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IN THE HIGH COURT OF GAUHATI
B. BISWAS, J.
Padmanath Sarmah – Appellant
Vs.
Hitendra Nath Goswami and Ors. – Respondent
Election Petition No. 1 of 2001
Decided On: 18.05.2005
ELECTION PETITION - CORRUPT PRACTICES - ASSISTANCE FROM GOVERNMENT SERVANT - CHAIRMAN OF ASSAM STATE ELECTRICITY BOARD - WHETHER IN SERVICE OF GOVERNMENT - APPROVAL OF SCHEMES AND EXECUTION OF WORKS DURING ELECTION PERIOD - WHETHER CONSTITUTES CORRUPT PRACTICE - INTERPRETATION OF SECTION 123(7) OF REPRESENTATION OF PEOPLE ACT, 1951.
Fact of the Case:
Election petition filed alleging corrupt practices by the returned candidate, a cabinet minister in the AGP Government and in-charge of the Department of Power, with the assistance of the Chairman and other officers of the Assam State Electricity Board (Board) during the election campaign. The petitioner alleged that the returned candidate procured the assistance of the Chairman and other officers of the Board in furtherance of his election by making arrangements for execution of works as per promises made by him in his election campaign and thus, induced the voters to vote for him. The returned candidate denied the allegations and pleaded that he was not in any manner involved in formulating any action plan or project and implementation thereof at any stage.
Finding of the Court:
1. The Chairman of the Board is a person in the service of the Government within the meaning of Section 123(7) of the Representation of People Act, 1951, as his appointment is made by the State Government and published in the official gazette. 2. The returned candidate had not obtained any assistance from the Chairman or other officers of the Board for furtherance of his election prospect. 3. The allegations of corrupt practices, including the presence of the Chairman and other officers of the Board in the election meetings of the returned candidate, the approval and execution of certain schemes for construction of power line and sub-station for power supply in urban and village areas of the Constituency, the supply of PSC poles, the engagement of contract labourers through labour contractor, and the promise of repairing a kutcha road, were not established by cogent and definite evidence.
Issues: 1. Whether the Chairman of the Assam State Electricity Board is a person in the service of the Government within the meaning of Section 123(7) of the Representation of People Act, 1951? 2. Whether the returned candidate had obtained any assistance from the Chairman or other officers of the Board for furtherance of his election prospect? 3. Whether the allegations of corrupt practices, as enumerated in the election petition, are established?
Ratio Decidendi: 1. The definition of 'corrupt practice' in Section 123(7) of the Representation of People Act, 1951, includes obtaining or procuring assistance from any person in the service of the Government and belonging to certain classes, for the furtherance of the prospect of a candidate's election. 2. The Chairman of the Board is a person in the service of the Government as his appointment is made by the State Government and published in the official gazette. 3. The allegations of corrupt practices, including the presence of the Chairman and other officers of the Board in the election meetings of the returned candidate, the approval and execution of certain schemes for construction of power line and sub-station for power supply in urban and village areas of the Constituency, the supply of PSC poles, the engagement of contract labourers through labour contractor, and the promise of repairing a kutcha road, were not established by cogent and definite evidence.
Final Decision: The election petition was dismissed as the petitioner failed to prove the allegations of corrupt practices against the returned candidate.
D. Biswas, J.
1. Both the petitioner Shri Padmanath Sarmah, hereinafter referred to as the 'election petitioner', and Shri Hitendra Nath Goswami (respondent No. 1), hereinafter referred to as the 'returned candidate', along with others took part in the general election offering their candidatures for election to the Assam Legislative Assembly from Jorhat Legislative Assembly Constituency No. 98.
2. The election petitioner was set up by the Indian National Congress while the returned candidate by the Asom Gana Parishad for election to No. 98 Jorhat Legislative Assembly Constituency. On 13.5.2001, the Returning Officer declared the respondent No. 1 elected from the said constituency having secured highest number of votes. The petitioner has challenged the election of the returned candidate on the ground of corrupt practices committed by him, his agents and other persons with his consent. The returned candidate, it is alleged, was a cabinet minister in the AGP Government during the period of election and being in-charge of the Department of Power had full control over the Assam State Electricity Board, hereinafter referred to as the 'Board'. The returned candidate procured the assistance of the Chairman and other subordinate officers of the Board in furtherance of his election. The returned candidate during the election campaign made promises to ensure supply of uninterrupted power, installations of transformers, high and low power line, construction of village road and, in lieu thereof, solicited votes from the voters violating the Model Code of Conduct issued by the Election Commission. In pursuance of this, Shri Riazul Hussain, the then Chairman of the Board, camped at Jorhat from 2nd May, 2001 for about a week and accompanied the returned candidate in his campaign to various places in the constituency. On a number of occasions, Shri Probin Saikia, Addl. Chief Engineer, Upper Assam Zone, ASEB, Jorhat, Shri Bikash Borpujari, Executive Engineer, ASEB, Jorhat Electrical Division No. 1 and Shri Loban Hazarika, Asst. Executive Engineer, SDO-I ASEB Jorhat also accompanied the returned candidate and attended the election meetings. The returned candidate introduced the officers to the voters promising that they would execute various orders providing special facilities to them. The above officers were, present in the election campaign on 2:5.2001 at Rongdoi Bamun Gaon, Nowboishia, Patiagaon, on 4.5.2001 at Mout Gaon, Nematikokila, Borali, and on 7.5.2001 at Bhaskar Nagar, Kasagaral and Solaguri Gaon. The returned candidate thus in his capacity as Power Minister misutilised the manpower and machinery of the Board and got a number of schemes approved for urban and village areas of the constituency as detailed below :-
Sl. No. Scheme approved Amount Involved Rs. in lacs Office Order No.
(a) 74 Schemes/Works against normal development (ND) 72.63 CE(D)/PP/T-2/ST/JEC/97/125/PT-III/12DT. 28.3.2001
(b) 48 Nos. against ND/ST 70.32 CE(D)/PP/T-2/ST/JEC/123/PT II/02Dt.. 09.11.2000
(c) 21 Nos. against village electrification works 101.83 CE(RE) T-186/PT II/2001/25 Dt.18.4.2001
(d) 54 Nos. of village against
village electrification under Jorhat Electrification Circle. 109.37
48.20 - do - /20 dated 31.3.2001
- do-
(e) 24 Nos. Village under Electrical Circle 125.00 - do-
3. On 16.4.2001, the Election Commission notified the date of election. Even thereafter, a revised scheme was prepared by the Board at the instance of the returned candidate for intensification of power supply in Napamehowdang, Rowriah and Bijoy Nagar areas and secured execution of various works during the period between the filing of nomination and the date of election. The Board also, at the behest of the returned candidate, supplied electrical materials including PSC poles without any formal work order, which was subsequently regularised by the Additional Chief Engineer (Material) by the order dated 23.5.2001. The places where PSC poles were delivered and the details thereof are as f
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