Holding

The Supreme Court held that the election petition was timely, the High Court’s findings of corrupt practice based on pre‑candidate speeches, wall paintings, video cassettes and the mere use of “Hindutva” were unsupported, and therefore set aside the declaration of the election as void and the Section 99 notices.

Summary

The appellant Ramakant Mayekar challenged a High Court order that declared his election to the Maharashtra Legislative Assembly void on grounds of corrupt practices under the Representation of the People Act, 1951. The Supreme Court examined whether the election petition filed on 16 April 1990 was within the 45‑day limitation period, applying Section 10 of the General Clauses Act. It held that speeches made before the appellant became a candidate could not constitute corrupt practice, and that the High Court erred in issuing Section 99 notices after declaring the election void. The Court found that the pleadings concerning wall paintings, video cassettes and the use of the term “Hindutva” were deficient and did not raise a triable issue under Sections 81, 83 and 123. Consequently, the findings of corrupt practice, the declaration of the election as void, and the subsequent Section 99 notices were set aside, and the appeal was allowed.

Issues considered

The election petition filed on 16 April 1990 was within the statutory limitation period under Section 81 of the Representation of the People Act, 1951, read with Section 10 of the General Clauses Act, 1897.
Whether speeches made on 29 January 1990, prior to the appellant becoming a candidate, can be considered corrupt practice under Section 79(b).
Whether a court may declare an election void under Section 98 and thereafter issue notices under Section 99 against other persons.
Whether the pleadings regarding wall paintings, video cassettes and speeches satisfy the requirements of Sections 81(3), 83, 123(3) and 123(3A) to constitute a corrupt practice.
Whether the mere mention of the word “Hindutva” in election material amounts to an appeal for votes on the ground of religion under Section 123(3).
Whether consent of the candidate can be presumed from his affiliation with a political party for vicarious liability under Section 123.
Whether the High Court correctly applied the distinction between corrupt practices under Sections 100(1)(b) and 100(1)(d)(ii).

Legislation cited

General Clauses Act, 1897s. 10
Representation of the People Act, 1951s. 100(1)(b), s. 100(1)(d)(ii), s. 123(3), s. 123(3A), s. 79(b), s. 81(1), s. 81(3), s. 83, s. 86, s. 98, s. 99

Subjects

election petitioncorrupt practiceRepresentation of the People ActGeneral Clauses Actsection 99 noticesection 98 declarationconsent of candidatevicarious liabilityHindutvawall paintingsvideo cassettepolitical party

Judgment

A RAMAKANT MAYEKAR ETC. ETC.
v.
SMT. CELINE D' SILVA

DECEMBER 11, 1995

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

Election Law :

Representation of the People Act, 1951 :

c Sections 81(1) and 86-Election petition-To be filed within a period
of 45 days-Last date of limitation period a holiday-f'etition filed on the
reopening day-Held: Section JO of the General Clauses Act, 1897 applicable
and petition was filed within time.

Section 79(b )-Election-Conupt practice-Speeches made by a person
D
prior to the date of his becoming a candidate-Have to be excluded for
consideration.

Sections 98, 99 and 100( l)(b )-Election Trial-Naming other persons
who could be found guilty of comtpt practice-Notice-Issuance of-Held :
E Court cannot first decide the election petition declaring the election of the
retumed candidate void and then proceed to issue notices.

Sections 81 and 83-£lection Petition-Pleadings-Conupt practice--
Documents to be annexetf-Photographs of wall paintings-Contents or fomz
of the wall paintings not pleaded-Neither annexed nor copy fumishetf-Video
F cassettes or its transcript-Neither produced nor copy fumished-Held: plead-
ings wholly deficient to constitute conupt practice, are insufficient to raise a
triable issue and was liable to be struck out-Any evidence adduced later
would be irrelevant and inadntissible.

G Sections 99 and JOO (l)(b)-Election petition-Conupt practice-Ap-
peal on ground of religion-Issuance of notice-Election meeting-Speeches
by other persons-Retumed candidate's presence not provetf-Held : elemem
of candidate's consent which is a constituent part of the conupt practice not
proved and issuance of notice did not arise.

H Sections 83, lOO(l)(b), 123(3) and 123(3-A)-Electioa petition-Cor-
492
RAMAKANT MAYEKAR v. CELINE D' S!LVA 493

rupt practice-Pleadings-Vicarious liability of candidate for an act of other A
persons-Must be pleaded and proved-Speeches made by other per-
sons-Consent of the candidate-Cannot be assumed merely from the fact
that he belonged to the same political pany--Roving inquiry into the affairs
of a political party not permissible.

Sections IOO(l)(b), 123(3) and (3-A)-<:orrupt practic~Appeal on B
ground of religion-Mention of "Hindutva" in election speeches, wall paintings
and video cassettes-Did not amount to appeal for votes on the ground of
Hindu Religioir-''Hindutva''-Use made of-Depended upon the context and
the composition of the audience-Mere mention of religion in election cam-
paign not a corrupt practice. c
General Clauses Act, 1897 :

Section 1{}-Applicable to election petition under Representation of
People Act, 1951.
D
Words and Phrases : "Hindutva'LMeaning of

The appellant's election to the State Legislative Assembly was
declared void by the High Court under Section lOO(l)(b) of the Repre-
sentation of the People Act, 1951 for commission of corrupt practices
under sub-sections (3) and (3A) of the R.P. Act. Simultaneously notices E
under Section 99 of the R.P. Act. have been issued to five persons on the
basis of speeches alleged to have been made by them on 29.1.1990 and
24.2.1990, wall paintings and video cassettes under Sections 123(3) and
123(3A) of the R.P. Act. Aggrieved by the High Court's judgment the
appellants preferred the present appeal.
F
On behalf of the appellants it was contended that the election peti-
• tion was not filed within time and was liable to be dismissed under Section
86 of the R.P. Act; that issuance of notices under Section 99 of the R.P. Act
on the basis of speeches made after deciding the election petition was
illegal; and that the mention of "Hindutva" in speeches, wall paintings and G
video cassettes did no~ amount to appeal for votes on the ground of Hindu
Religion.

Allowing the appeal, this Court

HELD : 1. Acceptance of the nominations of the candidates was on H

,'
•
494 SUPREME COURT REPORTS [1995) SUPP. 6 S.C.R.

A 8.2.1990, the date of poll was 27.2.1990 and the result of election was
declared on 13.1990 at which the appellant was declared elected. The elec-
tion petition was filed on 16.4.1990. Admittedly the last date for filing the
election petition according to the prescribed period of 45 days was
14.4.1990, but the High Court and its office were closed for holidays on 14th
and 15th April, 1990 and reopened only on 16.4.1990. If Section 10 of the
B General Clauses Act applies, then the election petition filed on 16.4.1990
was within time. This election petition was, therefore, filed within time.
(503-D-E]
Civil Appeal No. 4973 of 1993 decided on 11.12.95.

C Manohar Joshi v. Nitin Bhaurao Patil & Anr., (1995] Suppl. SCR
followed.

2. As for speeches alleged to have been made on 29.1.1990, it may be
stated at the outset that they have to be excluded from consideration since
D they cannot form the basis of any corrupt practice at the election, inasmuch
as they relate to a period prior to the date on which the appellant became
a candidate at the election as defined in Section 79(b) of the Representation
of the People Act, 1951. This is the settled position in law. It follows neces-
sarily that the High Court's Judgment as well as the subsequent notices
issued under Section 99 of the R.P. Act, are unsustainable to the extent they
E are based on the speeches alleged to have been made on 29.1.990. (504-B-D]
•
Subhash Desai v. Sharad J. Rao and Others, (1994] Supp. 2 SCC 446;
Indira Nehnt Gandhi v. Raj Narain, (1975] Supp. SCC 1 and Mohan Rawale
v. Damodar Tatyaba, [1994] 2 SCC 392, referred to.

F 3. The High Court's judgment declaring the appellant's election to
be void under Section 98 of the R.P. Act and the issuance of notices under
Section 99 of the R.P. Act are contrary to law and have to be set aside.
(506-A]

G Civil Appeal No. 4973 of 1993 decided 011 11.12.95
Manohar Joshi v. Nitin Bhaurao Patil & Anr., (1995] Suppl. SCR,
followed.

D.P. Mishra v. Kamal Narayan Shanna & Anr., [1971] 1 SCR 8, held
H inapplicable.
RAMAKANT MA)'.EKAR v. CEL!N:Z D' SJLVA 495

4.1. The relevancy of speeches made by some persons can arise only A
if the element of appellant's consent is also pleaded and proved. The
appellant's consent was attempted to be JT.ade out by implication only from
the fact of his personal presence when those speeches were made. However,
the above conclusion reached by the High Court shows that the appellant's
presence at the meeting was not found to be proved. This being so, the
B
element of candidate's consent which is a constituent part of the corrupt
practice alleged on the basis of ';ieeches made on 24.2.1990 by some other
persons has not been found ;:roved. That finding alone is sufficient to
reject the allegation of corrupt practice on the basis of speeches made by
others on 24.2.1990, as not proved. When this is the conclusion reached in
respect of the appellant himself with regard to the allegation of corrupt C
practice based on speeches made by others on 24.2.1990, then the question
of recording a findin~ that the corrupt practice has been proved, does not
arise and, thereforr, the further question of naming any other person who
could have been proved at the trial to be guilty of tlte corrupt practice
under Section 9> of the R.P. Act does not arise. [506-H, 507-A-C] D

4.2. No fact other than the averment of personal presence of the
appellant was pleaded to make out the consent of the appellant required
for corstituting the corrupt practice. The High Court has held that the
presence of the appellant at that meeting has not been proved. There is
thus no foundation even for a tentative finding of any corrupt practice on E
the basis of speeches alleged to have been made by some persons in this
case against the present appellant insasmuch as a necessary ingredient of
the corrupt practice, i.e. consent of the appellant has been found to be not
"roved. There being not even a tentative basis to hold the charge of this
corrupt practice proved against the appellant, the further question of F
invoking section 99 to name any other person for the commission of that
corrupt ractice along with the returned candidate does not arise.
[507-F-H]

4.3. The finding of corrupt practice against the appellant on the basis G
of speeches alleged to have been made by some leaders in the meeting of
24.2.1990 being unsustainable, this charge has to fail and no occasion
arises in the present case for taking any action under Section. 99 of the
R.P. Act. This part of the High Court's judgment as well as the remaining
part of the notices under Section 99 of the R.P. Act also have to be set
aside. [508-B] H
496 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A 5.1. Except for repeating the words of the statute prescribing the
corrupt practice, there is no pleading of the material facts or any par-
ticulars necessary to constitute the corrupt practice as required by Section
83(1) of the R.P. Act. Reference made to certain photographs of the alleged
wall painting and it has been said that the photographs would be relied
on as and when produced. The contents or form of the wall painting or
B their photographs has not been pleaded and the photographs were neither
annexed to the election petition nor copy thereof furnished to the returned
candidate along with a copy of the petition. Thus, there is no pleading in
the election petition of the language or contents of the wall paintings which
were alleged to constitute the corrupt practice of canvassing for votes in
C the name of Hindu religion. [508-H, 509-A-B]

5.2. If the mere mention of photographs without indicating its con-
tents in the election petition is to be construed as incorporation of the
contents by reference in the election petition, then non-supply of the copy
D of the photographs with the copy of the election petition would result in
non-compliance of Section 81(3). However, since the photographs were not
annexed to the election petition, it is a case not of non-compliance of section
81(3) but a case of total absence of any pleading in the election petition of
the corrupt practice on the basis of wall paintings. Therefore, the pleading
being wholly deficient in material facts necessary to constitute the cause of
E action, it was insufficient to raise a triable issue on that basis. In fact, this
part of the pleading was liable to be struck out since it was irrelevant at the
trial for the reason stated. Any evidence adduced later, in the absence of
the requisite pleading of this corrupt practice was irrelevant and inadmis-
sible and should not have been recorded and having been recorded most be
F excluded from consideration. The finding of the High Court of any corrupt
practice being proved on this basis is contrary to law, and has to be set ·
aside for this reason alone. [509-C-E]

53. The state of pleading relating even to the video cassettes, when
the video cassettes or its transcript were not produced along with the
G election petition or its copy furnished with the copy of the election petition
to the appellant is a serious defect in the pleading which once again has
been totally overlooked at the trial of this election petition. This again has
resulted in raising an issue for which the requisite pleadings were not there
and when admitting considerable evidence which is irrelevant and inad-
H missible. [513-C-D]
RAMAKANT MAYEKAR v. CELINE D' SILVA 497

Civil Appeal No. 4973 of 1993 decided on I 1.12.1995. A

Manohar Joshi v. Nitin Bhaurao Patil & Anr., [1995] Suppl. SCR,
followed.

6.1. The requisite consent of the candidate cannot be assnmed merely
from the fact that the candidate belongs to the same political party which B
the wrong doer was a leader since there can be no presumption in law that
there is consent of every candidate of the political party for every act done
by every acknowledged leader of that party. The corrupt practice for which
a candidate can be held vicariously guilty for an act of any other person
who is not his agent in whose favour general authority is presumed, must C
be pleaded and proved to be with the consent of the candidate. It is so
because the penal consequences resulting from the finding of a corrupt
practice against the candidate are visited on the candidate h1cluding the
setting aside of his election. The distinction between the grounds in Section
lOO(l)(b) and Section lOO(l)(d)(ii) was completely missed. D
[513-H, 514-A-D]
6.2. The trial of the election petition became a roving inquiry into the
affairs of a political party when the only concern at the trial should have
been the merit of the charge of corrupt practices attributed to the returned
candidate at the election. Actions of the party were relevant only to the E
extent relatable to the returned candidate, in the manner pleaded in the
election petition. [511-E]

7. Any appeal for votes wherein mention was made of "Hindutva" is
not by itself sufficient to amount to an appeal for votes for the Hindu
candidates on the ground of their religion to constitute corrupt practice F
under Section 123(3) of the R.P. Act. [510-H]

Civil Appeal No. 2453 of 1991 decided on JJ.12.95.
Civil Appeal No. 2835 of 1989 decided on 1l.12.95.

Shri Suryakant Venkatrao Mahadik v. Smt. Saroj Sandesh Naik
G
(Bhosale), [1995] Suppl. 6 SCR and Bal Thackeray v. Prabhakar K Kunte
and Ors., [1995] Suppl. 6 SCR, followed. ·

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4731 of
1991 Etc. Etc. H
498 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A From the Judgment and Order dated 5/6.8.91 of the Bombay High
Court in E.P. No. 21 of 1990.

A.M. Khanwilkar, Ms. Bina Gupta, P.H. Parekh and M.N. Shroff for
the appearing parties.

B The Judgment of the Court was delivered by

J.S. VERMA, J. This is an appeal by the returned candidate under
Section 116A of the Representation of the People Act, 1951 (for short "the
R.P. Act") against the Judgment dated 5th/6th August, 1991 in Election
Petition No. 21 of 1990 by S.N. Variava, J. of the Bombay High Court
C whereby the election of the appellant lo the Maharashtra Legislative
Assembly from 49-Kurla Legislative Constituency held on 27.2.1990 has
been declared to be void on the ground under Section 100( l)(b) for
commission of corrupt practices under Sub-sections (3) and (3A) of the
R.P. Act. By the said judgment, the learned Judge has decided the election
D petition and made the order under Section 98 declaring the election of the
appellant to be vmd but the findings on issue Nos. 2 and 5 have been
reserved for being recorded after the inquiry under Section 99 of the R.P.
Act is concluded against Chhagan Bhujbal, Pramod Mahajan, Bal Thack-
eray, Manohar Joshi and Pramod Navalkar to whom notices have been
E issued nnder Section 99 of the R.P. Act by the order made therein. The
ultimate conclusion in the final order made in the impugned judgment is
quite involved because of the unusual mode adopted of deciding the
election petition piecemeal. Instead of attempting to 'ummarise the con-
clusion, it is safer to quote certain portions of the concluding part of the
judgment, as under :
F
"I have already held that the cassette was displayed in the con-
stituency with the consent of the Respondent. T7iere is however llO
proof that it was personally exhibited by the Respondent. Accordingly
it will have to be held that, by mode of dfaplay of this video cassette,
some other persons with the consent of the Respondent ha1·e com-
G mitted Che com1pt practice of appealing for votes on the ground of
the Respondent's religion i.e. Hindu religion and have attempted
to create enmity and hatred between different communities and
religions particularly Hindu and Muslims. On this count itself, the
election of the Respondent must be set aside. Accordingly, Issues
H Nos. 3 and 6 have been answered in the Affirmative and Issue Nos.
RAMAKANTMAYEKAR v. CELINED'SILVA[J.S.VERMA,J.] 499

1 and 4 have been answered in the Negatives. A
However, before the final order is passed the last and the main
mode of canvassing i.e. by means of the speeches made by Mr. Bal
Thackeray and the other leaders of the Shiv Sena and BJ .P.
alliance at the meetings held on 29th January, 1990 and 24th
February, 1990, has to be considered. I have read the speeches of B
Mr. Bal Thackeray, Mr. Pramod Mahajan, Mr. Chaggan Bhujbal,
Mr. Manohar Joshi and Mr. Pramod Navalkar ...... On reading of
these speeches, I am of the prima facie opinion that all the
abovenamed persons have by their speeches committed the corrupt
practice of having appealed for votes on the ground of the Respon- C
dents community and religion i.e. Hindu community and religion.
They have also, prima-facie at least, committed the corrupt practice
of attempting to create ~nmity and hatred between different classes
of citizens on the basis of religion and community, particularly
between Hindus and Muslims. I have already set out above that i11 D
cases like the present the consent of Respondent can be and .is
implied. As stated above the effect and import of the entire speech
has to be considered. At this prima-facie stage it is therefore not
possible to pin point any particular po1tion or portions. That can only
be do11e after hearing the import and effect and interpretation of the
speeches from the person who made the speeches. Thus before, I E
express my final opinion I intend to issue notices under Section 99
of the Representation of the People Act, 1951 to all the above
named persons, thus the answer to Issues 2 and 5 has been reserved
till after the final disposal of the Notices issued hereunder.

Accordingly, I direct that separate notices under Section 99 of F
the Representation of People Act, 1951 be issued to Mr. Bal
Thackeray, Mr. Manohar Joshi, Mr. Chaggan Bhujbal, Mr. Parmod
Navalkar and Mr. Pramod Mahajan ............ To each Notice shall
also be annexed a copy of this Judgment. In each Notice it will be .
pointed that in the Judgment it is already held that the conceme.d G
speech/speeches were with the implied consent of the Respondent."

xxx xxx xxx

''As it has been held that corrnpt practice has bee11 committed by
mode of wall paintings and display of video cassettes, the petition is H
500 SUPREMECOURTREPORTS (1995]SUPP.6S.C.R.

A made absolute in temis of prayers (a) and (b) i.e. the Election of
the Respondent to the Maharashtra Legislative Assembly election
held on 27th February, 1990 from Constituency No. 49 i.e. Kurla
Constituency is declared as null and void. This is on the ground
that corrupt practice set out above under sub-sections (3) and (3A)
of section 123 of the Representation of Peoples Act, 1951 have
B been· proved to have been committed with the consent of the
respondent i.e. that there has been an appeal to vote for the
Respondent in the name of his religion i.e. Hindu religion and an
attempt has been made to promote feelings of enmity and hatred
between the different classes of citizens of India on the ground of
c religion and community 11
•

(emphasis supplied)

After the impugned judgment was rendered, notices under Section
D 99 of the R.P. Act were issued to the aforesaid five persons who then raised
certain preliminary objections to the validity of the notices. Variava, J. by
his order dated 6.1.1992 rejected those objections. The notices given to
these persons related to certain speeches alleged to have been made by
them on 29.1.1990 and 24.2.1990 which, it was alleged, constituted corrupt
practices under Sections 123(3) and 123(3A) of the R.P. Act. In the said
E order dated 6.1.1992, Variava, J. has mentioned certain facts in the back-
ground of which the objections to the notices under Section 99 were
considered in that order. Those facts mentioned at the outset in the said
order are as under :

F "Petition No. 21of1990 is not an individual Election Petition before
this court. In respect of the same elections i.e. the elections to the
Maharashtra Legislative Assembly held in February 1990, ten such
petitions have been filed before this Court. All of these are agaimt
various successful candidates of Shiv Sena and Bharatiya Janata
Party. All these petitions are based on a blank of Hindutva/Hinduism
G alleged to have been adopted by these parties and allegedly declared
by there leaders at the joint Public meetings held by these two
parties on 29th January 1990 and 24th February 1990. In all these
petitions the charges are that the respective respondents, their election
agents and/or some other persons have with the consent of the
H respective Respondents, committed corrupt practices of appearing
I

RAMAKANT MAYEKAR v. CELINE D' SILVA [J.S. VERMA, J.L 501

for votes on the grounds of the candidates religion community and A
caste viz. Hindu religion, community and caste and the corrupt
practice of creating enmity and hatred between various classes of
citizens on the ground of religion, community and caste particularly
between Hindus and Muslims. Thus the charges are under sec.
123(3) and 123(3A) of the Representation of Peoples Act, 1951. B
The mode of resorting to these corrupt practices have been by way
of speeches made by the leaders of the two parties at the joint
meetings held on 29th January, 1990 and 24th February, 1990, by
use of offending poster, banners, wall writings and a video cassette
"Awahan and Avhan". This is the same material in all these petitions.
Then in individual Petitions, there are allegations of speeches made C
in the individual constituencies, either by the respective Respon-
dent or somebody else with his consent.

In this Petition also, the charges against the Respondent and the
alleged mode of canvassing are the same. Thus the charge is that
the Respondent, his election agents and/or some other persons D
have with his consent, committed the corrupt practices of appeal-
ing for votes on the grounds of the Respondents religion, com-
munity and caste viz., Hindu religion, community and caste and
the corrupt practice of creating enmity and hatred between various
classes of citizens on the ground of religion, community and caste E
particularly between Hindus and Muslims. Thus the charges are
under Secs. 123(3) and 123(3A) of the Representation of Peoples
Act, 1951. In this Petition also the alleged mode of resorting to these
.corrnpt practices is by way of speeches made by the leaders of Shiv
Sena and B.J.P. at the joint public meetings held on 29th January F
• 1990 (at Girgaon Chowpatty) and 24th February 1990 (at Shivaji
Park) and by use of offending posters, banners, wall writings and
the video cassette 'Awahan and Avhan'."

(emphasis supplied)
G
At the beginning of the impugned judgment, the scope of the election
petition and the true perspective in which it has to be decided has been
stated by Variava, J. as under :

"It must also be noted that these group of petitions are to a large
extent unlike other election petitions. This because these petitions are H
502 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A not based upon individual acts of individuals. They are mainly based
upon the abovementioned plank and/or policy decision of these
parties. This will have a bearing on the question of consent. It is
therefore necessary to note the make up of the Shiv Sena party. This
alr~ady fonns part of two Judgments of this Court."

B xxx xxx xxx

".......... U11like other Election Petitions the main charge is not of
an individual comtpt practice committed by an individual candidate
in his constituency. Really speaking, the charge against the candidate
is the charge of implementing the pla11k as decided by the party. ......... .
c In my view, in cases like this, where the plank has been declared
by the leader of the party and the leader of the party has com1ilete
control of the affairs of the party, once it is proved and held, that
the plank declared by the leader amounts to a conupt practice, every
candidate of that party will be bound by that plank. ........... As is set
D out hereafter, prima facie it does appear that the plank of Hindut-
va!Hinduism, as declared by the leaders at these two meetings
amounts to the corrupt practice of appealing for votes in the name
of the Hindu candidates religion and also amounts to the corrupt
practice of attempting to create enmity and hatred between dif-
ferent classes of citizens on the grounds of community and religion,
E
particularly between Hindus and Muslims .......... "

It is this perception of Variava, J. which has coloured his entire
judgment and led to the decision of the election petition, not confined to
the record of the case but extending to all the general impressions.
F ,_
An objection expressly taken to the validity of the notices that they
could not be issued after the election petition had been decided by making
an order under Section 98 of the R.P. Act was rejected by order dated 6.1.
1992. The connected Civil Appeal No. 93 of 1992 by Chhagan Bhujbal, Civil
Appeal No. 94 of 1992 by Pramod Mahajan and Civil Appeal No. 2396 of
G 1992 by Balasaheb Thackeray, are against the order dated 6.1.1992 passed
by Variava, J. rejecting the objections of these noticees to the validity of
notice issued under Section 99 of the R.P. Act. The inqniry required to be
made under Section 99 of the R.P. Act has not yet been made in the High
Court against any of the noticees in view of the pendency of these appeals.
H It may be mentioned that two remaining noticees Pramod Navalkar and
RAMAKANT MAYEKAR v. CELINE D' SILVA (J.S. VERMA, J.] 503

Manohar Joshi had filed Civil Appeal No. 149 of 1992 and Civil Appeal A
No. 795 of 1992 against rejection of their objections to the notices but those
appeals have been summarily dismissed on 19.8.1993 and 7.9.1993 ap-
parently leaving open the question of validity of the notices to be decided .
at a later stage. There is no dispute at the hearing of these appeals that
the case of all the five noticees has to be dealt with in the same manner
B
depending on the final outcome of these appeals.

We would now consider the points which arise for decision.

Dismissal of Election Petition under Section 86 of the R.P. Act, 1951

The first submission in these appeals is that the election petition was
c
liable to be dismissed under Section 86 of the R.P. Act for non-compliance
of sub-section (1) of Section 81, inasmuch as the election petition was filed
after expiry of the prescribed period of 45 days from the date of election.
Acceptance of the nominations of the candidates was 011 8.2.1990, the date
of poll was 27.2.1990 and the result of election was declared on 1.3.1990 at D
which Ramakant Mayekar was declared elected. The election petition was
filed on 16.4.1990. Admittedly the last date for filing the election petition
according to the prescribed period of 45 days was 14.4.1990, but the High
Court and its office were closed for holidays on 14th and 15th April, 1990
and reopened only on 16.4.1990. If Section 10 of the General Clauses Act E
applies, then the election petition filed on 16.4.1990 was within time. We
have already held in the connected Civil Appeal No. 4973 of 1993 Manohar
Joshi v. Nitin Bhaurao Patil & Anr., decided today, that Section 10 of the
General Clauses Act applies to an election petition. It must therefore, be
held that this election petition was filed within time. This argument on
behalf of the appellant is, therefore, rejected. F

Meaning and Effect of Sections 98 and 99 of the R.P. Act, 1951

The next question for consideration is the legality of deciding the
election petition and declaring the election of the returned candidate to be G
void by making an order under Section 98 of the R.P. Act, and then
proceeding to issue notice under Section 99 to the aforesaid five persons
on the basis of speeches alleged to have been made by them on 29.1.1990
and 24.2.1990 which form the basis of the ground under Section 100(1)(b)
for declaring the election to be void. The question really is : Whether notice
under Section 99 of the R.P. Act can be issued for commission of a corrupt H
504 SUPREME COURT REPORTS (1995] SUPP. 6 S.C.R.

A practice, after making an order deciding the election petition and declaring
the election of the returned candidate to be void? This specific objection
taken by the noticees has been rejected by Variava, J. The legality of this
view arises for consideration.

As for the speeches alleged to have been made on 29.1.1990 it may
B be stated at the outset that they have to be excluded from consideration
since they cannot form the basis of any corrupt practice at the election,
inasmuch as they relate to a period prior to the date on which Ramakant
Mayekar became a candidate at the election as defined in Section 79(b) of
the R.P. Act. This is the settled position in law. (See Subhash Desai v.
C Sharad J. Rao and Others, [1994] Supp. 2 SCC 446; Indira Nehm Gandhi
v. Raj Narain, [1975] Supp. SC 1 and Mohan Rawale v. Damodar Tatyaba,
[1994] 2 SCC 392. This was the undisputed position at the hearing of these
appeals before us since the speeches made on 29 .1.1990 were prior to the
date on which Ramakant Mayekar became a candidate at the election. It
follows necessarily that the impugned judgment as well as the subsequent
D notices issued under Section 99 of the R.P. Act, are unsustainable to the
extent they are based on the speeches alleged to have been made on
29.1.1990. No further discussion is necessary for holding that part of the
impugned judgment dated 5th/6th August, 1991, notices under Section 99
of the R.P. Act and the subsequent order dated 6th January, 1992 as
E contrary to law and, therefore, liable to be set aside for this reason alone.

It is only the surviving part of the impugned judgment and the notices
which require further consideration, for which purpose the question for
decision at the threshold is the validity of the course adopted of deciding
the election petition and declaring the election of the returned candidate
F to be void and then proceedings to give notices for taking action under
Section 99 of the R.P. Act.

We have already indicated the combined effect of Sections 98 and
99 of the R.P. Act in the connected Civil Appeal No. 4973 of 1993 Manohar
G Joshi v. Nitin Bhaurao Patil & Anr. - decided today. The correct legal
position has been overlooked by the High Court.

The High Court appears to have misread the decision of this Court
in D.P. Mishra v. Kamal Narayan Shanna and Anr., [1971] 1 SCR 8, to
form the opinion that the course adopted by it was permissible under
H Section 99 of the R.P. Act. The question in that case was of the failure to
RAMA.'<ANT MAYEKAR v. CELINE D' S!LVA [J.S. VERMA, J.] 505

issue notice under Section 99 of the R.P. Act to a person alleged to have A
committed the corrupt pra~tice for which the returned candidate also was
guilty. The High Court, in the appeal, did not comply with the requirement
of Section 99 for avoiding further delay. This Court rejected that view as
incorrect and held as under :

"We are unable to agree with the view so propounded by the B
High Court. Under s.99 of the Act the Court has no discretion in
the matter, if the Court was of the view that any person who is
proved at the trial to have been guilty of any corrupt practice, not
to name that person. It is true that preliminary objections were
argued at an earlier stage, but Sharma could not before the appeal C
was heard ask the Court to issue a notice under S.99 of the Act
on the footing that his case which was rejected by the Tribunal
will be accepted. The duty under the Act is cast upon the Court
or the Tribunal, and on the ground that the party has not applied
for a notice, the High Court could not avoid the obligation imposed
by statute to take proceeding under s.99 against the person proved D
at the trial to have been guilty of corrupt practice and to name
him. We fail also to appreciate the ground on which the high Court
has referred to delay being an "outweighing factor". Shyamacharan
Shukla was however not a party to the proceeding and before he
could be named a notice must go to him under s.99 of the Act. E
We direct that the proceeding be remanded to the High Court
and the High Court do give notice to Shyamacharan Shukla under
s.99 of the Representation of the People Act, 1951, to appear and
to show cause why he should not be named for committing corrupt
practices. If Shyamacharan Shukla appears in pursuance of the F
show cause notice he will be entitled to an opportunity of cross-
examining witnesses who have already been examined by the
Tribunal and has given evidence against him and he will be entitled
to give evidence in his defence and of being heard ........."
G
(at pages 29-30)

There is nothing in this decision to support the view taken by the High
Court that it could decide the election petition and make an order under
Section 98 declaring the election of the returned candidate to be void and
then proceed under Section 99 of the R.P. Act against the other persons. H
506 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A It is, therefore, clear that the impugned judgment dated 5th/6th
August, 1991 declaring the appellant's election to be void and the sub-
sequent order dated 6.1.1992 rejecting the preliminary objections to the
notice issued subsequently under Section 99, both by Variava, J., are
contrary to law and have to be set aside. We have now to determine the
nature of the final order to be made.
B
Speeches

We have already indicated that the speeches alleged to have been
made on 29.1.1990 are irrelevant and have to be excluded from considera-
C tion as earlier stated. In respect of the speeches alleged to have been made
on 24.2.1990, the relevant portions of the impugned judgment are as under:

"The question then is whether the Respondent was also present
at the meeting held on 24th February 1990. Here again the
petitioner has admitted that her only source of knowledge are
1D newspaper reports. In this case however, not a single newspaper
report support the case that all 34 candidates were present or that
the Respondent was present . ...... Thus the only evidence of
Respondent's presence at this meeting is this photo. The court
has looked at the photo and the Respondent a number of times.
It is not possible to categorically state that this is the photo of the
E
Respondent. If that be so, then the benefit of doubt must be given
to the respondent. Illus, there is no evidence before this court to
show that the Respondent was present at the meeting held on 24th
Febntary 1990. If that be so, then the question of considering the
Respondent's case, why he was not present at this meeting does
F not arise at all. !! was for the petitioner to satisfy the coun that the
Respondent was present at this meeting. The petitioner has failed to
do that. Therefore, so far as the meeting of 24th February, 1990 is
concenied, it is not possible to hold that the Respondent was present
at that meeting."
G (emphasis supplied)

The above fmding relating to speeches by some persons other than the
appellant can have relevance only if the element of appellant's consen•. is
also pleaded and proved. The appellant's consent was attempter! to be
H made out by implication only from the fact of his personal preEence when
RAMAKANT MAYEKAR v. CELINE D' SJLVA [J.S. VERMA, J.] 507

those speeches were made. However, the above conclusion reached by the A
High Court shows that the appellant's presence at the meeting was not
found to be proved. This being so, the element of candidate's consent
which is a constituent part of the corrupt practice alleged on the basis of
speeches made on 24.2.1990 by some other persons has not been found
proved. That finding alone is sufficient to reject the allegation of corrupt
B
practice on the basis of speeches made by others on 24.2.1990, as not
proved. When this is the conclusion reached in respect of the appellant
himself with regard to the allegation of corrupt practice based on speeches
made by others on 24.2.1990, then the question of recording a finding that
the corrupt practice has been proved, does not arise and, therefore, the
further question of naming any other person who could have been proved c
at the trial to be guilty of the corrupt practice under Section 99 of the R.P.
Act does not arise.

The pleading in respect of speeches made in the public meeting held
at Shivaji Park, Dadar on 24.2.1990 is in paras 22, 23 and generally in para D
27 of the election petition. These are the only portions of the election
petition on which reliance is placed by learned counsel for the respondent
as the pleading on this point. It is pleaded in para 22 that the speeches
were made by Bal Thackeray and other leaders of the alliance in that
meeting where the present appellant (respondent in the election petition)
and all other candidates of Shiv Sena - BJP alliance were present. There- E
after, in paras 23 and 27, there is only a general averment that the appeal
made by Bal Thackeray and other leaders to the voters was with the
consent of the appellant (respondent in the election petition). No fact other
than the averment of personal presence of the appellant was pleaded to
make out the consent of the appellant required for constituting the corrupt F
practice. As earlier indicated, the High Court has held that the presence
of the appellant at that meeting has not been proved. Thus, the only basis
for pleading and attempting to prove the appellant's consent to the making
of those speeches in the meeting held on 24.2.1990 has been held to be not
proved. There is thus no foundation even for a tentative frnding of any G
corrupt practice on the basis of speeches alleged to have been made by
Bal Thackeray and some other leaders in this case against the present
appellant, inasmuch as a necessary ingredient of the corrupt practice, i.e.,
consent of the appellant has been found to be not proved. There being not
even a tentative basis to hold the charge of this corrupt practice proved
against the appellant, the further question of invoking Section 99 to name H
508 SUPREMECOURTREPORTS (1995]SUPP.6S.C.R.

A any other person for the commission of that corrupt practice along with
the returned candidate does not arise.

In short, the finding of corrupt practice against the appellant on the
basis of speeches alleged to have been made by some leaders in the meeting
of 24.2.1990 being unsustainable, this charge to fail and no occasion arises
B in the present case for taking any action under Section 99 of the R.P. Act.
This part of the impugned judgment as well as the remaining part of the
notices under Section 99 of the R.P. Act also have to be set aside.

The only surviving question now is whether the impugned judgment,
C to the extent it survives against the appellant on the basis of wall paintings
and video cassettes can be sustained.

Wall Paintings

After the above conclusion reached in respect of the speeches al-
D leged to have been made by some leaders on 29.1.1990 and 24.2.1990 for
the reasons already given, the only remaining findings of corrupt practice
recorded by the High Court are based on certain wall paintings and video
cassette which have been found to constitute the corrupt practices under
Sections 123(3) and 123(3A) of the R.P. Act. We would now examine these
findings on merits.
E
The pleading relating to the allegation of corrupt practice based on
wall paintings is contain!'d in para 21 of the election petition which is as
under:

"The petitioner states that the respondent and his agents with
F the consent of the respondent have also used posters, banners and
wall paintings canvassing to vote for the respondent, appealing the
voters to vote for the respondent in the name of Hindu religion.
The petitioner has got the photographs taken of such wall paint-
ings. The petitioners craves leave to refer to and rely upon the said
G photographs as and when produced."

(emphasis supplied)

Except for repeating the words of the statute prescribing the corrupt
practice, there is no pleading of the material facts or any particulars
H necessary to constitute the corrupt practice as required by Section 8~\l)
..
RAMAKANT MAYEKAR v. CELINE D' SILVA [J.S. VERMA, J.] 509

of the R.P. Act. Reference is made to certain photographs of the alleged A
wall paintings and it has been said that the photographs would be relied
on as and when produced. The contents or form of the wall paintings or
their photographs has not been pleaded and the photographs referred in
para 21 of the election petition were neither annexed to the election
petition nor copy thereof furnished to the returned candidate along with a B
copy of the petition. Thus, there is no pleading in the election petition of
the language or contents c;f the wall paintings which were alleged to
constitute the corrupt prac,ice of canvassing for votes in the name of Hindu
religion.

If the mere mention of photographs without indicating its contents C
in the election is to be construed as incorporation of its contents by
reference in the election petition, then non-supply of the copy of the
photographs w;th the copy of the election petition would result in non-com-
pliance of Section 81(3). However, since the photographs were not annexed
to the election petition, it is a case not of non-compliance of Section 81(3) D
but a case of total absence of any pleading in the election petition of the
corrupt practice on the basis of wall paintings. Therefore, the pleading
being wholly deficient in material facts necessary to constitute the cause of
action, it was insufficient to raise a triable issue on that basis. In fact, this
part of the pleading was liable to be struck out since it was irrelevant at
the trial for the reason stated. It is clear that any evidence adduced later, E
in the absence of the requisite pleading of this corrupt practic· was
irrelevant and inadmissible and should not have been recorded and having
been recorded must be excluded from consideration. The finding of the
High Court of any corrupt practice being proved on this basis is contrary
to law, and has to be set aside for this reason alone. F

In view of the above conclusion in relation to the wall paintings, any
further discussion of the finding recorded by Variava, J. on this question
would be unnecessary but for the serious grievance made to the mode of
the trial. Since the finding reflects the common perception which in-
fluenced the trial and decision of the several election petitions in the High G
Court as mentioned in the impugned judgment, it becomes necessary to
refer to the discussion on this point in the impugned judgment.

As indicated earlier, no triaba1 issue arose in tlte absence of proper
pleadings relating to the corrupt practice alleged on the ground of wall H
510 SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R.

A paintings, much less an occasion for a finding adverse to the returned
candidate on this point. Surprisingly, evidence was recorded of the alleged
contents of the said wall paintings through production of certain
photographs later at the trial. A description of what is seen in these
photographs is given in the impugned judgment to indicate that they
showed the saffron flag and election symbol of the Shiv Sena and sought
B votes for the Shiv Sena candidates. The judgment then refers to the english
translation of the slogans therein which reads, as under :

"........ In order to remove the brokers of corruption, let us throw
around the Gulal of Hindutva" ...... "the lady sits angrily in Delhi ;

c Court, save Maharashtra by electing Sena - BJP" ........ "Our deter-
mination is firm. Stamp on the Bow and Arrow" and "Keep Hin-
dutva awake, elect the bow and arrow." ........ "for the protection of
fiery Hindutva the Shiv Sena BJP candidate ...... "

The Judgment then proceeds to hold as under :
D
"........ There can be no doubt that the "Hindutva" in these
wall-paintings is the same "Hindutva" contained in the video cas-
settes "Awahan and Avhan". They are therefore an appeal to vote
for Shiv Sena BJP candidates viz., The Respondent for protection
of that "Hindutva". As is set out hereafter an appeal in the name
E
of "Hindutva" amounts to an appeal to vote for the Hindu can-
didates of Shiv Sena BJP on the ground of their religion and also
amounts to the corrupt practice or creating enmity and hatred
amongst different classes of citizens on the grounds of religion and
community. These paintings on walls and pipelines therefore
F amount to having appealed to the voters to vote for the Respondent
on the ground of his religion and also amount to the corrupt
practice of creating enmity and hatred amongst different classes
of citizens on the grounds of religion and community. 11

G Thereafter, the discussion relates to the consent of the candidate which is
unnecessary in vie\V of the earlier conclusion.

The tenor of the impugned judgment, particularly the above extract,
leaves no doubt that the High Court was of the view that any appeal for
votes wherein mention was made of "Hindutva" is by itself sufficient to
H amount to an appeal for votes for the Hindu candidates of Shiv Sena-BJP
RAMAKANT MA YEKAR v. CELINE D' SlLVA [J.S. VERMA,J_) 511

on the ground of their religion and is a cor~upt practice or creates enmity A
and hatred amongst different classes of citizens on the grounds of religion
and community. The above extract from the decision itself is sufficient to
indicate the erroneous perception in ihis behalf which is clearly contrary
to law. The distinction between sub-sections (3) and (3A) of Section 123
which are two different corrupt practices, was totally lost sight of, and
B
obliterated. Moreover, the use of the word "Hindutva" in the abstract was
understood by the High Court to amount to an appeal for voles on the
ground of Hindu religion if the candidate happened to be a Hindu to
constitute the corrupt practice under sub-section (3); and at the same time
alone without anything me.re has been held to also constitute the corrupt
practice under sub-secton (3A) of Section 123, totally obliterating the c
distinction between these two sub-sections of Section 123 constituting two
different corrupt pn1ctices. Unfortunately, this erroneous construction of
the statute leading to the formation of a wrong perception, led the High
Court to commit the several errors commencing with the treating of
deficient pleadings to be sufficient to raise a triable issue of a corrupt D
practice. This extraordinary procedure, impermissible in law, led to recep-
tion of considerable irrelevant and inadmissible evidence for which no basis
can be found in the election petition.

In short, the trial of the election petition became a roving inquiry into
the affairs of a political party when the only concern at the trial should E
have been the merit of the charge of corrupt practices attributed to the
returned candidate at the election. Actions of the party were relevant only
to the extent relatable to the returned candidate, in the manner pleaded in
'.he election petition. Unfortunately, this crucial factor was overlooked by
the High Court in the trial of the election petition. F

In the abstract, the meaning of the word "Hindutva" is not confined
only to Hindu religion unrelated to Indian culture and heritage and it is
the context and the manner of its use which determines its true meaning
in a particular speech. The kind of use made of the word "Hindutva", the G
context a11d the composition of the audience to which the speech is
addressed are all significant. In the connected Civil Appeal No. 2453 of
1991 - Shri Suryakant Venkatarao Mahadik v. Smt. Saroj Sandeslt Naik
(Bhosale), decide;:j'today, we have indicated how the use of the word
"Hindutva' in the context a:nd in the circumstances in which it was used in
1

that case amounted to an appeal for votes on the ground of Hindu religion H
512 SUPREME COURT REPORTS [1995) SUPP. 6 S.C.R.

A for a Hindu candidate. As a proposition of law, it cannot be said that in
the abstract, the mere use of the word "Hindutva" during an election
campaign must necessarily mean an appeal on the ground of Hindu religion
for a Hindu candidate. We have discussed this question at some length in
the connected Civil Appeal No. 2835 of 1989 - Bal 17iackeray v. Prabahkar
B K. Kunte and Ors., with Civil Appeal No. 2836 of (1989) decided today. It
is unnecessary to reiterate the same herein.

What is forbidden by law is an appeal by a candidate for votes on
the ground of 'his' religion or promotion etc. of hatred or enmity between
groups of people, and not the mere mention of religion. There can be no
C doubt that mention made of any religion in the context of secularism or for
criticising the anti-secular stance of any political party or candidate cannot
amount to a corrupt practice under sub-section (3) or (3A) of Section 123.
In other words, it is a question of fact in each case and not a proposition
of law as understood and enunciated by the High Court.

D The view taken by the High Court in the impugned judgment indi-
cates a wrong perception based on a mis-construction of sub-sections (3)
and (3A) of Section 123, obliterating at the same time the distinction in
the two corrupt practices defined in these two provisions. The finding of
the High Court of proof of the corrupt practice based on wall paintings is
E also, therefore, set aside.

Video Cassette

The only surviving question now relates to the corrupt practice
alleged on the basis of certain video cassettes. The pleading is in paras 15
F to 18 of the election petition. There is a general averment that the alliance
had taken ant video cassettes for the purpose of its election campaign and
that they were exhibited at various places in the constituency. It is alleged
that the contents of the video cassettes amounted to appeal for votes in the
name of Hindu religion and they tended to create enmity and hatred
amongst the voters on the basis of caste, creed and religion. The only
G specific fact pleaded apart from the general averment, contained in para
18 is as under :

".......... Bal Thackeray also boasted that if any one is obstructing
the Hindu religion, he will fix him. That they (Shiv Sena) will stop
H all offering of 'Namaz' on roads and bring down the loudspeakers
RAMAKANTMAYEKAR v. CELINED'SILVA[J.S.VERMA,J.] 513

from the mosques Bal Thackeray has gone to the extent of coaxing A
the voters to scream aloud that they will not tolerate any one
coming into power with the help of Muslim votes".

It is significant that here also the pleadings are deficient and the only
averment which may be treated as specific is the above extract attributing
certain speech to Bal Thackeray of which also no particulars are given. The B
requisite pier ding of the candidate's consent for this act of Bal Thackeray
to constitute a corrupt practice by the candidate (appellant) is not pleaded
apart from the general pleading of consent elsewhere.

This state of pleading relating even to the video cassettes, when the C
video cassettes or its transcript were not produced along with the election
petition or its copy flirnished with the copy of the election petition to the
appellant, is a serious defect in the pleading which once again has been
totally overlooked at the trial of this election petition. This again has
resulted in raising an issue for which the requisite pleadings were not there
and then admitting considerable evidence which is irrelevant and inadmis- D
sible. We have considered this question at length in the connected Civil
Appeal No. 4973 of 1993 Manohar Joshi v. Nitin Bhaurao Patil & Anr. -
decided today. For the same reasons the entire issue relating to the corrupt
practice based on the video cassettes has to be excluded from considera-
tion. E
Even otherwise the only specific pleading on the point which is
extracted above is insufficient to plead this corrupt practice against the
appellant, however reprehensible it may be in relation to the alleged
conduct of Bal Thackeray. The mere fact that Bal Thackeray was leader
of Shiv Sena of which party the appellant was a candidate is by itself not F
sufficient to hold any candidate guilty of the corrupt practice on the basis
of an act done by Bal Thackeray unless that liability can be fastened on
the candidate on further proof that the act was done with the consent of
the candidate or the display of that cassette was made with the candidate's
consent at the specified time and place etc: during his election campaign. G
All these material facts were r~quired to be pleaded and proved, but,
instead, they have been assumed and even the finding is not related to any
such specific act.

The requisite consent of the candidate cannot be assumed merely
from the fact that the candidate belongs to the same political party of which H
514 SUPREME COURT REPORTS (1995) SUPP. 6 S.C.R.

A the wrong doer was a leader since there can be no presumption in Jaw that
there is consent of every candidate of the political party for every act done
by every acknowledged leader of that party. The corrupt practice for which
a candidate can be held vicariously guilty for an act of any other person
who is not his agent in whose favour general authority is presumed, must
B be pleaded and proved to be with the consent of the candidate. Obviously,
it is so because the penal consequences resulting from the finding of a
corrupt practice against the candidate are visited on the candidate includ-
ing the setting aside of his election. The High Court assumed for the
purpose of pleading as well as proof that no specific pleading or proof of
consent of the candidate was necessary if the act was attributed to any
C leader or even a member of the same political party. The distinction
between the ground in Section lOO(l)(b) on which the election petition was
allowed and that under Section lOO(l)(d)(ii) was completely missed. Ad-
mittedly, the ground under Section lOO(l)(d)(ii) is neither the basis of the
election petition nor is it of the Judgment of the High Court.

D It is this erroneous assumption made of the law as an abstract
proposition, which has resulted in the several serious errors in the trial as
well as in the impugned judgment. This discussion is sufficient to set aside
the only remaining finding against the appellant.

E From the above discussion, it follows that the findings on all points
agoinst the appellant, of the corrupt practices held to be proved against
the appellant, have to be set aside, and so also the impugned judgment
dated 5th/6th August, 1991 resulting in dismissal of the electiJn petition.
The notices issued by the High Court under Section 99 of the R.P. Act to
Chhagan Bhujbal, Bal Thackeray, Pramod Mahajan, Manohar Joshi and
F Pramod Navalkar after conclusion of the trial must also be quashed for the
above reason.

The result of this decision is that the inquiry against Pramod
Navalkar and Manohar Joshi pending in the High Court in this matter also
G terminates.

The appeals are allowed. The appellant Ramakant Mayekar would
get costs throughout from the respondent Smt. Celine D'Silva (election
petitioner). The other parties will bear their own costs throughout.

v.s.s. Appeal allowed.