TMI Blog1995 (12) TMI 406X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant to be void but the findings on issue Nos. 2 and 5 have been reserved for being recorded after the inquiry under Section 99 of the R.P. Act is concluded against Chhagan Bhujbal, Pramod Mahajan, Bal Thackeray, Manohar Joshi and Pramod Navalkar to whom notices have been issued under Section 99 of the R.P. Act by the order made therein. The ultimate conclusion in the final order made in the impugned judgment is quite involved because of the unusual mode adopted of deciding the election petition piecemeal. Instead of attempting to summarise the conclusion, it is safer to quote certain portions of the concluding part of the judgment, as under :- I have already held that the cassette was displayed in the Constituency with the consent of the Respondent. There is however no proof that it was personally exhibited by the Respondent. Accordingly it will have to be held that, by mode of display of this video cassette, some other persons with the consent of the Respondent have committed the corrupt practice of appealing for votes on the ground of the Respondent's religion i.e. Hindu religion and have attempted to create enmity and hatred between different communities and religion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of wall paintings and display of video cassettes, the petition is made absolute in terms of prayers (a) and (b) i.e. the Election of the Respondent to the Maharashtra Legislative Assembly election held on 27th February, 190 from Constituency No. 49 i.e. Kurla Constituency is declared as null and void. This is on the ground that corrupt practice set out above under sub- sections (3) and (3A) of Section 123 of the Representation of Peoples Act, 1951 have been proved to have been committed with the consent of the Respondent i.e. that there has been an appeal to vote for the Respondent in the name of his religion i.e. Hindu religion and an attempt has been made to promote feelings classes of citizens of India on the ground of religion and community. (emphasis supplied) After the impugned judgement was rendered, notices under Section 99 of the R.P. Act were issued to the aforesaid five persons who then raised certain preliminary objections to the validity of the notices. Variava, J. by his order dated 6.1.1992 rejected those objections. The notices given to these persons related to certain speeches alleged to have been made by them on 29.1.1990 and 24.2.1990 which, it was alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , community and caste and the corrupt practice of creating enmity and hatred between various classes of citizens on the ground of religion, community and caste particularly between Hindus and Muslims. Thus the charges are under Secs. 123 (3) and 123 (3A) of the Representation of Peoples Act, 1951. In this Petition also the alleged mode of resorting to these corrupt practices is by way of speeches made by the leaders of Shiv Sena and B.J.P. at the joint public meetings held on 29th January 1990 (at Shivaji Park) and by use of offending posters, banners, wall writings and the video cassette `Awahan and avhan'. (emphasis supplied) At the beginning of the impugned judgment, the scope of the election petition and the true perspective in which it has to be decided has been stated by Variava, J. as under :- It must also be noted that these group of petitions are to a large extent unlike other election petitions. This because these petitions are not based upon individual acts of individuals. They are mainly based upon the abovementioned plank and/or policy decision of these parties. This will have a bearing on the question of consent. It is therefore necessary to note the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arently leaving open the question of validity of the notices to be decided at a later stage. There is no dispute at the hearing of these appeals that the case of all the five notices has to be dealt with in the same manner depending on the final outcome of these appeals. We would now consider the points which arise for decision. Dismissal of Election Petition under Section 86 of the R.P. Act, 1951. The first submission in these appeals is that the election petition was liable to be dismissed under Section 86 of the R.P. Act for non-compliance of sub section (1) of Section 81, inasmuch as the election petition was filed after expiry of the prescribed period of 45 days from the date of election. Acceptance of the nominations of the candidates was on 8.2.1990, the date of poll was 27.2.1990 and the result of election was declared on 1.3.1990 at which Ramakant Mayekar was declared elected. The election petition was filed on 16.4.1990. Admittedly the last date for filing the election petition according to the prescribed period of 45 days was 14.4.1990, but the High Court and its office were closed for holidays on 14th and 15th April, 1990 and reopened only on 16.4.1990. If Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discussion is necessary for holding that part of the impugned judgment dated 5th/6th August, 1991, notices under Section 99 of the R.P. Act and the subsequent order dated 6th January, 1992 as contrary to law and, therefore, liable to be set aside for this reason alone. It is only the surviving part of the impugned judgment and the notices which require further consideration, for which purpose the question for decision at the threshold is the validity of the course adopted of deciding the election petition and declaring the election of the returned candidate to be void and then proceeding to give notices for taking action under Section 99 of the R.P. Act. We have already indicated the combined effect of Sections 98 and 99 of the R.P. Act in the connected Civil Appeal No. 4973 of 1993 - Manohar Joshi vs. Nitin Bhaurao Patil Anr. - decided today. The correct legal position has been overlooked by the High Court. The High Court appears to have misread the decision of this Court in D.P. Mishra vs. Kamal Narayan Sharma and Anr., 1971 (1) SCR 8, to form the opinion that the course adopted by it was permissible under Section 99 of the R.P. Act. The question in that case was of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6th August, 1991 declaring the appellant's election to be void and the subsequent order dated 6.1.1992 rejecting the preliminary objections to the notice issued subsequently under Section 99, both by Variava, J., are contrary to law and have to be set aside. We have not to determine the nature of the final order to be made. Speeches We have already indicated that the speeches alleged to have been made on 29.1.1990 are irrelevant and have to be excluded from consideration as earlier stated. In respect of the speeches alleged to have been made on 24.2.1990, the relevant portions of the impugned judgment are as under : The question then is whether the Respondent was also present at the meeting held on 24th February 1990. Here again the petitioner has admitted that her only source of knowledge are newspaper reports. In this case however, not a single newspaper report support the case that all 34 candidates were present or that the Respondent was present....... Thus the only evidence of Respondent's presence at this meeting is this photo. The court has looked at the photo and the Respondent a number of times. It is not possible to categorically state that this is the photo o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant (respondent in the election petition) and all other candidates of Shiv Sena - BJP alliance were present. Thereafter, in paras 23 and 27, there is only a general averment that the appeal made by Bal Thackeray and other leaders to the voters was with the consent of the appellant (respondent in the election petition). No fact other than the averment of personal presence of the appellant was pleaded to make out the consent of the appellant required for constituting the corrupt practice. As earlier indicated, the High Court has held that the presence of the appellant at that meeting has not been proved. Thus, the only basis for pleading and attempting to prove the appellant's consent to the making of those speeches in the meeting held on 24.2.1990 has been held to be not proved. There is thus no foundation even for a tentative finding of any corrupt practice on the basis of speeches alleged to have been made by Bal Thackeray and some other leaders in this case against the present appellant, inasmuch as a necessary ingredient of the corrupt practice, i.e., consent of the appellant has been found to be not proved. There being not even a tentative basis to hold the charge of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the photographs referred in para 21 of the election petition were neither annexed to the election petition nor copy thereof furnished to the returned candidate along with a copy of the petition. Thus, there is no pleading in the election petition of the language or contents of the wall paintings which were alleged to constitute the corrupt practice of canvassing for votes in the name of Hindu religion. If the mere mention of photographs without indicating its contents in the election petition is to be construed as incorporation of its contents by reference in the election petition, then non-supply of the copy of the photographs with the copy of the election petition would result in non- compliance of Section 81(3). However, since the photographs were not annexed to the election petition, it is a case not of non-compliance of Section 81(3) but a case of total absence of any pleading in the election petition of the corrupt practice on the basis of wall paintings. Therefore, the pleading being wholly deficient in material facts necessary to constitute the cause of action, it was insufficient to raise a triable issue on that basis. In fact, this part of the pleading was liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the name of Hindutva amounts to an appeal to vote for the Hindu candidates of Shiv Sena BJP on the ground of their religion and also amounts to the corrupt practice or creating enmity and hatred amongst different classes of citizens on the grounds of religion and community. These paintings on walls and pipelines therefore amount to having appealed to the voters to vote for the Respondent on the ground of his religion and also amount to the corrupt practice of creating enmity and hatred amongst different classes of citizens on the grounds of religion and community. Thereafter, the discussion relates to the consent of the candidate which is unnecessary in view of the earlier conclusion. The tenor of the impugned judgment, particularly the above extract, leaves no doubt that the High Court was of the view that any appeal for votes wherein was made of Hindutva is by itself sufficient to amount to an appeal for votes for the Hindu candidates of Shiv Sena-BJP on the ground of their religion and is a corrupt practice or creates enmity and hatred amongst different classes of citizens on the grounds of religion and community. The above extract from the decision itself is suffic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal for votes on the ground of Hindu religion for a Hindu candidate. As a proposition of law, it cannot be said that in the abstract, the mere use of the word Hindutva during an election campaign must necessarily mean an appeal on the ground of Hindu religion for a Hindu candidate. We have discussed this question at some 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. It is unnecessary to reiterate the same herein. What is forbidden by law is an appeal by a candidate for votes on the ground of `his' religion or promotion etc. of hatred or enmity between groups of people, and not the mere mention of religion. There can be no doubt that mention made of any religion in the context of secularism or for criticising the anti-secular stance of any political party or candidate cannot amount to a corrupt practice under sub- section (3) or (3A) of Section 123. In other words it is a question of fact in each case and not a proposition of law as understood and enunciated by the High Court. The view taken by the High Court in the impugned judgment indicates a wrong perception ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted Civil Appeal No. 4973 of 1993 - Manohar Joshi vs. Nitin Bhaurao Patil Anr. - decided today. For the same reasons, the entire issue relating to the corrupt practice based on the video cassettes has to be excluded from consideration. Even otherwise the only specific pleading on the point which is extracted above is insufficient to plead this corrupt practice against the appellant, howsoever reprehensible it may be in relation to the alleged conduct of Bal Thackeray. The more fact that Bal Thackeray was leader of Shiv Sena of which party the appellant was a candidate is by itself not sufficient to hold any candidate guilty of the corrupt practice on the basis of an act done by Bal Thackeray unless that liability can be fastened on the candidate on further proof that the act was done with the consent of the candidate or the display of that cassette was made with the candidate's consent at the specified time and place etc. during his election campaign. All these material facts were required to be pleaded and proved, but, instead, they have been assumed and even the finding is not related to any such specific act. The requisite consent of the candidate cannot be assumed m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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