NAGESHWAR PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN this writ petition, the petitioners who claim to be the voters of Sitamarhi Assembly Constituency No. 67, have prayed for issuance of writ of quo warranto or any other writ or direction commanding Sahid Ali Khan (respondent No. 4) to vacate the seat of Bihar Legislative Assembly representing said Sitamarhi Assembly constitutency and have further prayed to declare the said seat of the Bihar Legislative Assembly as vacant and to award suitable punishment to respondent No. 4 for usurping the post of M.L.A. in flagrant disregard of the provisions of the Representation of the People Act, 1951 (hereinafter referred to as 'the R.P. Act')and the Constitution of INdia.

(2.) THE facts of the case lie in a very narrow compass. Respondent No. 4 contested the election in question and was declared elected by a margin of 35 votes as a member of Rastriya Janata Dal. It is stated that Patna Industrial Area Development Authority (hereinafter referred to as 'the PIADA') was constituted by virtue of Notification No. S.O. 908 dated 27-6-1973, vide Annexure-1, by the Governor of Bihar in exercise of power conferred under Sub-section (1) of Section 3 of the Bihar Industrial Area Development Authority Ordinance, 1973 (Bihar Ordinance No. 42 of 1973) which subsequently was replaced by Bihar Act 16 of 1974, a copy of which has been annexed as Annexure-2. It is alleged that respondent No. 4 by virtue of his being inevitable supporter for the ruling Rastriya Janata Dal party got himself appointed as the Chairman of the PIADA, vide Notification No. 11328, dated 4-9-1991, a copy of which has been annexed as Annexure-3. According to the petitioners, respondent No. 4 not only got himself appointed as Chairman of the PIADA but also managed to get the benefits available to a Minister of State by virtue of notification dated 15-11-1991 of the Department of Parliamentary Affairs of the State of Bihar, a true copy of which has been annexed as Annexure-4.

(3.) A counter-affidavit has also been filed on behalf of respondent No. 4 in which it is stated that the writ petition seeking relief of quo warranto is neither maintainable in law nor on facts. The petitioners who claim to be the voters of said Constituency, never raised this issue before any forum though respondent No. 4 is fighting election since 1990 and has been Chairman of the Authority since 1991. It is alleged that the petitioners have been set up by a defeated candidate Shri Hari Shankar Prasad of the Assembly Election of 2000, who has already filed an election petition in this Court, being E.P. No. 1 of 2000, challenging the election of respondent No. 4 and the evidence in it is going on. According to the said respondent, Article 329(b) of the Constitution bars the challenge of an election except by election petition presented to such authority and in such manner as may be provided for or under any law made by the appropriate Legislature.