Supreme Court of India
MANOHAR JOSHIversusNITIN BHAURAO PATIL AND ANR.
- Citation
- 1995 INSC 869
- Decided
- 11 December 1995
- Disposal
- Appeal(s) allowed
Holding
The Supreme Court set aside the High Court's order, holding that the election petition did not disclose a triable corrupt practice under section 100(1)(b) and the High Court failed to comply with the notice requirement of section 99, so the election was not declared void.
Summary
Manohar Joshi, the BJP‑Shiv Sena candidate, was elected from Dadar in 1990. Bhaurao Patil filed an election petition alleging corrupt practices under sections 123(3) and 123(3A) of the Representation of the People Act, relying on Joshi's speeches, those of party leaders and audio‑video cassettes. The Bombay High Court held the petition was timely filed, accepted the allegations, and declared Joshi's election void under section 100(1)(b). On appeal, the Supreme Court examined whether the petition complied with the limitation period, the copy‑serving requirement of section 81(3), the necessity of pleading consent for corrupt practice, and the procedural requirement of notice under section 99 before declaring an election void. The Court held that the petition failed to plead consent, that the High Court erred in ordering a void election without complying with section 99, and that the only surviving allegation did not constitute a corrupt practice. Consequently, the High Court's order was set aside and the election stood.
Issues considered
- The election petition was filed within the 45‑day limitation period and whether section 10 of the General Clauses Act applies to compute the period.
- Whether non‑compliance with section 81(3) (serving copies of the petition and annexures) warrants dismissal under section 86.
- Whether the petition sufficiently pleaded corrupt practice, particularly the consent element required under sections 123(3), 123(3A) and 100(1)(b).
- Whether the High Court complied with the procedural requirements of sections 98 and 99, especially giving notice to other persons before declaring the election void.
- The interpretation of the term "Hindutva" and its relevance to the corrupt‑practice allegation.
Legislation cited
- General Clauses Act, 1897s. 10
- Indian Penal Code, 1860s. 125, s. 153A, s. 153B, s. 295A
- Limitation Act, 1963s. 4
- Representation of the People Act, 1951s. 100(1)(b), s. 100(1)(d)(ii), s. 123(3), s. 123(3A), s. 81(1), s. 81(3), s. 82, s. 83, s. 86, s. 99
- Unlawful Activities (Prevention) Act, 1967s. 4
Subjects
election petitioncorrupt practiceRepresentation of the People Actlimitation periodsection 81section 86section 99 noticesection 100consent requirementHindutvavicarious liability
Judgment
MANOHAR JOSHI A
v.
NITIN BHAURAO PATIL AND ANR.
DECEMBER 11, 1995
[J.S. VBRMA, N.P. SINGH AND K. VENKATASWAMI, JJ.] B
Election Laws :
Representation of the people Act 1951.-Sections 81(1), 81(3), 82, 83,
86, 99, 100(1) (b ), 177.
c
Election petition-Allegation of corrnpt practice--l'roof of-Require-
ment at the trial is higher and confined to strict legal evidence.
S 81(1), and S 81(3).-lnterpretation of
Consent-Nature of-Presumption that party leaders are agents of can- D
didate not co"ect.
Vicarious liability of candidate for practices adopted by party mem-
bers-Arises when he consents.
Non-compliance with S 81(3),~ffect of E
'Hindutva'--Does not invariably mean Hindu religion, and the context
and purpose of the use is to be considered in arriving at a decision.
The Appellant who was supported by the BJ.P.-Shiv Sena alliance,
won the election from Dadar constituency of Bombay. The Respondent who F
was the Congress candidate and lost the election to the Appellant, chal·
lenged the election of the Appellant before the High Court at Bombay on
the ground of corrupt practice under S 123(3) & (3A), of R.P. Act and
relied on the speeches delivered on 24.2.90, at Shivaji Park both by the
candidate as also the BJ.P/Shiv Sena Party leaders and on the audio and G
video cassettes played during the election campaign. However the audio
cassettes were not produced before the Trial Court and video cassettes
were produced not with the petition but later during the trial.
The Trial court allowed the election petition after rejecting the
contention of the successful candidate that the petition was time-barred. H
421
422 SUPREME COURT REPORTS (1995] SUPP. 6 S.C.R.
A The election of the Appellant was therefore declared void on the ground
under S lOO(l)(b) of R.P. Act.
In appeal to this court, on behalf of the Appellant, illter alia, the
following submissions were made. (1) The election petition ought to be
B dismissed u/s 81 (l) of the R.P. Act, since the said Act was a self contained
code and no provision outside the Act can be nsed to compute limitation.
(2) The election petition and its copy should satisfy the requirements u/s
81(3) of the R.P. Act, and this was not met since neither the video cassettes
nor the transcript thereof was supplied though reliance was placed on it
in the petition. (3) There is deficiency in relying on video cassettes for
C pleading corrupt practice and this is hit by 06 Rl6 CPC, leaving only the
speeches as the basis of the allegation of corrupt practice. (4) No corrupt
practice u/s 123(3) or (3A) of the R.P. Act is established by either the
pleadings or the relevant and admissible evidence produced before the
Trial Court.
D
Countering the arguments on behalf of the respondent it was sub-
mitted (1) The scheme of the R.P. Act and the legislative history of
limitation show that S.10 of the General Clauses Act would apply for
calculating the period of limitation. Reliace was placed on the maxim 'lex
non Cojit ad impossibi/ia'. The petitioner has a right to present the petition
E on the last day which was 14.4.90, and that being a holiday, the petition
was presented on 16.4.90, which was the first working day thereafter, and
hence the petition was within the lim1tat" .n. (2) Neither the video cassette"
nor the transcript was filell with the petition 1nd therefore not sen l.1g the
same with the copy of the petition on the Appellant did not amount to
p non-compliance with S 81(3) of the R.P. Act. (3) Corrupt practice was
properly pleaded in the petition and the fact that the Appellant had
admitted to the existence and use of the video cassettes can be taken as
proof of the pleadings. (4) The consent of the candidate to the speeches of
acknowledged party leaders should be implied from the relationship of the
candidate to these leaders through the party links. In fact the party leaders
G are to be assumed to be the agents of the candidate. Therefore the speeches
of the party leaders may be termed corrupt practice; then the ground u/s
lOO(l)(b), of the R.P. Act would be available for setting aside the election.
Unless this presumption is available the candidate would be able to take
the benefit of speeches made on the ground of religion and this would
H vitiate against the very essence of democracy and the object of the Act.
MANOHARJOSHI v. N.B. PATIL 423
Allowing the Appeal, this Court A
HELD : 1.1. The finding recorded by the High Court against the
Appellant that charge of corrupt practices under sub-sections (3) & (3A) of
S.123 of R.P. Act has been proved to declare his election to be void on the
ground contained in S lOO(l)(b) of the R.P. Act, is contrary to law and is
therefore set aside. The result is that no ground is made for declaring the B
Appellant's election to be void. [470-B-C]
1.2. The High Court misdirected itself by starting on a wrong premise
in trying an allegation not in the pleading and then in admitting and relying
on material which is not legal evidence for the proof of a corrupt practice.
The error was aggravated by an incorrect appreciation of the legal prin-
c
ciples and overlooking the meaning of certain terms. The significance of the
trial of corrupt practice and the consequence of a finding thereon, appears
to have been missed by the High Court. [469-H, 470-A]
'
1.3. The High Court failed to appreciate that the only allegation of D
corrupt practice in the election petition which raised a triable issue is in
para 30 and the rest of the general averments deficient in requisite plead-
ings of all the constituent parts of the corrupt practice did not constitute a
pleading of the full cause of action and therefore had to be ignored and
struck out in accordance with 06 R16, CPC. [462-C]
E
1.4. There is nothing in S.98 to permit the High Court to decide the
election petition piecemeal and to declare the election of any returned
candidate to be void at an intermediate stage of the trial when any part of
the trial remains to be concluded. It is amply clear that the order which can
be made under clause (a) & (b) of S.99(1) is required to be made 'at the
time of making an order under S.98'. An order u/s 98 can be made only at F
the conclusion of the trial. The requirement of S.99 is to be completed
during the trial of the election petition and the final order has to be made
in the decision of the High Court rendered u/s 98 at the conclusion of the
trial of the election petition. [465-D]
1.5. Reliance in the election petition on the allegation of corrupt prac-
G
tices was for the ground u/s lOO(l)(b) & not S lOO(l)(d)(ii) under which the
election has been dticlared void by the High Court. There was no attempt to
plead or prove that the result of the election of the Appellant was materially
affected for these reasons to make out a ground u/s lOO(l)(d)(ii) for declaring
the election of the returned candidate to be void. [459-D] H
424 SUPREME COURT REPORTS (1995] SUPP.6S.C.R.
A 1.6. It i.J significant that neither the video cassettes and audio
cassettes nor the transcript of their texts was produced in the election
petitio or annexed to the election petition so that the contents thereof were
not pleaded in either of the required modes. That apart, there is nothing
in the pleading to indicate the names of the persons who are alleged to
B have displayed the same or the dates on which they were displayed or in
other words any other fact which would make the allegation clear and
specific. The further requirement of consent of the returned candidate for
those acts is not pleaded as required for the ground u/s lOO(l)(b) of the
R.P. Act and in the definition of the corrnpt practice under Ss.123(3) &
(3A) when this is an essential requirement for raising a triable issue to
C bind the Appellant with the consequences of such corrnpt practice and to
invalidate his election. This alone is sufficient to ignore the entire pleading
relating to Bal Thackeray, Parmod Mahajan and any other leader as well
as the display of video cassettes since none of those acts is attributed to
the Appellant or his election agent. (460-F-G, 461-C] .....
D
1.7. No notice was given to Bal Thackeray, Pramod Mahajan or any
other person against whom allegation was made, even though the High
Court has held those corrupt practices to be proved for the purpose of
declaring the Appellants' election void. (463-C]
E 1.8. No notice u/s 99 was given by the High Court before making the
final order u/s 98 the R.P. Act declaring the election to be void. This is a
fatal defect. (467-C]
2.1. There is no dispute that the election petition presented in the
F present case on 16.4.90 was within limitation and there was no non-com-
pliance of S.81(1) of the R.P. Act. (435-C]
2.2. It is a settled principle that the litigant has the right to avail
limitation upto the last day and his only obligation is to explain his
inability to present the suit/petition on the last day of the limitation and
G each day theater till it is actually presented. This being the basic premise,
it cannot be doubted that the election petitioner in the present case was
entitled to avail the entire limitation of 45 days, i.e., upto 14.4.90 and he
was required to explain the inability of not filing it only on 14.4.90 and
15.4.90 since the petition was actually presented in the High Court on
H 16.4.90. [436-E-F]
MANOHARJOSHI v. N.B. PATIL 425
Ram/a/ Motila/ & Chhotela/ v. Rewa Coalfields Ltd., [1962) 2 SCR 762, A
relied on.
2.3. In view of the basic premise that election petitioner is entitled to
avail the entire limitation of 45 days, it would require the election petitioner
to perform an impossible task in a case like the present, to present the
election petition on the last day of limitation on which date the High Conrt B
as well as its office is closed. The underlying principle of the legal maxim
'lex non cojit ad impossibilia' suggests the informed decision on this point
leading to the only conclusion that S.10 of the General Clauses Act applies
to the computation of the limitation prescribed by S.81(1) of the R.P. Act
for presentation of the election petition. [437-E·G] C
2.4. There is nothing to indicate that providing the period of limita·
lion in S.81(1) itself by substitution of certain words by Act 27 of 1956
instead of prescribing the limitation by Rules, was with a view to exclude
the applicability of S.10 of General Clauses Act. The change appears to have
been made to provide for a fixed period in the Act itself instead of leaving D
that exercise to be performed by the rule making authority. An express
provision in R 2(6), of the 1951 Rules was required sfoce the General
Clauses Act ipso facto would not apply to Rules framed under the Central
Act, even though it would to the Act itself. The context supports the ap·
plicability of S.10 of the General Clauses Act instead of indicating its E
exclusion for the purpose of computing the limitation prescribed in S.81(1)
for presentation of election petitions. [437-B-E)
H.H. Raja Harinder Singh v. S. Kamai/ Singh, [1957) SCR 208;
Hukumdev Narain Yadav v. La/it Narain Mishra, [1974) 3 SCR 31; Hari
Shankar Tripathi v. Shiv Harsh & Ors., [1976) 3 SCR 308 andSimhadri Satya F
NarayanaRao v.M. BuddaPrasad&Ors., [1994) Suppl 1SCC449 = (1991)
1 SCJ 281, referred to.
3.1. There is no dispute that the election petition as presented in the
court was accompanied by as many copies as there were respondents in G
the election petition. The copy of the election petition served on the
returned candidate with the notice of the election petition was identical
with the election petition as it was presented in court. The requirement of
the plain language of S.81(3) was, therefore fully met. The video cassettes
were not even filed in the High Court with the election petition. This is,
therefore not a case of non-supply of a copy of a document which was filed H
426 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
A along with the election petition. The contents of the video cassettes, except
to the extent pleaded in paras 32 & 33 of the election petition, cannot be
treated to be incorporated by reference in the election petition as a part
of the pleadings. There was thus no non-compliance of S.81(3) of the R.P.
Act. The election petition was, therefore not liable to be dismissed VIS
B 86(1) even on the ground of non-compliance of S.81(3) of the R.P. Act.
[439-F, 444-E-F, H, 445-A-B]
3.2. The compliance of Ss.81, 82 & 117 is to be seen with reference
to the evident facts found in the election petition and the documents filed
along with it at the time of presentation. This is a ministerial act. There
C is no scope for any further inquiry for the purpose of S.86 to ascertain the
deficiency, if any, in the election petition found with reference to the
requirements of S.83 of the R.P. Act which is a judicial function. For this
reason non-compliance of S.83, is not specified as a ground for dismissal
of the election petition u/s 86, which being in the nature of a penal
provision, has to be construed strictly confined to its plain language.
D [440-C-F]
3.3. In a case where the document is incorporated by reference in the
election petition without reproducing its contents in the body of the
election petition, it forms an integral part of the petition and if a copy of
that document is not furnished to the respondent with a copy of the
E election petition the defect is fatal attracting dismissal of the Election
Petition u/s 86(1) of the R.P. Act. On the other hand, when the contents of
the document are fully incorporated in the body of the election petition
and the document also is filed with the election petition, not furnishing a
copy of the document with a copy of the election petition in which the
F contents of the document are already incorporated, does not amount to
non- compliance of S.81(3) to attract S.86(1) of the R.P. Act. [442-E-G]
Sahodrabai Pai v. Ram Singh Aharwar, (1968] 3 SCR 13; A. Madan
Mohan v. Kalavakunta Chandrasekhara, [1984] 2 SCC 288; M. Karnnanidhi
Etc.v. Dr. H.V. Hande & Ors. Etc. Etc., [1983] 2 SCC 473 and U.S. Sasid-
G haran v. K. Karnnakaran & Anr., (1989] 4 SCC 482, referred to.
4.1. The distinction between the act amounting to corrupt practice
done by the candidate himself or his election agent and any other perso:.
with his consent has to be kept in view. This has relevance also ro,- the
H purpose of S.99 of the R.P. Act. [455-H]
MANOHARJOSHI v. N.B. PATIL 427
4.2. In order to constitute corrupt practice, it must further be shown A
that the act was done during the election campaign between 8.2.90 when
the returned candidate became a 'candidate' and 27.2.90 the date of the
poll, and that it was the act of the candidate or his agent or any other
person with his consent. Unless all these constituent parts of the corrupt
practice are pleaded to constitute the cause of action raising a triable issue
B
and are then proved by evidence, the corrupt practice cannot be held to be
pleaded and proved. [455-C-D]
43. If the act attributed is by the display of a.video cassette recorded
some time earlier, the display being between the date the candidate became
a candidate and the date of the poll, in the constituency, a mere display of C
the \ideo cassette does not prove all the constituent parts of the corrupt
practice, inasmuch as it must also be pleaded and proved that such display
was by the candidate or his agent or any other person with bis consent.
Where the display of the cassette is attributed to any other person with the
consent of the candidate, the liability of the candidate for commission of D
the corrupt practice results vicariously form the act of the other person
done with the consent of the candidate. [455-E-F)
5.1. The distinction between Clause (b) and clanse (d)(ii) S.100(1) is
significant. The ground in clause (b) provides that the commission of any
corrupt practice by a returned candidate or his agent or any other person E
with the consent of the returned candidate or his election agent by itself is
sufficient to declare the election to be void. On the other hand, the
commission of any corrupt practice in the interests of the returned can-
didate by an agent other than his election agent (without the further
requirement of consent of a returned candidate or his election agent) is a F
ground for declaring the election to be void only when it is further pleaded
and proved that the result of the election in so far as it concerns a returned
candidate bas been materially affected. This ground is further subjected
to S.100(2) of which the onus is on the returned candidate. It is, therefore
clear that if the corrupt practice is committed in the interests of the G
returned candidate by any other person, even if be be an agent other than
his election agent, without the consent of the returned candidate or his
election agent, the law provides for the election to be declared void u/s
lOO(l)(d)(ii) provided it is also pleaded and proved that the result of the
election of the returned candidate was materially affected thereby. Law
clearly provides that the returned candidate would not get the benefit of a H
428 SUPREME COURT REPORTS (1995] SUPP. 6 S.C.R.
A corrupt practice committed in his interest by anyone if the resnlt of the
election is shown to be materially affected thereby. [457-G-H, 458-A-D]
5.2. There is no occasion to read into the ground in S.lOO(l)(b) or
the definition of 'corrupt practice' the implied consent of the candidate for
any act done by a leader of that party to dispense with a clear pleading
B and proof of the candidate's or his election agent's consent as a constituent
part of the corrupt practice for the ground u/s lOO(l)(b) of the R.P. Act.
But even if the acknowledged leaders of a party have committed any
corrupt practice which results in benefit to the returned candidate then on
proof of the benefit having materially affected the election result in favour
C of the candidate, his election would be set aside on the gronnd u/s
lOO(l)(d)(ii) of the R.P. Act. [458-F-G, E-F]
53. Whenever the requirement is of consent, it most be free consent
given by the giver of the consent, of Ws own volition. Ordinarily, it also
implies a subservient role of the person to whom consent is given and the
D authority of the giver of consent to control the actions of the agent. It is
difficult to ascribe to an acknowledged leader of the party a role subser-
vient.to the candidate set op by that party. However, if even without giving
his consent, the candidate has received the benefit from the leaders act in
a manner that materially affects his election favourably, on pleading and
E proof of such material effect on election, the election is liable to be set aside
unless as provided in s.100(2) he further discharges the onns placed npon
him that inspite of his opposition and taking doe precautions that act had
been committed for which he cannot be responsible. [458-G-H, 459-A-B]
F 5.4. The word 'Hindutva' by itself does not invariably mean Hindu
religion and it is in this context and the manner ofits use which is material
for deciding the meaning of the words 'Hindutva' in a particular text. The
so called plank of the political party may at best be relevant only for
appreciation of the context in which a speech was made by a leader of the
G political party during the election campaign, but no more for the purpose
of pleading corrupt practice in the election petition against a particnlar
candidate. [459-F-G]
Bal Thackeray v. Prabhakar K Kunte & Ors., [1995] Supp SCR, relied.
H 6. It is amply clear that the order which can be made under c'.auses
MANOHARJOSHI v. N.B.PATIL 429
(a) & (b) of S.99(1) is required to be made 'at the time of making an order A
under S.98'. The requirement of S.99 is ttJ be completed during the trial of
the election and the final order u/s 99 has to be made in the decision of
the High Court rendered u/s 98 at the conclusion of the trial of the election
petition. Clause (a) of S.99(1) provides for a situation 'where any charge
is made in the petition of any corrupt practice having been committed at B
the election. In that case, it requires that at the time of making an order
u/s 98, the High Court shall also make an order recording a finding
whether any corrupt practice has or bas not been proved to have been
committed at the election and the nature of that corrupt practice, and the
names of all persons, if any, who have been proved at the trial to have been C
guilty of any corrupt practice and the nature of that corrupt practice.
Clause (b) further requires the fixing of the total amount of costs payable
and specifying the person by and to whom costs shall be paid. It follows
that the High Court cannot make an order u/s 98 recording a finding of
proof of corrupt practice against the returned candidate alone and on that D
basis declare the election of the returned candidate to be void and then
proceed to comply with the requirement of S.99 in the manner stated
therein with a view to decide at a later stage whether any other person also
is guilty of the corrupt practice for the purpose of naming him u/s 99 of
the R.P. Act. High Court has no option in the matter to decide whether it E
will proceed u/s 99 against the other persons alleged to be guilty of that
corrupt practice along with returned candidate in as much as the require·
ment of S.99 is mandatory since the finding recorded by the High Court
requires it to name all 'persons proved at the trial to have been guilty of
the corrupt practice. The expression 'the name of all persons, if any, who
have been proved at the trial to have been guilty of any corrupt practice' F
in S.99(1) (a) (ii) clearly provides for such proof being required 'at the trial'
which means 'the trial of an election petition' mentioned in s.98, at the
conclusion of which alone the order contemplated u/s 98 can be made. In
a case where the liability is fastened on the candidate vicariously for the
act of another person, unless the act is found proved against the doer of G
the act, the question of recording a finding on that basis against the
returned candidate cannot arise. If the final verdict has already been
rendered against the returned candidate in such a case, the opportunity
contemplated by S.99 by an inquiry after notice to the other person is futile
since the verdict has already been given. On the other hand, if the question H
430 SUPREME COURT REPORTS (1995) SUPP. 6 S.C.R.
A is treated as open, a conflicting verdict after inquiry U/S 99 in favour of
the noticee would lead to an absurdity which could not be attributed to the
Legislature. [465-B-H, 466-B-F, 467·A·B]
7. It needs hardly be mentioned that the requirement of proof of a
corrupt practice at the trial of an election petition is higher and confined
B to strict legal evidence, in comparison to the material on which the
Tribunal can rely for its decision u/s 4 of the Unlawful Activities (Preven·
lion) Act, 1967 to confirm the declaration by the Central Govt. of an
association as unlawful. (469-F·G]
C Jamaat-e-Islami Hind Etc. v. Union of India, [1995] 1 SCC, 428,
referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4973 of
1993.
D From the Judgment and Order dated 26.4.93 of the Bombay High
Court in E.P. No. 24 of 1990.
Ram Jethmalani, Jai Chinai, Ashok Desai, B.A. Desai, M.C.
Bhadare, Arif Bookwala, Vilas Joshi, D.M. Nargolkar, Ms. Lala Krish-
namurthy, Mukul Mudgal, Mukesh Vashi, Pallav Sisodia, Ashish Wad, Ms.
E Sarita Krishnamurthy, Ms. Reema Bhandari, Ms. Kiran Jai and M.N.Shroff
for the appearing parties
The Judgment of the Court was delivered by
F 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 26.4.1993 by S.N. Variava, J. of the Bombay High Court
in Election Petition No. 24/90 whereby the election of the appellant
Manohar Joshi to the Maharashtra Legislative Assembly from 32, Dadar
Constituency of Greater Bombay held on 27.2.1990 has been declared to
G be void on the ground under Section lOO(l)(b) of the R.P. Act.
Manohar Joshi was the candidate of the BJP-Shiv Sena alliance at
that election while the original election petitioner Bhaurao Patil (now
dead), was the candidate of the Congress (I) Party. Manohar Joshi secured
H the highest number of votes i.e. 47, 737, while Bhaurao Patil secured 24,
MANOHARJOSH! v. N.B.PATIL[J.S. VERMA,J.] 431
354 votes. Accordingly, Manohar Joshi was declared duly elected on A
1.3.1990.
Admittedly, the last date for filing the election petition according to
the limitation prescribed in sub-section 1 of Section 81 of the R.P. act was
14.4.1990 but the election petition was actually presented in the Bombay
High Court on 16.4.1990. It is also admitted that 14.4.1990 was a Saturday B
on which date the High Court as well as its office was closed on account
of a public holiday and 15.4.1990 was a Sunday on which date also the High
Court as well as its office was closed and, therefore, the election petition
could not have been presented on either of these two dates. The first
question which arises, relates to compliance of Section 81 of the R.P. Act, C
the not1-compliance of which renders the election petition liable for dis-
missal under Section 86 of the R.P. Act.
The election petition alleged the commission of corrupt practices
under sub-sections (3) and (3A) of Section 123 of the R.P. Act and sought
declaration of the election of Manohar Joshi to be void- on the ground D
under Section lOO(l)(b) of the R.P. Act. The corrupt practices alleged
were, in substance, speeches on 24.2.1990 at Shivaji Park by the returned
candidate Manohar Joshi and leaders of the BJP-Shiv Sena alliance, name-
ly, Bal Thackeray, Chhagan Bhujbal and Pramod Nawalkar; and some
audio and video cassettes played during the election campaign alleged to E
contain material constituting these corrupt practices. Any further reference
to the audio cassettes is unnecessary since none was either produced or
relied on at the trial. The petition was supported only on the ground of the
said speeches and video cassettes. Further details of the same would be
given later at the appropriate stage.
F
The High Court rejected the contention that the election petition was
time barred and, tljerefore, liable to be dismissed under Section 86 of the
R.P. Act. The High Court has held that the corrupt practices alleged have
been proved. Consequently, the election petition has been allowed and the
election of the returned candidate Manohar Joshi has been declared to be G
void on the ground under Section lOO(l)(b) of the R.P. Act. Hence this
appeal.
It would be appropriate to first deal with the contention of Shri Ram
Jethmalani relating to non-compliance of Section 81 of the R.P. Act which,
if correct, renders the election petition liable to be dismissed under Section H
432 SUPREME COURT REPORTS (1995] SUPP. 6 S.C.R.
A 86 thereof. The arguments of Shri Jethmalani in this respect have to be
considered with reference to Sections 81, 83 and 86(1) which are as under:
"81. Presentation of petitions. (1) An election petition calling
in question any election may be presented on one or more of the
grounds specified in *[sub-section (1)] of section 100 and section
B 101 to the **(High Court] by any candidate at such election or any
elector ***(within forty-five days from, but not earlier than, the
date of election of the returned candidate, or if there are more
than one returned candidate at the election and the dates of their
election are different, the later of those two dates.]
c Explanation. In this sub-section, 11 elector11 means a person who
was entitled to vote at the election to which the election petition
relates, whether he has voted at such election or not.
#[xx xx xx]
D
##[(3) Every election petition shall be accompanied by as
many copies thereof as there are respondents mentioned in the
petition### and every such copy shall be attested by the
petitioner under his own signature to be a true copy of the
petition.]
E
*Subs. by Act 27 of 1956, s.44, for "sub-sections (1) and (2)."
**Subs. by Act 27of1966,s.39, for "Election commission" (w.e.f.
14.12.1966).
F ***Subs. by Act 27 of 1956, for certain words, i.e., 'in such form
and within such time but not earlier than the date of publication
of the names of the returned candidate or candidates at such
election under Section 67, as may be prescribed."
G #Sub-section (2) omitted by Act 47 of 1966, s.39 (w.e.f.
14.12.1966).
##Ins. by Act 40 of 1961, s.17 (w.e.f. 20.9.1961).
###Certain words omitted by Act 47 of 1966, s.39 (w.e.f.
H 14.12.1966)."
MANOHARJOSHI v. N.B. PATIL(J.S.VERMA,J.] 433
"83. Contents of petition - (1) An election petition - A
(a) shall contain a concise statement of the material facts on
which the petitioner relies;
(b) shall set forth full particulars ·of any corrupt practice that
the petitioner alleges, including as full a statement as possible of B
the names of the parties alleged to have committed such corrupt
practice and the date and place of the commission of each such
practice; and
(c) shall be signed by the petitioner and verified in the manner
laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the C
verification of pleadings :
Pro'"<led that where the petitioner alleges any corrupt practice,
the petition shall also be accompanied by an affidavit in the
prescribed form in support of the allegation of such corrupt D
practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall also he
signed by the petitioner and verified in the same manner as the
petition."
E
"86. Trial of election petitions.- (1) The High Court shall dismiss
an election petition which does not comply with the provisions of
section 81 or section 82 or section 117.
Explanation. - An order of the High Court dismissing an elec-
tion petition under this sub-section shall be deemed to be an order F
made under clause (a) of section 98.
xxx xxx xxx"
Shri Jethmalani contended that the election petition should have
been dismissed by the High Court in accordance with Section 86(1) of the G
R.P. Act for non-compliance of sub-section (1) of Section 81 because it
was not presented within the prescribed limitation; and it ought to have
been dismissed thereunder, also for non- compliance of sub-section (3) of
Section 81. For the second part of the submission, Shri Jethmalani con-
tended that sub-section (3) of Section 81 must be read along with Section H
434 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
A 83 and, therefore, the copy of the election petition must be the copy of a
petition satisfying the requirement of Section 83(1) of the R.P. Act. These
are the two parts of the argument for invoking Section 86 for dismissal of
the election petition at the threshold. The question, therefore, is : Whether
there has been non-compliance of any part of Section 81 to attract Section
B 86 of the R.P. Act ? We will consider this argument at the outset.
NON-COMPLIANCE OF SUB-SECTION (1) AND/OR SUB-SECTION
(3) OF SECTION 81 OF THE R.P. ACT.
Re : Sub-section (I) of Section 81
c In substance, the point for decision is whether the election petition
filed on 16.4.1990 was presented within 45 days from the date of election
of the returned candidate as reqnired by sub-section (1) of Section 81,
since the last day of limitation, so reckoned, fell on 14.4.1990. Admittedly,
the High Court and its office was closed on 14.4.1990 as well as 15.4.1990
D on account of which the election petition could not have been presented
in the High Court on any of these two days. Incidentally, even 13.4.1990
was a holiday when the High Court and its office was closed, but that is
not of any significance since the last day of limitation was 14.4.1990. There
is no controversy that the provisions of the Limitation Act, 1963 are not
E applicable to the election petitions required to be presentr,d under the R.P.
Act and, therefore, Section 4 of the Limitation Act is of no avail. The only
question is whether Section 10 of the General Clauses Act, 1897 applies to
an election petition to permit filing of the election petition on the date
when the High Court opened after the holidays. If Section 10 of the
General Oauses Act is applicable then the election petition presented on
F 16.4.1990 was within the time prescribed by sub-section (1) of Section 81
and there would be no non-compliance of that provision to attract Section
86(1) of the R.P. Act requiring dismissal of the election petition as time
barred.
The submission of Shri Jethmalani is that the R.P. Act is a self-con-
G tained Code and, therefore, no provision outside the Act can be imported
for the purpose of computing the limitation for presentation of an election
petition. On this basis, he submitted that Section 10 of the General Clauses
Act has no application. In reply, Shri Ashok Desai, learned counsel forthe
respondents submitted that the scheme of the R.P. Act and the legislative
H history of the limitation prescribed by the Act for presentation of an
. MANOHAR JOSHI v. N.B. PATIL [J.S. VERMA, J.] 435
election petition dearly show that Section 10 of the General Clauses Act A
applies for computing limitation for presentation of an election petition.
Shri Desai also relied on the legal maxim - 'lex non Cojit ad impossibil/ia'
- which means 'the law does not compel a man to do that which he cannot
possibly perform.' Shri Desai submitted that the election petitioner was
entitled as of right to present the election petition on the last day of B
limitation which fell on 14.4.1990, but that day and the next day being
holidays when the High Court and its office was closed, the election
petition presented on 16.4.1990, the first day on which the Court and its
office opened after the holidays, was presented within the prescribed
period of limitation. On this basis, Shri Desai submitted, there was no
non-compliance of sub-section (1) of Section 81 of the R.P. Act. C
Section 10 of the General Clauses Act, 1897 is as under :
'10. Computation of time. - (1) Where, by any Central Act or
Regulation made after the commencement of this Act, any act or
pro<:eeding is directed or allowed to be done or taken in any Court D
or office on a certain day or within a prescribed period, then, if
the Court of office is closed on that day or the last day of the
prescribed period, the act or proceeding shall be considered as
done or taken in due time if it is done or taken on the next day
afterwards on which the Court or office is open : E
Provided that nothing in this section shall apply to any act or
proceeding to which the Indian Limitation Act, 1877, applies.
(2) This section applies also to all Central Acts and Regulations
made on or after the fourteenth day of January, 1887," F
A brief reference to the legislative history of the limitation prescribed
by sub-section (1) of Section 81 is relevant. The limitation of 45 days from
the date of election of the returned candidate for the presentation of an
election petition, has been prescribed in sub-section (1) of Section 81 itself G
by an amendment by substitution of certain words by Act 27 of .1956. Prior
to it, the period of limitation was required to be prescribed by the Rules
framed under the R.P. Act according to the words then used in sub-section
(1) of Section 81. Rule i19 of the Representation of the people (Conduct
of Elections and Election Petitions) Rules, 1951 (for short '1951 Rules'),
prescribed that period. The 1951 Rules also contained Rule 2(6) which H
436 SUPREME COURT REPORTS [1995) SUPP. 6 S.C.R.
A expressly provided for the application of the General Clauses Act to the
provisions in the Rules.
A similar question relating to applicability of Section 10 of the
General Clauses Act arose when the limitation was prescribed by the Rules
as required by the then existing sub-section (1) of Section 81 in, H.H. Raja
B Harinder Singh v. S. Kamai! Singh, [1957] SCR 208. It was held by this Court
that Section 10 of the General Clauses Act is applicable to the presentation
of election petitions. Thereafter, the same view has been taken in Hukum-
dev Narain Yadav v. La/it Narain Mishra, [1974) 3 SCR 31; Hari Shankar
Tripathi v. Shiv Harsh & Others, [1976] 3 SCR 308; and Simhadri Satya
C Narayana Rao v. M. Budda Prasad and Others, [1994) Suppl. 1 SCC
449 = (1991) 1 SCJ 281. The later decisions were in relation to election
petitions filed after amendment of Section 81(1) by Act 27of1956 prescrib-
ing the limitation in this Section itself. Shri Jethmalani tried to distinguish
those decisions on the ground that the earlier decision in H.H. Raja
Harinder Singh v. S. Kamai/ Singh, [1957] SCR 208 was followed without
D noticing the legislative change by amendment of sub- section (1) of Section
81. In view of the fact that this point was not raised in the manner it has
been done by Shri Jethmalani before us, it is appropriate that we consider
the merit of this submission.
E It is settled by the decision of this Court in Ram/al Motila/ and
Chhote/al v. Rewa Coalfields Ltd., [1962] 2 SCR 762 at page 767 that the
litigant has a right to avail limitation upto the last day and his only
obligation is to explain his inability to present the suit/petition on the last
day of limitation and each day thereafter till it is actually presented. This
F being the basic premise, it cannot be doubted that the election petitioner
in the present case was entitled to avail the entire limitation of 45 days upto
the last day, i.e., 14.4.1990 and he was required to explain the inability of
not filing it only on 14.4.1990 and 15.4.1990 since the petition was actually
presented in the High Court on 16.4.1990. If Section 10 of the General
Clauses. Act applies, the explanation is obvious and the election petition
G must be treated to have been presented within time.
The question now is : Whether the applicability of Section 10 of the
General Clauses Act to the presentation of election petitions under the
R.P. Act is excluded? No doubt the R.P. Act is a self-contained Code even
H for the purpose of the limitation prescribed therein. This, however, does
MANOHARJOSHI v. N.B.PATIL[J.S. VERMA,J.] 437
not answer the question. It has to he seen whether the context excludes the A
applicability of Section 10 of the General Clauses Act which is in the part
therein relating to the General Rules of Construction of all Central Acts.
The legislative history of prescribing limitation for presentation of election
petitions in accordance with sub-section (1) of section 81 is also significant
for a proper appreciation of the context. Admittedly, Section 10 of the
B
General Clauses Act applied when by virtue of the requirement in the then
existing sub-section (1) of Section 81, the period of limitation was
prescribed by Rules framed under the R.P. Act, in Rule 119 of the 1951
Rules. This was e:<pressly provided by Rule 2(6) of the 1951 Rules. There
is nothing to indicate that providing the period of limitation in sub-section
(1) of Section 81 itself by substitution of certain words by Act 27 of 1956 c
instead of prescribing the limitation by Rules, was with a view to exclude
the applicability of Section 10 of the General Clauses Act. The change
appears to have been made to provide for a fixed period in the Act itself
instead of leaving that exercise to be performed by the rule making
authority. An express provision in Rule 2(6) of the 1951 Rules was required D
since the General Clauses Act ipso facto would not apply to Rules framed
under the Central Act, even though it would to the Act itself. The context
supports the applicability of Section 10 of the' General Clauses Act instead
of indicating its exclusion for the purpose of computing the limitation
prescribed in sub- section ·(1) of Section 81 for presentation of election
petitions. E
In view of the basic premise that the election petitioner is entitled to
avail the entire limitation of 45 days for presentation of the election petition
as indicated by Ram/a/ (supra), if the contrary view is taken, it would
require the election petitioner to perform an impossible task in a case like F
the present, to present the election petition on the last day of limitation on
which date the High Court as well as its office is closed. It is the underlying
principle of this legal maxim which suggests the informed decision on this
point, leading to the only conclusion that Section 10 of the General Clauses
Act applies in the computation of the limitation prescribed by sub-section
(1) of Section 81 of the R.P. Act for presentation of an election petition. G
So computed, there is no dispute that the election petition presented in the
present case on 16.4.1990 was within limitation and there was no non-
compliance of sub-section (1) of Section 81 of the R.P. Act.
We have reached the above conclusion independent of the above H
438 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
A decisions of this Court rendered on petitions presented subsequent to the
amendment of sub-section (1) of Section 81. It may straightaway be said
that in all these cases applicability of Section 10 of the General Clauses
Act was either not doubted or was taken for granted. This is how the
position has been understood for all these years and no case taking the
B contrary view has been cited at the Bar. This settled position is in conform-
ity with the view we have taken on this point. There is no basis in law to
take a different view.
Re : Sub-section (3) of Section 81
C Sub-section (3) of Section 81 requires 'every election petition to be
accompanied by as many copy thereof as there are respondents, obviously
for the purpose of a copy of the election petition being served upon each
respondent along with the notice of the election petition. The submission
of Shri Jethmalani is that the election petition and, therefore, its accom-
D panying copy in accordance with Section 81(3) should satisfy the require-
ment of sub-section (1) of Section 83 as to the contents of the petition. He
argues that if the contents of the election petition which has been filed and
the copy accompanying it do not satisfy the requirement of Section 83(1),
there is non-compliance of Section 81(3) attracting sectinn 86 for dismissal
E of the election petition. The argument is that the defect in such a case is
in the accompanying copy of the election petition which is deficient in its
contents as required by Section 83(1). For this reason, he submits, it results
in non-compliance of Section 81(3) which attracts Section 86 of the R.P.
Act.
F In the present case, there is reference in paras 32 and 33 of the
election petition to certain video cassettes, the contents of which are
deemed to be incorporated by reference in the election petition, and since
the video cassettes or a transcript of its contents was not filed along with
the election petition and was not supplied with the copy of the election
G petition to the respondent (returned candidate), it is argued, that it has
resulted in non-compliance of Section 81(3) which attracts Section 86. No
further reference to the audio cassettes is necessary since the audio cas-
settes were not produced even at the trial and were not relied on by the
election petitioner for proof of the corrupt practice. These video cassettes
H were later produced at the trial but the subsequent production of the video
MANOHARJOSHI v. N.B.PATIL[J.S. VERMA,J.] 439
cassettes at the trial, it is urged, does not cure the defect of non-compliance A
of Section 81(3). In reply, Shri Ashok Desai submitted that the video
cassettes did not form part of the election petition as the contents thereof
are not incorporated by reference in the election petition and, therefore,
non-production of the video cassettes or their transcript with the election
petition and failure to annex the same to the copy of the election petition B
served on the returned candidate did not amount to non-compliance of
Section 81(3). Shri Desai submitted that Section 81(3) merely requires the
copy to conform with the election petition as presented in the court and
not an election petition as required to be drafted according to Section
83(1) of the R.P. Act. He further submitted that any defect or deficiency C
in the contents of the election petition found with reference to Section
83(1) of the R.P. Act may have any other consequence requiring the court
to act under Order 7 Rule 11 C.P.C. or Order 6 Rule 16 C.P.C., but there
is no non-compliance of Section 81(3) if the copy accompanying the
election petition which is served on the respondent is identical with the
election petition as it is actually presented in the court. In short, Shri Desai D
submitted that non-compliance of Section 83(1) of the R.P. Act is not
visited with the consequence of dismissal of the election petition at the
threshold under Section 86 and, therefore, the non-compliance of Section
81 which attracts Section 86 has to be seen without reference to Section 83
of the R.P. Act. Both sides have placed reliance on the same set of E
decisions to support the rival contentions.
There is no dispute that the election petition as presented in the
court, was accompanied by as many copies thereof as there were respon-
dents in the election petition; and the copy of the election petition served F
on the returned candidate with the notice of the election petition was
identical with the election petition as it was presented in the court. The
requirement of the plain language of Section 81(3) was, therefore, fully
met. The object of the provision is clearly to ensure that each respondent
to the election petition gets an identical copy of the election petition as
presented in the court to acquaint the respondent with t.he actual and full G
contents of the election petition as it is presented in the court. On the basis
of the identical copy the respondent can prepare his defence and also take
the plea of deficiency, if any, in the contents of the election petition with
reference to Section 83 of the R.P. Act, in order to apply in the court for
action being taken under Order 7 Rule 11 or Order 6 Rule 16, C.P.C., as H
440 SUPREME COURT REPORTS (1995] SUPP. 6 S.C.R.
A the case may be. These provisions are attracted only after the election
petition survives the liability for dismissal at the threshold under Section
86 of the R.P. Act.
Section 86 empowers the High Court to dismiss an election petition
at the threshold if it does not comply with the provisions of Section 81 or
B Section 82 or Section 117 of the Act, all of which are patent defects evident
on a bare examination of the election petition as presented. Sub-section
(1) of Section 81 requires the checking of limitation with reference to the
admitted facts and sub-section (3) thereof requires only a comparison of
the copy accompanying the election petition with the election petition itself,
C as presented. Section 82 requires verification of the required parties to the
petition with reference to the relief claimed in the election petition. Section
117 requires verification of the deposit of security in the High Court in
accordance with Rules of the High Court. Thus, the compliance of Sections
81, 82 and 117 is to be seen with reference to the evident facts found in
D the election petition and the documents filed along with it at the time of
its presentation. This is a ministerial act. There is no scope for any further
inquiry for the purpose of Section 86 to ascertain the deficiency, if any, in
the election petition found with reference to the requirements of Section
83 of the R.P. Act which is a judicial function. Fer th;.~ reason, the
E non-compliance of Section 83, is not specified as a ground for dismissal of
the election petition under Section 86.
Acceptance of the argument of Shri J ethmalani would amount to
reading into Section 86 an additional ground for dismissal of the election
petition under Section 86 for non-compliance of Section 83. There is no
F occasion to do so, particularly when Section 86 being in the nature of a
penal provision, has to be construed strictly confined to its plain language.
We may now refer to the decisions of this Court on which reliance
is placed by both sides to support the rival contention on this point. In
G Sahodrabai Rai v. Ram Singh Aharwar, (1968] 3 SCR 13, a translation in
English of the pamphlet annexed to the election petition was incorporated
in the body of the election petition and it was stated in the petition that it
formed part of the petition. Along with the copy of the election petition
which contained the entire transcript in English of the pamphlet, a copy of
H the pamphlet had not been annexed. The respondent raised the objection
MANOHARJOSHI v. N.B.PATIL[J.S. VERMA,J.] 441
that the copy of the election petition served on him was not a copy of the A
election petition presented in the High Court and, therefore, the election
petition was liable to be dismissed under Section 86 of the R.P. Act. It was
held by this Court that the pamphlet which was filed as an annexure to the
election petition must be treated as a document filed with the election
petition and not a part of the election petition in so far the averments are B
concerned. Obviously, this view was taken because the contents of the
pamphlet were incorporated in the body of the election petition of which
a copy was duly served on the respondent. Accordingly, it was held that
there was no non-compliance of Section 81(3) and the petition was not
liable to be dismissed under Section 86 of the R.P. Act. In A. Madan
Mohan v. Kalavakunta Chandrasekhara, (1984] 2 SCC 288, the earlier
c
decision in Sahodrabai Rai (supra) was followed. It was held that failure
to furnish copy of schedules and documents which not form an integral
part of the election petition was not fatal to the petition and it was not
liable to be dismissed under Section 86 of the R.P. Act. An earlier decision
in M. Kanmanidl1i Etc. Etc. v. Dr. H. V. Hande and Others Etc. Etc., (1983] D
2 SCC 473 was distinguished and it was pointed out that M. Kanmanidhi
(supra) did not depart from the ratio laid down in Sahodrabai Rai (supra).
Para 15 of the decision in A. Madan Mohan (supra) is as under :
''This decision in no way departs from the ratio laid down in E
Sahodrabai case. The aforesaid case, however, rested on the
ground that the document (pamphlet) was expressly referred to in
the election petition and thus became an integral part of the same
and ought to have been served on the respondent. It is, therefore,
manifest that the facts of the case cited above are clearly distin-
guishable from the facts of the present case. Furthermore, the F
decision in M. Ka1una11idhi case has noticed the previous decision
and has fully endorsed the same."
(at page 292)
This decision by a 3-Judge Bench also indicated that this stringent
G
provision must be construed literally and strictly. Para 13 of the decision
is as under :
"It is a well settled principle of interpretation of statute that
wherever a statute contains stringent provisions they must be H
442 SUPREME COURT REPORTS (1995] SUPP. 6 S.C.R.
A literally and strictly construed so as to promote the object of the
Act. As extracted above, this Court clearly held that if the argu-
ments of the appellant (in that case) were to be accepted, it would
be stretching and straining the language of Sections 81 and 82 and
we are in complete agreement with the view taken by this Court
which has decided the issue once for all."
B
(at page 291)
Another decision referred is U.S. Sasidharan v. K. Karnnakaran and
Another, (1989] 4 SCC 482. That was a case in which a document was
C incorporated in the election petition by reference and was filed with the
election petition in a sealed cover but a copy was not supplied to the
returned candidate along with a copy of the election petition. In such a
situation, it was held to be non-compliance of Section 81{3) rendering the
election petition liable for dismissal under Section 86(1) of the R.P. Act.
This conclusion was reached on the view that non-supply of copy of the
D document with a copy of the election petition was a fatal defect because
the document was filed in the High Court with the election petition and it
formed an integral part of the election petition. This decision also indicates
the distinction between a document forming an integral part of the election
petition and being produced merely as evidence of an averment made in
E the election petition.
The distinction brought out in the above decisions is, that in a case
where the document is incorporated liy Teference in the election petition
without reproducing its contents in the body of the election petition, it
forms an integral part of the petition and if a copy of that document is not
F furnished to respondent with a copy of the election petition, the defect is
fatal attracting dismissal of the election petition under Section 86{1) of the
R.P. Act. On the other hand, when the contents of the document are fully
incorporated in the body of the election petition and the document also is
filed with the election petition, not furnishing a copy of the document with
G a copy of the election petition in which the contents of the document are
already incorporated, does not amount to non-compliance of Section 81(3)
to attract Section 86(1) of the R.P. Act. In other words, in the former case
the document filed with the election petition is an integral part of the
election petition being incorporated by reference in the election petition
H and without a copy of the document, the copy is an incomplete copy of the
MANOHARJOSHI v. N.B.PATIL[J.S.VERMA,J.] 443
election petition and, therefore, there is non-compliance of Section 81(3). A
In the other situation, the document annexed to the petition is mere .
evidence of the averment in the electio~ petition which incorporates fully
the contents of the document in the body of the election petition and,
therefore, non-supply of a copy of the document is mere non-supply of a
document which is evidence of the averments in the election petition and, B
therefore, there is no non-compliance of Section 81(3). In U.S. Sasidhara11
(supra), this distinction is clearly brought out as under :
"......... The material facts or particulars relating to any corrupt
practice may be contained in a document and the election
petitioner, without pleading the material facts or particulars of C
corrupt practice, may refer to the documBnt. When such a refer-
ence is made in the electiou petition, a copy of the document must
be supplied inasmuch as by making a reference to the document
and without pleading its contents in the election petition, the
document becomes incorporated in the election petition by refer- D
ence. In other words, it forms an integral part of the election
petition. Section 81(3) provides for giving a true copy of the
election petition. When a document forms an integral part of the
election petition and a copy of such document is not furnished to
the respondent along with a copy of the election petition, the copy
of the election petition will not be a true copy within the meaning E
of Section 81(3) and, as such, the court has to dismiss the election
petition under Section 86(1) for non-compliance with Section
81(3)."
"On the other hand, if the contents of the document in question
are pleaded in the election petition, the document does not form F .
an integral part of the election petition. In such a case, a copy of
the document need not be served on the respondent and that will
not be non-compliance with the provision of Section 81(3). The
document may be relied upon as an evidence in the proceedings.
In other words, when the document does not form an integral part G
of the election petition, but has been either referred to in the
petition or filed in the proceedings as evidence of any fact, a copy
of such a document need not be served on the respondent along
with a copy of the election petition."
(paras 15 and 16 at page 489) H
444 SUPREME COURT REPORTS (1995] SUPP. 6 S.C.R.
A It may be mentioned that in all the above decisions cited at the Bar,
the documei;it in question had been filed in the court along with the election
petition, but a copy of the document was not supplied to the respondent
with the copy of the election petition. In those cases wherein the annexed
document was treated to be incorporated by reference in the election
B petition forming an integral part of the election petition, non-supply of a
copy of the document was held to be fatal warranting dismissal of the
election petition under Section 86(1) for non-compliance of Section 81(3).
In the other cases, the document was filed with the election petition, but
the contents thereof were also incorporated in the body of the election
petition, a copy of which had been supplied to the respondent even though
C copy of that document was not furnished in addition. In those cases, non-
supply of a copy of the document was held not to be non-compliance of
Section 81(3) because the document annexed to the election petition was
treated as evidence of the averments contained in the body of the election
petition, a copy of which had been furnished to the respondent. This is the
D gist of these decisions which also indicates that the question has to be
answered with reference to the kind of use made of the document annexed
to the petition, whether as an integral part of the election petition or merely
as evidence of the pleadings contained in body of the election petition.
In the present case, the video cassettes, non-supply of a copy of
E transcript of which is urged by Shri Jethmalani to be a ground for non-
compliance of Section 81(3), were not even filed in the High Court with
the election petition in the High Court. This is, therefore, not a case of
non-supply of a copy of a documont w:.ich was filed along with the election
petition. What was supplied to the returned candidate in the present case,
F was a true copy of the election petition as it was presented in the court
without the video cassettes of which mere mention was made without
incorporating its contents by reference or enumerating it in the election
petition. It is not the case of the election petitioner that the full contents
of the video cassettes or their transcripts are incorporated by reference in
the election petition in order to make the video cassettes an integral part
G of the election petition, inasmuch as no video cassette was along with the
election petition as it was presented in the High Court. Reliance is placed
by the election petitioner on the video cassettes produced later during the
trial as only evidence of the pleading in paras 32 and 33 of the election
petition. It is, therefore, clear that the contents of the video cassettes,
H except to the extent pleaded in paras 32 and 33 of the election petition,
MANOHARJOSHI v. N.B.PATIL[J.S. VERMA,J.] 445
cannot be treated to be incorporated by reference in the election petition A
as a part of the pleadings and its use is sought to be made by the election
petitioner only as evidence of tbe everments contained in paras 32 and 33
of the election petition. Admittedly, a true copy of the election petition as
presented in the High Court was furnished to the returned candidate
along with the notice of the electior1 petition. There was thus no non-com- B
pliance of sub-section (3) of Section 81 of the R.P. Act. The election
petition was, therefore, not liable to be dismissed under Section 86(1) even
on the ground of non-compliance of section 81(3) of the R.P. Act.
The contention of Shri Jethmalani that the entire election petition is
liable to be dismissed under Section 86(1) of the R.P. Act for non-com- C
pliance of sub-section (1) and/or sub-section (3) of Section 81 is, therefore,
rejected.
No11-compliance of Sectio11 83(1) of the RP. Act - Its effect.
D
The next question now is : Whether the contents of the election
petition are as required by Section 83 of the Act or there is any deficiency
therein to attract Order 7 Rule 11 or Order 6 Rule 16, C.P.C. ? This
question arises from the alternative submission of Shri J ethmalani who
contended that the pleading of corrupt practice with reference to the use
of video cassettes is deficient and is, therefore, liable to be struck out under E
Order 6 Rule 16, C.P.C. He submitted that this would leave for considera-
tion only the speeches of Manohar Joshi, Bal Thackeray, Praniod Nawalkar
and Chhagan Bhujbal on 24.2.1990 as the only basis for the charged of the
corrupt practice under sub-sections (3) and (3A) of Section 123 for con-
sideration in the election petition. He urged that there is no pleading of F
any part of the speech of Chhagan Bhujbal in the election petition and,
therefore, reference to his speech is in!'ocuous. For the speeches of
Manohar Joshi, Bal Thackeray and Pramod Nawalkar, he urged that the
specific pleading contained in the body of the election petition alone
requires consideration, excluding all other material brought on record G
during the trial which is an impermissible addition to the record on account
of a serious mistrial resulting froin the unusual procedure adopted by the
learned trial Judge in the High Court. Shri Jethmalani referred copiously
to the evidence to support his submission that the learned trial Judge
himself directed a witness to search for certain documents and produce
them in addition to extensively cross-examining that witness himself to H
446 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
A bring on record a lot of material which is wholly irrelevant and inadmis-
sible. In short, his submission is that on the basis of the only pleading
contained in the body of the election petition and the admissible and
relevant evidence alone, no corrupt practice under sub-section (3) or sub-
section (3A) of Section 123 is made out.
B Some other questions arising out of the remaining arguments of Shri
Jelhmalani and reply of Shri Ashok Desai which are referred later, have
to be considered with reference to the pleadings of the parties. It is,
therefore, appropriate at this stage to quote the relevant pleadings in the
election petition and the written statement of the returned candidate.
c We must observe that the pleadings of the parties are frivolous and
prolix of which only certain portions were relied at the hearing of the
appeal by the learned counsel for the parties and, therefore, reference only
to the relevant portions of the pleadings is necessary. We may add that the
failure to exclude from consideration the pleading which is prolix and
D irrelevant, has led to the reception of considerable evidence which too is
irrelevant and inadmissible resulting in needless increase in the bulk of the
record of the trial court and an excursion by the High Court into an
irrelevant area. There has been a failure to invoke and apply the provisions
in the code of Civil Procedure at the pretrial stage which has led to an
E improper frame of the issues resulting in lack of focus on the real points
in controversy alone confined to the actual pleadings.
According to Shri Ashok Desai, learned counsel for the respondents,
the relevant pleadings relating to the allegation of corrupt practices
pleaded in the election petition are in paras 2, 5(o), 7, 8, 16, 17, 18, 30, 31,
F 32, 33 and the first sentence of para 35 as well as paras 59 and 60 of the
written statement. According lo Shri J ethmalani, learned counsel for the
appellant, the relevant pleadings are only in paras 30, 31, 32 and 33 of the
election petition. At any rate, nothing more has to be seen in the election
petition for this purpose in addition to the portions pointed out by Shri
G Desai. These portions of the election petition and the written statement are
as under:
From Election Petitio11 No. 24/1990 (as typed i11 paper book)
"(2) The petitioner says that the petitioner had contested the
H general election to the Maharashtra Legislative Assembly held on
MANOHARJOSHI v. N.B.PATIL[J.S. VERMA,J.] 447
27.2.1990 (hereinafter referred to as "the said election") as a A
candidate cif Indian National Congress (Congress-I) with the
election symbol of "Hand". The Respondent was the candidate of
Shiv Sena Party with the election symbol of "Bow & Arrow'' put
by the alliance of two parties viz. Shiv Sena and Bhartiya J anata
Party (BJP). The other candidates were either independent can-
B
didates or belonging to other political parties like Janta Dal, etc."
"5. The Petitioner states that before setting out the nature of
corrupt practices committed by the first respondent, it is necessary
to give cert~in facts which have transpired in India over the last
one decade, which are as under : C
xxx xxx xxx
(o) The petitioner states that all the aforesaid facts show
that the said two parties, viz; BJP and Shiv Sena have
systematically exploited various unfortunate disputes D
set out hereinabove so as to seek votes during the
parliamentary election and the election in question in
the name of "Hindutva" i.e. Hindu religion."
"7. The petitioner states" that accepting a candidature in the elec-
tion of the said alliance meant that the said particular candidate E
had accepted the basic concept and plank on which the said two
parties were jointly contesting the elections for the Assembly. It
further meant that the candidate accepted Bal Thackeray, Pramod
Mahajan, Kirit Somaiya as their leaders and consented to the said
..., leaders making an appeal to vote for the candidates of the said F .
alliance. It further meant that the philosophy and ideology of the
leaders of the alliance, and particularly Bal Thackeray, such as (a)
Hindus are and Hindu religion is in danger, (b) that only the
alliance can protect Hindus and Hindu religion, (c) that the
Congress-I and Janta Dal have failed to protect, and will not G
protect Hindus and Hindu religion and their candidates are unfit
to be elected, (d) that Hindus have suffered and will continue to
suffer indignity, discrimination and unequal treatment, ( e) that the
problems in states like Kashmir, Punjab, Assam etc. have arisen
because of the pampering of the minorities, (t) that Hindus must
come together and fight the attack on them and-their religion and H
448 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
A say with pride that they are Hindus, (g) that Hindus owed a duty
to their religion and if necessary must give their life for it, (h) that
minorities, and particularly the Muslims, were treated more
favourably for their votes than Hindus.
8. The petitioner states that the respondent being a candidate of
B the said alliance, has accepted the ideology and philosophy of the
said alliance, some of which is set out hereinabove. The respondent
also consented to the leaders of the said alliance such as Bal
Thackeray, Pramod Mahajan, Kiri! Somaiya, Gopinath Mundhe
and others making appeals to the voters to vote for her. In fact, as
c more particularly set out hereinbelow the respondent herself has
expressly made a;i appeal to vote for her to fight for Hinduism."
"16. The petitioner states that similarly another joint public meeting
was held in the said constituency i.e. at Shivaji Park, Dadar on
24.2.1990. At the said meeting most of the candidates of the
D BJP-Shiv Sena alliance, including the Respondent herein, were
present. The said meeting was addressed by the leaders of the said
alliance. At the said meeting Bal Thackeray reiterated that the said
alliance was contesting the elections in the name of Hindu religion
and to fight for Hindutva. The proceedings of the said meeting
E were widely reported in various dailies viz; 'Mumbai Sakal', 'Nava
Kai', 'Navshakti, 'Maharashtra Times', 'Navbharat Times',
'Loksatta', 'Sunday Observer', 'The Times of India', 'Indian
Express' all dated 25.2.1990 and 'Samna' dated 25.2.90 and
26.2.1990. The petitioner craves leave to refer to and rely upon
said press reports as and when produced.
F
17. Some of the most offending statement made at the said meeting
by the leaders of the said alliance are as under :
(a) To handle the Congress-I hoodlums the Shiva Sainiks may
G take law in their hands and use firearms if necessary (Thackeray).
(b) To save ''Hindutva" vote for BJP-Sena Nominees (Pramod
Mahajan, BJP-MP).
(c) Mr. Rajiv Gandhi does not know his own religion, and thus
H has no right to speak on Hinduism (Pramod Mahajan).
MANOHARJOSHI v. N.B.PATIL[J.S. VERMA,J.] 449
(d) The result of these elections will not only depend on the A
solution to the problem of food, cloth but the same will also decide
whether in the state the flame of Hindutva will grow or will be
extinguished. If in Maharashtra the flame of Hinduism is extin-
guished, then anti-national Muslims will be powerful and they will
convert Hindustan into Pakistan. If the flame of Hindutva will grow B
than in that flame the anti-national Muslims will be reduced to
ashes (Pramod Mahajan).
(e) We must protect 'Hindutva' at all costs and for that we must
not allow the saffron (Bhagwa) of Shri Chhatravathi Shivaji
Maharaj to fall from our shoulders (Pramod Mahajan). C
(I) Rajiv Gandhi speaking on Hindutva is like a prostitute
lecturing on fidelity. The country is again heading for partition. It
is, therefore, necessary that in these circumstances and to keep the
flame of Hindutva aline, the alliance of BJP-Shiv Sena should be
elected (Mahajan). D
(g) (Referring to Rajiv Gandhi), wife Christian, mother Hindu,
father a Parsee and therefore himself without any (Hindu) cul-
ture/teaching (vevarsi). (Pramod Mahajan).
E
18. The petitioner states that the proceedings of the said meeting
were tape-recorded and taken down in shorthand by the police
authorities. The petitioner craves leave to refer to and rely upon
the said tape-recorded speeches and the speeches taken down in
shorthand by police authorities."
F
"30. The petitioner states that the respondent himself in his
capacity as a candidate from the said constituency as well as a
leader of the said alliance made appeals which offends the
provisions of the said Act, For e.g. in the meeting held on 24.2.1990
at Shivaji Park, the respondent stated the first Hindu State will be
established in Maharashtra. Similarly in various other public meet- G
ings, the respondent herein made objectionable appeals. Some of
the meetings were reported in newspapers. The petitioner states
that such meetings were held at Khaddke Building, Dadar on
21.2.1990, Prabhadevi on 16.2.1990, at Kumbharwada on 18.2.1990,
and Khed Galli on 19.2.1990. At all the said meetings, as well as H
450 SUPREME COURT REPORTS (1995] SUPP. 6 S.C.R.
A meetings at other places, the other speakers who were present for
e.g. Pramod Mahajan (M.P.-BJP) Dada Kondke (Marathi Actor)
Jayantiben Mehta, Chandrika Kenia (MPs) made objectionable
appeals to vote for the respondent.
31. In fact the speakers went on to say that on the respondent
B being elected and on the said alliance establishing a Hindu Govern-
ment, we will give jobs to all Hindus. The petitioner craves leave
to refer to and rely upon the election diaries maintained by the
local police stations, the speeches recorded by the Special Branch-I
on audio cassettes, video cassettes and the speeches recorded in
c Marathi shorthand. The petitioner also craves leave to refer to and
rely upon the press reports of the said meetings.
32. The petitioner states that in addition to holding public meet-
ings, the said alliance had also taken out video cassettes and audio
cassettes. The video cassettes were titled "Challenge & Appeal
D
"Shiv Sena" and the other called "Ajinkya". The said video cassettes
and audio cassettes discloses promises, appeals, exhortations and
inducements to the voters to vote for the said alliance and their
candidates. The said cassettes show that the said alliance has scant
respect for the religious. beliefs and practices of other religions like
E Muslims, Christians etc. Not only the other religions are ridiculed
but the followers thereof are termed as "traitors" and "betrayers".
Under the guise of protecting Hindu religion/Hindutva the said
cassettes attach other religions and whips up lowherd instincts and
animosities. The concept of Secular democracy is totally
eliminated. It generates powerful emotions by appealing to the
F
Hindu voters to vote for the candidates of the alliance on a false
impression given to voters that only the alliance and its candidates
can protect Hindu religion. The petitioner will rely upon the visuals
which have the aforesaid effect on the voters. The petitioner also
craves leave to refer to and rely upon the said video cassettes as
G and when produced.
33. The petitioner states that the said alliance had also issued audio
cassettes wherein the speeches of the leaders of the said alliance
like Bal Thackeray, at various places in Maharashtra are recorded,
H e.g. Parbhani, Sely Aurangabad, Panvel, Girgaon, Vashi (New
MANOHARJOSH! v. N.B.PATIL[J.S. VERMA,J.] 451
Bombay) etc. The said audio cassettes as well as the video cassettes A
were played in the said constituency, particularly at the Shakha
offices, street corners after 6.30 p.m. They were regularly exhibited
at or near the places of residence of some of the active workers
of the said alliance in the said constituency. The exhibition and
playing of the cassettes was on a large scale in the said constituen- B
cy. The petitioner craves leave to refer to and rely upon the said
audio cassettes as and when produced."
"35. The petitioner states that the aforesaid facts clearly prove that
the respondent and his agents with his consent have indulged into
corrupt practices listed under section 123 of the said Act. ......... " C
FP1111 Written Statement
(as :y;'e,d in paper book)
"59. With reference to para 32 of the Petition, it is true that the D
said alliance has taken two video ca<Settes known as "AJIMKYA"
and "AVAHAN AND VAWHAN". However, it is totally false to
the knowledge of the petitioner to allege that the said alliance
and/or Shiv Sena party and/or I have and/or my election agent
and/or any person has with my consent and/or election agent
and/or any person has with my consent and/or knowledge has taken E
out any audio cassettes as alleged. This respondent denies that the
said video cassettes disclose any promises and/or appeals and/or
extortions and/or inducements which in any manner amount to
corrupt practice and or any other offence under the Repre-
sentation of People Act, 1951 as alleged or at all and puts the F
petitioner to the strict proof thereof. This respondent denies that
the said cassettes or either of them show any religious beliefs
and/or practices as alleged. This Respondent categorically denies
that the said cassettes or either of them show any scant or dis-
respect for any religion or any religious beliefs and/or practices as G
alleged. This Respondent categorically denies that the said casset-
tes or either of them show any scant respect for Muslims and/or
Christian and/or any other religion as alleged or at all and puts
the petitioner to the strict proof thereof. This Respondent categori-
cally denies that any religion has been ridiculed and/or followers
thereof are termed as 11Traitorsn and/or "Betrayers" as alleged or H
452 SUPREME COURT REPORTS [1995] SUPP. 6S.C.R.
A at all and puts the Petitioner to the strict proof thereof. This
Respondent denies that the said cassettes and/or either of them
attach other religions and/or whips up lowherd instincts and/or
animosities as alleged or at all. This respondent denies that the
said cassettes or either of them had appealed to the voters in the
name of religion as alleged. This respondent submits that it has
B been held by the Supreme Court of India innumerable cases that
whenever a reference is made in the election petition to a docu-
ment, and the document includes an audio or video cassette, copy
of such document must be supplied along with the Election Peti-
tion to the concerned Respondent inasmuch as by making a ref-
c erence to the document and without pleading its contents in the
Election petition, the documents becomes incorporated in the
Election Petition by reference. It becomes an integral part of the
Election Petition under Section 81 and as required by Section 81
when document forms an integral part of the petition and the copy
of the said document is not furnished to the Respondent alongwith
D
the Election Petition, copy of the Election Petition will not be a
true copy within the meaning of Section 81 and the same is liable
to be dismissed under the provisions of Section 86. Paragraph 32
of the Petition does not give any material particulars about the
allegations which are sought to be made. It is submitted that the
E test to be applied where the pleadings discloses material facts and
cause of action is that in absence of answer from the Respondent,
would the court be in a position to give a judgment in favour of
the petitioner. It is submitted that in the instant case, the answer
is emphatically no and hence the entire contents of para 32 are
wholly irrelevant, vexatious and abuse of this Hon'ble Court. The
F
said pleadings, therefore, are not a complete cause of action and
in breach of provisions of Sections 81, 82 and 86 of the Repre-
sentation of People Act and the election petition is liable to be
and should be dismissed.
G 60. With reference to para 33 of the petition, this Respondent
categorically denies that the said alliance and/or Shiv Sena Party
and/or BJ.P. Party issued any audio cassette as alleged and this
Respondent puts the petitioner to strict proof thereof. The said
paragraph alleges that the said video and/or audio cassettes were
H played in the said constituency particularly at Shakha Office,
MANOHARJOSH! v. N.B.PATIL[J.S.VERMA,J.] 0
453
Street, corners. The said paragraph does not state the place, date A
and time when the said cassettes are alleged to have been played.
It further does not mention the names of the person who are
alleged to have played the said cassettes. This Respondent submits
that it has been held by the Supreme Court of India that the
allegations of corrupt practice are in the nature of criminal char- B
ges, and it is necessary that there should be no vagueness in the
allegations so that the returned candidate may know how the case
he has to meet. If the allegations are bogus and general and the
particular<; qf corrupt practice are not stated in the petition then
in such a case the petition does not disclose any canse of action
and the Petition does not disclose any cause of action and the C
petition is liable to be and should be dismissed. Furthermore, as
mentioned in the above paragraph, it has been held by the Supreme
Court of India that when a reference has been made in the Petition
to any document including a video or audio cassette, a copy of the
said document, must be supplied along with the Election Petition D
because by making a reference to such a document the same forms
integral part of the petition and therefore, without a copy of the
said document the petition is incomplete. This Respondent, there-
fore, submits that for the reasons mentioned above, the Petition is
liable to be and should be dismissed with costs."
E
It would also be appropriate to qnote the issues framed on 9.1.1992
by the High Court on these pleadings, as under. --
"1. Whether the Respondent has committed any of the corrupt
practices as defined in Section 123(3) of the Representation of p
Peoples Ac~ 1951 as alleged in the Petition ?
2. Whether the Election Agent.or any other Agent of the Respon-
dent has committed any of the corrupt practices as defined in
Section 123(3) of the ·Representation of Peoples Act, 1951 as
alleged in the Petition ? G
3. Whether any other person with the consent of the Respondent
or his Election Agent has committed any of the corrupt practices
as defined in Section 123(3) of the Representation of Peoples Act,
1951 as alleged in the Petition ? H
454 • SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
A 4. Whether the Respondent has committed any of the corrupt
practices as defined in Section 123(3)(A) of the Representation of
People Act, 1951 as alleged in the Petition ?
5. Whether the Election Agent or any other Agent of the Respon-
dent has committed any of the corrupt practices as defined in
B Section 123(3A) of the Representation of People Act, 1951 as
alleged \n the Petition ?
6. Whether any other person with the consent of the Respondent
or his election Agent has committed any of the corrupt practices
as defined in Section 123(3A) of the Representation of Peoples
c Act, 1951 as alleged in the Petition ?
7. Whether the Petitioner proves that the Respondent has com-
mitted the corrupt practices as defined in Section 123(7) of the
Representation of the Peoples Act 1951 as alleged in the Petition?
D
8. Whether the Election of the Respondent is to be set aside ?
9. Generally ?
It may be mentioned that issue No. 6(A) was frame<l ••.v ,notu by the High
E Court almost at the fag end of the trial, as under :
"6.(A) Whether the Hindutva as used by the Shiv Sena Party during
the Maharashtra Legislative Assembly Election 1990 is as alleged
in the Petition or as alleged in the Written Statement ?"
F After both sides closed their respective cases, on the submission of
Shri Jethmalani, the following issues were also permitted to be raised by
order dated 4th January, 1993 :
"1.(A) Whether the Petition is filed beyond the period of 45 days
fixed by Section 81 of the Representation of People Act, 1951 and
G requires to be peremptorily dismissed under Section 86 thereof'?
1.(B) Whether the Petition must be dismissed for its failure to
plead or disclose under what part of Section 100 of the Act relief
is claimed ?"
H It was strenuously argued by Shri Desai that there is admission of the
MANOHAR.IOSHI v. N.B.PATIL[J.S. VERMA,J.] 455
returned candidate in his writren statement about the existence and use of A
the video cassettes during the election campaign in the constituency and
even of its contents, the only dispute being related to the meaning of the
contents. On this basis, it was urged that there is no deficiency in the
pleading of the corrupt practice in the election petition and the require-
ment of its proof is reduced to a great extent by admission in the written B
statement. The High Court has taken this view which is supported and
relied on by Shri Desai in his submission. The High Court's judgment
proceeds on this basis. It is therefore, necessary to examine this aspect at
this stage.
Assuming the contents of the video cassette amount to the kind of C
speech or act which is a corrupt practice under sub-section (3) or sub-sec-
tion (3A) of Section 123, in order to constitute that corrupt practice it must
further be shown that the act was done during the election campaign
between 8.2.1990 when the returned candidate became a 'candidate' and
27.2.1990 the date of poll, and that it was the act of the candidate or his D
agent or any other person with his consent. Unless all these constituent
parts of the corrupt practice are pleaded to constitute the cause of action
raising a triable issue.and are then proved by evidence, the corrupt practice
cannot be held to be pleaded and proved. If the act attributed is by the
display of a video cassette recorded some time earlier, the display being E
between the above dates in the constituency, a mere display of the video
cassette does not prove all the constituent parts of the corrupt practice,
inasmuch as it must also be pleaded and proved that such display was by
the candidate or his agent or any other person with his consent. Where the
display of the cassette is attributed to any other person with the consent
of the candidate, the liability of the candidate for commission of the
F
corrupt practice results vicariously from the act of the other person done
with the consent of the candidate. In such a case, the constituent part of
the corrupt practice is the act done by any other person, not by the
candidate himself or his agent for whose act the candidate's consent is
assumed, With the authorisation for the act being done by any other person G
with the candidate's consent. This distinction between the act amounting
to corrupt practice done by the candidate himself or his election agent and
any other person with his consent has to be kept in view. This has relevance
also for the purpose of Section 99 of the R.P. Act with reference to which
one of the arguments has been addressed. H
456 SUPREME COURT REPORTS [1995) SUPP. 6 S.C.R.
A It was argued by Shri Ashok Desai that in case of the provocative
aud incendiary speeches given by acknowledged leaders of the political
party the consent of the candidate set up by their party has to be assumed
being implicit from the relationship of the candidate with the speaker
through the medium of the party. On this basis, it was urged that a party
B candidate must be held to have consented to such speeches made by the
leaders of that party and, therefore, if the speech of the leader satisfies the
other requirements of the corrupt practice, the consent of the candidate
which too is a constituent part of the corrupt practice, must be assumed
to make out the ground under Section lOO(l)(b) of the R.P. Act for
declaring his election to be void. Shri Desai made a fervent emotive appeal
C that unless the law is so construed, a candidate of the party will get the
benefit to appeal for votes on the ground of his religion on the basis that
his consent has not been pleaded and proved, thereby frustrating the object
of the enactment and adversely affecting the purity of elections which is of
essence in a democracy. It was argued that leaders of the party must be
D assumed to be agents of the candidates of that party for the purpose of the
ground of corrupt practice.
In our opinion, the fallacy in the argument is that it overlooks certain
other provisions of the R.P. Act. Section 100 of the R.P. Act is as under :
E "JOO. Grounds for declaring election to be void. - (1) Subject to
the provisions of sub-sectiol) (2) if the High Court is of opinion-
(a) that on the date of his election a returned candidate was
not qualified, or was disqualified, to be chosen to fill the seat under
the constitution or this Act or the Government of Union Ter-
F ritories Act, 1963 (20 of 1963) : or
(b) that any corrupt practice has been committed by a returned
candidate or his election agent or by any other person with the
consent of a returned candidate or his election agent; or
G (c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a
returned candidate, has been materially affected -
H (i) by the improper acceptance of any nomination, or
MANOHARJOSHI v. N.B.PATIL[J.S.VERMA,J.] 457
(ii) by any corrupt practice committed in the interests of the A
returned candidate by an agent other than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote
or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitu- B
tion or of this Act or of any rules or orders made under this Act,
the High Court shall declare the election of the returned candidate
to be void.
(2) If in the opinion of the High Court, a returned candidate c
has been guilty by an agent, other than election agent, of any
corrupt practice but the High Court is satisfied -
(a) that uo such corrupt practice was committed at the election
. by the candidate or his election agent, and every such corrupt D
practice was committed contrary to the orders, and without the
consenl, of the candidate or his election agent;
(b) Omitted.
(c) that the candidate and his election agent took all reasonable E
means for preventing the commission of corrupt practices at the
election; and '
( d) that all other respects the election was free from any
corrupt practice on the part of the candidate or any of his agents,
F
then, the High Court may decide that the election of the returned
candidate is not void. 11
The distinction between clause (b) of sub-section (1) and sub-clause
(ii) of clause ( d) therein is significant. The ground in clause {b) provides G
that the commission of any corrupt practice by a returned candidate or his
election agent or by any other person with the consent of a returned
candidate or his election agent by itself is sufficient to declare the election
to be void. On the other hand, the commission of any corrupt practice in
the interests of the returned candidate by an agent other than his election
agent (without the further requirement of the ingredient of consent of a H
458 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
A returned candidate or his election agent) is a ground for declaring the
election to be void only when it is further pleaded and proved that the
result of the election in so far as it concerns a returned candidate has been
materially affected. This ground is further subject to sub-section (2) of
Section 100 of which the onus is on the returned candidate.
B It is, therefore, clear that if the corrupt practice is committed in the
interests of the returned candidate by any other person, even if he be an
agent other than his election agent, without the consent of the returned
candidate or his election agent, the law provides for the election to be
declared void under Section lOO(l)(d)(ii) provided it is also pleaded and
C proved that the result of the election of the returned candidate has been
materially affected thereby. The apprehension expressed by Shri Ashok
Desai is, therefore, ill founded since the law clearly provides that the
returned candidate would not get the benefit of a corrupt practice com-
mitted in his interests by anyone if the result of the election is shown to be
D materially affected thereby.
Apart from this aspect, it has also to be remembered that provision
is made in the R.P. Act as well as in the general law to punish the makers
of such incendiary speeches for the offences committed by them in the form
of electoral offences e.g. under Section 125 of the R.P. Act and Sections
E 153A, 153B, and 295A of the Indian Penal Code. Thus even if the acknow-
ledged leaders of a party have committed any corrupt practice which
•
results in benefit to the returned candidate then on proof of the benefit
having materially affected the election 1.0.~!: in favour of the candidate, his
election would be set aside on the ground under Section lOO(l)(d)(ii) of
F the R.P. Act. There is thus no occasion to read into the ground in Section
lOO(l)(b) or the definition of "corrupt practice" the implied consent of the
candidate for any act done by a leader of that party to dispense with clear
pleading and proof of the candidate's or his election agent's consent as a
constituent part of the corrupt practice for the ground under section
lGO(l)(b) of the R.P. Act.
G
It may also be mentioned that the proposition suggested in the
argument of Shri Desai does not appear to be correct. Whenever the
requirement is of consent, it must be free consent given by the giver of the
consent, of his own violation. Ordinarily, it also implies a subservient role
H of the person to whom consent is given and the authority of the giver of
MANOHARJOSHI v. N.B.PATIL[J.S. VERMA,J.] 459
the consent to control the actions of the agent. It is difficult to ascribe to A
an acknowledged leader of the party a role subservient to the candidate
set up by that party inasmuch as the candidate is ordinarily in no position
to control the actions of his leader. However, if even without giving his
consent, the candidate has received benefit from 1he leader's act in a
manner which materially affects his election favourably, on pleading and
B
proof of such material effect on the election, the candidate's election is
liable to be set aside on the ground under Section lOO(l)(d)(ii) unless, as
provided in sub-section (2) of Section 100 he further discharges the onus
placed upon him that in spite of his opposition and taking due precautions
that act had been committed for which he cannot be responsible.
c
Reliance in the election petition on the allegations of corrupt prac-
tices was for the ground under Section lOO(l)(b) and not Section
lOO(l)(d)(ii); and it is under Section lOO(l)(b) that the election has been
declared to be void by the High Court. There was no attempt to plead and
prove that the result of the election of the appellant was materially affected D
for the;t 1easons to make out a ground under Section 100(1)( d)(ii) for
declaring the election of the returned candidate to be void. It is in this
manner the present case has to be viewed.
The pleading in paras 2, 5(o), 7 and 8 of the election petition is
general relating to the party of which the appellant was a candidate, and E
the plank of Hindutva which in the election petition is equated with Hindu
religion. We have already indicated in the connected matters - Civil Appeal
No. 2835 of 1989 - Bal Thackeray v. Prabhakar K Kunte & Ors., - (with Civil
Appeal No. 2836 of 1989), decided today, tliat the word "Hindutva" by itself
does not invariably mean Hindu religion and it is the context and the F
manner of its use which is material for deciding the meaning of the word
"Hindutva" in a particular text. It cannot be held that in the abstract the
mere word "Hindutva" by itself invariably must mean Hindu religion. The
so- called plank of the political party may at best be relevant only for
appreciation of the context in which a speech was made by a leader of the
political party during the election campaign, but no more for the purpose G
of pleading corrupt practice in the election petition against a particular
candidate.
In para 16 of the election petition apart from some general pleading,
there is reference to a speech at Shivaji park, Dadar on 24.2.1990 by Bal H
460 SUPREME COURT REPORTS [1995) SUPP. 6 S.C.R.
A Thackeray and some other leaders who have not been named therein
except for the appellant (respondent in the election petition). In para 17,
the alleged offending portions of the speeches of those leaders of the
BJP-Shiv Sena alliance have been enumerated. These portions are from
speeches alleged to have been made by Bal Thackeray of the Shiv Sena
B and Pramod Mahajan of the B.J.P. Thus para 17 contains allegation of
specific portions of speeches by Bal Thackeray and Pramod Mahajan for
the purpose of pleading the corrupt practice. Further reference to it would
be made laler. Para 18 merely says that the proceedings of the meeting
were tape-recorded and taken down in shorthand by police authorities on
which the petitioner would rely. Obviously this relates only to evidence of
C what is pleaded and does not amount to incorporation by reference of the
contents of the alleged tapes and there is no enumeration of its contents
in the election petition. Para 30 refers to the speech by the appellant
himself and names some other speakers at different meeting. Further
reference to para 30 would be made later. Para 31 is a general statement
D referring to speakers in general without naming any one of them and
mentions the existence of certain audio and video cassettes of the speeches.
Paras 32 and 33 then refer to certain video cassettes and audio cassettes
giving merely the title of the video cassettes and generally their purport
and say that the video cassettes were displayed in the constituency, par-
E ticularly at Shaka offices, street corners after 6.30 p.m. and were regularly
exhibited at or near the places of residence of some of the active workers
of the said alliance in the said constituency. It is significant that neither
these video cassettes and audio cessettes nor the transcript of their texts
was reproduced in the election petiLiuu or annexed to the election petition
F so that the contents thereof were not pleaded in either of the required
modes. That apart, there is nothing in the pleading to indicate the names
of the persons who are alleged to have displayed the same or the dates on
which they were displayed or in other words any other fact which would
make the allegation clear and specific. The further requirement of consent
of the returned candidate for those acts is not pleaded as required for the
G ground under Section lOO(l)(b) of the R.P. Act and in the definition of
the corrupt practices under sub-sections (3) and (3A) of Section 123. Para
35 is the only other para in the election petition which is relied on by Shri
Desai in this context and it merely says that the 'aforesaid facts clearly
prove that the respondent (appellant in this appeal) and his agents with his
H consent have indulged into corrupt practice under Section 123 of the said
MANOHARJOSHI v. N.B. PATIL[J.S. VERMA,J.] 461
Act.' This is a mere repetition of the statutory provision and not a pleading A
of any material fact.
We have no doubt that the requisite consent of the returned can-
didate or his election agern which is a constituent part of the corrupt
practices under sub-sections (3) and (3A) of Section 123, and an ingredient B
of the ground under Secti:m lOO(l)(b) has nowhere been pleaded in the
election petition either :n connection with the allegations based on the
speeches by Bal Thackeray, Pramod Mahajan and any other leader or the
display of video and audio cassettes in the constituency, when this is an
essential requirement for raising a triable issue of corrupt practice to bind
the appellant with the consequences of such a corrupt practice and to c
invalidate his c1ection. In our opinion, this alone is sufficient to ignore the
entire pleading in the election petition relating to speeches by Bal Thack-
eray, Pramod Mahajan and any other leader as well as the display of video
and audio cassettes since none of those acts is attributed to the appellant
or his election agent. For this reason, it is also not necessary to consider D
the specific portions alleged to form parts of speeches of Bal Thackeray
and Pramod Mahajan mentioned in paras 16 and 17 of the election petition.
S:ime is the result of pleadings in paras 32 and 33 relating to the video and
audio cassettes. In para 31 there is a general averment that the speakers
went on to say that on the respondent (appellant in this appeal) being
elected and the said alliance establishing a Hindu Government jobs would E
be given to all Hindus. No speaker is specifically named and what is alleged
to have been said by the appellant in his speech in the meeting held on
24.2.1990 is contained only in para 30 of the election petition. Since the
contents of para 31 cannot be related to the speech alleged to have been
made by the appellant in that meeting, that too must be left out of
F
consideration.
The only surviving allegation requiring consideration is in para 30
relating to the allegation made with reference to the speech made by the
appellant himself. The portion in para 30 relating to the appellant (respon-
dent in the election petition) which has to be considered is as under : G
"The petitioner states that the respondent himself in his
capacity as a candidate from the said constituency as well as a
leader of the said alliance made appeals which offends the
provisions of the said Act, For e.g. in the meeting held on 24.2.1990 H
462 SUPRFME ::.JuRTREPORTS [1995] SUPP. 6 S.C.R.
A . at Shivaji Park, the respondent stated the first Hindu State will be
established in Maharashtra. Similarly in various other public meet-
ings, the respondent herein made objectionable appeals. Some of
the meetings were reported in newspapers. The petitioner states
that such meetings were held at Khaddke Building, Dadar on
21.2.1990, Prabhadevi on 16.2.1990, at Kumbharwada on 18.2.1990,
B and Khed Galli on 19.2.1990.........."
The High Court failed to appreciate that the only allegation of
corrupt practice in this election petition which raised a triable issue is as
indicated above and rest of the general averments deficient in requisite
C pleadings of all the constituent parts of the corrupt practice did not
constitute a pleading of the full cause of action and, therefore, had to be
ignored and struck out in accordance with Order 6, Rule 16 C.P.C.
However, there being a specific allegation in para 30 of the election
petition relating to the returned candidate himself based on his speech
made on 24.2.1990, to that extent a triable issue had been raised and had
D to be decided.
It is this failure in the High Court which has led to an unnecessary
protracted trial and reception of considerable irrelevant evidence which in
turn has led to the errors found in the judgment. The reason for this error
E appears particularly from para 32 of the judgment in which the High Court
has indicated its perception of the nature of trial of the election petition
as under:
"It must be noted that this Election petitiOn is not based upon
individual acts of Respondent or his Election Agent or any other
F pe1:von with his consent. 17zis petition is based upon the abovenien-
tioned plank and/or policy decision of the Shiv Sena and B.J.P. and
the campaigning by the party and the Respondent on the basis of
that plank ........."
(emphaois supplied)
G
In our opmion, 1t is this erroneous impression of the High Court
which has led to the serious errors committed during the trial for which
the parties are equally to blame inasmuch as both sides contributed to the
expansion of the legitimate scope of the trial by introducing matters which
H have no relevance for the pleading and proof of the corrupt practices under
MANOHARJOSHI v. N.B. PATIL[J.S. VERMA,J.] 463
sub-sections (3) and (3A) of Section 123 for the purpose of the ground A
under Section lOO(l)(b) to invalidate the electioa, which is the true scope
of this election petition.
Before we take up for consideration the corrupt practice attributed
to the appellant himself in para 30 of the election petition based on his
own speech on 24.2.1990, it would be appropriate at this stage to refer to B
the argument based on Section 99 of the R.P. Act.
Non-compliance of Section 99 of the R.P. Act
Admittedly, no notice was given to Bal Thackeray, Pramod Mahajan C
or any other person against whom allegation was made of commission of
corrupt practice in the election petition, even though the High Court has
held those corrupt practices to be proved for the purpose of declaring the
appellant's election to be void on the ground contained in Section
lOO(l)(b) of the R.P. Act. We would now indicate the effect of the
combined reading of 3ections 98 and 99 of the R.P. Act and the require- D
ment of notice under Section 99 to all such persons before decision of the
election by making an order under Section 98 of the R.P. Act.
The combined effect of Sections 98 and 99 of the R.P. Act may now
be seen. These_provisions are as under:
E
"98. Decision of the High Court.- At the conclusion of the trial
of an election petition the High Court shall make an order -
(a) dismissing the election petition; or
(b) declaring the election of all or any of the returned can- F
didates to be void; or
(c) declaring the election of all or any of the returned can-
didates to be void and the petitioner or any other candidate to
have been duly elected. G
99. Other orders to be made by the High Court. - (1) At the time
of making an order under section 98 the High Court shall also
make an order -
(a) where any charge is made in the petition of any corrupt H
464 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
A practice having been committed at the election, recording -
(i) a finding whether any corrupt practice has or has not been
proved to have been committed at the election, and the
nature of that corrupt practice; and
B (ii) the names of all persons, if any, who have been proved
at the trial to have been guilty of any corrupt practice and
the nature of that practice; and
(b) fixing the total amount of costs payable and specifying the
persons by and to whom costs shall be paid :
c
Provided that a person who is not a party to the petition shall
not be named in the order under sub-clause (ii) of clause (a)
unless-
(a) he has been given notice to appear before the High Court
D and to show cause why he should not be so named; and
(b) if he appears in pursuance of the notice, he has been
given an opportunity of cross-examining any witness who has
already been examined by the High Court and has given
E evidence against him, of calling evidence in his defence and
of being heard.
(2) In this section and in section 100, the expression "agent" has
the same meaning as in section 123."
F The opening words in Section 98 are "At the conclusion of the trial
of an election petition the High Court shall make an order". There can be
no doubt that Section 98 contemplates the making of an order thereunder
in the decision of the High Court rendered 'at the conclusion of the trial
of an election petition. Declaration of the election of any returned can-
didate to be void in accordance with clause (b) is clearly to be made in the
G decision of the High Court rendered at the conclusion of the trial of an
election petition and not at an intermediate stage. Clauses (a), (b) and (c)
in Section 98 contemplate the different kinds of orders which can be made
by the High Court in its decision at the conclusion of the trial which has
the effect of disposing of the election petition in the High Court. There is
H nothing in Section 98 to permit the High Court to decide the election
MANOHARJOSHI v. N.B. PATIL[J.S. VERMA,J.] 465
petition piecemeal and to declare the election of any returned candidate A
to be void at an intermediate stage of the trial when any part of the trial
remains to be concluded.
Sub-section (1) of Section 99 begins with the words "At the time of
making an order under section 98 the High Court shall also make an order" B
of the kind mentioned in clauses (a) and (b) therein. It is amply clear that
order which can be made under clauses (a) and (b) of sub-section (1) of
Section 99 is required to be made 'at the time of making an order under
section 98'. As earlier indicated, an order under Section 98 can be made
only at the conclusion of the trial. There can be no doubt that the order
which can be made under sub-section (1) of Section 99 has, therefore, to C
be made only at the conclusion of the trial of an election petition in the
decision of the High Court made by an order disposing of the election
petition in one of the modes prescribed in clauses (a), (b) and (c) of
Section 98. This alone is sufficient to indicate that the requirement of
Section 99 is to be completed during the trial of the election petition and
the final order under Section 99 has to be made in the decision of the High D
Court rendered under Section 98 at the conclusion of the trial of the
election petition.
Clause (a) of sub-section (1) of Section 99 provides for the situation
"where any charge is made in the petition of any corrupt practice having E
been committed at the election". In that case, it requires that at the time
of making an order under Section 98, the High Court shall also make an
order recording a finding whether any corrupt practice has or has not been
proved to have been committed at the election and the nature of that
corrupt practice; and the names of all persons, if any, who have been
proved at the trial to have been guilty of any corrupt practice and the F
nature of that corrupt practice. Clause (b) further requires the focing of the
total amount of costs payable and specifying the person by and to whom
costs shall be paid. The net result is that where any charge is made in the
petition of any corrupt practice having been committed at the election, the
High Court shall 'at the time of making an order under section 98' also G
make an order recording a finding whether any corrupt practice has or has
not been proved to have been committed at that election and the nature
of that corrupt practice; and where the charge of corrupt practice has been
found proved, it must also record the names of all persons, if any, who have
been proved at the trial to have been guilty of any corrupt practice and the
nature of that practice. Thus the trial is only one at the end of which the H
466 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
A order made by the High Court must record the names of all persons, if
any, who have been proved at the trial to have been guilty of the corrupt
practice and the nature of that practice.
It follows that the High Court cannot make an order under Section
98 recording a finding of proof of corrupt practice against the returned
B candidate alone and on that basis declare the election of the returned
candidate to be void and then proceed to comply with the requirement of
Section 99 in the manner stated therein with a view to decide at a later
stage whether any other person also is guilty of that corrupt practice for
the purpose of naming him then under Section 99 of the R.P. Act. It is
C equally clear that the High Court has no option in the matter to decide
whether it will proceed under Section 99 against the other persons alleged
to be guilty of that corrupt practice along with the returnei~ candidate
inasmuch as the requirement of Section 99 is mandatory sinq; the finding
recorded by the High Court requires it to name all persons proved at the
trial to have been guilty of the corrupt practice. The expression "the names
D of all persons, if any, who have been proved at the trial to have been guilty
of any corrupt practice" in sub-clause (ii) of clause (a) of sub- section (1)
of Section 99 clearly provides for such proof being required 'at the trial'
which means 'the trial of an election petition' mentioned in Section 98, at
the conclusion of which alone the order contemplated under Section 9&
E can be made. There is no room for taking the view that the trial of th~
election petition for declaring the election of the returned candidate to be
void under Section 98 can be concluded first and then the proceedings
under Section 99 commenced for the purpose of deciding whether any
other person is also to be named as being guilty of the corrupt practice of
F which the returned candidate has earlier been held guilty leading to his
ekction being declared void.
The rationale is obvious. Where the returned candidate is alleged to
be gmlty of a corrupt practice in the commission of which any other person
has participated with him or the candidate is to be held vicariously liable
G for a corrupt practice committed by any other person with his consent, a
final verdict on that question can be rendered only at the end of the trial,
at one time, after the inquiry contemplated under Section 99 against the
other person, after notice to him, has alsl} been concluded. Particularly, in
a case where liability is fastened on the candidate vicariously for the act of
H another person, unless that act is found proved against the doer of that act,
MANOHARJOSHI v. N.B.PATIL[J.S. VERMA,J.] 467
the question of recording a finding on that basis against the returned A
candidate cannot arise. Viewed differently, if the final verdict has already
been rendered against the returned candidate iu such a case, the oppor-
tunity contemplated by Section 99 by an inquiry after notice to the other
person is futile since the verdict has already been given, On the other hand,
if the question is treated as open, a conflicting verdict after inquiry under B
Section 99 in favour of the notice(' wo\lld lead to an absurdity which could
not be attributed to tl11; legislature,
The plain language of Sections 98 and 99 of the R.P. Act indicates
the constrnctiou thereof made by us and this is also supported by the likely
Q.ut~onw of a different construction which is an absurd result and must, C
therefore, be rejected. The High Court has overlooked the obvious position
in law in ta1cing a different view. No notice under Section 99 was given by
the High Court before making the final order under section 98 of the R.P.
Act declaring the election to be void. This is a fatal defect.
\his alone is sufficient to indicate that apart from the reasons given D
earlier, t1ie election of the appellant in the present case could not be
(leclared void by ma1cing an order under Section 98 on the ground con-
tained in Section lOO(l)(b) of the R.P. Act without prior compliance of
!i~ctign 99, Absence of notice under Section 99 of the R.P. Act vitiates the
final orde: made under Section 98 by the High Court declaring the election E
to be void.
However, in the present case, the remaining pleadings being ignored
for the reasons already given, no further question arises of the effect of
non-compliance of Section 99 in respect of these other persons because
the finding of corrupt practices against the appellant based on the speeches F
of the other persons and the video and audio cassettes has to be set aside
for the reasons already given." This is yet another instance of a serious
defect in the trial of this election petition by the High Court.
Speech of appellant
G
We would now consider the only surviving question based on the
pleading in para 30 of the election petition. The specific allegation in para
30 against the appellant is that in the meeting held on 24.2.1990 at Shivaji
Park, Dadar, he had stated that "the first Hindu state will be established
in Maharashtra". It is further pleaded therein that such meetings were held H
SUPRbME COURT REPORTS (1995] SUPP. 6 S.C.R.
A at Khaddke Building, Dadar on 21.2.1990, Prabhadevi on 16.2.1990, at
Kumbharwada on 18.2.1990, and Khed Galli on 192.1990. These further
facts are unnecessary in the context because the maximum impact thereof
is to plead that the same statement was made by the appellant in the other
meetings as well, even though such an inference does not arise by necessary
B implication. In our opinion, a mere statement that the first Hindu State will
be established in Maharashtra is by itself not an appeal for votes on the
ground of his religion but the expression, at best of such a hope. However,
despicable be such a statement, it cannot be said to amount to an appeal
for votes on the ground of his religion. Assuming that the making of such
a statement in the speech of the appellant at that meeting is proved, we
C cannot hold that it constitutes the corrupt practice either under sub-section
(3) or sub-section (3A) of Section 123, even though we would express our
disdain at the entertaining of such a thought or such a stance in a political
leader of any shade in the country. The question is whether the corrupt
practice as defined in the Act to permit negation of the electoral verdict
D has been made out. To this our answer is clearly in the negative.
As indicated by us, the only triable issue raised in the election
petition is limited to this extent, which did not require the consumption of
the considerable time, energy and expense involved in the trial of the
election petition and the hearing of this appeal in this Court. However, the
E lack ol proper perception of the limited scope of the trial and the election
petition being filed and contested in the manner in which unfortunately the
elections are being fought, contributed to the trial being converted into an
electoral battle which misled even the High Court to commit several errors
in conducting the trial. The erroneous perception of the position in law
F and the scope of the election petition also contributed to this end. Obvious-
ly, it was much ado about nothing when viewed in proper perspective after
ignoring from consideration the copious unnecessary, frivolous or vexatious
pleading in the election petition and consequently in the written statement
which was liable lo be struck out under Order 6, Rule 16, C.P.C.
G We may refer to the decision in Jamaat-e-Islami Hind etc. v. Union
of India, [1995] 1 SCC 428, wherein the requirement of valid adjudication
by the Tribunal under Section 4 of the Unlawful Activities (Prevention)
Act, 1967 was indicated for the purpose of confirming the declaration made
by the Central Government under sub-section (1) of Section 3 that Jamaat-
H e- Islami Hind is an unlawful association as defined in the said Act. The
MANOHARJOSHI v. N.B.PATIL[J.S. VERMA,J.] 469
Tribunal's order confirming the declaration made by the Central Govern- A
ment was quashed on the ground that the entire material on which the
declaration was based, was inadequate for the purpose, even though the
Tribunal is not required to confine itself only to strict legal evidence
admi~sible under the Evidence Act.
A 3-Judge Bench, speaking through one of us (J.S. Verma, J.), held B
as under:
"...... The only material produced by the Central Government
to support the notification issued by it under Section 3(1) of the
Act, apart from a resume based on certain intelligence reports, are C
the statements of Shri T.N. Srivastava, Joint Secretary, Ministry of
Home Affairs and Shri N.C. Padhi, Joint Director, IB. Neither Shri
Srivastava nor Shri Padhi has depos~d tb any fact on the basis of
personal knowledge. Their entire version is based on official
· record. The resume is based on intelligence reports submitted by
persons whose names have not been disclosed on the ground of D
confidentiality. In other words, no person has deposed from per-
sonal knowledge whose veracity could be tested by cross-examina-
tion.. ........ n
(at page 450) E
It is significant that the mere production of the official record
including the literature of Jarnaat-e-Islami Hind depicting its philosophy
and aims, and the intelligence reports without examining any witness who
could depose from personal knowledge to the alleged unlawful activities of
the Association was held to be inadequate to support the declaration that F
Jamaat-e-Islami Hind is an unlawful association as defined in the said Act.
It need hardly be mentioned that the requirement of proof of a corrupt
practice at the trial of an election petition is higher and confmed to strict
legal evidence, in comparison to the material on which the Tribunal can
rely for its decision under Section 4 of the Unlawful Activities (Prevention) G
Act, 1967 to confirm the declaration by the Central Government of an
association as unlawful.
The High Court misdirected itself by starting on a wrong premise in
trying an allegation not in the pleading and then in admitting and relying
on material which is not legal evidence for the proof of a corrupt practice. H
470 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.
A The error was aggravated by an incorrect appreciation of the legal prin-
ciples and overlooking the meaning of certain terms explained in earlier
decisions. The significance of the trial of a corrupt practice and the
consequence of the finding thereon, appears to have been missed in the
High Court.
B As a result of the aforesaid discussion, the finding recorded by the
High Court against the appellant that charge of corrupt practices under
sub-sections (3) and (3A) of Section 123 of the R.P. Act has been proved
to declare his election to be void on the ground contained in Section
lOO(l)(b) of the R.P. Act, is contrary to law and is, therefore, set aside.
C The result is that no ground is made out for declaring the appellant's
election to be void. Accordingly, this appeal is allowed with costs resulting
in dismissal of the election petition.
LM.A. Appeal allowed.
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