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PETITIONER: SHRI SURYAKANT VENKATRAO MAHADIK

       Vs.

RESPONDENT: SMT. SAROJ SANDESH NAIK (BH

DATE OF JUDGMENT11/12/1995

BENCH: VERMA, JAGDISH SARAN (J) BENCH: VERMA, JAGDISH SARAN (J) SINGH N.P. (J) VENKATASWAMI K. (J)

CITATION:  1996 SCC  (1) 384        JT 1995 (8)   686  1995 SCALE  (7)92

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T J.S. VERMA, J. :      This appeal under Section 116A of the Representation of the People  Act, 1951  (for short  "the  Act")  against  the judgment dated  23.4.1991 passed  by H.  Suresh, J.  of  the Bombay High Court in Election Petition No. 14 of 1990, is by the returned  candidate whose  election to  the  Maharashtra Legislative Assembly from 48, Nehru Nagar Constituency, held on 27.2.1990  has been  declared to  be void  on the  ground under Section  100(1)(b) of  the Act ’on the ground that he, his  Election  Agent  and  workers  have  committed  corrupt practice as defined under Section 123(3) and Section 123(3A) of the Representation of People Act, 1951’.      Elections to  the Maharashtra Legislative Assembly were announced on  18.1.1990. The nomination papers were filed by the appellant for election from 48, Nehru Nagar Constituency on 31.1.1990.  His nomination  was accepted on 8.2.1990. The election was  held on  27.2.1990 and the result was declared on 1.3.1990.  The appellant  was candidate  of the Shiv Sena and he  was declared  duly elected  since  he  had  got  the maximum number  of votes. The election petition was filed on 16.4.1990 by  respondent Smt.  Saroj Sandesh Naik (Bhosale). There was  some defect  in the  verification of the election petition  and,   therefore,  on   19.4.1990  the  defect  in verification was permitted to be cured and a fresh affidavit in support  thereof was  taken by  the Court.  The appellant took out  chamber summons  to dismiss  the election petition under Section 86 of the Act for non-compliance of Section 81 of  the   Act  which  was  dismissed  on  17.11.1990.  After conclusion of the trial, the impugned judgment was delivered on 23.4.1991  setting aside  the appellant’s election. Hence this appeal.      The grounds  taken for  opposing the  election petition before the  High Court, have been reiterated in this appeal.

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In substance, these grounds are as under :- (1)  There is  non-compliance of  sub-section (1) of Section 81  in  as  much  as  the  election  petition  presented  on 16.4.1990 was  time barred.  There is also non-compliance of sub-section (3)  of Section  81 in  as much as copies of the photographs annexed  to the election petition were illegible and, therefore,  the copy of the election petition served on the appellant  was not a true copy of the election petition. On these  grounds, dismissal  of the election petition under Section 86  was claimed  for non-compliance of Section 81 of the Act. (2)  The contents  of  the  election  petition  are  not  in accordance with  Section 83  of the  Act inasmuch as it does not contain  the material  facts and full particulars of the corrupt practices  alleged  therein.  For  this  reason,  no triable issue  arises in  respect of  the corrupt  practices alleged under  sub-sections (3)  and (3A)  of Section 123 of the Act.  It was  urged that the election petition is liable to be rejected under order 7 Rule 11, C.P.C. (3)  Even on facts, no corrupt practice is proved. Re : Ground No. (1)      We shall first deal with the contention relating to the liability of  the  election  petition  for  dismissal  under Section 86 of the Act for non-compliance of sub-sections (1) and (3) of Section 81 of the Act.      Non-compliance of  sub-section (1)  is alleged  on  the ground that the last date of expiry of the period of 45 days from the date of election which is the limitation prescribed in sub-section  (1) of  Section 81 of the Act was 14.4.1990, but  the   election  petition   was  in  fact  presented  on 16.4.1990.  Admittedly   14th  and  15th  April,  1990  were holidays on  which days  the High  Court and its office were closed. The  question, therefore, is : Whether Section 10 of the General  Clauses Act  is applicable  ?  If  it  applies, presentation of  the election petition on 16.4.1990, the day on which  the  Court  and  its  office  reopened  after  the holidays, would be presentation within the prescribed period of limitation,  but not  otherwise. We  have considered this question at length in the connected Civil Appeal No. 4973 of 1993 -  Manohar Joshi  vs. Nitin  Bhaurao  Patil  &  Anr.  - decided today,  and held  therein, that  Section 10  of  the General  Clauses  Act  applies  to  the  election  petitions presented under  the Representation of the People Act, 1951. For the same reasons, we hold that Section 10 of the General Clauses Act being applicable, the election petition filed on 16.4.1990  in   the  present   case  was  within  time  and, therefore, there was no non-compliance of sub-section (1) of Section 81 of the Act.      We also  do not  find any  merit in the contention that there is  non-compliance of  sub-section (3)  of Section 81. This argument  is based  on certain  photographs which  were annexed to  the election  petition.  In  the  facts  of  the present case, it is unnecessary to decide whether the copies of the  photographs served  on the appellant along with copy of the  election  petition  were  illegible  or  not.  Those photographs were of certain posters alleged to have been put up in  the constituency and to have contained slogans of the Shiv Sena,  of which  party the  appellant was  a candidate, which amounted  to appeal  to voters  on the ground of Hindu religion. The  argument of learned counsel for the appellant is  that   in  the   absence  of  legible  copies  of  those photographs, the  contents of  which are  relied on  for the allegation of  corrupt practice  under Section 123(3) of the Act, the  relevant pleading  in that behalf was not supplied

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to the  appellant in  as much  as the  copy of  the election petition served  on him was deficient to that extent. In our opinion, this  question does not really arise in the present case since  the contents  of those  posters have  also  been expressly pleaded  in the election petition. These facts are pleaded in para 12 of the election petition and the contents of the  four photographs annexed to the election petition of which the  copies are  alleged to be illegible are expressly pleaded in  clause (ii),  (iii), (vi)  and (vii) of sub-para (b)  of  para  12  of  the  election  petition.  In  such  a situation, the  photographs annexed to the election petition after expressly  pleading their  contents in  para 12 of the election  petition,  were  only  evidence  of  the  pleading contained in  para 12 of the election petition and it is not a case  of incorporating  into  the  election  petition  the contents of  those photographs  by reference without stating it in  the election  petition. On  these facts, the decision applicable is  that in Sahodrabai Rai vs. Ram Singh Aharwar, 1968 (3) SCR 13, which clearly indicates that the failure to supply copy  of such  a document  annexed  to  the  election petition, the  contents  of  which  have  in  addition  been expressly pleaded  in the  election petition does not amount to non-compliance  of  sub-section  (3)  of  Section  81  to attract dismissal  of the election petition under Section 86 of the  Act. In such a situation the document annexed to the petition is  only evidence  of the  pleading incorporated in the petition.  Thus there  is no  merit in the argument that the election  petition was  liable  to  be  dismissed  under Section 86  of the Act for non-compliance of sub-section (1) and/or sub-section (3) of Section 81 of the Act. Re : Ground No. (2)      The grounds of corrupt practices under sub-sections (3) and (3A)  of Section  123 are  based on  certain speeches by appellant Suryakant  Venkatrao Mahadik  and some others made on different  dates, wall paintings and slogans of Shiv Sena of which  the appellant  was  a  candidate  and  some  video cassettes alleged to have been displayed during the election campaign of  the appellant. Such speeches include those made in a meeting held on 29.1.1990 by some leaders of Shiv Sena, speeches made  on 16.2.1990  and 19.2.1990  by some  persons other than  the appellant and a speech made by the appellant on 11.2.1990.      Shri  Soli   J.  Sorabjee,   learned  counsel  for  the respondent confined  the respondent’s  case in  this  appeal only to  the speech of the appellant on 11.2.1990. He stated in all  fairness that  the speeches  made in  the meeting of 29.1.1990 are  irrelevant in  as much  as they relate to the period prior  to the  date on  which the  appellant became a candidate at  the election  and cannot, therefore, amount to corrupt  practice.   It  is  surprising  that  this  obvious position in law as overlooked by the High Court and reliance was placed  even on  the speeches  made in  the  meeting  on 29.1.1990 to  support the  finding of corrupt practices held proved against  the appellant. Similarly, Shri Sorabjee made no attempt  to support the High Court’s findings to the same effect on  the basis  of  speeches  made  by  certain  other persons in  the meetings  held on  16.2.1990  and  19.2.1990 since the finding is in respect of speeches by persons other than those pleaded in the election petition. It is difficult to appreciate how the High Court could reach this conclusion and find  a case  for the election petitioner different from and in addition to that pleaded by her.      Considerable argument  was advanced  on behalf  of  the appellant to  assail the High Court’s judgment which suffers from many obvious discrepancies to contend that the ultimate

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conclusion reached  by the  High Court  is contrary  to  law because it has been influenced by numerous such errors which are wholly  unsupportable. Similar  defects in  the pleading and proof of corrupt practice based on video cassettes, wall paintings, posters  and stickers  were shown to contend that no triable  issue arose in the absence of requisite pleading of material  facts and  only omnibus evidence to support the same could  not amount  to legal  proof.  It  was  urged  by learned counsel  for the  appellant that  the trial  of  the election petition  assumed the form of a roving inquiry into the general  philosophy of Shiv Sena and its general actions instead of  being  confined  to  a  trial  of  the  specific allegations of  corrupt practices  against the  appellant in accordance with  the procedure  prescribed by  law.  Learned counsel for  the appellant  referred also  to the  manner in which the  order dated  26.4.1991 was made by the High Court on the  stay application  which shows that the learned Judge in making the decision was influenced more by his impression of the activities of Shiv Sena rather than the merits of the case. To  support this  submission, he referred to the order dated  26.4.1991  passed  by  H.  Suresh,  J.  on  the  stay application wherein he stated inter alia as under :-      "9. ........  The Court has also to take      into account  the attitude  of the party      before granting stay. It is on record in      this election  petition as  also in  all      other election petitions that are before      me that  when Bharucha,  J. decided  the      said petition  of  P.K.  Kunte  Vs.  Dr.      Ramesh Prabhoo,  on or  about  7.4.1989,      the very  next day  Bal Thackeray, in an      editorial dated 3.4.1989, has defied the      order of  the  Court  and  has  publicly      stated that  he would  not care  for the      courts whatever be their verdict. He has      repeated that  performance even  after I      gave my judgment in the earlier petition      and the  present one.  I do not say that      he should  accept  the  verdict  of  the      court as  such. But I always thought, we      believe in  the rule  of law  and not in      the  rule  of  men.  If  the  Court  has      committed  any  error  that  has  to  be      corrected in  accordance with law. It is      the higher  court that can set it right.      Or it  is the Parliament that can change      the law.  But  certainly  it  cannot  be      settled at  Chowpatty sands. If a leader      having  a   considerable   mass   appeal      amongst  the   not   so   learned,   the      illiterate,   the   semi-literate,   the      ignorant, publicly denigrates the court,      in effect,  he undermines the confidence      of the  public in  the judiciary itself.      That is the negation of the very concept      of rule  of law.  It is  time  that  the      courts take note of such public ridicule      by public  leaders  which,  if  ignored,      will sooner  or later  make  the  courts      socially irrelevant  in this country. In      these circumstances,  I am  inclined  to      think what Mr. Vashi says is right.      10.  It is  true, the respondent has not      said a  word about  my judgment  in this      Election petition.  Anyhow it  is not on

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    record so  far. Whatever  it be, he (the      Respondent) still  belongs to the party.      He is  bound by what his leader says. He      cannot say  that he  does not belongs to      Shiv Sena.  If that  is so,  there is no      reason that  the Court  should show  any      indulgence to  grant stay in a matter of      this type.  There is neither equity, nor      law in  favour of a person who has scant      respect for the court."      We have  mentioned these facts in view of the vehemence with which  it was  urged by  the learned  counsel  for  the appellant, with  some justification,  that the learned Judge who  decided   the  election   petition  was  influenced  by extraneous factors  which coloured his perception of the law leading to  several errors  in the judgment and the ultimate conclusion reached  in the  election petition.  In fact, the explanation  for  non-examination  of  the  appellant  as  a witness at  the trial,  given by  learned  counsel  for  the appellant, was  that on  account  of  the  attitude  of  the learned Judge the appellant had a reasonable apprehension of being treated  unfairly if  he appeared  as a witness in the court. In  view of  the several obvious defects in the trial and the  reception of  considerable irrelevant  evidence and reliance on  several extraneous  considerations in  deciding the  matter,   all  of   which   we   are   excluding   from consideration, the criticism levelled at the decision cannot be rejected  as baseless.  However,  we  are  proceeding  to examine whether  on exclusion  of all  such material,  there remains any  legal basis  to decide  the appeal  on  merits, instead of remanding the matter for a fresh trial.      In our  opinion, it  is not necessary for us to go into this question  any further  in the  present case  since Shri Sorabjee,   learned   counsel   for   the   respondent   has categorically confined  the respondent’s  case to  a limited question and  taken the  stand that  one speech of appellant alone to  the extent it is expressly pleaded in the election petition and proved by evidence, is sufficient to constitute the corrupt  practice under  Section 123(3)  of the  Act  to support the  decision of  the High  Court. In  view of  this stand, we  would first consider this aspect because it would be unnecessary  to  go  into  the  other  questions  if  the ultimate judgment  deciding the  appellant’s election  to be void can be sustained on this ground alone.      The  allegation   of  corrupt  practice  based  on  the appellant’s speech in para 12 of the election petition is as under :-      "12. The  petitioner   states  that   as      stated hereinabove,  the respondent  was      the officially  sponsored  candidate  of      Shiv Sena for the Vidhan Sabha (Assembly      elections).  The  said  political  Party      viz. Shiv  Sena as  stated  earlier  had      entered into  an alliance  with  another      party known  as Bharatiya  Janata  Party      (BJP). The  petitioner  states  that  of      late the  said Shiv  Sena and  the  said      B.J.P. have been contesting elections on      the plank  of  Hindutva  and  the  Hindu      religion.  Shiv  Sena  has  been  openly      convassing and  appealing to  the voters      to   vote   in   the   name   of   Hindu      religion.......      (a)       xx        xx        xx      (b)       xx        xx        xx

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    (c)  The petitioner  states that  during      the   course    of   election/campaigns,      numbers of  public meetings were held by      respondent, his election agent and other      party workers  with the  consent of  the      respondent and/or  his election agent in      the petitioner’s  constituency.  In  the      said meetings  Respondent and  his party      workers  were   jointly  and   defiantly      propagating that the Shiv Sena party was      for the  Hindus and  that if  you are  a      Hindu you should vote for the respondent      and the  Shiv Sena  to power ....... The      petitioner says that text of some of the      speeches are as under :-      (i)  A huge gathering of about 25,000 to      30,000 people  was held  at  "SARVESHWAR      MANDIR" on  Sunday  the  11th  February,      1990 When  "AKHANDHARANAM SAPTAH" was in      progress  at   the  conclusion   of  the      Ceremony the  respondent  made  inciting      speeches based  on  religion,  religious      practices,  evils   of  secularism   and      exhorted voters  to vote  for Shiv  Sena      and support the cause of Hindu and Hindu      religion.  The   Respondent  sought  the      blessings of  the gathering and appealed      to them  to support  Shiv Sena  and vote      them  to   power.  The  holding  of  the      meeting at  a Mandir  and performance of      Puja before  the speeches  violated  the      basic rule as to use of religious places      for political purposes;" The above  averments contained  in the  body of the election petition in para 12 satisfy the requirement of Section 83(1) of the  Act in  as much  as  the  material  facts  on  which reliance was  placed for  alleging the corrupt practice were stated along  with full  particulars of the corrupt practice to enable the returned candidate to meet the allegation made against him.  The date,  time and place of the act amounting to corrupt practice was pleaded and it was expressly pleaded that the returned candidate himself invoked the blessings of the gathering  and appealed  for votes  and support  for the cause of Hindu religion. This appeal was made at a religious place  and  during  a  religious  gathering,  obviously  for greater effect. Returned candidate being himself a Hindu and invoking support  for the  Hindus and  Hindu religion  in  a religious gathering  of Hindus during his election campaign, the averment  made was  of a  direct appeal to the voters by the returned  candidate for  votes  on  the  ground  of  his religion. Thus,  there is  no deficiency  in the pleading of this corrupt  practice under  Section 123(3) of the Act. The only question is whether the same has been proved. Re : Ground No. 3      The witness  examined to  prove the  allegation of  the above corrupt  practice is  PW-4 Namchari Baba Pol, a Police Sub-Inspector, who  was attached to the Kurle Police Station in the  Nehru Nagar  Assembly constituency  at the  relevant time. He  has deposed  that during  this election it was his duty to  report to  his superior  about the important events each day and for that purpose he used to maintain the record in a  diary. He  stated, on  refreshing his  memory from  an entry in  the diary,  that he  had  visited  the  Sarveshwar Mandir on  11.2.1990 at  noon since  he had  known that  the appellant was  to go there, that he had found the appellant,

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Dr. Pednekar, Korgaonkar and several other Shiv Sena workers in the  temple  where  the  religious  festival  of  ’Akhand Harinam Saptah’  was in  progress. He  has stated  that  the appellant (referred  as respondent in the election petition) and some  others gave speeches at that time which lasted for about half  an hour. About the contents of the speech of the appellant (referred as respondent in the election petition), he has stated as under :-      ". . . . The respondent and Dr. Pednekar      gave  a  speech  stating  that  for  the      protection of  Hindutva it was necessary      to give vote to Shiv Sena. . . . ." There is  nothing in  his cross-examination to discredit his version to  this extent. In view of the nature of his duties during election  period, he  was a  natural witness  of  the incident. The  diary which he maintained for that period was produced by  him in the court in which an entry of his visit to the temple that day was noted and nothing was elicited in cross-examination to  detract from  the merit of his version to this  extent. This  is the  only direct  evidence on  the point to  which there  is no rebuttal by the appellant in as much as  the appellant did not enter the witness box to deny this version.  The explanation  given by learned counsel for the appellant  for the  appellant’s  failure  to  enter  the witness box  even if  true, does  not relieve  the appellant from the consequence of an adverse inference arising against him on this point. This is a fact of which the appellant had personal knowledge  since this  act was  attributed  to  the appellant himself.  He was  the best  person  to  deny  that assertion if he challenged the same and to offer himself for cross-examination by  the other  side. This he has failed to do. There  being no inherent defect in the testimony of PW-4 and he being a natural witness of the incident on account of his official  duty during  the election  period,  the  above statement made  by him must be accepted. The question now is whether this  statement amounts  to  proof  of  the  corrupt practice under Section 123(3) of the Act.      The  meaning  of  the  word  "Hindutva"  was  seriously debated at  the Bar  during the  hearing  of  the  bunch  of appeals of which this is one. We have dealt with this aspect at length  in the  connected Civil Appeal No. 2835 of 1989 - Bal Thackeray  vs. Prabhakar K. Kunte and Ors. - (with civil Appeal  No.   2836  of   1989)  decided  today,  and  it  is unnecessary to  reiterate the  same herein. It is sufficient for the  present purpose to say that the meaning of the word "Hindutva" in the speech has to be understood in the context and according  to its  use and  the manner  in which  it was meant to  be understood by the audience. Irrespective of the meaning of  Hindutva in  the abstract,  what is  material in each case  is the  kind of  use made  of this  term and  the manner in  which it  was  meant  to  be  understood  by  the audience to  which the  speech was  addressed. The  relevant pleadings in  the present  case as  extracted above, make it clear that  this particular  speech by  the appellant was an appeal by  a Hindu  to a congregation of Hindu devotees in a Hindu temple during a Hindu religious festival with emphasis on the  Hindu religion for giving votes to a Hindu candidate espousing the cause of Hindu religion. Thus according to the pleadings in  the election  petition the  speech made by the appellant was  clearly an appeal to the voters on the ground of his  religion. The  evidence which proves the speech made by the  appellant in  a  Hindu  temple  during  a  religious festival addressed  to Hindu  devotees forming the religious gathering has  to be  understood in  this context.  The word "Hindutva" used in the speech of the appellant at that time,

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place and occasion has to be understood only as an appeal on the ground  of Hindu  religion, that is, by the candidate on the ground  of his  religion. As  earlier stated,  the  word "Hindutva" in  the  abstract  and  in  a  different  context addressed  to  a  different  gathering  may  have  different meaning related  to Indian culture and heritage unrelated to religion, but in the present context it has only one meaning as  indicated.  In  the  absence  of  any  rebuttal  by  the appellant against  whom an  adverse inference also arises on account of his failure to enter the witness box to deny this allegation, no other conclusion is possible.      The above discussion is sufficient to indicate that the speech of  the appellant  on 11.2.1990  in Sarveshwar Mandir during the  religious festival of ’Akhand Harinam Saptah’ to the congregation  of Hindu  devotees at  that time and place was clearly  an appeal  to the  voters on  the ground of his religion which  amounts to  a corrupt  practice  under  sub- section (3) of Section 123 of the Act. This finding alone is sufficient to sustain setting aside the appellant’s election on the  ground of  a corrupt  practice.  It  is,  therefore, unnecessary to  record any  finding on  the remaining points and  the   other  corrupt   practices  alleged  against  the appellant which  have been  found proved  by the High Court. This judgment is not to be construed as an affirmance of any other finding  of corrupt  practice  recorded  by  the  High Court.      We may,  however, observe  that there is some basis for the grievance made on behalf of the appellant that the trial of the  election petition in the High Court assumed the form of  a   roving  general  inquiry  into  the  philosophy  and functioning of  the Shiv  Sena instead  of the  trial  being confined  only   to  the  specific  allegations  of  corrupt practice against  the appellant.  The record  also indicates that care  was not taken to ascertain the precise allegation of corrupt  practices  in  order  to  prevent  reception  of irrelevant and  inadmissible evidence  at the trial. Certain findings given  by the  High Court against the appellant are such that  even on  behalf of the respondent, no attempt was rightly made  to support  them. In  the  impugned  judgment, apart from finding a corrupt practice proved on the basis of certain speeches by persons other than those pleaded, it has also been  said surprisingly  at one place that " in my view the question of consent does not arise in the present case". This was said in the context of a corrupt practice resulting from an  act of  a person  other than  the candidate  or his agent for  which pleading  and proof of consent is necessary as constituent  part of  the corrupt  practice. The  learned Judge overlooked  the difference  between the requirement in law of consent as a constituent part of the corrupt practice and its  proof by  necessary implication  from the facts and circumstances of a case.      For the  aforesaid reasons, we uphold the setting aside of the  appellant’s election  on the  above ground  alone as earlier  indicated.   The  appeal   must,  therefore,  fail. However, in  view of  the manner  of trial  of the  election petition and  the several  obvious defects  therein,  it  is appropriate that  the parties are directed to bear their own costs of this appeal as well as of the trial of the election petition, i.e., throughout. We direct accordingly.