MORESHWAR SAVEversusDWARKADAS YASHWANTRAO PATHRIKAR

                   MORESHWAR SAVE                                             A
                          v.
           DWARKADAS YASHWANTRAO PATHRIKAR

                          DECEMBER 11, 1995

     [J. S. VERMA, N.P. SINGH AND K. VENKATASWAMI, JJ.]                       B

      Representation of the People Act, 1951 :

       Sections 98, 99, 100, 123(3) and 123(3A)-Conupt practices-Speeches
made by leaders supporting a partic«lar candidate-High Court accepti11g the C
pleadi11gs and setti11g aside the electim1 of the returned candidate-011 appeal
held, since. 110 notices issued to the leaders who delivered the alleged speeches
this defect vitiates the impugned Judgme11t-Si11ce the leaders were not the
ca11didate's election agents dispensing with consent not possible-Jn view of
the facts and circumstances of the case held, remand would be futile and D
sheer waste of time.

       The appellant was a candidate from Aurangabad parliamentary
constitnency and he was declared elected. An Election petition was filed by
the respondent, alleging certain corrupt practices viz. that the appellant
had appealed on the basis of religion to the Hindus by canvassing that the E
Hindu religion was in danger and Hindus should awake and meet the
challenge posed by the minority specially the muslims: that Manobar Joshi
in bis speech at Aurangabad bad said that the candidate of BJP-Sbiv Sena
belongs to the Hindutva faction and that 85% Hindus want a government
at the Centre which pleases the minority they should vote for the appellant;
and that Bal Thackeray also made a speech to the same effect.                F

      The High Court set aside the election of the appellant on the ground
of corrupt practices under Sections 123(3) and 123(3A) of the Repre-
sentation of the People Act. Hence this appeal.

      Allowing the appeal, this Court
                                                                              G

      HELD : 1. The election petitioner having abandoned the case based
on the alleged speech of Chhagan Bhujbal at the stage of trial itself in the
High Court, the only basis for the corrupt practice found proved against
the appellant is the two speeches by others, namely, on 6.5.1991 by H
                                   515
    516                  SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A Manohar Joshi and on 12.5.1991 by Bal Thackeray and not any speech by
  the appellant himself. Thus, the liability fastened on the appellant is
  vicarious on the basis of the two alleged speeches of Manohar Joshi and
  Bal Thackeray. No notice under Section 99 of the Representation of the
  People Act was given either to Manohar Joshi or Bal Thackeray. A com-
  bined reading of Sections 98 and 99 of the R.P. Act leaves no doubt that
B the final order holding the candidate guilty of corrupt practice in such a
  situation vicariously, cannot be made under Section 98 of the Act without
  simultaneously complying with the requirement of Section 99. This is
  obviously for the reason that in such a situation a simultaneous verdict
  against the noticee under Section 99 and the candidate has to be given at
C one time while deciding the election petition after proper compliance of
  Section 99 of the R.P. Act. A combined reading of Sections 98 and 99 leaves
  no doubt that in snch a situation, the High Conrt has no option to ignore
  the allegation against the person for whose act the candidate is held liable
  vicariously; and the court also cannot proceed to decide the case of the
D candidate and the noticee separately or piecemeal. This defect of want of
  notice to Manohar Joshi or Bal Thackeray is alone sufficient to vitiate the
  impugned judgment requiring it to be set aside. [519-G-H, 520-A-C]

          Manohar Joshi v. Nitin Bhaurao, Patil & Anr., [1995) Suppl. 6 SCR,
    relied on.
E
        2. Ordinarily the matter requires to be remanded for a fresh decision
  of the election petition after notice to the persons to be named for com·
  mission of the corrupt practice in accordance with Section 99; or the
  decision of this appeal may be deferred and in the meantime notice may
F be given under Section 99 to these persons and after the requisite inquiry
  by the High Court its finding in respect of those persons be called for
  deciding the case against the candidate and the noticee at one time while
  deciding the appeal in this Court, However, the second course does not
  appear to be appropriate in the present case. There is no clear pleading
  or finding of the appellant's consent which is a constituent part of the
G corrupt practice resulting from an act of any person other than the
  candidate or his agent. This alone would indicate the absence of one of the
  constituent parts of the alleged corrupt practice. Case in the election
  petition is based only on the ground contained in Section lOO(l)(b) and
  not Section lOO(l)(d)(ii) of the R.P. Act. Admittedly, neither Manohar
H Joshi nor Bal Thackeray were the election agents of the appellant to
         MORESHWARSAVE v. D.Y.PATIIRIKAR[J.S. VERMA,J.]                    517

dispense with the requirement of consent for the ground under Section             A
100 (1) (b) to declare the election void. Any further inquiry into this matter
is, therefore, futile and sheer waste. [520-D-G]

       3. There is nothing pleaded or proved in the alleged speeches of
Manohar Joshi and Bal Thackeray in the present case to attract the corrupt
practice under sub-section (3A) of Section 123 by bringing therein the            B
element of promotion of or attempt to promote feelings of enmity or hatred
as envisaged in that provision. The allegations as well as the attempted
proof are all very vague. Similar vagueness is there even with regard to the
requirement of Section 123 (3) since that requires an appeal for votes on the
ground of 'his' religion. The general statement attributed in the speeches        C
ofManohar Joshi and Bal Thackeray as pleaded in the election petition are
too vague to constitute the requisite appeal which is a corrupt practice
under Section 123(3). Inspite of the averment in the election petition of a
more critical speech by Chhagan Bhujbal, no attempt was made to prove
the same and it was not relied on even in the High Court to support the
petition. This factor has significance for assessing the credibility of the       D
version of the election petitioner and the probative value to be attached to
it for the case pursued in the election petition. What is attributed to
Manohar Joshi and Bal Thackeray in the averments made in this election
petition, keeping in view the fact that the consent of the appellant is neither
clearly pleaded nor duly considered for a finding of its proof, does not merit    E
any further consideration or trial. [520-H, 521-A-D]

        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1977 of
1992.

     From the Judgment and Order dated 16.4.92 of the Bombay High                 F
Court in E.P. No. 4 of 1991.

     Ram Jethmalani, A.M. Khanwilkar, Ms. Punam Kumari, B.T. Sheth,
V. Dhankh and P.H. Parekh for the Appellant.

        Mukul Mudgal for the Respoudeut.                                          G
        The Judgment of the Court was delivered by

      J.S. VERMA, J. This is an appeal under Section 116A of the Repre·"
sentation of the People Act, 1951 (for short "the R.P. Act") against the
judgment dated 16.4.1992 in Election Petition No. 4 of 1991 by A.A. Halbe, H
    518                  SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A J. of the Bombay High Court by which the election of the returned
    candidate Moreshwar save from 33- Aurangabad Parliamentary Con-
    stituency to the Lok Sabha held on 12.6.1991 has been set aside on the
    ground under Section lOO(l)(b) for commission of corrupt practices under
    Sections 123(3) and 123(3A) of the R.P. Act.

B         The relevant paras of the election petition relating to the pleading of
    corrupt practices are paras 6, 10, 11, 13 and 15. Para 6 contains a general
    averment without pleading the relevant material facts therein that the
    respondent had appealed on the basis of religion to the Hindus by canvass-
    ing that the Hindu religion was in danger and the Hindus should awaken
C   and meet the challenge posed by the minority specially the Muslims. In
    paras 10 and 11, it is pleaded that Manohar Joshi gave a speech on 6.5.1991
    at Aurangabad in which he said that the candidate of BJP-Shiv Sena
    belongs to the Hindutva faction and that 85 per cent Hindus want to live
    with self-respect and if they do not want a government at the Central which
    pleases the minority they should vote for the appellant (respondent in the
D   election petition). Then in para 13, it is pleaded that Bal Thackeray gave
    a speech on 12.5.1991 to the effect mentioned therein. At this stage, it is
    common ground that the ordy relevant portion of pleading which was
    attempted to be proved by evidence is as under :

E        (1) ............... taking the saffron flag march forward with the slogan
    Har Har Mahadev.

          (2) Hindutva was not wave but it was the breath and if Hindutva was
    to stop the breath will also stop.

F        (3) Hindutva is the third eye of Lord Shankar and if it opens it will
    reduce every thing to ash.

          Then in para 15, it is pleaded that Chhagan Bhujbal had in his speech
    stated inter alia as under :

G               ".............. He further said that we are first Hindus and then
             Brahmin, Maratha, Koli, Mali, Sali etc. For the Hindus to stay alive
             it is necessary to elect a Government headed by BJP, Shiv Sena.
             He further states that to bring the culture of Shriram who was
             Ekvachni EK Patne. It is necessary to erect the Ram temple and
H            show the people who oppose to it their place ......."
          MORESHWARSAVE v. D.Y.PATHRIKAR [J.S. VERMA,J.]                      519

         It tnay be motioned at the outset that no evidence was led to prove A
  the allegation of corrupt practice based on the speech of Chhagan Bhujbal ·
  and, therefore, the pleading in that respect, particularly in para 15 of the
  election petition, has to be ignored as it was not relied on by the election
  petitioner and for the reason it also does not form the basis of the
  impugned judgment .                                                          B

         Shri Ram Jethmalani, learned counsel for the appellant submitted
  that this stand of the election petitioner in the High Court as also in this
  appeal is evidently on account of the fact that Chhagan Bhujbal has, since
  then, shifted his allegiance from Shiv Sena to its political opponents. There
  can be no doubt that the pleadings of the three speeches by Manohar Joshi,         C
  Bal Thackeray and Chhagan Bhujbal on which alone the election petition
  is based show that the speech of Chhagan Bhujbal is comparatively the
  harshest of all these speeches, irrespective of the fact whether it too
  constitutes a corrupt practice or not. It cannot also be doubted that if the
  speech of Chhagan. Bhujbal does not amount to an appeal for votes on the           D
  ground of religion to constitute a corrupt practice under Section 123(3)
  then the other two speeches being comparatively mild cannot fall within its
  ambit. In such a situation, the election petitioner having abandoned the
  case based on the alleged speech of Chhagan Bhujbal at the stage of trial
  itself in the High Court, the criticism made by Shri Jethmalani cannot be
  said to be baseless. At any rate, the credibility of the version of the election   E
  petitioner with regard to the remaining two speeches which alone were
  pressed into service to support the election petition does appear to be
  considerably shaken. However, there is another more.important aspect to
  which we shall now advert.
                                                                                     F
        The only basis for the corrupt practice found proved against the
  appellant is the two speeches by others, namely, on 6.5.1991 by Manohar
  Joshi and on 12.5.1991 by Bal Thackeray and not any speech by the
  appellant himself. Thus, the liability fastened on the appellant is vicarious
  on the basis of the two alleged speeches of Manohar Joshi and Bal G
, Thackeray. No notice under section 99 was given either to Manohar Joshi
  or Bal Thackeray. We Have already held in the connected Civil appeal No.
  4973 of 1993 Manohar Joshi v. Nitin Bhaurao Patil & Anr., decided today,
  that a combined reading of Sections 98 and 99 of the R.P. Act leaves no
  doubt that the final' order holding the candidate guilty of corrupt practice
  in such a situation vicariously, cannot be made under Section 98 of the Act H
    520                   SUPREME COURT REPORTS (1995] SUPP. 6 S.C.R.

A without simultaneously complying with the requirement of Section 99. This
    is obviously for the reason that in such a situation a simultaneous verdict
    against the noticee under Section 99 and the candidate has to be given at
    one time while deciding the election petition after proper compliance of
    Section 99 of the R.P. Act. Combined reading of Sections 98 and 99 leaves
    no doubt that io such a situation, the High Court has no option to igoore
B   the allegation against the person for whose act the candidate is held liable
    vicariously; and the court also cannot proceed to decide the case of the
    candidate and the noticee separately or piecemeal. This defect of want of
    notice to Manohar Joshi or Bal Thackeray is alone sufficient to vitiate the
    judgment requiring it to be set aside.
c
           The question now is of the course to adopt in such a situation.
    ordinarily the matter may require to be remanded for a fresh decision of
    the election petition after notice to the persons to be named for commis-
    sion of the corrupt practice io accordance with Section 99; or the decision
    of this appeal may be deferred and in the meantime notice may be given
D   under Section 99 to those persons and after the requisite inquiry by the
    High Court its finding io respect of those persons be called for decidiog
    the case agaiost the candidate and the noticees at one time while deciding
    the appeal in this Court. However, the second course does not appear to
    be the appropriate in the present case for the reasons given hereafter.
E
           There is no clear pleading or finding of the appellant's consent which
    is a constituent part of the corrupt practice resulting from an act of any
    person other than the candidate or his agent. This alone wonld iodicate
    the absence of one of the constituent parts of the alleged corrupt practice.
p   Case in the election petition is based only on the ground contaioed io
    Section lOO(l)(b) and not Section lOO(l)(d)(ii) of the R.P. Act. Admitted-
    ly, neither Manohar Joshi nor Bal Thackeray were the election agents of
    the appellant to dispense with the requirement of consent for the ground
    under Section lOO(l(b) to declare the election void. Any further inquiry
    into this matter is, therefore, futile and sheer waste for the only ground on
G   which the election petition and the judgment are based.

        Moreover, there is nothing pleaded or proved in the alleged speeches
  of Manohar Joshi and Bal Thackeray in the present case to attract the
  corrupt practice under sub-section (3A) of Section 123 by bringing thereio
H the element of promotion of or attempt to promote feeliogs of enmity or
           MORESHWARSAVE v. D.Y.PAIBRIKAR[J.S. VERMA,J.]                      521

    hatred as envisaged in that provision . The allegations as well as the A
    attempted proof are all very vague. Similar vagueness is there even with
    regard to the requirement of Section 123(3) since that requires an appeal
    for votes on the ground of 'his' religion. The general statements attributed
    in the speeches of Manohar Joshi and Bal Thackeray as pleaded in the
    election petition are too vague to constitute the requisite appeal which is B
    a corrupt practice under Section 123(3). In this context, it is not insig-
    nificant that in spite of the averment in the election petition of a more
    critical speech by Chhagan Bhujbal, no attempt was made to prove the
    same and it was not relied on even in the High Court to support the
    appellant. This factor has significance for assessing the credibility of the
    version of the election petitioner and the probative value to be attached to C
    it for the case pursued in the election petition. In onr opinion, what is
    attributed to Manohar Joshi and Bal Thackeray in the averments made in
    this election petition, keeping in view the fact that the consent of the
    appellant is neither clearly pleaded nor duly considered for a finding of its
    proof, this election petition does not merit any further consideration or D
    trial.

          It is indeed surprising that pleading of corrupt practice in the elec-
    tion petition made so vaguely and casually occasioned a serious trail
    thereof and ultimately was accepted by the High Court to set aside the
    electoral verdict and that too in clear contravention of Section 99 of the       E
    R.P. Act. This appeal must, therefore, be allowed.

         Consequenlly, the appeal is allowed. The impugned judgment of the
    High Court is· set aside and the election petition is dismissed. The appellant
    would get his costs throughout from the respondent.
                                                                                     F
    G.N.                                                        Appeal allowed.




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