JUDGMENT
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 :-
SI.No. of scheme approved Amount Office Order No.
Involved
Rs. in lacs
(a) 74 Schemes/Works against 72.63 CE(D)/PP/T-2/SI/JEC/97/
normal development (ND) 125/PT-III/12DT. 28.03.2001
(b) 48 Nos. against ND/SI 70.32 CE(D)/PP/T-2/SI/JEC/
123/PT II/02Dt. 09.11.2000
(c) 21 Nos. against village 101.83 CE(RE)T-186/PT II/2001/25
electrification works Dt. 18.4.2001
(d) 54 Nos. of village against 109.37 -do-/20 dated31.03.2001
village electrification under 48.20 -do-
Jorhat Electrification Circle.
(e) 24 Nos. village' under 125.00 -do-
Electrical Circle
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 follows : –
Delivery of PSC Poles at Different Areas Under Jorhat Constituency Challan Date Area Vehicle No. No. 34 26.4.2001 Baligaon - 35 26.4.2001 Murmuria AS03-B-1047 37 28.4.2001 Dagom Bahona -do- 38 28.4.2001 Cinnamara -do- 41 30.4.2001 Dagom Bahona -do- 43 3.5.2001 Charaibahi -do- 45 4.5.2001 Cinnamara -do- 49 5.5.2001 Baghmora -do- 50 5.5.2001 Raidong Kumar Gaon -do- 53 7.5.2001 Jorhat Town Area MLN-9565 56 8.5.2001 Kumar Gaon/Chabari Chuk -do- 59 9.5.2001 Bahona AS-03-B-1047
4. In addition, the Chairman, ASEB provisionally approved engagement of contract labours through labour contractors at the behest of the returned candidate and in pursuance thereof, the Additional Chief Engineer (Electrical) by the order dated 12.4.2001 allocated the work to one Shri Loknath Darabdhora, a close associate of the returned candidate, in violation of the electoral norms. That apart, transformer was installed on 2.5.2001 at No. 1 Bamungaon Water Supply Project, 10 numbers of poles were supplied at Bahona Gaon on 30.4.2001, transformers were also supplied at Moutgaon on 6.5.2001, at Bahona Godha Dollong on 1.5.2001, at Kutuboboria Gaon on 1.5.2001 and at Napamchuk (gaon) on 3.5.2001. Further, 20 numbers of poles were supplied at Bahona Godha on 1.5.2001. The petitioner came to know of all these activities from electors of the constituency. Instances of other corrupt practices have also been made relating to construction of kutcha road at Sologuri Hatigor Village as per promise made in the election meeting held on 2.5.2001.
5. It is alleged that the above instances of corrupt practices indulged in by the Board officials at the behest of the returned candidate cast a spell of influence on the voters vitiating the election process. Hence, this petition has been filed for declaring the election of the returned candidate from Jorhat Legislative Assembly Constituency No. 98 as null and void and for other consequential reliefs.
6. Only the returned candidate i.e. the respondent No. 1 contested the election petition. In the written statement, the allegations made against him have been denied. It is inter alia pleaded that he was declared duly elected from No. 98 Jorhat Legislative Assembly Constituency having secured the highest number of valid votes, i.e., 39421 defeating the election petitioner by a margin of 6041 votes. According to the returned candidate, in the previous election held in the year 1996, he had defeated the election petitioner from the same constituency with a wider margin having polled more than 50% of the total valid votes cast. The returned candidate also pleaded that he had not obtained and/or procured the assistance of the Chairman or any of the Officers of the Board in furtherance of his candidature in the election. The allegation of promises made in the election meetings regarding supply of power and development of roads have also been denied. According to the returned candidate, the Board is an autonomous institution set up under the mandate of the Indian Electricity Act, 1910 and the Indian Electricity (Supply) Act, 1948. The Minister in-charge of the Power Department does not have any control over the Board except for some limited specified statutory functions. It is further pleaded that he was not in any manner involved in formulating any action plan or project and implementation thereof at any stage. The allegation of involvement of Shri Riazul Hussain, the then Chairman of the Board, in the election campaign of the returned candidate have been specifically denied. In the written statement, it has been made clear that in none of the election meetings the Chairman Shri Riazul Hussain or any of the officers of the Board were present. The returned candidate held about 12 election meetings in different places within Baghchog Block area of his constituency on 2.5.2001, 12 kilometres away from Rongdoi Bamungaon, Nowboisha and Patiagaon. On the same day, in the evening, the returned candidate took part in a live television programme with other contesting candidates at Lakhmi Union Hall in the Jorhat Town. On 4.5.2001, the returned candidate attended about 12 election meetings far away from Moutgaon, Nematikokila or Borali Villages. On 7.5.2001, the returned candidate conducted about 20 election meetings at 20 different places far away from Bhaskar Nagar, Kasagaral or Solaguri Gaon. None of the schemes referred to in paragraph-11 of the election petition was approved by the returned candidate, as alleged, since he had no authority to have any say in the matter of formulation of schemes by the Board. The schemes mentioned therein are relatable to days prior to the date of filing of the nomination, i.e., 16.4.2001. Denying the allegation of supply of poles at various areas within the constituency during the election period, the returned candidate maintained that nothing was done at his behest at any point of time and he was in no manner, directly or indirectly, connected with the affairs of the Board. In short, the returned candidate termed the allegations as baseless and unworthy of credence.
7. On consideration of the pleadings and, after hearing the learned Counsel for the parties, the following issues were framed :-
1. Whether the election petitioner has got any cause of action ?
2. Whether the election petition is maintainable in the present form ?
3. Does the person holding the post of Chairman, Assam State Electricity Board fall within the ambit of the “person in the service of the Government” under Section 123(7) of the Representation of People Act, 1951?
4. If, so whether the Respondent No. 1 obtained any assistance from the Chairman, ASEB for furtherance of his prospect in election ?
5. Is the Respondent No. 1 guilty of corrupt practices as alleged in the election petition ?
6. Is the election of the Respondent No. 1 liable to be declared void on the above reasons
7. To what relief, if any, the parties are entitled ?
8. Altogether 17 witness have been examined by the election petitioner and 3 by the returned candidate.
9. On conclusion of evidence., notice was issued to Shri Riazul Hussain, the then Chairman of the Board, under Section 99 of the Representation of People Act, 1951, directing him to show cause as to why he should not be named as one of the respondents. On appearance, copies of all the relevant documents including statement of witnesses were furnished to Shri A.K. Bhattacharyya, learned senior counsel for Shri Hussain. 5 numbers of witnesses were examined for and on behalf of Shri Hussain including himself.
10. Before the issues are taken up for consideration, it would be apposite to mention here that the election petition was filed in the month of June 2001 and service on the respondents could be completed by 17.3.2003. This long delay is due to various reasons including delay occasioned by the petitioner himself in taking appropriate steps for service. The delay in summoning the witnesses and recording their evidence is also attributable to the latches of both the parties. Eventually, argument was concluded on 18.3.2005 and on that day a notice under Sub-section (1) of Section 99F was directed to be issued to Shri Riazul Hussain, former Chairman of the Assam State Electricity Board to appear before this Court. Eventually, the former Chairman appeared before this Court and was furnished with the copies of the election petition, written statements and the statement of the witnesses etc. Shri Riazul Hussain examined himself and 4 nos. of witnesses on his behalf. Considering the implication of the provisions of Section 99, which has been invoked by issuing notice as stated above, it would be appropriate to take up the Issue No. 3 at the very outset followed by issues Nos. 4 and 5, relatable to the charges of corruption.
Issue No. 3 : –
11. It has been argued that Shri Riazul Hussain as Chairman of the Assam State Electricity Board cannot be named as a person guilty of alleged corrupt practices since he is not a person in the service of the Government within the meaning of Sub-section (7) of Section 123 of the Representation of People Act, 1951. Mr. Mittal, learned senior counsel appearing for the petitioner with reference to the provisions of the Assam State Electricity Board Act and the Indian Electricity Act argued at length to show that the Chairman is a person in the service of the Government.
Section 5F of the Electricity (Supply) Act, 1948 provides for constitution and composition of the State Electricity Board. The provisions therein provide that the Board shall consist of not less than three and not more than 7 members appointed by the State Government. Sub-Section (5) of Section 5 further provides that one of the members possessing any of the qualifications specified in Sub-section (4) shall be appointed by the State Government to be the Chairman of the Board. The provisions in Sub-section (5) alone clearly suggest that the Chairman of the Board is a person in the service of the Government since his appointment is made by the Government and required to be notified in the official gazette. That apart, the provisions in Sections 33 and 60 of the Electricity (Supply) Act, 1948 would further indicate extensive control of the State Government over the Board in all its affairs. Section 78A vests with the State Government the powers to issue direction to the Board in discharge of its functions on all questions of policy. P.W.6, Shri Ashotosh Sengupta, the Secretary to the Government of Assam in the Power Department, in his evidence stated that the State Government appoints the Chairman of the Board, and the appointment is notified in the official gazette. This witness tendered in evidence Exts. 25 and 26, the notifications of appointment of Shri Hussain. Ext. 26 is the notification dated 28th February, 2001 re-employing Shri Hussain as Chairman with effect from 1st March, 2001 to 28th February, 2002. This notification was published in the official gazette of the State. This witness further stated that disciplinary action could be taken against the Chairman by the State Government under the Assam Services (Discipline and Appeal) Rules, 1964, applicable to the State Government employees. Though this witness in his cross-examination admitted that Shri Hussain was an officer of the Board all along and not an employee of the State Government, yet the fact that his appointment is made by the State Government and published in the official gazette and is also terminable by the State Government would set at rest the controversy with regard to the question whether Shri Hussain was in service of the State or not. Going by the provisions of the Act, as stated above, as well as the evidence of P.W. 6, it can safely be concluded that Shri Hussain as Chairman was in the service of the State. Shri Bhattacharjee, learned senior counsel for Shri Riazul Hussain, however, did not lay much emphasis on this issue. The argument advanced by him, in view of the above provisions, do not appear to have any leg to stand.
Hence, this issue is answered in favour of the election petitioner.
Issue Nos. 4 and 5 :
12. In view of the decision in Issue No. 3, these two issues assume great significance. The question to be decided is as to whether the returned candidate – Respondent No. 1, had obtained any assistance from Shri Riazul Hussain, the then Chairman of the Board for furtherance of his prospect in the general election held in the month of May 2001 and, whether new schemes were prepared and executed with the consent of the returned candidate thereby rendering him guilty of adopting corrupt means in the election.
At the very outset. I would like to refer to the provisions of the Act of 1951 in so far it relates to the definition of corrupt practice. Section 100 of the Act of 1951 empowers the High Court to declare the election of a returned candidate to be void if the High Court is of the opinion that corrupt practices have been resorted to by the returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent. The definition of ‘corrupt practice’ in Sub-section (7) of Section 123, reads as follows : –
123 (7): The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the consent of a candidate or his election agent, any assistance other than the giving of vote for the furtherance of the prospect of that candidate’s election, from any person in the service of the Government and belonging to any of the following classes, namely : –
(a) gazetted officers ;
(b) stipendary judges and magistrates ;
(c) members of the armed forces of the Union ;
(d) member of the police force ;
(e) excise officers ;
(f) revenue officers other than village revenue officers known as lambardars, malguzars, patels, deshmukhs or by any other name, whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions ; and
(g) such other class of persons in the service of the Government as may be prescribed :
Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid, in the discharge or purported discharge of his official duty, makes any arrangements or provides any facilities or does any other act or thing, for, to, or in relation to, any candidate or his agent or any other person acting with the consent of the candidate or his election agent (whether by reason of the office held by the candidate or for any other reason), such arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate’s election.
This Court is required to consider the evidence on record to ascertain as to whether the returned candidate had obtained any assistance, as enumerated in the election petition, for furtherance of his election prospect from the former Chairman of the Assam State Electricity Board Shri Riazul Hussain, which in view of the provisions of Section 123(7) vitiates his election. The allegations of corrupt practices as made in the election petition may be classified into following seven categories : –
(i) Whether the returned candidate having direct control over the Board procured the assistance of the Chairman and other officers subordinate to the Chairman in furtherance of his election by making arrangements for execution of the work as per promises made by him in his election campaign and thus, induced the voters to vote for him ? Whether, in the election meetings in different areas of the constituency, the returned candidate promised to provide special services like uninterrupted power supply, installation of transformers, drawing of high power and low power lines in gross violation of the Model Code of Conduct which came into force with effect from 16.4.2001 ?
(ii) Whether the returned candidate, in order to impress upon the voters, called the Chairman of the ASEB, namely Shri Riazul Hussain, who had camped at Jorhat and remained there for a week from 2nd May, 2001 accompanying the returned candidate during his visits in the Constituency along with other officers, namely 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 ? Whether they were introduced by the returned candidate to the voters promising that they were there to execute various orders to provide special facilities to them and appealed to the voters to vote for him ?
(iii) Whether the returned candidate in his capacity as a Power Minister, during the period of election, approved and got approved certain schemes for construction of power line and sub-station for power supply in urban and village areas of the Constituency including construction of 11 KV line, three phase line, single phase line, sub station of various capacities and installation of transformers in the Constituency ?
(iv) Whether, after notification of the election, the returned candidate got a scheme revised from ASEB regarding intensification work in three villages, namely Napamchowdang, Rowriah and Boijoy Nagar, and got various works executed during the period after filing of nomination and before election ?
(v) Whether PSC poles were delivered at different places, as enumerated in para-13 of the election petition, during the period of election without any formal order, and the supply thereof were regularised subsequently by the Additional Chief Engineer (Material) vide order dated 23.5.2001 ?
(vi) Whether the Chairman of the Board provisionally approved engagement of contract labourers through labour contractor at the behest of Respondent No. 1; and the Additional Chief Engineer (E), Upper Assam Zone issued order dated 12.4.2001 allotted the work in favour of a close associate of the returned candidate, namely, Loknath Darabdhora, in violation of the provisions of Section 12 of the Contract Labour (Regulation and Abolition) Act, 1970 ?
(vii) Whether the returned candidate also promised the villagers of Sologuri Hatigor in the election meeting held on 2.5.2001 that the kutcha Road, namely Chanaimoria Tukuria Road would be repaired and, accordingly, the road was repaired before the election ?
The allegation of corrupt practices as enumerated in Clause (i) is general in nature and a final say on this will depend upon the decision in respect of allegations enumerated in Clauses (ii) to (vii). It is, therefore, proposed to take up the alleged corrupt practices listed in Clause (ii) at the first instance.
13. It has been alleged that Shri Riazul Hussain, who was the Chairman of the Board at the relevant time, stationed himself at Jorhat from 2nd May, 2001 for about a week, accompanied the returned candidate and attended different election meetings where assurances were made to the voters for improvement of the service system etc. of the Board; and the Chairman and his subordinate officers in pursuance of the said promise executed various works providing special facilities by way of improvement of the power distribution system in Jorhat Constituency.
14. Allegations have also been made against 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 that they were also present in the election ‘meetings of the Respondent No. 1. The Chairman who has examined himself as C.W.-5 totally denied the above charges. Similarly, P.W.I 3 Shri Loban Hazarika and P.W.I 7 Shri Bikash Borpujari also denied the above charges. The denial by the Respondent No. 1 is in conformity with the statements made in his written statement.
15. P.W.I, Shri Jayanta Borah, said nothing in this regard. P.W. 2, Shri Padmanath Sarmah, the election petitioner stated that after filing of the nomination, the returned candidate made promises to the voters that he would install transformers and make arrangement for supply of power to the voters including installation of PSC poles, etc. He further stated that the Chairman of the Board stationed himself at Jorhat from 2nd May, 2001 and accompanied the returned candidate in his election campaign at Rongdoi Bamun Gaon, Nowboishia, Patiagaon, Mout Gaon, Nematikokila, Borali, Bhaskar Nagar, Kasagaral and Solaguri villages between 20th April and 7th May, 2001. This witness further stated that the Executive Engineer, the Additional Chief Engineer and SDO Shri Lobon Hazarika also accompanied the, returned candidate and visited the aforesaid places. But this witness did not name the person from whom he had received the information about the election meetings in the aforesaid villages between 20th April and 7th May, 2001 where the ASEB officials including the Chairman were allegedly present. However, he stated that he came to know from Hemanga Saikia, Rajit Saikia and Ananda Chandra Dutta that in pursuance of the promises made, transformers were provided and electric poles were erected including repairing of a road. Therefore, from the statements of the election petitioner (P.W.2), we find no direct evidence in support of the allegation that the Chairman had taken part in the election campaign of the returned candidate from 2nd May to 7th May, 2001.
16. P.W. 3, Shri Hemanga Saikia, stated that the Chairman and other officials of the Board, held a meeting in their area and promised that if the villagers cast their votes in favour of the Respondent No. 1, they would provide them with electricity connection and water supply system and, thereafter, they installed transformer in their villages. He further stated that there was a meeting in the village by the returned candidate and in the meeting he had promised to provide transformer to the village and accordingly, transformers were supplied. He also identified himself in Ext.7, a photo displaying a transformer. But this witness did not tell a anything about the place, venue and the time of meeting. Therefore, from the evidence of the election petitioner as well as of this witness (P.W.3), it is difficult to form any opinion about the alleged meeting by the returned candidate along with the ASEB officials.
17. P.W. 4, Shri Bipul Dutta, stated that there was a meeting in their village attended by the Respondent No. 1, the Chairman and other officials of the ASEB. The Respondent No. 1 announced in the meeting that immediate steps would be taken to provide electric power to the village, and the officers present would do it within two/three days. Thereafter, transformers were supplied and poles were erected. From this witness we do not find the date and time when the meeting was held in his village (Bahana Village). P.W. 5, Shri Mahesh Bordoloi, is an employee of the Water Supply Department. He said nothing about the said meeting. P.W. 8, Shri Rajiv Saikia, from whom the election petitioner came to know about the execution of certain works stated that 10/12 days before the election, the returned candidate came to their village and promised that he would provide electricity to their village provided they vote for him. After the said meeting, electric poles were supplied to their village. He also identified himself in Exts. 3 and 7, the two photographs of transformers and electric poles. This witness did not say anything about the presence of the Chairman or any other officer of the Board. In his cross-examination, he stated that he cannot say the date when the meeting was held. He admitted in his cross-examination that he did hot attend any meeting of any party. Therefore, the evidence of this witness is of no significance in so far the allegation of the meetings in presence of the Chairman and other officers of the Board is concerned. Similarly, P.W. 10, Shri Debeswar Dutta, stated that 10/12 days before the election, the returned candidate told that he would repair the road in his village if they vote for him. He did not speak’ of any meeting in presence of the ASEB officials. In his cross-examination, he could not say when the meeting was held. P.W. 11, Shri Sibnath Bora, is a daily labourer. ‘He deposed that about 10/12 days before the election, a meeting was held in his village where the Respondent No. 1 promised that he would provide transformer in his village and accordingly, transformer was supplied five days before the election. He identified himself in Ext.8, a photograph along with the transformer. In his cross-examination, he said that he cannot say the date when the meeting was held. Nothing could be elicited out from this witness to show that the ASEB officials were present in the meeting. P.W. 12, Shri Tholak Chandra Bora, a carpenter, stated that he did not attend the meeting held in his village 10 days before the election. In his cross-examination he stated that he cannot say who had convened the meeting since he did not attend the meeting. This witness did not utter a single word about the presence of the Chairman and other officers of the Board. P.W. 13, Shri Laban Chandra Hazarika, is an official witness. He has been working as Assistant Executive Engineer since 1999. He did not say anything in his examination-in-chief about any election meeting. In his cross-examination, he stated that he did not attend any election meeting. He also maintained that he cannot say whether Shri Riazul Hussain attended the meeting or not. No suggestion was put to this witness to the effect that he was present in the election meeting of the returned candidate where promises were made that certain works would be done in the village provided the villagers cast their votes in favour of the returned candidate.
18. The statement of the above witnesses are not adequate” enough even for an inference that the Chairman and the ASEB officials attended any election meeting of the returned candidate, as alleged. The evidence discussed above are inadequate and fall short of required standard of proof. The evidence about place, date and time and the presence of Chairman or any other officer are inconsistent and devoid of symmetry Situated thus, we may examine the evidence of P.W. 14, Shri Ananda Chandra Dutta, election agent of the election petitioner. This witness was engaged by the election petitioner to monitor the activities of other candidates. He is undoubtedly an interested witness and, therefore, his evidence will have to be examined with due caution.
19. P.W. 14, Shri Ananda Chandra Dutta, in his evidence stated that he was entrusted by the election petitioner to look after the election works on his behalf and to report to him (election petitioner) if any of the contesting candidates resort to any irregular and corrupt practice to influence the voters. This witness was the counting agent of the election petitioner. According to him, the returned candidate organized meetings at different places before the election and promised to provide power (electricity) to the villages. Accordingly, transformers and electric poles were supplied and installed at Bahona and Moutgaon villages. This witness claimed that he had personally informed the Returning Officer as well as the Central Observer about all these activities. He also informed the election petitioner. This witness, though entrusted to oversee the activities of other candidates, did not speak of any meeting where he was present. In his cross-examination, the witness stated that he was asked to watch all the candidates and that he had informed the Magistrate In-charge verbally and submitted complaints to the Returning Officer, the Central Observer and, furnished copies thereof to the election petitioner. But the complaint petitions were neither called for nor copies thereof tendered in evidence. He also did not report to the election petitioner about the meetings and the promises made when the meetings were held. He has not given the venue, date and ‘time of such meetings. He also did not say whether he was personally present in any meeting and had seen the Chairman and/or any other, officer taking part in the meeting. The evidence of P.W. 14 is a weak piece of evidence. Omission to call for the complaint petitions and/or failure to prove the copies thereof raises doubt about the veracity of this witness. This witness has utterly failed to bring home the important charges leveled in the election petition i.e. presence of the Chairman and’ the ASEB officials in the election meetings held by the returned candidate.
20. P.W. 15 and 16 are other official witnesses. They said nothing about election meetings. P.W. 17, Shri Bikas Borpujari, who was posted as Executive, Engineer at Jorhat during the relevant time, in his cross-examination denied that he had accompanied the Chairman and other officers to attend various meetings organised by the returned candidate, as alleged in para-10 of the election petition. He further stated that the respondent No. 1 did not issue any direction to him for preparation or implementation of any Scheme in Jorhat Constituency. He further maintained that the schemes referred to in para-9 of the election petition were not fully executed.
21. The evidence discussed above do not corroborate P,W, 2 in his claim that election meetings were held by the returned candidate in presence of the Chairman and other officials where promises were made for improvement of the power delivery system. The allegations made in para-10 of the election petition is of utmost significance inasmuch as the proof thereof would have established a nexus between the Chairman and the returned candidate. The failure of the election petitioner to call for the copies of the complaints allegedly furnished to the Returning Officer, Central Observer and the Election Commission, as claimed to have been submitted by P.W. 14, Shri Ananda Chandra Dutta, raise a strong suspicion as to the truthfulness of the allegations made. The story that the Chairman stationed himself at Jorhat and remained there for a week from 2nd May, 2001 in the above context becomes extremely doubtful. It is because the Chairman who had examined himself as C.W.5 has categorically denied that he was called by the returned candidate at Jorhat and remained there for a week from 2nd May, 2001 and accompanied the respondent No. 1 for campaigning in his constituency. He also denied the allegation that Shri Probin Saikia, Additional Chief Engineer, Shri Bikash Borpujari, Executive Engineer and Shri Loban Hazarika, Assistant Executive Engineer, Jorhat accompanied him and the returned candidate had introduced them to the voters telling that these officers had come to execute orders to provide special facilities to them. This witness specifically denied that he had attended any meeting on 2.5.2001 at Rangdoi Bamun Gaon, Nowboishia and Patiagaon and at Mout Gaon, Nematikokila and Borali on 4.5.2001 and at Bhaskar Nagar, Kasagaral and Solaguri gaon on 7.5.2001. According to him, he had attended his office at Guwahati on 2nd, 3rd and 4th May, 2001 and discharged his official duties, 5th, 6th and 7th were holidays and during those three days he was at Guwahati. He further deposed that on 8th and 9th of May, 2001 he had attended his office at Guwahati and disposed of files. He also exhibited the tour diary, Ext. D, which contains the tour programmes, which apparently do not contain any tour programme for visiting Jorhat in between 2nd May to 10th May, 2001. C.W. 4, Shri Pradip Ranjan Kalita, is the Private Secretary to the Chairman. He had tendered in evidence Ext. XD, the file containing tour programmes of the Chairman. He stated that there was no tour programme of the Chairman for the period between 13.4.2001 to 5.6.2001. He further stated that on 3.5.2001, 4.5.2001, 8.5.2001, 9.5.2001 and 11.5.2001, certain documents were dispatched after necessary entry in the Dak Register (Ext. XE -under objection). These documents show that the Chairman was in office at Guwahati on those days. It has been argued by Shri Mittal, learned senior counsel that even without tour programme, the Chairman could have visited Jorhat, a place 300 Kms away from Guwahati and took part in the election meetings and return back to Guwahati. This is a matter of speculation and cannot be a substitute of proof. On the other hand, if this contention is accepted, it will belie the case of the election petitioner that the Chairman was campaigning at Jorhat from 2nd May, 2001 for a week. It is not the petitioner’s case in the election petition that the Chairman came, attended the meetings and left for Guwahati. The tour diary was produced before the Court from proper custody. There is always a presumption of correctness of the official documents produced from proper custody. Even without tour diary, the oral testimony of C.Ws. 4 and 5 together go to show that the Chairman attended the office at Guwahati on 2nd, 3rd, 4th, 8th and 9th May, 2001 and disposed of files.
22. The evidence of the witnesses discussed above clearly indicate that the election petitioner has utterly failed to establish the charge as captioned in Clause (ii) above. In an election petition, by preponderance of evidence and presumption, the charge of corrupt practice cannot be established. The evidence must be cogent, adequate and clear to establish the charge of corrupt practices. The evidence of the witnesses are devoid of symmetry, besides being inadequate. It is therefore difficult to accept the version of the election petitioner that the Chairman was campaigning at Jorhat, and along with other officials took part in the election meetings of the returned candidate
23. The Clause (iii) refers to the allegation that the returned candidate in his capacity as Power Minister during the election petition got some schemes approved for construction of power line and substations etc. The schemes listed in the election petition and reproduced in para-2 of this judgment shows that all these schemes except the Scheme at Clause (c) were approved long before the Code of Conduct came in force. P.W. 2, Shri Padmanath Sarmah, the election petitioner did not even whisper of any role played by the returned candidate in getting schemes approved for construction of 12 KV Power Line and establishment of sub-stations in the Constituency, to woo the voters to vote for him. Similar is the’ position with regard to the evidence of the other witnesses. P.W. 7, Shri Monoranjan Sarmah, Chief Engineer (Distribution), P.W. 13, Shri Labon Hazarika, Assistant Executive Engineer; P.W. 16, Shri P.C. Sarma, Executive Engineer (Materials) and P.W. 17, Shri Bikas Borpujari, Executive Engineer, tendered in evidence a number of documents relating to various works. But none of these documents in any manner suggest involvement of the returned candidate in the decision making process. P.W. 16, Shri P.C. Sarma, in his cross-examination, emphatically stated that the documents exhibited do not contain anything to show the involvement of the respondent. According to him, all the estimates and plans submitted are officially approved by the Board. He further stated that he cannot say; whether any of the scheme were prepared at the behest of the State Government. Mr. Mittal, learned senior counsel argued with reference to the provisions of Indian/Electricity Act, 1948 that the State Government has extensive control over the affairs of the Board and, therefore, the returned candidate being the Minister In-Charge of Power Department must have influenced the Chairman to get the schemes prepared specially for his Constituency including the scheme for construction of 11 KV Power Line, 3 phase line, single phase line etc. in his constituency before and during the Code of Conduct came into force. Unless born on records, it would not be reasonably practicable for any Court to conclude that since the returned candidate was In-charge of the Power Department, he might have influenced the Board through the Chairman to approve the schemes. None of the witnesses examined by the election petitioner, particularly the official witnesses, has spoken anything about the involvement of the Chairman. The election petitioner cross-examined the returned candidate, R.W. 1 and other witnesses examined by him. But nothing could be elicited out of them about the involvement of the returned candidate in getting any scheme plan specially approved for Jorhat Constituency after the Election Commission notified the date of election. The scheme mentioned at para-2 except that in Clause (c) was prepared long before the Code of Conduct came into force. The Scheme at Clause (c) is dated 18.4.2001 which will be taken up for discussion hereinbelow. There is neither oral nor documentary evidence to show that any of the schemes mentioned in para-2 of this judgment except that in Clause (c) was prepared at the behest of the returned candidate as alleged in the election petition.
24. Clauses (iv) and (v) relate to preparation of revised scheme by ASEB after the date of election was notified and public utility works were executed in three villages, namely Napamchowdang, Rowriah and Boijoy Nagar during the period after filing of nomination and prior to the date of election. The scheme alleged to have been revised by Ext. 27(21; dated 18.4.2001. It appears from this document that three villages namely, Fatagaon, Kohara and Hatikholi have been deferred from the original scheme. The revised scheme is available along with this document which incorporates four villages, namely – Napamchowdang, Mariang Kamargaon, Raidang Kamargaon and Katonigaon within Jorhat Circle. But these villages were already there in the original scheme prepared on 13.3.2001 available at Page-20 of the Paper Book, Vol. III and attached with Ext. 27(21). No new village has been included after dropping the aforesaid three villages. Moreover, this revision appears to have been done on 9.4.2001 as indicated at the top of this document annexed with Ext. 27(21), i.e., before 16.4.2001 when the Code of Conduct came into force. P.W. 7, Shri Monoranjan Sarmah, Chief Engineer (Distribution) proved Ext. 27 in original (Ext. 21) consisting of 13 pages and Ext. 28 to 32, letters written by various officials. The documents exhibited by this witness relate to 13 Electrical Sub-Divisions spread through out the State of Assam and not for Jorhat Circle only. In his cross-examination, he made it clear that the schemes referred to above are part of ongoing process of electrification of rural areas from year to year. Ext. 27(1) is the letter written by Shri S.K. Baruah, the then Chief Engineer (Rural Electrification) whereby all the Superintending Engineers of ASEB were informed of approval of Circlewise Intensification Schemes in villages. It is noticeable that the approval was conveyed on 13.3.2001 to all the Superintendents of the Board, i.e., before the Code of Conduct came into force on 16.4.2001. This witness, in his cross-examination, clarified that the schemes provide for electrification of 24 villages within Jorhat Electrical Circle. In the revised schemes, three villages, namely Gotanagar, Kohora and Khatuatuli villages were dropped, but no new village was included. This statement of P.W. 7 read with the documents discussed above show that no new village of Jorhat Constituency was included in the Scheme. He has not been effectively cross-examined on this point. Therefore, it cannot be said that any revision was made on 18.4.2001, after the Code of Conduct came into force incorporating any new village of Jorhat Constituency within the revised scheme. The letter dated 28.3.2001 shows that the Chairman approved the schemes for construction of 11 KV line, etc., and LT line under the ND work against Annual Plan 2000-2001 for Jorhat Electrical Circle. This scheme was also approved prior to 16.4.2004, the date of notification of the election. Therefore, it is clear from the documentary as well as the oral evidence that no new scheme was formulated after the Model Code of Conduct came into force.
25. Ext. 28 is a letter written by the then Chief Engineer on 31.3.2001, i.e., before the Code of Conduct came into force. By this letter, approval for execution of Circlewise Intensification Schemes were conveyed. Ext. 29 is another letter written by the Additional Chief Engineer, Jorhat forwarding a letter dated 23rd April, 2003 (Ext. 30) permitting engagement of 28 labourers for 30 days against completion’ of approved Rural Electrification and System Improvement Schemes for 2000-2001. Though the permission has been accorded and conveyed by letter dated 23rd April, 2001, it being in connection with approved schemes cannot be said to be of any significance since the Schemes were approved prior to 16.4.2001. Ext. 32 was preceded by the letter dated 12th April, 2001 written before the issuance of the election notification permitting engagement of contract labours for 2430 man days for completion of pending schemes within 90 days, i.e., before 12th July, 2001. Exts. 31 and 32 are letters indicating subsequent steps taken by the authority for procurement of labours. These documents, as narrated above, do not show that any new scheme was approved for Jorhat Constituency after the notification of election by the election commission. The documents exhibited by P.W. 7, as referred to above, do not show that anything new was even contemplated after 16.4.2001. The returned candidate no where comes into picture.
26. P.W. 13, Shri Laban Chandra Hazarika, has been working at Jorhat as Assistant Executive Engineer since 1999. He has tendered in evidence Exts. 34 to 37, the documents relatable to supply of electrical equipments during the month of April and May, 2001, installation of transformers and supply of labourers. The documents exhibited by him do not show that any new scheme, as alleged, was prepared for the Constituency, though Ext. 34 series show that equipments were supplied and installed during the month of April and May, 2001. If the evidence of this witness is read with the evidence of P.W. 7, a presumption would arise that the supply of electrical equipments and installation thereof were in connection with ongoing process. This witness was not cross-examined about the preparation of any new scheme or of execution of any work without formal approval. Even, no suggestion was put to this witness to the effect that certain works were executed during the ban period to augment the prospects of the returned candidate in the election. The witness in his cross-examined stated that these documents were prepared and maintained at the field level and the Chairman of the Board has no connection with anything mentioned in Exts. 34 to 37. He admits of supply of electrical equipments, namely PSC poles, transformers etc. and installation thereof in the month of April and May 2001, but does not admit of any new scheme approved during that period or execution of any work beyond any scheme. The evidence of this witness further shows that the Chairman of the Board was not in any way connected with the works mentioned in Exts. 34 to 37 except that he had approved engagement casual labourer before 16.4.2001.
27. P.W. 16, Shri PC. Sarma, exhibited certain documents, namely, Exts. 40 to 55. Ext, 40 is a letter dated 28.3.2001 whereby approval given by the Chairman was conveyed for construction of 11 KV line and conversion of LT line under Normal Development Scheme 2000-2001 for Jorhat Electrical Circle. The approval was given on 28.3.2001. Ext. 41 is a letter relating to approval of annual/system improvement works under Annual Plan for 2000-2001 for Jorhat Electrical Circle. Ext. 42 is another letter indicating construction of 11 KV line, LT line etc. written on 9.10.2000. Therefore, Exts. 40, 41 and 42 cannot be said to have been issued in pursuance of any decision taken after the Code of Conduct came into force. Ext. 43 is the letter of request by the Executive Engineer to the labour contractor for supply of labourers. This was written in connection with execution of works already sanctioned. Ext. 44, is a letter written by the Chief Engineer to the Superintending Engineer of Rangia and Jorhat Electrical Circle indicating revision of Rural Electrification Scheme in connection with the Annual Plan 2000-2001. The revision shows that some changes were made in respect of the schemes already approved before. However, Ext. 44(1) shows that the Scheme was revised on 9.4.2001, i.e., also prior to the date of election notification. These documents do not show introduction of any new scheme for Jorhat Circle.
28. Ext. 46 are the challans submitted by M/S Salu Industries, manufacturer of PSC poles. From these documents, it appears that the supply of PSC poles were made in pursuance of the order dated 12.4.2001. It is evident from the entries made in the column “details of despatch'”. Ext. 58 series are bills submitted by M/s Salu Industries. All these bills indicate that the supply of PSC poles were made in pursuance of order dated 12.4.2001. Similarly, Ext. 49 is the bill in respect of contract labours. This bill shows that the order for supply of labours were placed on 30.4.2001 and the same was complied with by 6.6.2001. Ext. 51 is also another bill in respect of supply of casual labours. The supply of labour as indicated in this document commenced with effect from 17th April, 2001 for a period of 30 days. Exts. 52, 53 and 54 indicate that different materials were supplied by the Electricity Board during the ban period in connection with the aforesaid works. Therefore, from the documents (Exts. 40 to 46), it cannot be said that any new scheme was prepared and approved by the Chairman or by the Board at the behest of the returned candidate during the ban period. But the documentary evidence establish that certain works were done during the period between 16,4.2001 to 10.5.2001. This has also been evinced by P.W. 17, Shri Bikas Borpujari, Executive Engineer, Rangia Sub-Division, ASEB. P.W. 17 stated that the Rural Electrification Schemes sponsored by the Central Government was in implementation in addition to Normal Development Works funded by the State Government. The schemes also included System Improvement Scheme. According to this witness, there was no other scheme; pending during the year 2001. This witness further evinced that Rural Electrification Schemes can spill over even after a financial year. With reference to Exts. 46 to 56, this witness stated, that the works mentioned therein were executed under his supervision during 16.4.2001 to 10.5.2001. However, in his cross-examination, this witness clarified that he was not aware of any direction given by the Chairman and that he did not do anything under the direction of the Chairman. In his cross-examination he denied his association with the Chairman during the election petition and made it clear that he was not aware whether the Chairman was present at Jorhat during the election period as alleged in the election petition. He further reiterated that the schemes mentioned in para-9 of the election petition were not fully implemented.
29. The evidence of the witnesses discussed above clearly indicate that certain works, i.e., installation of electric poles, transformers, improvement of power system were executed during the ban period in pursuance of the Annual Scheme of 2000-2001 prepared and sanctioned prior to 16.4.2001. The revision of the Scheme does not show that anything extra-ordinary was prescribed for Jorhat Constituency, Even the decision for revision was taken prior to 16.4.2001. It may be mentioned here that some of the schemes listed at Para-2 of this Judgment were prepared a few days before the Model Code of Conduct came into force. It may, therefore, lead to a presumption that the schemes were prepared keeping in mind the ensuing election. It would not have taken the decision at the fag end of the financial year and acted in pursuance thereof after the Model Code of Conduct came into force. But the works as stated by the witnesses were done in respect of the ongoing schemes, which can spill over the next financial year. Moreover, some schemes are exclusively relatable to Jorhat Constituency. In the given situation, in the absence of cogent and definite evidence, it would be impermissible to hold that the Chairman or the officers of the Board had acted at the behest of the returned candidate.
30. However, Exts. 46 indicate that PSC poles were delivered by M/s Salu Industries in pursuance of different orders placed on 12.4.2001 and the supply thereof has been regularized by the Additional Chief Engineer (Materials), ASEB vide order dated 23.5.2001. M/S Salu Industries supplied poles to various places, not only Jorhat. There appears to be an irregularity in this matter. But it does not in any way indicate that the ASEB officials acted at the behest of the returned candidate or under direction of the Chairman to procure supply of PSC poles prior to the approval given by the Additional Chief Engineer (Materials), ASEB. The Chairman not being connected, the allegations of nexus between him and the returned candidate is. nothing but a foul cry. Subsequent regularization of supply of PSC poles by the Additional Chief Engineer in respect of an ongoing scheme cannot be said to be with any motive to help the returned candidate.
31. Clause (vi) relates to complicity of the Chairman in approving engagement of contract labours through labour contractors at the behest of the respondent No. 1. Exts. X(1)(8) is the approval given by the Chairman. It is dated 31.3.2001. It appears that the Chairman had passed the order approving engagement of labour contractor on a proposal placed by the Chief Engineer. The file was processed in office and cleared by officers at different levels before being placed before the Chairman. The engagement of the labours was felt imperative for completion of the pending schemes. This single act on the part of the Chairman cannot be construed as an attempt to help the returned candidate. The approval was given on 31.3.2001, before Code of Conduct came into force.
32. Now the allegation regarding repaire of the kutcha road as enumerated in Clause (vii) will be considered. Ext. 9 is the photograph of Charaimoria Tukuria Road showing supply of brick (admitted under objection). The election petitioner P.W. 2 and P.W. 10 has spoken of promises made to repair the road in the election meeting by the returned candidate. The statement of P.W. 2, the election petitioner is hearsay. P.W. 10 could say who had brought these materials to their village. Therefore, the evidence of P.W. 2 and P.W. 10 are not enough for concluding that promises were made in the election meetings and in pursuance thereof the road vas repaired by the returned candidate. The evidence of P.W. 12 Shri Tholak Chandra Bora is also of no importance since he was not present in the meeting and it does not reveal the name of the person who had supplied the bricks and repaired the road. No department has also been named by the election petitioner for having completed the repairing works. The evidence of P.Ws. 2, 10 and 12 may at best show that bricks etc. were collected and village road was repaired. But this is not enough to connect the Chairman or the returned candidate.
33. The decision on the allegations enlisted in Clauses (h) to (vii) negate the allegation of corrupt practice made in the election petition. Therefore, with regard to Clause (i), it can safely be concluded that the election petitioner has failed to prove that the returned candidate had obtained any assistance from the Chairman or other officials of the Board in furtherance of his election campaign or that the Chairman and his subordinates had advanced the cause of the returned candidate by executing certain works in the Constituency with the consent or at the behest of the returned candidate.
34. Mr. Mittal, learned senior counsel argued to establish a special relationship between the Chairman and the returned candidate from before. According to Mr. Mittal, Shri Riazul Hussain was promoted to the office of the Chairman in quick succession. It may be mentioned here that Shri Hussain after obtaining B.Sc. and B.E. Degree in Electrical Engineering joined the ASEB in the year 1964 as Assistant Engineer. Eventually, step by step, he was promoted to the post of Chief Engineer, Member of the Board and, thereafter, as Chairman on 30th September, 2090 and continued as such till 28th February, 2002. It is evident that Shri Hussain became Chairman after completion of 35 years of service. P.W. 6, Former Secretary in the Power Department, in his evidence, stated that Shri Hussain was a Member (Technical) of the Board before his promotion as Chairman. In his cross-examination, Shri Hussain (C.W.5) stated that in 1996 he was holding the post of Superintending Engineer and promoted to the next higher rank of Additional Chief Engineer in 1997. In 2000, he came the Chief Engineer. According to him, he was senior most officer in the hierarchy before promoted to the post of Chief Engineer. In the same year he was appointed as Member (Technical) and immediate thereafter, was appointed as Acting Chairman of the Board. The official records tendered in evidence show that the returned candidate in his capacity as Minister In-charge, Power Department recommended Shri Hussain for appointment as Acting Chairman and the Chief Minister approved the proposal. Thereafter, he was regularised as Acting Chairman with effect from 30th September, 2000 as per decision taken on February 22, 2001 for a period of one year from 1.3.2001. It further appears that appointment order of the Chairman was issued with the approval of the Cabinet on the recommendation of the returned candidate. The recommendation given by the returned candidate reads as follows : –
Hon’ble Chief Minister,
Shri R. Hussain, Member (Technical), ASEB may be allowed to officiate as Acting Chairman of ASEB with immediate effect until further orders. Shri Sumeet Jerath, IAS, Commissioner, Power Department may be relieved of the additional charge of Chairman, ASEB.
Sd/-
(H.N. Goswami)
Minister, Power, etc.
35. The above recommendation for appointment of Shri Hussain as Acting Chairman, the seniormost officer in the Board does not appear to be for any extraneous consideration. It is not the case that his appointment was made contrary to the provisions of the rules and in supersession of the genuine claim of any other officer. Shri Sumeet Jerath, who was holding the additional charge of the office of the Chairman was released on appointment of Shri Hussain. This does not render the appointment of Shri Hussain irregular. The promotion of Shri Hussain from the post of Chief Engineer to the post of Chairman in quick succession within a short period does not in itself display any element of special favour by the returned candidate to Shri Hussain for which he was under an obligation to assist the returned candidate in his election campaign. It may at best lead to a presumption which cannot be a substitute of proof. In my considered opinion, the election petitioner has failed to discharge his burden. The evidence on record falls short of the standard of proof required in an election petition. Therefore, question of naming Shri Hussain as a respondent does not arise.
For discussion above, Issue Nos. 4 and 5 are answered against the election petitioner.
Issue No. 2 :
36. This issue is relevant only for the purpose of maintainability of the election petition. There being no defect in the form, this issue is answered in favour of the election petitioner.
Issue Nos. 6 and 7 :
37. Before answering these two issues, we may summarise the findings recorded as below : –
(i) The foundation of the election petition i.e. the Chairman camped at Jorhat from 2.5.2001 for a week and had attended the election meetings of the returned candidate with other officers is not established.
(ii) No witness could testify-the convincingly the date and time of the meetings attended by him in which the Chairman and other officers were present, and heard the returned candidate inducing the voters to vote for him.
(iii) No proof of formulation/revision of any scheme to include any village of Jorhat Constituency after 16.4.2001 (notification of election date) and before 7.5.2001, the date of election.
(iv) The works done were in respect of ongoing schemes formulated prior to the date of notification by the Election Commission.
(v) The complaint petitions allegedly submitted by P. W. 14, Shri Ananda Chandra Dutta, to the Returning Officer, Central Observer etc. have not been called for and. tendered in evidence. None of the officers have been examined.
(vi) The election petitioner did not lodge any complaint to any authority and no attempt was made to tape record the speeches of the returned candidate delivered at different places on different dates.
(vii) Consent, express or implied is not discernible from the evidence on record.
(viii) The returned candidate defeated the election petition in this Constituency in the election held in 1996 by a wider margin. The margin of votes in the election held in 2001, i.e., 6041 numbers of votes does not suggest that the election was materially affected. Even in some polling stations where works were done, the returned candidate secured lesser number of votes.
(ix) The appointment of Shri Riazul Hussain as Chairman on the recommendation of the returned candidate in the year 2000 was not in violation of any rule/regulation or in supersession of any officer senior to him in service.
(x) Suspicion, speculation or presumption cannot be treated as proof in an election proceeding, quasi-criminal in nature.
For reasons and decisions recorded in the issues framed, the election petition is liable to be dismissed.
ORDER
38. In the result, the election petition is dismissed. The security money deposited by the election petitioner shall stand forfeited. The parties are directed to bear their respective costs.
