SWAPAN ROY Vs. PRADHUT BORDOLOLI

JUDGEMENT

(1.) This election petition presented under Sections 80,80A and 81 of the Representation of Peoples Act, 1951 has been filed by the petitioner Shri Swapan Roy for setting aside the election of respondent Shri Pradyut Bordoloi to the Assam Legislative Assembly from No. 124 Margherita Legislative Assembly Constituency.

(2.) The petitioner's case is that he is a citizen of India having his permanent residence at Ledo Bazar, P.O. & P.S. Ledo in Margherita Sub-Division within the district of Tinsukia and that he is a voter in the said Assembly Constituency. His name appears at SI. No. 173 of Part No 122 of the Electoral Roll. The petitioner is a clerk under North Eastern Coal Field, Tirap Colliery, Coal India Limited which is a Central Government Undertaking. The bye-election to the aforesaid constituency was scheduled to be held on 3.6.98 as Shri Tarun Gogoi, the then M.L.A. was elected as a Member of Parliament from Kaliabor Constituency. The petitioner and the Respondent No. 1 along with others filed their respective nomination papers to contest the bye-election. The petitioner submitted an application on 14.5.98 to the General Manager, North Eastern Coal Field, Margherita for sanction of leave without pay to enable him to contest the election. The leave was accordingly sanctioned on 15.5.98. The petitioner submitted two duly filled in nomination papers on 16.5.98 as an independent candidate and deposited necessary stipulated fees. He also subscribed oath/affirmation as required before the authorised officer on the same day. A certificate to this effect was also issued by the Assistant Returning Officer. The nomination papers were scrutinised on 18.5.98 in presence of all the candidates and their representatives including the petitioner. During the scrutiny, the Returning Officer informed the petitioner that there was a complaint filed by one shri Ananda Arandhara Working President of Block Congress Committee, alleging that he was a Government employee and, as such, his nomination papers ought to be rejected. The respondent Shri Pradyut Bordoloi also raised verbal objection. Without furnishing any copy of the complaint and in deference to his submission that he was not a Government servant and did not suffer any disqualification under Section 10 of the Representation of the Peoples Act, 1951, the Returning Officer without consideration of the relevant provisions of law and in the absence of Shri Arandhara, the complainant, illegally and improperly rejected the nomination papers of the petitioner by order dated 18.5.98.The petitioner submitted a representation before the Returning Officer on 19.5.98 to allow him to contest the forthcoming bye-election. The petitioner also fixed a representation to the Chief Election Commissioner on 20.5.98. But there was no response to the said representations. The petitioner is the General Secretary of the Assam Colliery Mazdoor Congress Union which is affiliated to the Indian National Trade Union Congress. The Union has about 3,000 members. That apart, he is the General Secretary of Pragati Jana Morcha and a member of the Executive Committee of the Tinsukia District Congress Committee. He. has wide popularity and is known to almost all the voters of the constituency. His prospect to win the election has been nipped in the bud because of the illegal rejection of his nomination papers by the Returning Officer. The Respondent Shri Bordoloi was eventually declared elected from the same constituency on 6.6.98. Hence, this petition for declaration that the election of Respondent Shri Pradyut Bordoloi is void under Section 100 of the Representation of Peoples Act, 1951.

(3.) The Respondent Shri Pradyut Bordoloi in his written statement submitted that the petition is not maintainable as the Returning Officer who has passed the order dated 18.5.98 rejecting the nomination has not been made a party. The respondent, however, denied the averments made in the petition and called upon the petitioner to substantiate his claim that his nomination papers were illegally rejected by the Returning Officer. In para-8 of the written statement it is denied that the answering respondent also verbally objected to the acceptance of the nomination papers of the petitioner.According to him, the election petitioner was holding an officer of profit under the Central Government and was thus disqualified under the Constitution of India and the relevant laws to contest the election In para-13 of the written statement , the respondent further averred that the functions performed and responsibilities discharged by the election petitioner in course of his employment with the Coal India Limited are supervisory and managerial in nature and, as such the disqualifications stipulated in Section 10 of the Representation of Peoples Act are also applicable in his case. Since he was holding an office of profit under the Central Government, the returning officer acted within his jurisdiction in rejecting the nomination. It is farther averred that the Coal India Limited is nothing but an alter ego of the Central Gccvernment performing duties and functions in matters concerning mining, production, distribution, sale, supply and pricing of coal which are essentially conferred on the Central Government by the Constitution and the laws. It is a statutory corporation wholly owned and controlled by the Central Government and, as such the petitioner was holding an office of profit under the said Government at the time of filling and scrutiny of the nomination papers.