LAL DAS RAI Vs. HULAS PANDEY

JUDGEMENT

(1.) The election petitioner, who himself was also a candidate for election as a member of Bihar Legislative Council from Bhojpur-cumPatna Buxar, Local Authorities' Constituency, through this petition filed under sections 80 and 80-A of the Representation of the People Act, 1951, has challenged the election of respondent no.6 Sri Hulas Pandey held on 13.7.2009 and the declaration of the Returning Officer issued in his favour on 15.7.2009. He has further prayed for declaring him as elected from the Constituency in place of respondent no. 6. For this purpose, he has made all other candidates, who had contested the election, as respondent nos. 7 to 14, besides officials of the State of Bihar and the Election Commission Respondent Nos. 1 to 5, who were subsequently deleted and by order dated 14.5.2010 the private respondents were renumbered as Respondent nos. 1 to 9.

(2.) It is stated in the election petition that the election program was announced for election of Members of Bihar Legislative Council from Local Authorities' Constituencies of the State through notification dated 19.6.2009 (Annexure-1) issued by the election authorities, published in the official gazette, according to which date for nomination was fixed as 26.6.2009; date for scrutiny of nominations was fixed as 27.6.2009; last date of withdrawal of candidature was fixed as 29.6.2009 and date of poll was fixed as 13.7.2009. So far as Bhojpur-cum-Buxar Local Authorities' Constituency was concerned, the District Magistrate, Bhojpur was appointed as Returning Officer before whom the election petitioner, respondent no.1 and other respondents filed their nomination papers within the stipulated time, which were scrutinized and found valid. However, later on, respondent no.9 i.e. Ramanuj Pandey withdrew his nomination. Thus, only nine candidates, including election petitioner and respondent nos.1 to 8 remained in the fray. Election was held and result was declared on 15.7.2009 and respondent no.1 was declared elected on having secured total 2456 votes, defeating his nearest contestant, namely, election petitioner, who secured 1783 votes only.

(3.) It is stated in the election petition that respondent no.1 is a veteran and notorious criminal, accused of serious and heinous crimes and large number of cases are pending against him in the State of Bihar, State of U.P. and State of West Bengal. It is also stated that in several cases coercive steps have been taken by the court concerned for his arrest and production including steps under sections 82 and 83 of the Code of Criminal Procedure. However, it is stated that respondent no.1 evaded his arrest and has remained absconder since the year 1997 itself. It is stated that respondent no.1 had/has no place of ordinarily residence and he kept on stealthily and secretly moving from one place to another to avoid arrest. It is stated that he never resided at his native village or even at Dalmianagar. It is stated that the State Election Commission, at the time of Municipal Election in 2007 itself, vide Memo No. 50- 11/2007-C-277 dated 23.7.2007 (Annexure-2), had issued directions to all the District Magistrates-cum-District Election Officers to take action to delete the names of such persons from the voter list against whom execution of non-bailable warrant of arrest was pending for the last six months. It is stated that some action had been taken at the time of Bihar Legislative Assembly Election, 2005 and Panchayat Election, 2006. It is stated that though respondent no.1 is accused in as many as 30 cases and has been absconder since 1997, his name was not deleted from the voter list and he was allowed to contest the election for the Legislative Council in complete violation of law and rules and directives. It is stated that it is egregious act of continuing the name of respondent no.1 in the voter list and is serious dereliction of duty on the part of the authorities and is collusive act and amounted to fraud upon the Statute. It is stated that respondent no.1 had not been ordinarily residing at any place for the last six months and he could not have claimed to be an ordinarily resident within any constituency in terms of section 20 of the Representation of People Act, 1950 (in short =1950 Act'), and therefore, he was not entitled to be registered on electoral roll of any constituency. Hence, it is stated that continuity of his name in the electoral roll is non est as per section 22 of the said Act.