KEDAR PANDEY Vs. NARAIN BIKRAN SAH

JUDGEMENT

(1.) Both these appeals are brought by certificate against the judgment and decree of the High Court of Judicature at Patna, dated March 26, 1964, pronounced in Election Appeals Nos. 8 and 10 of 1963.

(2.) The appellant-Kedar Pandey and the respondent-Narain Bikram Sah (hereinafter called Narain Raja) were the contesting candidates in the year 1962 on behalf of the Congress and Swatantra Party, respectively, for the election to Bihar Legislative Assembly from Ramnagar Constituency in the district of Champaran. The nomination papers of the appellant and the respondent and two others-Parmeshwar Prasad Roy and Suleman Khan-were accepted by the Returning Office without any objection on January 22. 1962. Later on the two candidates- Parmeshwar Prasad Roy and Suleman Khan-withdrew their candidatures. After the poll the respondent, Narain Raja was declared elected as member of the Bihar Legislative Assembly by majority of valid votes. On April 11, 1962 Kedar Pandey filed an election petition challenging the election of the respondent. It was alleged by Kedar Pandey that the respondent was not duly qualified under Art. 173 of the Constitution of India to be a candidate for election as he was not a citizen of India. According to Kedar Pandey the respondent, his parents and grand-parents were all born in Nepal and, therefore, on the date of the election, the respondent-Narain Raja-was not qualified to be chosen to fill the Assembly seat for which he had been declared to have been elected. According to Kedar Pandey the respondent was related to the royal family of Nepal and the father of the respondent-Rama Raja-owned about 43 bighas of land and a house at Barewa in Nepal in which the respondent had a share along with his three other brothers. The election petition was contested by the respondent who said that he was an Indian citizen and there was no disqualification incurred under Art. 173 of the Constitution. The further case of the respondent was that he had lived in India since his birth and that he was a resident of Ramnagar in the district of Champaran and not of Barewa in Nepal. The respondent claimed that he was born in Banaras and not at Barewa.

(3.) Upon these rival contentions it was held by the Tribunal that the respondent-Narain Raja-was not a citizen of India and, therefore, was not qualified under Art. 173 of the Constitution for being chosen to fill a seat in the Bihar Legislative Assembly. The Tribunal, therefore, declared that the election of the respondent was void. But the Tribunal refused to make a declaration that Kedar Pandey was entitled to be elected to Bihar Legislative Assembly for that Constituency. Both the appellant and the respondent preferred separate appeals against the judgment of the Election Tribunal to the High Court of Judicature at Patna. The High Court in appeal set aside the judgment of the Tribunal and upheld the election of the respondent-Narain Raja. The High Court found, on examination of the evidence, that Narain Raja, the respondent before us, was born in Banaras on October 10, 1918 and that the respondent was living in India from 1939 right upto 1949 and even thereafter. The High Court further found that long before the year 1949 Narain Raja had acquired a domicil of choice in Indian territory and, therefore, acquired the status of a citizen of India both under Art. 5 (a) and (c) of the Constitution. On these findings the High Court took the view that Narain Raja was duly qualified for being elected to the Bihar Legislative Assembly and the election petition filed by the appellant-Kedar Pandey - should be dismissed.