Supreme Court of India
SOM LALversusVIJAY LAXMI & ORS.
- Citation
- 2008 INSC 383
- Decided
- 14 March 2008
- Disposal
- Case Allowed
- Bench
- A K MATHUR
Holding
Section 11(f) and (g) of the Punjab State Election Commission Act, 1994, by virtue of its overriding effect under Sections 142 and 143, supersede the broader disqualification in Section 208(g) of the Punjab Panchayati Raj Act, 1994, so a whole‑time salaried employee of a local authority is not disqualified from Panchayat elections.
Summary
Som Lal was elected Sarpanch of a Gram Panchayat in 2003, but his election was challenged on the ground that he was a whole‑time salaried employee of the Haryana State Agricultural Marketing Board, which under Section 208(g) of the Punjab Panchayati Raj Act, 1994 (Act 9) would disqualify him. The appellant argued that the later Punjab State Election Commission Act, 1994 (Act 19) narrows disqualification to only those holding an office of profit under a Panchayat, Municipality or the Government, and that its overriding provisions (ss. 142‑143) repeal inconsistent earlier provisions. The Supreme Court examined the legislative intent, the doctrine of implied repeal, and the specific wording of the two Acts, concluding that Act 19, being later and expressly given overriding effect, supersedes the broader disqualification in Act 9. Consequently, the appellant was not holding an office of profit within the meaning of ss. 11(f)‑(g) of Act 19 and was not disqualified. The Court allowed the appeal, set aside the orders of the Election Tribunal and High Court, and restored the appellant’s election.
Issues considered
- Whether the disqualification provision in Section 208(1)(g) of the Punjab Panchayati Raj Act, 1994 applies to a candidate who is a whole‑time salaried employee of a local authority such as the Agricultural Marketing Board.
- Whether the disqualification provisions in Section 11(f) and (g) of the Punjab State Election Commission Act, 1994, having overriding effect under Sections 142 and 143, repeal or override the earlier provisions of Section 208 of the Punjab Panchayati Raj Act.
- Whether the appellant held an office of profit within the meaning of Section 11 of the Punjab State Election Commission Act, 1994.
Subjects
DisqualificationOffice of profitStatutory interpretationImplied repealOverriding legislationPanchayat electionsElection lawLegislative intent
Judgment
[2008] 5 S.C.R. 49
SOM LAL A
v.
VIJAY LAXMI & ORS.
(Civil Appeal No. 5104 of 2006)
MARCH 14, 2008
B
(A.K. MATHUR AND ALTAMAS KABIR, JJ.)
r Punjab State Election Commission Act, 1994 (Act 19 of
1994):
ss. 11 (f) and (g) - Panchayat Election - Election of c
Sarpanch - Disqualifications - Office of profit - Returned
candidate stated to be holding office of profit under Agricultural
Marketing Board - HELD: Act 19 of 1994 being later in point
of time than Act 9 of 1994, disqualifications enumerated in
s. 11 would prevail and not those mentioned fn s. 208 of Act 9 D
of 1994 which are inconsistent to s. 11 of Act 19of1994 - Since
returned candidate did not incur disqualification. ~s per sub-
sections (f) and (g) of s.11, Election Tribunal and High Court
wrongly held him to be disqualified - Orders of Election
Tribunal and High Court set aside - Punjab Panchayati Raj E
Act, 1994 (Act 9 of 1994) - s. 208.
ss. 142 and 143 - Over-riding effect, repeal and saving
- Office of profit - Disqualification for membership of
Panchayat enumerated in sub-sections (f) and (g)of s.11. of
Act 19 of 1994 and s.208 of Act 9 of 1994 - HELD: Act 19 of F
1994 being subsequent in point of time, in view of over-riding
effect given to provisions thereof and the provisions of repeal
and saving, disqualifications mentioned in s.208 of Act 9 of
1994 which are consistent with sub-sections (f) and (g) of s. 11
of 1994 can only survive and not other disqualifications - G
Interpretation of statutes - Repeal by implication - Intention
of Legislature .
.....
The appellant was declared elected as Sarpanch of
49 H
50 SUPREME COURT REPORTS [2008] 5 S.C.R.
·•
A the Gram Panchayat concerned on 24.6.2003. His election
was challenged by the respondent, who had secured the
second highest number of votes. It was stated that in view
of the disqualifications prescribed in s.208(1)(g) of the
Punjab Panchayati Raj Act, 1994 (the Punjab Act 9 of 1994)
B laying down that a person being a whole-time salaried
employee of any local authority, statutory Corporation or
Board or a Co-operative Society, or of the State
Government or th1~ Central Government would be
disqualified to become member of a Panchayat, the
c appellant being an employee in the Agricultural Marketing
Board, was disqualified. The stand of the appellant was
that as per ss. 11 (f) and (g) of the Punjab State Election
Commission Act, 1994 (the Punjab Act 19 of 1994) which
·came into force subsequent to the Punjab Act 9of1994, a
person would be disqualified only if he "holds an office
D
of profit" under a Panchayat or a Municipality or under
the Government of India or any State Government, and
not for holding such office under any other local authority
or Corporation or Board much less the State Agricultural
Marketing Board. Both the Election Tribunal and the High
E Court held the appellant as disqualified. The election of
the appellant was set aside and the respondent was
declared as elected to the office of Sarpanch.
In the instant appeal, it was contended for the
F appellant that in view of the provisions of ss.142 an 143
of the Punjab Act ·19 of 1994, which was later in point of
time and the repea1I being specific, the provisions of s.11
thereof would have overriding effect vis-a-vis the
provisions of s.208 of the Punjab Act 9 of 1994. For the
respondent it was submitted that there was no express
G
repeal of the provisions of s.208 of the Punjab Act 9 of
1994 and, therefore, both the Acts should be construed
harmoniously giving full effect to the provisions of s.208 ~r
J
of the Punjab Act 9 of 1994 as well.
Allowing the appeal, the Court
H
•
SOM LAL v. VIJAY LAXMI & ORS. 51
1-
HELD: 1.1 It is a fact that the Punjab Act 19 of 1994 A
came into effect on 19.9.1994 and definitely is later in point
of time than the Punjab Act 9 of 1994 which had been
made effective from 21.4.1994. Under Section 11 (f) and
(g) of Act 19 of 1994 the disqualifications have been
prescribed. Though similar disqualifications existed under B
/'
Section 208 of the Act of 9 of 1994 but subsequently the
legislature in its wisdom has reduced the disqualifications
and confined the same only as to a person holding office
of profit under a Panchayat or a Municipality or under the
Government of India or any State Government. Thus, the c
legislature in its wisdom has not considered it proper to
continue with the disqualification of being an employee
of a Statutory Corporation or Board or a Co-operative
~ Society or any local authority other than a Panchayat or a
(J Municipality. Therefore, the disqualifications mentioned
s in Section 11 of the Act 19of1994 will prevail and not the D
)'
-
tri
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 the other disqualifications. [para
6 and 12] [62-8, C, D, E; 69-G; 70-A] E
1.2 The provisions of Sections 142 and 143 of the
Punjab Act 19of1994 clearly contemplate that the Act shall
have the complete over-riding effect. Section 142 makes
it clear that the legislature were aware of the earlier F
J. disqualifications and prescribed subsequently the
disqualifications under sub-sections (f) and (g) of Section
11 so far as the office of profit is concerned. It further
provided that the provisions of the Act shall have over-
riding effect notwithstanding anything inconsistent
G
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. [para 6] [63-A, B]
1.3 The mandate of the legislature appears on the H
52 SUPREME COURT REPORTS [2008] 5 S.C.R.
A face of it very clear. By virtue of Section 143 of the Punjab
Act 19 of 1994, provision of any other law which is
inconsistent with the provisions of the Act shall stand
repealed and only such action taken under the
corresponding provisions of any statute in force at that
B time which is not inconsistent with the provisions of Act
19 of 1994 shall be saved and not otherwise. In this view
of the matter, both the provisions i.e. Section 208 of Act 9
of 1994 and Section 11 of Act 19 of 1994 can be read
harmoniously to the extent that the disqualifications
c because of holding office of profit are that an incumbent
should not be an employee or a salaried person under a
Panchayat, or a Municipality, or under a State Government;
or the Central Government. To this extent there is identity
between the two provisions and no other disqualifications
o have been saved. If one holds office of profit under any
other organization like Statutory Corporation or Board or
a Co-operative Society, or a local authority other than a
Panchayat or a Municipality, that will not disqualify him to
be chosen as and for being a member of a Panchayat.
E The intention of the legislature is more than apparent from
Sections 142 and 143 of the Act 19 of 1994. Thus, the
subsequent Act 19 of 1994 which has come at later point
of time will have over-riding effect on all other laws in the
State; and likewise repeals the provision of the Act 9 of
F 1994 so far as it is inconsistent with the Act 19 of 1994 .
Therefore, there is no question of ambiguity as regards
the intention of the le~1islature since it is very clear and
there is no reason why the same be not given effect to.
[para 6, 7, 9 and 10] [6~1-C, D; 64-E, F; 68-A, D, E]
G Kishorebhai Khamanchand Goyal v. State of Gujarat &
Anr. (2003) 12 SCC 274; Hyderabad Chemical and
Pharmaceutical Works Ud. etc. v. State of Andhra Pradesh &
Ors. [1964] 7 S.C.R. 3713; and Ratan Lal Adukia v. Union of ,.
India (1989) 3 SCC 537 ·- relied on.
H
SOM LAL v. VIJAY LAXMI & ORS. 53
Municipal Corporation of Delhi v. Shiv Shankar [1971] 1 A
sec 442 - referred to.
Principles of Statutory Interpretation 11th Edn. 2008;
Justice G.P Singh (Chapter 7, Synopsis 4 page 637-639 -
referred to.
B
!
1.4 The courts should be very slow to interfere with
the mandates of the legislature unless there are
compelling reasons for doing so. In the instant case, the
clear mandate of the legislature was that anything which
is inconsistent with the Act 19 of 1994 shall be deemed to c
have been repealed and it leaves no room to take a
contrary view of the matter. [para 6] [63-E, F]
2. The view taken by the Single Judge of the High
Court cannot be sustained and is set aside. The appellant
while serving in the Marketing Committee cannot be said D
.,..
to have incurred the disqualification under sub-sections
(f) and (g) of s.11 of the Punjab Act 19 of 1994. [para 13]
[70-8, C]
Kishorebhai Khamanchand Goyal v State of Gujarat &
Anr (2003) 12 SCC 27 4; Jug al Kish ore v. State of Maharashtra E
& Ors. 1989 Supp.(1) SCC 589; Mary Roy & Ors. V State of
Kera/a & Ors. (1986) 2 SCC 209; Mis. Jain Ink Manufacturing
Company v. Life Insurance Corporation of India & Anr (1980)
4 sec 435 - cited.
F
~, CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5104 of 2006.
From the final Judgment and Order dated 20.1.2006 and
26.10.2006 of the High Court of Punjab and Haryana at
Chandigarh in F.A.O. No. 397 of 2005. G
K.V. Vishwanathan, Gagan Gupta, Jatinder Singla and
") Parmanand Gaur for the Appellant.
Paramjit Singh Patwalia, Vikas Mahajan, Amanpreet Singh
Rahi. Devesh Tripathi and Bhaskar Y. Kulkarni for the H
54 SUPREME COURT REPORTS [2008] 5 S.C.R.
A Respondents.
The Judgment of the Court was delivered by
A.K. MATHUR, J. 1. This appeal is directed against the
order dated 26.10.2006 passed by learned Single Judge of
B 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
c 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 &
0
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 Villa1~e Dhobara, Tehsil Pathankot, and the
E appellant was elected and the opponent- Vijay Laxmi lost. Total
votes polled -800; 4·11 votes were polled in favour of the
appellant- Som Lal; 376 votes were polled in favour of Vijay
Laxmi and 13 votes Wt:!re cancelled. Hence, the appellant was
declared elected. The election of the appellant was challenged
F 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
G 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 rlid not suffer from any disqualification.
The respondent contended before the Election Tribunal that as
H per Section 208 (1 )(g) of the Punjab Panchayati Raj Act, 1994
SOM LAL v. VIJAY LAXMI & ORS. 55
[A.K. MATHUR, J.]
I t
(Punjab Act 9 of 1994) [hereinafter to be referred to as "the A
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 B
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 c
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
D
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. E
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 F
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 G
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
H
56 SUPREME COURT REPORTS [2008] 5 S.C.R.
A 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,
B 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
c 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."
D 3. Now, the question before us is whether the
disqualifications enumerated in Section 208 of the Act 9of1994 y
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.
E " 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
F 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 attaiined the age of twenty-one years;
G
(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
H turpitude or ain offence implying of any defect of a
SOM LAL v. VIJAY LAXMI & ORS. 57
[A.K. MATHUR, J.]
I Sarpanch or Panch or Gram Panchayat or member A
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
B
(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 C
(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
0
Government or the Central Government; or
(h) is registered as a habitual offender
xx xx xx
11. Disqualifications for membership of a Panchayat E
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 F
•. 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 G
© 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
H
58 SUPREME COURT REPORTS [2008) 5 S.C.R.
A (e) if he has been found guilty of any offence punishable
under Section 153A or Section 171 E or section 171 F
or section 3'76 of section 376A of section 3768 or
section 376C or section 3760 or section 498A or
section 505 of the Indian Penal Code, 1960 or any
B 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
c
(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
D
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
E
disqualified whereas under Section 11 (f) & (g) of Act 19of1994,
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
F 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
,
9of1994 will prevail. In this connection, the important provisions
which have substantial bearing on the subject are Sections 142
G and 143 of the Act 19of1994 are relevant which read as under:
" 142. Over-riding effect.- The provisions of this Act shall
have over-ridin~1 effect notwithstanding anything
inconsistent therewith contained in any other law for the
time being in force relating to the conduct of elections to
H
SOM LAL v. VIJAY LAXMI & ORS. 59
[A.K. MATHUR, J.]
/"
the Panchayats or Municipalities or any incidental matter A
thereto.
143.Repeal and savings.- The provisions of any State
Law corresponding to the provisions of this Act are hereby
repealed:
B
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
c
(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 D
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
E
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.
F
(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 G
with the provisions of this Act, shall be dee1·ned to
have been done or taken under the corresponding
provisions of this Act, as if this Act was in force at the
T time, such thing was so done or action so taken and
shall continue to be in force unless and until
H
60 SUPREME COURT REPORTS [2008] 5 S.C.R.
A superseded by anything done or any action taken
under this Act."
4. Learned counsel for the appellant submitted before us
that when disqualifications have been prescribed in both the
Acts i.e. Act 9 of ·1994 and Act 19 of 1994 and the Act 19 of
8 1994 being subsequent in point of time would prevail specially
when there is section 14~! which has laid down the over-riding
effect notwithstanding anything contained in any other law which
is inconsistent with this Act shall prevail and similarly, in Section
143 it clearly contemplates that all other provisions of State law
C corresponding to the provisions of this Act shall stand repealed,
save to the extent that the provisions which are not inconsistent
with this Act. Therefore, in view of Sections 142 and 143 of the_
Act 19 of 1994, the over-riding effect of the subsequent
legislation is that the legislature in its wisdom while enac~ed the
D Act 19 of 1994 which has come into force with effect from
19.9.1994 much after tho Act 9 of 1994, intended that this
provision shall prevail especially when it has the over-riding
effect and the repeal is specifi~. Therefore, the clear intention
of the legislature should be given effect to. In support of his
E contention, learned counsel forthe appellant invited our attention
to the decision of this Court in Hyderabad Chemical and
Pharmaceutical Works Ltcl..etc. v. State of Andhra Pradesh &
Ors. ([1964] 7 S.C.R. 376) and in Ratan Lal Adukia·v. Union of
India [(1989) 3 sec 537). ·· ~
F 5 .. As against this, Mr. P.S. Patwalia, learned senior
counsel for the respondents submitted that there is no express ,
repeal but it is only by implication and submitted that both the
. Acts can be read harmoniously and in support of his contention,
invited our attention to the following decisions of this Court.
G
i. (2003) 12 sec 214
Kishorebhai Khamanchand Goyal v
.. State of Gujarat & Anr.
ii. 1989 Supp.(1) sec 589
H Jugal Kishore v.
SOM LAL v. VIJAY LAXMI & ORS. 61
[AK. MATHUR, J.]
r
State of Maharashtra & Ors. A
iii. (1,986) 2 sec 209
Mary Roy & Ors. V.
State of Kerala & Ors.
iv. (1980) 4 sec 435 B
M/s. Jain Ink Manufacturing Company v. Life Insurance
Corporation of India &Anr.
v. (1969) 3 sec 801
vi. Principles of Statutory Interpretation [11th Edn. 2008] c
By Justice G.P.Singh (Chapter 7, Synopsis 4 at page
637-639)
6. Both the Acts i.e. Act 9 of 1994 and Act 19 of 1994
came into being in view of seventy-third amendment and seventy-
fourth amendment of the Constitution of India to provide more D
teeth to local self government. By this amendment under Part IX
of the Constitution, Article 243 was amended. Likewise by
inserting Part IXA, Municipalities were also strengthened. Self-
governance were given to the local bodies. As a result of these
seventy-third and seventy-fourth amendments, The Punjab E
Panchayati Raj Act, 1994(PunjabAct 9of1994) and the Punjab
State Election Commission Act, 1994 (Punjab Act No. 19 of
1994) were enacted. The preamble of The Punjab Panchayati
Raj Act,1994 ( PunjabAct 9of1994) reads as under:
" Whereas it is expedient to replace the present enactments F
by a comprehensive new enactment to establish a three-
tier Panchayati Raj system in the State of Punjab with
elected bodies at the village, Block and District levels, in
keeping with the provisions of the Constitution (Seventy-
third Amendment) Act, 1992 for greater participation of G
,, the people and more effective implementation of rural
development and Panchayati Raj system;
Likewise the Punjab State Election Commission Act, 1994
was enacted and the preamble reads as under:
H
62 SUPREME COURT REPORTS [2008] 5 S.C.R.
A "An Act to provide for the constitution of the State Election
Commission and for vesting the superintendence, direction
and control of th1~ preparation of election rolls for, and the
conduct of all elections to the Panchayats and
Municipalities in the State of Punjab, in the State Election
B Commission, and to provide for all matters relating to, or
ancillary or in connection with the elections to the
Panchayats and Municipalities, in terms of the provisions
of Parts IX and IX-A of the Constitution of India."
This is also a fact that the Act 9 of 1994 came into effect
c on 21.4.1994 and the Act 19 of 1994 came into effect on
19.9.1994. Act 19 of 1994 is definitely later in point of time and
here under Section 11 (f) & (g) the disqualifications have been
prescribed. Though similar disqualifications existed under
Section 208 of the Act of 9 of 1994 but subsequently the
D legislature in its wisdom has reduced the disqualifications and
confined only to the area that one should not hold office of profit 'f
under a Panchayat or a Municipality or under the Government
of India or any State Government. Thus, the legislature in its
wisdom has not considered it proper to continue with the
disqualification of being an employee of any local authority,
E
Statutory Corporation or Board or a Co-operative Society. Had
that been the intention of the legislature then perhaps they would
have specifically provided the disqualifications under Section
11 of the Act 19 of 1994. Section 11 clearly says that a person
shall be disqualified for being chosen as, and for being a
F member of a Panchayat or a Municipality if he holds an office of
f
profit under a Panchayat or a Municipality; or if he holds an office
of profit under the Government of India or any State Government;
whereas Section 208 (g) says a person shall be disqualified for
being chosen as, and for being a member of a Panchayat or a
G Municipality if he 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. T
But in the subsequent Act 19of1994 the area of disqualification
H has been narrowed down. Since the Act 19of1994 is subsequent
SOM LAL v. VIJAY LAXMI & ORS. 63
[A.K. MATHUR, J.]
in point of time and it also has the provisions of Sections 142 A
and 143 which clearly contemplate that it shall have the complete
over-riding effect, reading of Section 142 makes it clear that
the legislature were aware of the earlier disqualification and
subsequently they have inserted the disqualifications under sub-
sections (f) & (g) of Section 11 so far as the office of profit is B
concerned and provided over-riding effect and have clearly laid
down that 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 shall stand repealed. Therefore,
the mandate of the legislature appears on the face of it very
c
clear and they have saved the actions under Section 143 to the
extent that any other law which is inconsistent with this law shall
stand repealed and only that action taken under the
corresponding provisions of any State law which were in force
D
at that time, those actions shall only be saved and not otherwise.
Therefore, the saving clause is very limited if any action has
" been taken under the earlier legislation before coming into force
of Act 19of1994, those actions would be saved after the coming
into force of Act 19 of 1994. The mandate of legislature is
categorically clear in view of Sections 142 and 143 and it admits E
of no two opinion in the matter. The courts should be very slow
to interfere with the mandates of the legislature unless there are
compelling reasons for doing so. In the present case, the clear
mandate of the legislature was that anything which is inconsistent
with the Act 19 of 1994 shall be deemed to have been repealed F
leaves no room for us to take a contrary view of the matter. With
" respect we cannot agree with the view taken by the Division
Bench of the High Court that both the provisions can be read
harmoniously i.e. Section 11 of Act 19of1994 read with Section
208 of Act 9 of 1994 but we regret it cannot be. Harmonious G
reading of both the provisions will be limited to the extent of
Section 11 of the Act 19 of 1994. When Section 11 of Act 19 of
1994 clearly contemplate~ that these are the only
f disqualifications mentioned in sub-sections (f) & (g), which are
l already present in Section 208 of Act 9 of 1994, beyond that it H
64 SUPREME COURT REPORTS (2008) 5 S.C.R.
A cannot be read. If Section 208 of Act 9of1994 lays down further
disqualifications then those disqualifications will run counter to
the disqualifications as mentioned in Section 11 of Act 19 of
1994. If Section 208 of Act 9of1994 is inconsistent to the extent
of Section 11 of Act 19of1994, then to this extent the provisions
B of Section 208 of Act 9 of 1994 cannot be read. Since there are
only four disqualifications mentioned in Section 11 of Act 19 of
1994, the rest of the disqualifications cannot be imported by
implication of the Act 9 of 1994. Mr. Patwalia, learned senior
counsel for the respondents tried to persuade us that the theory
c of not expressly repealed by implication should be read into but
we regret, it cannot be. The intention of the legislature is clear
and there is no reason wl1y the intention of the legislature be not
given effect to. In fact the Division Bench of the Punjab & Haryana
High Court held that Section 11 should be read with Section
D 208; that means Section 208 can survive to the extent that it is
consistent with Section 11 of Act 19 of 1994. Rest part of section
208 i.e. a person who is holding office of profit under local
authority, Statutory Corporation, Board or Co-operative Society
will not be disqualified. Therefore, if a person holds an office of
profit under the local authority, Statutory Corporation or Board
E or a Co-operative Sodety cannot by implication be said to be a
person disqualified under the Act. These provisions can be read
harmoniously to the extent that if a person is holding office under
the Panchayat or a Municipality, or under the Government of
India or any State Government, to that extent it will be deemed
F to be office of profit. If he holds an office of profit under any
other organization, like local authority, Statutory Corporation or
Board or a Co-operative Society, that will not be office of profit
so as to disqualify him to be chosen as and for being a member
of a Panchayat.
G
7. Mr.Patwalia, learned senior counsel for the respondents
invited our attention to Chapter VII at pg.637 of the Principles of
Statutory Interpretation (11 1h Edn.2008) by Justice G.P.Singh,
which reads as under :
H "The use of any particular form of words is not necessary
SOM LAL v. VIJAY LAXMI & ORS. 65
[A.K. MATHUR, J.]
to bring about an express repeal. All that is necessary is A
that the words used show an intentio.n to abrogate the Act
or provision in question. The usual form is to use the words'
is or are hereby repealed' and to mention the Acts sought
to be repealed in the repealing section or to catalogue
them in a Schedule. The use of words ' shall cease to B
~
have effect', is also not uncommon. When the object is to
repeal only a portion of an Act words 'shall be omitted' are
normally used.The legislative practice in India shows that
'omission' of a provision is treated as amendment which
signifies deletion of that provision and is not different from c
repeal. It has been held that "there is no real distinction
between repeal and an amendment." It has also been
held that" where a provision of an Act is omitted by an Act
and the said Act simultaneously re-enacts a new provision
which substantially covers the field occupied by the
D
repealed provision with certain modification, in that event
such re-enactment is regarded having force continuously
and the modification or changes are treated as amendment
coming into force with effect from the date of enforcement
of re-enacted provision."
E
Similarly, our attention was invited to a paragraph at page
639. There it has been observed as follows:
"The Legislature sometimes does not enumerate the Acts
sought to be repealed, and only says that" all provisions
inconsistent with this Act" are hereby repealed. With F
respect to such a repealing provision, it has been said
that it merely substitutes for the uncertainty of the general
law an express provision of equal uncertainty; and in
determining whether a particular earlier provision is
repealed by such a repealing provision on the ground of G
inconsistency with it, the same provisions which are
application in determining a question of implied repeal
-,- have to be applied."
l At page 640, under the heading Implied repeal it has been
H
66 SUPREME COURT REPORTS [2008] 5 S.C.R.
A observed as follows:
" There is a presumption against a repeal by implication;
and the reason of this rule is based on the theory that the
Legislature while enacting a law has a complete
knowledge of the existing laws on the same subject-matter,
B and therefore, when it does not provide a repealing
provision, it gives out an intention not to repeal the existing
legislation. When the new Act contains a repealing section
mentioning the Acts which it expressly repeals, the
presumption against implied repeal of other laws is further
c strengthened on the principle expressio unius est exclusion
alterius. Further, the presumption will be comparatively
strong in case of virtually contemporaneous Acts. The
continuance of existing legislation, in the absence of an
express provision of repeal, being presumed, the burden
D to show that there has b1~en a repeal by implication lies on
the party asserting the same. The presumption is, however,
rebutted and a repeal is inferred by necessary implication
when the provisions of the later Act are so inconsistent
with or repugnant to the provisions of the earlier Act" that
E the two cannot stand tooether" ."
As already mentioned above it is very clear that Section
142 clearly contemplates that the earlier laws which are
inconsistent with the Act shall stand repealed and it is saved to
the limited extent as provided under Section 143. Therefore, if
F both the provisions i.e. Section 208 of Act 9 of 1994 and Section
11 of Act 19 of 1994 can be read harmoniously to show that the
disqualifications which are mentioned for holding office of profit
are that an incumbent should not be an employee or a salaried
person under the Panchayat, or under Municipality, or under the
G State Government; or the Central Government. To this extent
there is identity between the two provisions and no other
disqualifications have been saved and it has been subsequently
repealed and it is more than apparent from Sections 142 and
143 of the Act 19 of 1994.
H
SOM LAL v. VIJAY LAXMI & ORS. 67
[A.K. MATHUR, J.]
8. In Ratan Lal Adukia v. Union of India [(1989) 3 SCC A
537] it has been held as follows:
"The doctrine of implied repeal is based on the postulate
that the legislature which is presumed to know the existing
state of the law did not intend to create any confusion by
retaining conflicting provisions. Courts in applying this B
.,
doctrine are supposed merely to give effect to the
legislative intent by examining the object and scope of the
two enactments. But in a conceivable case, the very
existence of two provisions may by itself, and without more,
lead to an inference of mutual irreconcilability if the later c
set of provisions is by itself a complete code with respect
to the same matter. In such a case the actual detailed
comparison of the two sets of provisions may not be
necessary. It is a matter of legislative intent that the two
sets of provisions were not expected to be applied D
,. simultaneously."
9. In Hyderabad Chemical and Pharmaceutical Works
Ltd. etc. v. State of Andhra Pradesh & Ors. ([1964] 7 S.C.R.
376), it was held as follows:
E
"By virtue of Entry 84 List I of the VII Schedule to the
Constitution no charge could be levied on the manufacture
of medicinal preparations except by the Union of India
and since the 1955 Act is a law made otherwise by
Parliament within the meaning of Art. 277 the duties and F
other charges which used to be levied by the State in
' connection with medicinal preparations could no longer
be levied by it. Further the effect of s.21 of the Act is that
so far as the Hyderabad Act applied to the use of alcohol
in the manufacture of medicinal and toilet preparations,
G
the Hyderabad Act must be deemed to have been
repealed."
Therefore, it clearly transpires that by virtue of subsequent
" amendment of the law made by the Parliament, the Hyderabad .
Act automatically stood repealed. Similar is the position here H
68 SUPREME COURT REPORTS [2008] 5 S.C.R.
'
A also that the subseque!nt Act 19 of 1994 which has come at
later point of time, repeals the provisions of the Act 9 of 1994
so far as it is inconsistent with the Act 19 of 1994.
10. As against this, learned senior counsel for the
respondents, invited our attention to a decision of this Court in
B Municipal Corporation of Delhi v. Shiv Shankar [ 19n (1) SCC
442] wherein it has been held as follows:
"As the Legislature must be presumed in deference of the
rule of law to intend to enact consistent and harmonious
c body of laws, a subsequent legislation may not be too
readily presumed to effectuate a repeal of existing
statutory laws in the absence of express or at least clear
and unambiguous indication to that effect."
But in the present case, the intention of the Legislature is
D more than apparent that the existing legislation as subsequently
held under Section 142 of the Act 19 of 1994 that this Act will
have over-riding effect on all other laws in the State and likewise,
under Section 143 thme is repeal. Therefore, there is no
question of ambiguity in the matter of intention of the legislature
E as it is very clear.
11. In Kishorebhai Khamanchand Goyal v. State of Gujarat
& Anr.[ (2003) 12 SCC :274] their Lordships held as follows:
"There is a presumption against repeal by implication.
F The reason is that the legislature while enacting a law is
presumed to have complete knowledge of the existing
laws on the same subject-matter, and therefore, when it
does not provide a repealing provision the intention is
clear not to repeal the existing legislation. Besides when
the new Act contains a repealing section mentioning the
G
Acts which it expressly repeals, the presumption against
implied repeal of other laws is further strengthened on the
principle of expressio unius (personae vel rei) est exclusion
alterius.( The express intention of one person or thing is
the exclusion of another.) The continuance of existing
H
SOM LAL v. VIJAY LAXMI & ORS. 69
[A.K. MATHUR, J.]
)
legislation, in the absence of an express provision of repeal A
being presumed, the burden to show that there has been
repeal by implication lies on the party asserting the same.
The presumption is, however, rebutted and a repeal is
inferred by necessary implication when the provisions of
the later Act are so inconsistent with or repugnant to the B
provisions of the earlier Act that the two cannot stand
together. But, if the two can be read together and some
application can be made of the words in the earlier Act, a
repeal will not be inferred. The necessary questions to be
asked are: c
(1) Whether there is direct conflict between the two
provisions.
(2) Whether the legislature intended to lay down an
exhaustive Code in respect of the subject-matter
D
replacing the earlier law.
(3) Whether the two laws occupy the same field."
As already mentioned there is no necessary implication.
In this case, the intention of the legislature is more than apparent.
E
12. Learned counsel for the appellant has tried to submit
that in fact the incumbent was virtually not holding the office of
profit as he ceased to be an employee for the last 8-9 years.
We do not want to go into this controversy as we have already
decided the question of law involved in the present case that a F
salaried employee of any local authority, statutory corporation
or Board or a Co-operative Society can not be held to have
held the office of profit under Section 11 of the Act 19 of 1994.
Therefore, we need not to go into the factual controversy. Mr.
P.S.Patwalia, learned senior counsel for the respondents tried
G
to persuade us that we should look to the scope of both the
Acts. The disqualifications are only mentioned in Section 208
of the Act 9 of 1994 and the intention of the legislature is very
T clear and Section 11 of the Act of 1994 being in later point of
time stating therein what are the disqualifications, therefore, the
H
70 SUPREME COUHT REPORTS [2008) 5 S.C.R.
A disqualifications mentioned in Section 11 of the Act 19 of 1994
will prevail and not the disqualifications mentioned in Section
208 of Act 9of1994. The disqualifications mentioned in Section
208 which are consistent with Section 11 of Act 19 of 1994 can
only survive and not other disqualifications.
B 13. As a result of our above discussions, we are opinion
that the view taken by the learned Single Judge on the basis of
the judgment of the Division Bench of the High Court of Punjab
and Haryana cannot be sustained. Consequently, we allow this
appeal, set aside the judgment and order of the learned Single
C Judge and hold that the appellant while serving in the Marketing
Committee cannot be held to be holding the office of profit. There
would be no order as to costs.
R.P. Appeal allowed.
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