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PETITIONER:

SHRI SURYAKANT VENKATRAO MAHADIK

Vs.

RESPONDENT:

SMT. SAROJ SANDESH NAIK (BH

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) 384 JT 1995 (8) 686

1995 SCALE (7)92

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

J.S. VERMA, J. :

This appeal under Section 116A of the Representation of

the People Act, 1951 (for short "the Act") against the

judgment dated 23.4.1991 passed by H. Suresh, J. of the

Bombay High Court in Election Petition No. 14 of 1990, is by

the returned candidate whose election to the Maharashtra

Legislative Assembly from 48, Nehru Nagar Constituency, held

on 27.2.1990 has been declared to be void on the ground

under Section 100(1)(b) of the Act 'on the ground that he,

his Election Agent and workers have committed corrupt

practice as defined under Section 123(3) and Section 123(3A)

of the Representation of People Act, 1951'.

Elections to the Maharashtra Legislative Assembly were

announced on 18.1.1990. The nomination papers were filed by

the appellant for election from 48, Nehru Nagar Constituency

on 31.1.1990. His nomination was accepted on 8.2.1990. The

election was held on 27.2.1990 and the result was declared

on 1.3.1990. The appellant was candidate of the Shiv Sena

and he was declared duly elected since he had got the

maximum number of votes. The election petition was filed on

16.4.1990 by respondent Smt. Saroj Sandesh Naik (Bhosale).

There was some defect in the verification of the election

petition and, therefore, on 19.4.1990 the defect in

verification was permitted to be cured and a fresh affidavit

in support thereof was taken by the Court. The appellant

took out chamber summons to dismiss the election petition

under Section 86 of the Act for non-compliance of Section 81

of the Act which was dismissed on 17.11.1990. After

conclusion of the trial, the impugned judgment was delivered

on 23.4.1991 setting aside the appellant's election. Hence

this appeal.

The grounds taken for opposing the election petition

before the High Court, have been reiterated in this appeal.

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In substance, these grounds are as

under :-

(1) There is non-compliance of sub-section (1) of Section

81 in as much as the election petition presented on

16.4.1990 was time barred. There is also non-compliance of

sub-section (3) of Section 81 in as much as copies of the

photographs annexed to the election petition were illegible

and, therefore, the copy of the election petition served on

the appellant was not a true copy of the election petition.

On these grounds, dismissal of the election petition under

Section 86 was claimed for non-compliance of Section 81 of

the Act.

(2) The contents of the election petition are not in

accordance with Section 83 of the Act inasmuch as it does

not contain the material facts and full particulars of the

corrupt practices alleged therein. For this reason, no

triable issue arises in respect of the corrupt practices

alleged under sub-sections (3) and (3A) of Section 123 of

the Act. It was urged that the election petition is liable

to be rejected under order 7 Rule 11, C.P.C.

(3) Even on facts, no corrupt practice is proved.

Re : Ground No. (1)

We shall first deal with the contention relating to the

liability of the election petition for dismissal under

Section 86 of the Act for non-compliance of sub-sections (1)

and (3) of Section 81 of the Act.

Non-compliance of sub-section (1) is alleged on the

ground that the last date of expiry of the period of 45 days

from the date of election which is the limitation prescribed

in sub-section (1) of Section 81 of the Act was 14.4.1990,

but the election petition was in fact presented on

16.4.1990. Admittedly 14th and 15th April, 1990 were

holidays on which days the High Court and its office were

closed. The question, therefore, is : Whether Section 10 of

the General Clauses Act is applicable ? If it applies,

presentation of the election petition on 16.4.1990, the day

on which the Court and its office reopened after the

holidays, would be presentation within the prescribed period

of limitation, but not otherwise. We have considered this

question at length in the connected Civil Appeal No. 4973 of

1993 - Manohar Joshi vs. Nitin Bhaurao Patil & Anr. -

decided today, and held therein, that Section 10 of the

General Clauses Act applies to the election petitions

presented under the Representation of the People Act, 1951.

For the same reasons, we hold that Section 10 of the General

Clauses Act being applicable, the election petition filed on

16.4.1990 in the present case was within time and,

therefore, there was no non-compliance of sub-section (1) of

Section 81 of the Act.

We also do not find any merit in the contention that

there is non-compliance of sub-section (3) of Section 81.

This argument is based on certain photographs which were

annexed to the election petition. In the facts of the

present case, it is unnecessary to decide whether the copies

of the photographs served on the appellant along with copy

of the election petition were illegible or not. Those

photographs were of certain posters alleged to have been put

up in the constituency and to have contained slogans of the

Shiv Sena, of which party the appellant was a candidate,

which amounted to appeal to voters on the ground of Hindu

religion. The argument of learned counsel for the appellant

is that in the absence of legible copies of those

photographs, the contents of which are relied on for the

allegation of corrupt practice under Section 123(3) of the

Act, the relevant pleading in that behalf was not supplied

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to the appellant in as much as the copy of the election

petition served on him was deficient to that extent. In our

opinion, this question does not really arise in the present

case since the contents of those posters have also been

expressly pleaded in the election petition. These facts are

pleaded in para 12 of the election petition and the contents

of the four photographs annexed to the election petition of

which the copies are alleged to be illegible are expressly

pleaded in clause (ii), (iii), (vi) and (vii) of sub-para

(b) of para 12 of the election petition. In such a

situation, the photographs annexed to the election petition

after expressly pleading their contents in para 12 of the

election petition, were only evidence of the pleading

contained in para 12 of the election petition and it is not

a case of incorporating into the election petition the

contents of those photographs by reference without stating

it in the election petition. On these facts, the decision

applicable is that in Sahodrabai Rai vs. Ram Singh Aharwar,

1968 (3) SCR 13, which clearly indicates that the failure to

supply copy of such a document annexed to the election

petition, the contents of which have in addition been

expressly pleaded in the election petition does not amount

to non-compliance of sub-section (3) of Section 81 to

attract dismissal of the election petition under Section 86

of the Act. In such a situation the document annexed to the

petition is only evidence of the pleading incorporated in

the petition. Thus there is no merit in the argument that

the election petition was liable to be dismissed under

Section 86 of the Act for non-compliance of sub-section (1)

and/or sub-section (3) of Section 81 of the Act.

Re : Ground No. (2)

The grounds of corrupt practices under sub-sections (3)

and (3A) of Section 123 are based on certain speeches by

appellant Suryakant Venkatrao Mahadik and some others made

on different dates, wall paintings and slogans of Shiv Sena

of which the appellant was a candidate and some video

cassettes alleged to have been displayed during the election

campaign of the appellant. Such speeches include those made

in a meeting held on 29.1.1990 by some leaders of Shiv Sena,

speeches made on 16.2.1990 and 19.2.1990 by some persons

other than the appellant and a speech made by the appellant

on 11.2.1990.

Shri Soli J. Sorabjee, learned counsel for the

respondent confined the respondent's case in this appeal

only to the speech of the appellant on 11.2.1990. He stated

in all fairness that the speeches made in the meeting of

29.1.1990 are irrelevant in as much as they relate to the

period prior to the date on which the appellant became a

candidate at the election and cannot, therefore, amount to

corrupt practice. It is surprising that this obvious

position in law as overlooked by the High Court and reliance

was placed even on the speeches made in the meeting on

29.1.1990 to support the finding of corrupt practices held

proved against the appellant. Similarly, Shri Sorabjee made

no attempt to support the High Court's findings to the same

effect on the basis of speeches made by certain other

persons in the meetings held on 16.2.1990 and 19.2.1990

since the finding is in respect of speeches by persons other

than those pleaded in the election petition. It is difficult

to appreciate how the High Court could reach this conclusion

and find a case for the election petitioner different from

and in addition to that pleaded by her.

Considerable argument was advanced on behalf of the

appellant to assail the High Court's judgment which suffers

from many obvious discrepancies to contend that the ultimate

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conclusion reached by the High Court is contrary to law

because it has been influenced by numerous such errors which

are wholly unsupportable. Similar defects in the pleading

and proof of corrupt practice based on video cassettes, wall

paintings, posters and stickers were shown to contend that

no triable issue arose in the absence of requisite pleading

of material facts and only omnibus evidence to support the

same could not amount to legal proof. It was urged by

learned counsel for the appellant that the trial of the

election petition assumed the form of a roving inquiry into

the general philosophy of Shiv Sena and its general actions

instead of being confined to a trial of the specific

allegations of corrupt practices against the appellant in

accordance with the procedure prescribed by law. Learned

counsel for the appellant referred also to the manner in

which the order dated 26.4.1991 was made by the High Court

on the stay application which shows that the learned Judge

in making the decision was influenced more by his impression

of the activities of Shiv Sena rather than the merits of the

case. To support this submission, he referred to the order

dated 26.4.1991 passed by H. Suresh, J. on the stay

application wherein he stated inter alia as under :-

"9. ........ The Court has also to take

into account the attitude of the party

before granting stay. It is on record in

this election petition as also in all

other election petitions that are before

me that when Bharucha, J. decided the

said petition of P.K. Kunte Vs. Dr.

Ramesh Prabhoo, on or about 7.4.1989,

the very next day Bal Thackeray, in an

editorial dated 3.4.1989, has defied the

order of the Court and has publicly

stated that he would not care for the

courts whatever be their verdict. He has

repeated that performance even after I

gave my judgment in the earlier petition

and the present one. I do not say that

he should accept the verdict of the

court as such. But I always thought, we

believe in the rule of law and not in

the rule of men. If the Court has

committed any error that has to be

corrected in accordance with law. It is

the higher court that can set it right.

Or it is the Parliament that can change

the law. But certainly it cannot be

settled at Chowpatty sands. If a leader

having a considerable mass appeal

amongst the not so learned, the

illiterate, the semi-literate, the

ignorant, publicly denigrates the court,

in effect, he undermines the confidence

of the public in the judiciary itself.

That is the negation of the very concept

of rule of law. It is time that the

courts take note of such public ridicule

by public leaders which, if ignored,

will sooner or later make the courts

socially irrelevant in this country. In

these circumstances, I am inclined to

think what Mr. Vashi says is right.

10. It is true, the respondent has not

said a word about my judgment in this

Election petition. Anyhow it is not on

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record so far. Whatever it be, he (the

Respondent) still belongs to the party.

He is bound by what his leader says. He

cannot say that he does not belongs to

Shiv Sena. If that is so, there is no

reason that the Court should show any

indulgence to grant stay in a matter of

this type. There is neither equity, nor

law in favour of a person who has scant

respect for the court."

We have mentioned these facts in view of the vehemence

with which it was urged by the learned counsel for the

appellant, with some justification, that the learned Judge

who decided the election petition was influenced by

extraneous factors which coloured his perception of the law

leading to several errors in the judgment and the ultimate

conclusion reached in the election petition. In fact, the

explanation for non-examination of the appellant as a

witness at the trial, given by learned counsel for the

appellant, was that on account of the attitude of the

learned Judge the appellant had a reasonable apprehension of

being treated unfairly if he appeared as a witness in the

court. In view of the several obvious defects in the trial

and the reception of considerable irrelevant evidence and

reliance on several extraneous considerations in deciding

the matter, all of which we are excluding from

consideration, the criticism levelled at the decision cannot

be rejected as baseless. However, we are proceeding to

examine whether on exclusion of all such material, there

remains any legal basis to decide the appeal on merits,

instead of remanding the matter for a fresh trial.

In our opinion, it is not necessary for us to go into

this question any further in the present case since Shri

Sorabjee, learned counsel for the respondent has

categorically confined the respondent's case to a limited

question and taken the stand that one speech of appellant

alone to the extent it is expressly pleaded in the election

petition and proved by evidence, is sufficient to constitute

the corrupt practice under Section 123(3) of the Act to

support the decision of the High Court. In view of this

stand, we would first consider this aspect because it would

be unnecessary to go into the other questions if the

ultimate judgment deciding the appellant's election to be

void can be sustained on this ground alone.

The allegation of corrupt practice based on the

appellant's speech in para 12 of the election petition is as

under :-

"12. The petitioner states that as

stated hereinabove, the respondent was

the officially sponsored candidate of

Shiv Sena for the Vidhan Sabha (Assembly

elections). The said political Party

viz. Shiv Sena as stated earlier had

entered into an alliance with another

party known as Bharatiya Janata Party

(BJP). The petitioner states that of

late the said Shiv Sena and the said

B.J.P. have been contesting elections on

the plank of Hindutva and the Hindu

religion. Shiv Sena has been openly

convassing and appealing to the voters

to vote in the name of Hindu

religion.......

(a) xx xx xx

(b) xx xx xx

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(c) The petitioner states that during

the course of election/campaigns,

numbers of public meetings were held by

respondent, his election agent and other

party workers with the consent of the

respondent and/or his election agent in

the petitioner's constituency. In the

said meetings Respondent and his party

workers were jointly and defiantly

propagating that the Shiv Sena party was

for the Hindus and that if you are a

Hindu you should vote for the respondent

and the Shiv Sena to power ....... The

petitioner says that text of some of the

speeches are as under :-

(i) A huge gathering of about 25,000 to

30,000 people was held at "SARVESHWAR

MANDIR" on Sunday the 11th February,

1990 When "AKHANDHARANAM SAPTAH" was in

progress at the conclusion of the

Ceremony the respondent made inciting

speeches based on religion, religious

practices, evils of secularism and

exhorted voters to vote for Shiv Sena

and support the cause of Hindu and Hindu

religion. The Respondent sought the

blessings of the gathering and appealed

to them to support Shiv Sena and vote

them to power. The holding of the

meeting at a Mandir and performance of

Puja before the speeches violated the

basic rule as to use of religious places

for political purposes;"

The above averments contained in the body of the election

petition in para 12 satisfy the requirement of Section 83(1)

of the Act in as much as the material facts on which

reliance was placed for alleging the corrupt practice were

stated along with full particulars of the corrupt practice

to enable the returned candidate to meet the allegation made

against him. The date, time and place of the act amounting

to corrupt practice was pleaded and it was expressly pleaded

that the returned candidate himself invoked the blessings of

the gathering and appealed for votes and support for the

cause of Hindu religion. This appeal was made at a religious

place and during a religious gathering, obviously for

greater effect. Returned candidate being himself a Hindu and

invoking support for the Hindus and Hindu religion in a

religious gathering of Hindus during his election campaign,

the averment made was of a direct appeal to the voters by

the returned candidate for votes on the ground of his

religion. Thus, there is no deficiency in the pleading of

this corrupt practice under Section 123(3) of the Act. The

only question is whether the same has been proved.

Re : Ground No. 3

The witness examined to prove the allegation of the

above corrupt practice is PW-4 Namchari Baba Pol, a Police

Sub-Inspector, who was attached to the Kurle Police Station

in the Nehru Nagar Assembly constituency at the relevant

time. He has deposed that during this election it was his

duty to report to his superior about the important events

each day and for that purpose he used to maintain the record

in a diary. He stated, on refreshing his memory from an

entry in the diary, that he had visited the Sarveshwar

Mandir on 11.2.1990 at noon since he had known that the

appellant was to go there, that he had found the appellant,

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Dr. Pednekar, Korgaonkar and several other Shiv Sena workers

in the temple where the religious festival of 'Akhand

Harinam Saptah' was in progress. He has stated that the

appellant (referred as respondent in the election petition)

and some others gave speeches at that time which lasted for

about half an hour. About the contents of the speech of the

appellant (referred as respondent in the election petition),

he has stated as under :-

". . . . The respondent and Dr. Pednekar

gave a speech stating that for the

protection of Hindutva it was necessary

to give vote to Shiv Sena. . . . ."

There is nothing in his cross-examination to discredit his

version to this extent. In view of the nature of his duties

during election period, he was a natural witness of the

incident. The diary which he maintained for that period was

produced by him in the court in which an entry of his visit

to the temple that day was noted and nothing was elicited in

cross-examination to detract from the merit of his version

to this extent. This is the only direct evidence on the

point to which there is no rebuttal by the appellant in as

much as the appellant did not enter the witness box to deny

this version. The explanation given by learned counsel for

the appellant for the appellant's failure to enter the

witness box even if true, does not relieve the appellant

from the consequence of an adverse inference arising against

him on this point. This is a fact of which the appellant had

personal knowledge since this act was attributed to the

appellant himself. He was the best person to deny that

assertion if he challenged the same and to offer himself for

cross-examination by the other side. This he has failed to

do. There being no inherent defect in the testimony of PW-4

and he being a natural witness of the incident on account of

his official duty during the election period, the above

statement made by him must be accepted. The question now is

whether this statement amounts to proof of the corrupt

practice under Section 123(3) of the Act.

The meaning of the word "Hindutva" was seriously

debated at the Bar during the hearing of the bunch of

appeals of which this is one. We have dealt with this aspect

at length in the connected Civil Appeal No. 2835 of 1989 -

Bal Thackeray vs. Prabhakar K. Kunte and Ors. - (with civil

Appeal No. 2836 of 1989) decided today, and it is

unnecessary to reiterate the same herein. It is sufficient

for the present purpose to say that the meaning of the word

"Hindutva" in the speech has to be understood in the context

and according to its use and the manner in which it was

meant to be understood by the audience. Irrespective of the

meaning of Hindutva in the abstract, what is material in

each case is the kind of use made of this term and the

manner in which it was meant to be understood by the

audience to which the speech was addressed. The relevant

pleadings in the present case as extracted above, make it

clear that this particular speech by the appellant was an

appeal by a Hindu to a congregation of Hindu devotees in a

Hindu temple during a Hindu religious festival with emphasis

on the Hindu religion for giving votes to a Hindu candidate

espousing the cause of Hindu religion. Thus according to the

pleadings in the election petition the speech made by the

appellant was clearly an appeal to the voters on the ground

of his religion. The evidence which proves the speech made

by the appellant in a Hindu temple during a religious

festival addressed to Hindu devotees forming the religious

gathering has to be understood in this context. The word

"Hindutva" used in the speech of the appellant at that time,

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place and occasion has to be understood only as an appeal on

the ground of Hindu religion, that is, by the candidate on

the ground of his religion. As earlier stated, the word

"Hindutva" in the abstract and in a different context

addressed to a different gathering may have different

meaning related to Indian culture and heritage unrelated to

religion, but in the present context it has only one meaning

as indicated. In the absence of any rebuttal by the

appellant against whom an adverse inference also arises on

account of his failure to enter the witness box to deny this

allegation, no other conclusion is possible.

The above discussion is sufficient to indicate that the

speech of the appellant on 11.2.1990 in Sarveshwar Mandir

during the religious festival of 'Akhand Harinam Saptah' to

the congregation of Hindu devotees at that time and place

was clearly an appeal to the voters on the ground of his

religion which amounts to a corrupt practice under sub-

section (3) of Section 123 of the Act. This finding alone is

sufficient to sustain setting aside the appellant's election

on the ground of a corrupt practice. It is, therefore,

unnecessary to record any finding on the remaining points

and the other corrupt practices alleged against the

appellant which have been found proved by the High Court.

This judgment is not to be construed as an affirmance of any

other finding of corrupt practice recorded by the High

Court.

We may, however, observe that there is some basis for

the grievance made on behalf of the appellant that the trial

of the election petition in the High Court assumed the form

of a roving general inquiry into the philosophy and

functioning of the Shiv Sena instead of the trial being

confined only to the specific allegations of corrupt

practice against the appellant. The record also indicates

that care was not taken to ascertain the precise allegation

of corrupt practices in order to prevent reception of

irrelevant and inadmissible evidence at the trial. Certain

findings given by the High Court against the appellant are

such that even on behalf of the respondent, no attempt was

rightly made to support them. In the impugned judgment,

apart from finding a corrupt practice proved on the basis of

certain speeches by persons other than those pleaded, it has

also been said surprisingly at one place that " in my view

the question of consent does not arise in the present case".

This was said in the context of a corrupt practice resulting

from an act of a person other than the candidate or his

agent for which pleading and proof of consent is necessary

as constituent part of the corrupt practice. The learned

Judge overlooked the difference between the requirement in

law of consent as a constituent part of the corrupt practice

and its proof by necessary implication from the facts and

circumstances of a case.

For the aforesaid reasons, we uphold the setting aside

of the appellant's election on the above ground alone as

earlier indicated. The appeal must, therefore, fail.

However, in view of the manner of trial of the election

petition and the several obvious defects therein, it is

appropriate that the parties are directed to bear their own

costs of this appeal as well as of the trial of the election

petition, i.e., throughout. We direct accordingly.