Swain Returns to Assembly // NOW THE QUESTION IS: WHAT WOULD HAPPEN TO THE PERIOD UNDER NULLIFICATION?

Subhas Chandra Pattanayak

Ranendra Pratap Swain, victim of BJD’s internecine leg-pulling in 2009 elections to Orissa Assembly won the re-election at Athgarh, which he could have also won at that time had his party not sabotaged him, using the Returning Officer in illegal rejection of his nomination papers.

BJD had spent, according to a source in that party, about a crore of Rupees against Swain in litigations up to the Supreme Court by engaging, off the records, costliest lawyers of the country in defense of Swain’s rival, Ramesh Raut.

Raut was working like a pageboy in BJD office before being clandestinely readied to file nomination papers against Swain, that had made him de facto candidate of that party after success of the scheme to keep Swain out of fray.

Where from he got the massive amount of money to defray the costliest lawyers’ charges? Possibilities are two: (1) the BJD that had coined the scheme to block Swain’s re-entry into the Assembly for reasons discussed earlier in these pages, had borne Raut’s litigation cost. (2) after being elected to the Assembly, Raut had amassed such massive amount of money that he had no difficulty in defraying the huge cost of litigation.

When there are peons and night watchmen that have become multimillionaires by exploiting the climate of corruption the Naveen Patnaik’s government has created in Orissa, it cannot be said that it was not possible for Raut to amass huge money after being a MLA in the same climate .

But which of the above two possibilities is the reality can be ascertained if official agencies detecting tax evasion are asked to investigate into Raut’s litigation cost.

Swain’s return that has exposed the foul play BJD had played at Athgarh craves investigations into the financial foul play enacted in the intervening period, which is yet kept shrouded under mystery as yet, though it smacks of secret income and tax evasion.

But as far as Orissa Assembly is concerned, the question that Swain’s return has raised is unique and urgent.

The Orissa High Court had stripped layer by layer the illegalities resorted to in rejection of Swain’s nomination papers and declared the election in Athgarh null and void. Raut had challenged the HC verdict in the Supreme Court, but failed. So, legally, election of 2009 in Athgarh was no election.

In view of this, Raut’s participation, if any, in the Assembly must stand obliterated with retrospective effect. Had the Court order does not allow Raut to have any life as a member of the Assembly as his election is declared null and void.

So, now, it is the minimum duty of the Speaker to delete from Assembly records the participation of Raut in its entirety. When he is legally not a member since the day of his election, his oath as a member of the House must also be deleted. Therefore, all the salaries and perquisites he has received as MLA must be must be calculated in terms of money and recovered from him with retrospective effect. The Assembly accounts section should immediately be asked to complete this calculation and communicate the the same to him demanding recovery thereof. If the Speaker prefers to waive such dues, he can do so maximum up to the day of the High Court order. The HC order had unseated him with retrospective effect. Had he resigned immediately, the salaries and other benefits he had drawn might have seemed justifies, as, on the strength of the election, he had participated in the Assembly businesses till that day. But by not resigning from membership and going instead to the Supreme Court, he had continue as a member subject to decision of the Supreme Court and drawn the salaries and perquisites commutable in terms of money at his own risk. So, from the day of the High Court order till the day of his termination, whatever he has received materially from the Assembly was undue receipt. The Speaker has no prerogative to waive the dues he has received unduly by pursuing the luxury of litigation in the Supreme Court.

So, besides deletion of every participation of Raut from the Assembly records, it is incumbent upon the Speaker to recover from Raut the money he has unduly drawn from the House and to declare Swain as the representative of the Assembly with retrospective effect from the 2009 elections, activating his membership only from the day of his oath taking for financial purpose.

Anything else would create wrong precedences in handling the period of nullification as the election of 2009 in Athgarh has been declared unchangeably null and void.

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