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PETITIONER:

MORESHWAR SAVE

Vs.

RESPONDENT:

DWARKADAS YASHWANTRAO PATHRIKAR

DATE OF JUDGMENT11/12/1995

BENCH:

VERMA, JAGDISH SARAN (J)

BENCH:

VERMA, JAGDISH SARAN (J)

SINGH N.P. (J)

VENKATASWAMI K. (J)

CITATION:

1996 SCC (1) 394 JT 1995 (9) 68

1995 SCALE (7)85

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

J.S. VERMA, J. :

This is an appeal under Section 116A of the

Representation of the People Act, 1951 (for short, "the R.P.

Act") against the judgment dated 16.4.1992 in Election

Petition No. 4 of 1991 by A.A. Halbe, J. of the Bombay High

Court by which the election of the returned candidate

Moreshwar Save from 33-Aurangabad Parliamentary Constituency

to the Lok Sabha held on 12.6.1991 has been set aside on the

ground under Section 100(1)(b) for commission of corrupt

practices under Sections 123(3) and 123(3A) of the R.P. Act.

The relevant paras of the election petition relating to

the pleading of corrupt practices are paras 6, 10, 11, 13

and 15. Para 6 contains a general averment without pleading

the relevant material facts therein that the respondent had

appealed on the basis of religion to the Hindus by

canvassing that the Hindu religion was in danger and the

Hindus should awaken and meet the challenge posed by the

minority specially the Muslims. In paras 10 and 11, it is

pleaded that Manohar Joshi gave a speech on 6.5.1991 at

Aurangabad in which he said that the candidate of BJP-Shiv

Sena belongs to the Hindutva faction and that 85 per cent

Hindus want to live with self-respect and if they do not

want a Government at the Centre which pleases the minority

they should vote for the appellant (respondent in the

election petition). Then in para 13, it is pleaded that Bal

Thackeray gave a speech on 12.5.1991 to the effect mentioned

therein. At this stage, it is common ground that the only

relevant portion of the pleading which was attempted to be

proved by evidence is as under :-

1) ...... taking the saffron flag march forward with the

slogan Har Har Mahadev.

2) Hindutva was not wave but it was the breath and if

Hindutva was to stop the breath will also stop.

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3) Hindutva is the third eye of Lord Shankra and if it

opens it will reduce every thing to ash.

Then in para 15, it is pleaded that Chhagan Bhujbal had

in his speech stated inter alia as under :-

". . . . . . He further said that we

are first Hindus and then Brahmin,

Maratha, Koli, Mali, Sali etc. For the

Hindus to stay alive it is necessary to

elect a Government headed by BJP, Shiv

Sena. He further states that to bring

the culture of Shriram who was Ekvachni

Ek Patne. It is necessary to erect the

Ram temple and show the people who

oppose to it their place ....."

It may be mentioned at the outset that no evidence was

led to prove the allegation of corrupt practice based on the

speech of Chhagan Bhujbal and, therefore, the pleading in

that respect, particularly in para 15 of the election

petition, has to be ignored as it was not relied on by the

election petitioner and for that reason it also does not

form the basis of the impugned judgment.

Shri Ram Jethmalani, learned counsel for the appellant

submitted that this stand of the election petitioner in the

High Court as also in this appeal is evidently on account of

the fact that Chhagan Bhujbal has, since then, shifted his

allegiance from Shiv Sena to its political opponents. There

can be no doubt that the pleadings of the three speeches by

Manohar Joshi, Bal Thackeray and Chhagan Bhujbal on which

alone the election petition is based show that the speech of

Chhagan Bhujbal is comparatively the harshest of all these

speeches, irrespective of the fact whether it too

constitutes a corrupt practice or not. It cannot also be

doubted that if the speech of Chhagan Bhujbal does not

amount to an appeal for votes on the ground of religion to

constitute a corrupt practice under Section 123(3), then the

other two speeches being comparatively mild cannot fall

within its ambit. In such a situation, the election

petitioner having abandoned the case based on the alleged

speech of Chhagan Bhujbal at the stage of trial itself in

the High Court, the criticism made by Shri Jethmalani cannot

be said to be baseless. At any rate, the credibility of the

version of the election petitioner with regard to the

remaining two speeches which alone were pressed into service

to support the election petition does appear to be

considerably shaken. However, there is another more

important aspect to which we shall now advert.

The only basis for the corrupt practice found proved

against the appellant is the two speeches by others, namely,

on 6.5.1991 by Manohar Joshi and on 12.5.1991 by Bal

Thackeray and not any speech by the appellant himself. Thus,

the liability fastened on the appellant is vicarious on the

basis of the two alleged speeches of Manohar Joshi and Bal

Thackeray. No notice under Section 99 was given either to

Manohar Joshi or Bal Thackeray. We have already held in the

connected Civil Appeal No. 4973 of 1993 - Manohar Joshi vs.

Nitin Bhaurao Patil & Anr. - decided today, that a combined

reading of Sections 98 and 99 of the R.P. Act leaves no

doubt that the final order holding the candidate guilty of

corrupt practice in such a situation vicariously, cannot be

made under Section 98 of the Act without simultaneously

complying with the requirement of Section 99. This is

obviously for the reason that in such a situation a

simultaneous verdict against the notice under Section 99 and

the candidate has to be given at one time while deciding the

election petition after proper compliance of Section 99 of

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the R.P. Act. Combined reading of Sections 98 and 99 leaves

no doubt that in such a situation, the High Court has no

option to ignore the allegation against the person for whose

act the candidate is held liable vicariously; and the court

also cannot proceed to decide the case of the candidate and

the notice separately or piecemeal. This defect of want of

notice to Manohar Joshi or Bal Thackeray is alone sufficient

to vitiate the judgment requiring it to be set aside.

The question now is of the course to adopt in such a

situation. Ordinarily the matter may require to be remanded

for a fresh decision of the election petition after notice

to the persons to be named for commission of the corrupt

practice in accordance with Section 99 ; or the decision of

this appeal may be deferred and in the meantime notice may

be given under Section 99 to those persons and after the

requisite inquiry by the High Court its finding in respect

of those persons be called for deciding the case against the

candidate and the notices at one time while deciding the

appeal in this Court. However, the second course does not

appear to be the appropriate in the present case for the

reasons given hereafter.

There is no clear pleading or finding of the

appellant's consent which is a constituent part to the

corrupt practice resulting from an act of any person other

than the candidate or his agent. This alone would indicate

the absence of one of the constituent parts of the alleged

corrupt practice. Case in the election petition is based

only on the ground contained in Section 100(1)(b) and not

Section 100(1)(d)(ii) of the R.P. Act. Admittedly, neither

Manohar Joshi nor Bal Thackeray were the election agents of

the appellant to dispense with the requirement of consent

for the ground under Section 100(1)(b) to declare the

election void. Any further inquiry into this matter is,

therefore, futile and sheer waste for the only ground on

which the election petition and the judgment are based.

Moreover, there is nothing pleaded or proved in the

alleged speeches of Manohar Joshi and Bal Thackeray in the

present case to attract the corrupt practice under sub-

section (3A) of Section 123 by bringing therein the element

of promotion of or attempt to promote feelings of enmity or

hatred as envisaged in that provision. The allegations as

well as the attempted proof are all very vague. Similar

vagueness is there even with regard to the requirement of

Section 123(3) since that requires an appeal for votes on

the ground of 'his' religion. The general statements

attributed in the speeches of Manohar Joshi and Bal

Thackeray as pleaded in the election petition are too vague

to constitute the requisite appeal which is a corrupt

practice under Section 123(3). In this context, it is not

insignificant that in spite of the averment in the election

petition of a more critical speech by Chhagan Bhujbal, no

attempt was made to prove the same and it was not relied on

even in the High Court to support the petition. This factor

has significance for assessing the credibility of the

version of the election petitioner and the probative value

to be attached to it for the case pursued in the election

petition. In our opinion, what is attributed to Manohar

Joshi and Bal Thackeray in the averments made in this

election petition, keeping in view the fact that the consent

of the appellant is neither clearly pleaded nor duly

considered for a finding of its proof, this election

petition does not merit any further consideration or trial.

It is indeed surprising that pleading of corrupt

practice in the election petition made so vaguely and

casually occasioned a serious trial thereof and ultimately

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was accepted by the High Court to set aside the electoral

verdict and that too in clear contravention of Section 99 of

the R.P. Act. This appeal must, therefore, be allowed.

Consequently, the appeal is allowed. The impugned

judgment of the High Court is set aside and the election

petition is dismissed. The appellant would get his costs

throughout from the respondent.