqualification to become the Panch/Sarpanch or continue as such. Who would be the members of the undivided Hindu family or a group or unit, which ''is joint by custom in estate or residence, has not been defined. No Rules have been framed No machinery has been provided for determining as to who would be the members of an undivided Hindu family or a group or unit, which would be joint by custom in an estate or residence. It is arbitrary as it takes away the rights of a person to contest the election only because a relation or a member of a group or unit has incurred disqualification to contest the election being in arrears of the I amount due from him to the Panchayat. There may be a situation where because of differences amongst the family members, living jointly or separately, one of the family members incurs disqualification and refuses to make the payment only to debar all other members of the Hindu undivided family, group or unit from contesting the election"
24. Explanation 2(i) envisages a situation before the elections are held. A candidate in the election can remove the disqualification by depositing the arrears or the sum due Preferred to Clause (i) of Section 175 prior to the filing of his nomination papers Explanation 2 (ii) talks of failure to deposit the arrears or the sum due by a member of the undivided Hindu family, group or unit to contest or if already elected to continue to do so. This disqualification can be earned by a member purposely or otherwise to prevent all the members of the family from becoming/ continuing in the, elected office which would, not only be unfair and unreasonable but would also be against the spirit of the provision and purpose of the Act.
25. A provision like this is fraught with dangerous consequences giving rise to a situation where the right of a person to hold an elected office can be taken away through mischief. The same is arbitrary and an impediment to the free and fair elections, which is an essential feature of the democracy. Fairness has to be seen not only in the conduct of the elections but also in ensuring that the elected candidate holds the office for the term for which he has been elected and is not deprived of the same in an unjust manner. Such a provision is arbitrary in nature and is held to be violative of Article 14 of the Constitution of India .
16. In the present case, provisions of Section 208 are not applicable in view of Act No. 9 of 1994 in the presence of provisions of Section 11 of Act No. 19 of 1994, but still for the sake of arguments, if the provisions of Section 208 of Act No. 9 of 1994 are taken into consideration, it pertains to a person who would be disqualified for being chosen as and for being member of the Panchayat if he is found to be in an unauthorised occupation of the property belonging to any local authority. The word "person" is incidently not defined either in the Act No. 9 of 1994 or Act No. 19 of 1994, but as per the Concise Oxford English Dictionary, word "Person" means "a human being recorded as an individual", therefore, person used in Section 208 would mean a person who has contested the election for being chosen or for being member of the panchayat and not any other person. Therefore, the election of the Appellant cannot be challenged by the Respondents even if husband of the Appellant is, found to be in an unauthorised possession of the panchayat land.
17. In view of the aforesaid discussion, I find merit in both the appeals and the same are allowed and the orders passed by the Election Tribunal in both the cases are set aside with costs through out.
