NARAD PASWAN Vs. RANJANTEWARY ALIAS RAJAN

JUDGEMENT

(1.) THIS an order on an application filed by sole respondent u/s. 86(1) of the Representation of People Act, 1951 (in short, '1951 Act ') read with Order VII, Rule 11 of the Code of Civil Procedure challenging the maintainability of election petition for non -compliance of mandatory provisions of Secs. 81 and 83 of '1951 Act ' and reply to this petition filed by petitioner.

(2.) THE brief facts of the matter are that respondent was one of the contesting candidates in the election held in the year 2000 for Govindganj Assembly constituency, in the State of Bihar (in short, ' the election in question) and he was declared elected. The petitioner has challenged the election of respondent on the grounds that respondent was not qualified to be chosen to fill the seat of Bihar Legislative Assembly under the law and in fact, his nomination papers were improperly accepted. The case of petitioner is that the respondent is in reality a resident of Uttar Pradesh and he is also an elector so, recorded from one of the constituencies of Uttar Pradesh and he is not a resident of State of Bihar and as such, he cannot be an elector from any constituency of State of Bihar and therefore, he was not qualified under 1951 Act and the constitution of India to fill the seat of Elihar Legislative Assembly in the election in question. According to the petitioner, respondent is an elector duly registered from 182 Kauriam Assembly constituency in Uttar Pradesh which falls under 37, Bansgaon Parliamentary constituency of Uttar Pradesh and the name of respondent is recorded at serial No. 543 in part No. 268 in the aforesaid 182, Kauriram Assembly constituency and he has been issued a photo identity card against the entry of his name in the list of voters vide No. 0801354. Further case of petitioner is that apprehending fraudulent action which might be perpetrated at the instance of respondent for getting his name illegally included in the elector roll of Nautan Assembly constituency for contesting election from the State of Bihar, candidates of some recognized political parties had apprised the Election Commission as well as the Local Registration -confliction Officer of the district of East Champaran and also the SDO, Areraj and Motihari (Annexure 2 of election petition). During the course of process of election after election programme was announced fixing date for filing nomination papers, several protest petitions appear to have been filed by the candidates of other political parties to the SDO, Areraj and Returning Officer wherein details regarding the sole respondent being a resident of Uttar Pradesh and his name being recorded in the list of voters of 182, Kauriam Assembly constituency in the year 1999 were given (Annexure 2/1 of election petition). Even during the scrutiny objection had been raised before the Returning Officer regarding the respondent being not qualified and to be chosen as member of Bihar Legialtive Assembly because he was never a resident of State of Bihar and as such, he was not in fact an elector for any constituency in the State of Bihar and so he was not qualified to contest the Assembly Election in the State of Bihar but quite illegally the Returning Officer ignored the objection and improperly and illegally accepted his nomination. According to the petitioner, the sole respondent under the law does not acquire the right of ordinarily resident of any constituency in Bihar without actually residing at any place in Bihar and inclusion of his name from any constituency of Bihar in inclusion of ordinarily resident of that place would be without jurisdiction and the electoral registration officer inherently lacks jurisdiction to include the name of respondent in other list of voters in a constituency of this State when apparently and on admitted facts respondent did not reside for a single day in the village from where his name was illegally enrolled as an elector and therefore, the order of electoral registration officer entering the name of sole respondent as an elector by way of correction of electoral roll in the year 2000 that too when election was notified was void ab initio besides being illegal, arbitrary and without jurisdiction. It is also the case of petitioner that so -called recording of the name of respondent by way of correction of electoral roll in the year 2000 of Khadha constituency in the district of West Champaran in Bihar is also void on the sole ground that opportunity to file an objection regarding said entry was not provided to the voters concerned and every thing was done secretly in a cavalier manner and it was done overnight as if it was a secret affair between the registration officer and the sole respondent. The further case of petitioner is that respondent is a well known personality of the underworld in Uttar Pradesh and in fact, he was in the Beur Central Jail, Patna, in the State of Bihar since February 1999. in connection with several cases and there was no occasion for him to ordinarily reside in any part of State of Bihar much less in the district of West champaran because he was rotting in Central Jail, Beur since February 1999 and prior to imprisonment, his name was running in the revised voters list in the year 1999 and he was voter of a constituency of Uttar Pradesh and this list was valid for the 1999 Parliamentary Election and hence the question of respondent being resident of any constituency in the State of Bihar did not arise. According to the petitioner, the improper acceptance of candidate of respondent has materially affected the result of election in question and as such, the election in question is fit to be declared void in view of sec. 100(1 )(a) and (d)(i) of 1951 Act.

(3.) THE petitioner by filing reply to the petition of respondent challenging the maintainability of election petition has almost taken the same stand as taken in the election petition and has stated that the respondent is having criminal antecedent and he remained in jail from February 1999 till today at Beur and other jail and there was no question of respondent being residing within the territorial jurisdiction of Nautan Assembly constituency and he did not acquire the basic residential qualification as provided u/s. 20 of the 1950 Act and inclusion of his name in the electoral roll of Nautan Assembly constituency from village Baikunthwa was contrary to law and the electoral registration officer had no jurisdiction to enroll his name in the relevant electoral roll particularly in view of the fact that respondent was an elector from Kauriram Assembly constituency in Gorakhpur district of Uttar Pradesh and it is a settled principle of law that an elector from any place in a State is not entitled to be enrolled from any place in other State unless his name is deleted from the existing list of voters of the State concerned. According to the petitioner enrolment of name of respondent in the list of voters of Baikunthwa village was made at the eleventh hour and no adequate opportunity was provided to the people of area concerned to raise objection against the illegal enrolment of the respondent and electoral roil of Nautan Assembly constituency is illegal and non est so far as it concerns the name of respondent in this list. Further case of petitioner is that a void order need not be challenged and it can be challenged collaterally or impliedly because void order is non est and it is dead throughout and does not acquire any validity even if it is not challenged. The petitioner has prayed for dismissing the petition of respondent challenging the maintainability of election petition.