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PETITIONER: DR. (MRS.) VIMAL

       Vs.

RESPONDENT: BHAGUJI & ORS.

DATE OF JUDGMENT12/05/1995

BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) FAIZAN UDDIN (J)

CITATION:  1995 AIR 1836            JT 1995 (6)   198  1995 SCALE  (3)423

ACT:

HEADNOTE:

JUDGMENT:      WITH Civil Appeal No. 2571 of 1991           JUDGMENT G.N. Ray,J.      In both  these appeals, the decision of the Bombay High Court (Aurangabad  Bench) dated  April 20,  1991 in Election Petition No.  7 of  1990 is  under challenge.  The  election petitioner Sri  Bhaguji Nivrutii  Satpute had questioned the election of  the appellant  in C.A.  No. 2227  of  1991  Dr. (Mrs.) Vimal  Nandkishore Mundada  to the  Maharashtra State Legislative  Assembly   from  201-Kaij   (Scheduled   caste) Constitutency held  in 1990  by filing  a petition under the Representation of  the People Act 1950 (hereinafter referred to as  the Representation  Act) before the Bombay High Court inter alia on the grounds that Sri Ere Maruti Nivrutti was a Lingayat by  caste but  he filed  his nomination as Lingder, that Mangesh  Pralhadrao Ranjankar  the appellant  in  Civil Appeal No.  2571 of 1991 was Kalal by caste but he filed his nomination as  Khatik, that  appellant Dr. Vimal Mundada had although embraced  Jainism after her marriage, but filed her nomination as  Chambhar  but  convassed  for  vote  as  Jain (Hindu) and Dr. Vimal also convassed for votes on the ground of religion and promoted communal hatred between two classed of citizen  and thereby  committed corrupt  practices  under Section 123 of the Representation Act. It may be stated here that the  result of  election to the Maharashtra Legislative Assembly from  the said  201 Kaij Constituency (S.C) held on 27.2.1990 was  declared on  1.3.1990 and  the appellant  Dr. Vimal Mudada having secured 35957 votes was declared elected from the  said constituency.  The  election  petitioner  Sri Bhaguji secured  25736 votes  and the  other  appellant  Sri Mangesh Ranjankar  secured 15260 votes in the said election. Both the  appellants namely  Dr. Vimal and Sri Mangesh filed their written statements in the election petition before the High Court  and disputed  the correctness of the allegations made  against   them  by   the  election   petitioner.   The

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allegations  and   counter   allegations   regarding   other candidates  in  the  said  election  petition  need  not  be referred to for the disposal of these appeals.      The  appellant   Dr.  Vimal   Mundada  in  her  written statement (Ext.18)  denied the  allegations made against her regarding caste,  community, promotion of hatred between two classes of  citizens and  resorting to  corrupt practice  as alleged. She  also  stated  that  Sri  Ere  Maruti  Nivrutti belonged to  Lingder community  and simply  because  he  was described as  Wani, he did not cease to be a Lingder. It was also contended by Dr. Vimal that the election petitioner had never objected  to the  caste certificate of Sri Ere Maruti. She also  contended that  Sri Mangesh  Ranjankar belonged to Khatik community  and the  caste certificate  was issued  in 1990 by  a competent  authority on  the  basis  of  relevant documents. Hence  the nominations  of Sri Ere Maruti and Sri Mangesh  as   scheduled  caste   candidates  were  correctly accepted by  the returning  officer. The appellant Dr. Vimal also contended  that the  voters of  Kaij  constituency  was against Congress-I  party and  hence votes cast in favour of Sri Maruti or Sri Mangesh would have never gone in favour of the election  petitioner. It  was also  stated that  in  the Parliamentary constituency  of which  Kaiz constituency  was one of  the segments,  the Congress I candidate got defeated by Janta  Dal candidate. That apart, the election petitioner lost his  reputation as  M.L.A. Although  he  contested  the previous  election  as  an  independent  candidate  and  had criticised the  policies  and  achievements  of  Congress  I party, he  joined Congress  I party later on and he had also enemies within  his own  party and  he had failed to develop public relation.      Dr. Vimal  in her written statement specifically denied that she  had posed  herself as  Marwari Community woman and having  married  Sri  Nand  Kishore  Mundada  had  presented herself as  Jain to  the voters. She stated that by marriage she had not lost her caste or religion more so when marriage was performed according to vedic rites. She also stated that she had  not  published  posters  or  banners  nor  did  she subscribed the  news paper  publication. Posters  or banners were also  not displayed  with her consent. She had appealed to  the   voters  according   to  manifesto  of  B.J.P.  and criticised the  policies of  the  Ruling  Party  or  various aspects of national life.      Sri Mangesh  in his  written statement  also denied the allegations made  against him  in the  election petition. He stated that  he obtained a caste certificate as ’Khatik’ and the said  caste khatik was a recognised scheuled caste. Such caste certificate was issued as far back as on 29.2.1990 and such certificate  had been correctly issued by the Executive Magistrate Kaij  on the basis of relevant documents. He also stated that  although the  caste of his brother was shown as ’kalal’ such  description of  caste of  his brother  was not made on  the statement  of their father and the caste of the brother was  wrongly  mentioned.  Sri  Mangesh  stated  that person belonging  to khatik caste also engaged themselves in toddy business on contract and they were denoted as ’kalals’ although they  factually belonged  to khatik  caste. He also denied that  the vote cast in his favour or in favour of Ere Maruti would have gone in favour of the election petitioner. He also  stated that  the election  petitioner had failed to keep contact with his constituency and became unpopular.      In the  election petition  No. 7  of  1990  before  the Aurangabad Bench  of the  Bombay High  Court, several issues were  framed  for  adjudication.  Several  issues  including issues No.5  and 9  related to  the  illegal  acceptance  of

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nomination papers of both the appellants and of the said Ere maruti even  though they  did not  belong to scheduled caste thereby adversely  affecting the voting prospect of election petitioner and  rendering the said election of 201 kaij s.c. constituency as  illegal and  void. In  respect of Dr. vimal Mundada issues No. 4,6,7,8 and 9 were framed for deciding as to whether  Dr. Mundadada  and her  election agents acted in projecting her  as member  of Marwari Community for securing marwari votes  of about  7 to  8 thousands  and whether they resorted to  publication of  posters banners  and news paper items as  detailed in  paragraphs 56  to 63  of the election petition  attacking   the  personal  character  of  election petitioner and  whether they  had also  resorted to  corrupt practice on account of delivering speeches by Sm. jayantiben Mehta and  Sri Promod  Mahajan with the consent of Dr. Vimal in the  electoral constituency on the ground of religion and also with  a view  to promote  communal hatred  as stated in paragraphs 64 to 70 of the election petition.      By the impugned judgment , a Single Bench of the Bombay High Court  (Aurangabad Bench)  held inter alia that Sri Ere Maruti and  Sri Mangesh  Ranjankar who  is the  appellant in Civil Appeal  No. 2571  of 1991,  were not the membrs of the scheduled caste  and acceptance of their nomination forms as contestant in the said election in 201 kaiz constituency was illegal. The High Court however held that the contest by the said Sri  Ere Maruti  and Sri  Mangesh  did  not  materially affect the election result of Dr. Vimal. The High Court also held that  the declaration  that Dr.  Vimal got elected from the said 201 kaiz Constituency was void. The High Court also answered the  issue No.  7 relating  to resorting of corrupt practice adopted  by Dr.  Vimal and  her supporter in making propaganda on  the score  of religion and promoting communal hatred between two communities through speeches delivered by Sm.  Jayantiben   Mehta  and   Sri  Promod  Mahajan  in  the affirmative.      In her  appeal before this Court, Dr. Vimal Mundada has challenged the  decision of  the High  Court  declaring  his election from  the 201 kaij constituency as illegal and void and holding him guilty of corrupt practice under section 123 of the  Representantion Act  for making  propaganda  to  the voters on the score of religion and promoting hatred between two communities  through the  speeches  delivered  with  her consent by  Sm. Jayantiben  Mehta and Sri Promod Mahajan. In the other  appeal, Sri  Mangesh Rajankar  has challenged the decision of the High Court that Sri Mangesh was not a member of the  scheduled caste  and acceptance  of  his  nomination paper for the said reserved constituency for scheduled caste candidate in 201 kaij constituency was illegal.      Coming to the question of invalidity of the election of the appellant  Dr. Vimal, we may indicate that Issue No.3 as to whether  election petitioner  had  proved  that  Dr.Vimal ceased to  be a  Scheduled Caste  candidate on  her marriage with Sri Nand Kishore Mudanda who is Jain, has been answered in the negative by the High Court. Similarly, the High Court has also  answered in  the negative Issue No.4 as to whether the election  petitioner had  proved that  Dr.  Mudanda  got 35957 votes  on account  of her  propaganda that  she was  a Marwari by  caste and  such action  on her  part amounted to corrupt practice.  Although Issue  No.5 has been answered in the affirmative  to the extent that nomination of Ere Maruti Nivrutti and  Sri Mangesh  the appellant in the other appeal had been  worongly accepted, the High Court has specifically held  that   the  result   of  wrong  acceptantance  of  the nomination of the said persion as members of scheduled Caste has not  adversely affected  the election  of  the  election

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petitioner. The High Court has also answered in the negative Issue No.6  as to whether the election petitioner had proved that Dr.  Mudanda, her  agents and other supporters with the consent  of  Dr.  Mudanda  published  posters,  banners  and newpaper items  attacking the personal character and conduct of the  election petitioner  as detailed  in para  26 of the election petition.  The High  Court has also answered in the negative Issue  No.10 as to whether the election in question was void  on account  of  the  improper  acceptance  of  the nominations of  Dr.Mudanda, Sri  Ere Maruti Nivrutti and Sri Mangesh and  scheduled castes.  The High Court has, however, answered in  the affirmative  Issue No.7  as to  whether the election petitioner had proved that Smt.Jayantiben mehta and Sri. Promod  Mahajan with  the consent  of  Dr.Mudanda,  had delivered speeches  in the  electoral constituencies  on the ground of  religion and also with a view to promote communal hatred as stated in paras 64 to 70 of the election petition. it is  because of  such decision on Issue No.7 that the High Court has declared that the election of Dr. Mudanda was void and the  election petitioner having secured the next highest vote was entitled to be declared as elected.      It is,  therefore, necessary  to consider  whether  the allegations  of   corrupt  practice  alleged  to  have  been resorted to  by Dr.  Mudanda because  of her  appeal to  the voters on  the  ground  of  religion  through  the  speeches delivered with  her consent by Smt. Jayantiben Mehta and Sri Promod Mahajan in the electoral constituencies for promoting communal hatred between two classes of citizens as stated in paragraphs 74-77  of the election petition since found to be correct by the High Court have been properly established.      Dr. Ghatate,  learned senior  counsel appearing for Dr. Vimal has  contended that  the only material on the basis of which the  High court  has  found  that  the  appellant  Dr. Mudanda had committed corrupt practice under Section 123 (3) and 123  (3A) of  the Representation  Act is  the report  of speech said  to have been delivered by Smt. Jayantiben mehta on February  14, 1990  as  published  in  Maratha  Sathi  on February 15,  1990. The  report of  the speech  said to have been delivered  by Sri  Promod Mahajan  was published in the daily Ambajogal  Times on February 19, 1990. The evidence of Sri Sudarshan  Rapatwar, P.W.14,  Reporter of  maratha sathi and the  evidence of Ishwar Chand Gupta P.W.24, the Reporter of daily  Ambajogai Times  have been  accepted by  the  High Court. Dr. Ghatate has submitted that the High Court has not placed  any   reliance  on  the  evidence  of  the  election petitioner and  P.W.9, Sri Sambhajirao Jogand and P.W.10 Sri Banshi N.Jagand.  Dr.Ghatate has  submitted  that  the  High Court has  committed a  grave  error  in  holding  that  the speeches of  Smt. Mehta  as reported in Maratha Sathi amount to corrupt  practice under  section 123  (3) and 123 (3A) of the Representation Act in view of the fact that (a) complete verbatim speech  was not  produced to  ascertain whether the extract publication  were out  of context or not (b) because even the  reporter Sri  Rapatwar deposed that the extract of the said speech of Smt. Mehta was in his language and not in verbatim. Admittedly,  Tipan that is the notes of the speech were made  by D.W.14  when the speech was delivered but such tipan had  not been  produced before  the  Court  so  as  to ascertain whether  the publication  was even  in  accordance with the  Tipan. Dr.  Ghatate has  also submitted  that  the maker of  the speech  was not produced but the makers of the reports of  the speeches  who admittedly reported some parts of the  speeches in  their own  language were  examined. Dr. Ghatate has  submitted that  P.W.14 in his deposition stated categorically that  "there is  political movement  to create

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vote bank on the basis of religion. Her approach to religion was from  point of view of politics." Dr. Ghatate has stated that the  aforesaid statement  by  P.W.14  is  his  personal assessment of the speech delivered by Smt. Mehta and because of his  assessment of  the said  speech  of  Smt.  Mehta  he published the report according to his own idea of the speech and it is not at all unlikely that the extract of the speech as published  was out  of  context.  Dr.  Ghatate  has  also submitted that  the newspaper  report appears to be factully wrong because  Smt. Mehta  could not have said that BJP Shiv Sena alliance  would from  the Government of Madhya Pradesh, Himachal pradesh,  Gujrat and  Rajasthan as  reported in the publication because  such alliance  of BJP and Shiv Sena was only confined to the state of Maharashtra.      Coming to  the speech  of Sri  Mahajan as  reported  in Ambajogai Times,  Dr.Ghatate has  submitted that such speech was also  not extracted in verbatim. The maker of the speech was not  examined and  the  reporter  in  his  own  language reported the  contents of  the speech  and even his notes on the basis  of which  the publication was made about the said speech was also not produced. He has submitted that the said reporter according  to the  subjective understanding  of the effect of  the said  speech published the said report and no reliance should be placed on such report based on subjective assessment of  the speech. Dr.Ghatae has also submitted that P.W.24 ,  Ishwarchand Gupta  admitted in his deposition that he had recorded necessary items and not the whole speech and recorded those  points which  according to him were relevant and important.  Dr.Ghatate has submitted that on the face of such  submission  it  is  quite  evident  that  report  also suffered from  subjective assessment  of some  parts of  the speech which  in the  opinion of the reporter were important and it was not unlikely that such report had been made about portions of  the speech  taken out  of their context thereby creating a  wrong impression. Dr. Ghatate in this connection has referred  to a  decision of  this  Court  in  Samant  N. Balkrishna etc.  Vs.George Fernandez  and ors. etc.(1969 (3) SCR 603  at  636-638),  Ziyauddin  Burhanuddin  Bukhari  Vs. Brijmohan Ramdass  mehra and  others (1976  (2) SCC  17 para 17), Haji  C.H. mohammad  koya Etc. Vs. T.K.S.M.A. Muthukoya (1979 (2) SCC  8 para 35-38). Dr. Ghatate has submitted that the newspaper  report or  evidence of  the reporter was only hearsay evidence and Section 78 of the Evidence Act does not refer to  the newspaper  report.  In  this  connection,  Dr. Ghatate had relised on a decision of this Court in Laxmi Raj Shetty and another Vs. State of Tamil Nadu (1988 (3) SCC 319 para 25-26)  and Manmohan kalia Vs.Yash and others (1984 (3) SCC 499  paras 4  and 7) and Qamural Islam (Air 1994 SC 1733 para 44,46,47  and 48).  Dr. Ghatate  has submitted  that is very difficult  to interpret  a  part  of  the  speech  with certainly that it is not reported out of context as has been indicated by  this court  in mohammed koya’s case (ibid). He has also  submitted that  in any  event, the notes of speech must be  produced to  show that  the report was according to the notes  and not tainted. For this contention, Dr. Ghatate has relied on the decision of this Court in Laxminarayan and another vs.  Returning officer  and others (1974 (1) SCR 822 at 841-842).  It has been contended by Dr. Ghatate that even if a  person is  not a member of political party, he may not necessarily be  an independent  withness. It is not unlikely that such  person may  have his own political ideas close to the ideas  of any political party. Dr. Ghatate has submitted that it  is  quite  apparent  from  the  deposition  of  Sri Rapatwar that  he evalued the election speeches delivered by Smt.  Mehta  from  political  angle  according  to  his  own

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understanding. Dr.  Ghatate has  submitted that  even on the basis of  alleged speech  delivered by  Smt. Mehta  and  Sri Mahajan as  published, there  was no  occasion for  the High Court to  come to  a finding  that such  speeches, delivered with the  consent of  the appellant  could  be  held  to  be corrupt practice  under section  123 (3) and 123 (3A) of the Representation Act.  Dr.  Ghatate  has  submitted  that  the statement attributed  to  smt.  mehta  that  "the  spark  of ’Hindutwa’ be lit in Maharashtra and should be made to march upto Delhi"  and reference  to Hindutwa  in two  more places must be held to be out of context because of the categorical admission of  Sri Rapatwar in his deposition - "I cannot say whether Hindutwa  is a symbol of culture and not necessarily a symbol  of  religion."  Dr.  Ghatate  has  submitted  that ’Hindutwa" has  been derived  from  the  words  ’Hindu’  and ’tatwa’ which  means  Hindu  logic  or  philosphy  and  such ’tatwa’ is  different from  Hindu religion. Referring to the passage about  the alleged  speech of  Smt. Mehta  regarding kashmir, Dr.  Ghatate has  submitted that  it is  attributed that Smt.  Mehta had  said that kashmir was indivisible part of India  and we  would not  allow kashmir to be seprated in any situation.  Such statement  does not offend any religion and cannot  be said  to have  caused  even  remotely  hatred between two  classes of religion. The alleged speech of smt. mehta to  the  effect  that  present  situation  in  kashmir wherein the  slogans in  favour of  Pakistan was  raised and burning of Indian national flag on August 14 had taken place and insult  of Hindu Temples in Anant Nag had been witnessed were consequences  of wrong  policies of  Congress  I  party cannot be said to be propaganoa on the score of any religion or intended to cause any hatred between different classes of religion. Dr.  Ghatate has submitted that terrorism and anti national movements  in the  state of  Jammu and  Kashmir are being questioned  and analysed  by all the political parties and people  in general and criticism of the state of affairs in Jammu  and kashmir cannot be held to be propaganda on the score of religion or a propaganda for causing hatred between different communities and religious groups.      Coming to  the statement  attributed to Sri Mahajan Dr. Ghatate has  submitted that  Sri Mahajan  according  to  the report had stated that if his political party would be given an opportunity  to hoist  safron flag  in Vidhan  Sabha,  it would also  be hoisted  in Islamabad  with in five years and the internal rift in the Congress Party was going to benefit the BJP  Shiv Sena alliance and people would see safron flag hoisted in  Vidhan Sabha.  Dr. Ghatate  has  submitted  that safron flag is the colour of the flag of Shiv Sena which was a partner  of the  said alliance.  The flag of BJP is safron and green  and the  flag of  congress party is safron, white and green.  Dr.Ghatate has submitted that hoisting of safron flag in  Vidhan sabha  is the  symbolic victory  of the said BJP-Shiv sena  alliance. The undivided India was partitioned in 1947  and the  desire that again both the countries would become united through the political efforts of BJP-shiv sena alliance within  a period  of five  years thereby  making it possible to hoist the said safron flag in Islamabad does not in any  way appeal  the voters  on the ground of religion of such statement  was nither  intended nor  had  brought  into effect or  likely to  being into  effect any  hatred between different  communities   and   religions.   Dr.Ghatate   has submitted that  theres no evidence before the court which is clear,  cogent,   satisfactory,  credible  and  positive  to establish the  charge of corrupt practice. Since such charge is quasi-criminal  in nature and entails criminal nd entails crimmnal lability  apar5t from  civil lability  to loose the

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tight  to  contest  election  in  ftture  the  scrutinyt  of theallegati0on of corrupt practice under section 123 (3) and 123 (3A)  must be  very critical  and until  and unless thre evidences being   absolutely credible and positive can stand the test of scrupulous scarutiny and would lead to only oane irresistible conclusion  and unimpechable rwsult that crrupt that practice  under   Section 123  (3)  and  123  (3A)  was committed court  should disist  frsom making  any finding of corrupt  practice.   In  this  connection  ,Dr.ghgatate  has relised on  the decison  of this  court in  mohan singh  vs. bhaanwarlal and  others (1964(5) SCR 12 at 20), kultar singh Vs. Mukhtiar  singh (1964 (7) SCR 790 at 791-794), D.Venkata Reddy Vs.  R. Sultan  and others  (1976 (3)  SCR 445 at 445- 447). DR  ghatate has  submitted that  there is  no room for inference or  conjecture for  making a  findjng  of  corrupt practice. DR.Ghatate  has also  submitted that  hte evidence about the  corrupt practice  must be  of such unimpeachanble character that  it will  lead to  onluy one  conclusion that corrupt pracatice  has been  committed  and  iff  any  other inference is  also possible, benefit must go to the returned candiate and  courts shoulsd  nbe slow to interfere with the verdict of  the electoratre.  In this regard, Dr Ghatate has relied on  the decision  of this  court in Dault ram chauhan Vs. Anand  sharma (1984  (2) SCC  64 at 14,15,18,19 &20) and the decision  in Laxmi Narayan Nayak Vs. Ramratan Chaturvedi and others (1990 (2) SCC 173 para 5).      DR. Ghatate  has also  submitted that section 99 of the representation ACT  is mandatory in nature. He has submitted that even assuming that the appellant Dr. Vimal oave consent ot hte speeches delivered by Smt. mehta and sri mahajan, the High court  <In view  of the section 98 read with section 99 of the  REpresentation Act,  cannot be  aside  the  election before   naming   the   collaborators   after   giving   the collaborators opportunity  to led  evidence  and  to  cross- examine the  withnesses examined to prove that they were not guilty of  corrupt  practice  as  alleged.  Dr  ghatate  has submitted  that   it  has  been  held  in  D.P.  Mishra  Vs. kamalNarayan sharma  nad another  (1971 (1)  SCR 8 at 28 and 29) that  it is  the duty  of the  court to  name the person committing corrupt  practice. If  the court fails , the case has to be remanded. He has also referred to another decision of this  court in  Rahim khan  vs khurshid  ahmed and others 9174 (2)  SCC 660  at 685)  wherein it has been held by this court that  when the court found that the returned candidate and  his  one  of  the  supporters  had  committed  caorrupt practoice, it  was under  statutory duty  to nadme all those who were  guilty of  corrupt practices  under section  99(a) (ii) after  foloowing the prescribed procedure. Dr. Ghastate has submited  that if the court comes to the conclusion that prima facie  corrupt practice had been committed bu teturned candidate with  the aid  of collaborators it becomes bounden duty of  the court  to name  the collaborators  after giving the opportunity  to disprove  the allegations before setting saide the  election of the victorious candidate. Dr.Ghateate has also  submitted that  without giving  opportunity to the collaborators  before  naming  them  as  guilty  of  corrupt practice along  with the candidte in an election, no section 123 (3)  and 123 (3A) was committed, the court should desist from  making  any  finding  of  cottupt  practice.  In  this connection, Dr.  ghatate has  relied on the decision of this court in mohan singh vs. Bhanwarlal and others (1964 (5) SCR 12 at  20), kultar  singh vs mukhtir singh (1964 (7) SCR 790 at 791-794),  D.Venkata Reddy  Vs. R sultan and others (1976 (3) SCR 445 at 445-447). Dr. Ghatate has sumitted that there is no room for inferenfce or conjecture for making a finding

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of corrupt practice. Dr. ghatate has also submitted that the evidence  about   the  corrupt  practice  must  be  of  such unimpeacdhable character  that it  will  lead  to  only  one conclusion that  corrupt practice  has been  commited and if anu other inference is alos possible, benefit must go to the returned candidate  and courts  should be  slow to interfere with the  verdict of  the electorate  . In  this regard, Dr. Ghatate has  relied on  the decision of this court in daulat ram chauhan Vs. Anand sharma (1984 (2) SCC 64 at 14,15,18,19 &20 and  the decision  in laxmi  Narayan Nayak  Vs. Ramratan chaturvedi and others (1990 (2) SCC 173 para 5)      DR. Ghatate  has also  submitted tht  section 99 of the Represaentation Act is mandatory in nature. He has submitted that even consent to the speeches delivered by smt mehta and sri mahajan,  the High Court, in view of the section 98 read with section  99 of the Representation Act, cannot set aside the election  before naming  the collaborators  after giving the collaborators opportunity to lead evidence and to cross- examine the  withesses examined  to prove that they were not guilty of  corrupt pracyice  as  alleged.  Dr.  Ghatate  has submitted that it has been held in D.P. Mishra Vs. Kamal Narayan Sharma and another (1971) (1) SCR 8 at 28  and 29)  that it is the duty of the Court to name the person  committing corrupt practice. If the Court fails, the case has  to be  remanded. He  has also  rederred to another decision of  this Court in Rahim Khan Vs. Kurshid Ahamed and others (1974  (2) SCC  660 at 685) where4in it has been held by this  Court that  when the Court found that the returened candidate and  his  one  of  the  supporters  had  committed corrupt practice,  it was  under statutory  duty to name all thoses who were guilty of corrupt practices under Section 99 (a)  (ii)   after  following   the   prescribed   procedure. Dr.Ghatate has  submitted that  if the  Court comes  to  the conclusion  that  prima  facie  corrupt  practice  had  been committed  by   returned   candidate   with   the   aid   of collaboratiors it  becomes bounden duty of the Court to name the collaborators  after giving them opportunity to disprove the allegations  before setting  aside the  election of  the victorious candidate.  Dr.Ghatate has  alsc  submitted  that without  giving  opportunity  to  the  collaborators  before naming them  as guity  of corrupt  practice along  with  the candidate in  an election,  on final  finding about  corrupt Practice should  be made  - He has submitted that if without giving opportunity  to the  collaborators,  a  firm  finding about corrupt  practice resorted  to by  a candidate is made and on  that basis  the election  is set  aside, and  if for naming the collaborators subsequently steps are taken by the Court, it  is not  unlikelt that  a very anamolous situation may arise  if the  collaborators on getting such opportunity satisfy the  Court that  they had not committed, any corrupt practice. Dr.Ghatate  has, therefore,  submitted that in the aforesaid facts  and circumstanes,  the finding  of the High Court that Dr. Vimal Mudandaq is guilty of corrupt practrice under Section 123 (3) and 123 (3a) of the Representation Act is wholly  unjstified  and  must  be  struck  down.  He  has submitted  that   Dr.  Vimal   was  declared  elected  by  a convincing  marhgin   over  her  nearest  rival  namely  the election Petitioner  and the  mandate of the election should not have  been frustrated by making thwe said finding in the absence  of   cogent,  specific,   reliable  and  admissible evidence about resorting to corrupt practice by Dr. Vimal on account of  speeches delivered by Smt.Mehta and Sri Mahajan. He has,  therefore, submitted  that the  appeal by Dr. Vimal should be  allowed and  she should  be declared to have been elected in the aforesaid election held in 1990

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     Mr.Poti,  learned senior  counsel  appearing  for  the respondent No-1,  namely the election petitioner Sri Bhaguji has Submitted  that though several grounds were urged by the said election  petitioner, the  High Court accepted only one as sufficent  to set  aside the  election of Dr.Vimal on the ground  that   Section  123   (3)  and   123  (3A)   of  the Representaion Act  had been  infrined. Such finding has been made in  view of  the speeches  made at election meetings of the appllant. The first of such meeting was held on February 14, 1990  and the second was held on Fabruary 19, 1990. P.W. 14 has  deposed about  the meeting held on February 14, 1990 at Nagar  Parishad ground  and P.W. 24 has deposed about the meeting held  at Municipal  ground of February 18, 1990. The English translation of the report of the speech by Smt.Mehta was published  in Maratha  daily Sathi  on February 15, 1990 and the report of the speech of Sri Mahajan was published on February 19,  1990 in  Ambajogai Times.  Mr. Poti  has  also submiteed that  speeches were  not  reported  in  full.  The reporter who  made the  reports had  deposed that  they  had attended the  respective meeting  and they  had reported the gist of  the speeches  to  the  newspapers  publishing  such reports. P.W. 14 is the reporter of Sathi and P.W. 24 is the Editor of  Ambajogai Times.  Mr. Poti has submitted that the primary evidednce  is the  testimony of the speeches and the testimony is  supported by the nespaper reports. It has been contended by  Mr.Poti that  the credibility  of the evidence will depend  upon other facts and circumstance including the case attempted  to be suggested in the cross examination. It also depends  upon the  oral testimony  of the parties which may disclose what their cases are in regard to the eveidence of the  said two  withnesses. Mr.Poti  has submitted that no suggestion worth  consideration had  been made  in the cross examination of  P.W. 14 and P.W. 24 which  would sugges that Particular part  of their  reports or their depositions were not true.  Their reports  or their depostions were not true. There is no serious despute about making of speeches by Smt. Mehta and  sri Mahajan  in the  presence of the appellant at the  election  meetings.  The  High  Court  has,  therefore, rightly held that the contents of the speech donot appear to be in dispute. Even then, the election petitioner proved the contents of the speech by examining the relevant withnesses. Mr.Poti has  submitted  that  the  election  Petitioner  has pleaded in  his election  petition the facts relating to the meetings, the speeches made in the meetings and constructive liability of  the appellant  Dr.Vimal for  such speeches  in clear and specific terms. In reply to such averments made in paragraphs in  her written statement has not holiding of the meeting and  participation of  Smt.Mehta and Sri Mahajan has been admitted. The presence of the appellant in such meeting has also  been proved  by leading  reliable  and  convincing evidence. There  is no  pssaion, therefore,  to pretend that such speection  hed been  delivered without  her  approveal. Mr.Poti has  also submitted that there is no specific denial that each one of the particular statements attributed to the said speakers  was not  made. He has submitted that the only submission to  the withesses  was to  the effect  that  such speeches where  on party  lines. Mr. Poti has submitted that according to  the rules of pleadings, there must be specific denial in  clear and  unambigious terms.  If  there  is  not specific denial  of the  averments made  about  the  corrupt practice as  contained in  paragraphs 62-70  of the election petition, any  att6empt of  vague and evesive denial will be of  no   consequence  acording   to  the   well  established principles of  pleadings to  pleadings and the provisions of the Code  of Civil  Procedure relating  to Pleadings  of the

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parties in  a lis.  Mr.Poti has  submitted that  there is no doubt that  the plea  of corrupt  practice requires  a  high standard  of  proof  considering  the  serious  consequences involved in  a decision  on the question. But facts relating to corrupt practice are to be proved in an election petition in the  same manner  as facts  in the othere case are proved and there  is not  double standard  od such  proof. For this conterntion he has relied on a decision of this Court in Ram Singh and others Vs. Col. Ram Singh (1985 Suppl. (2) SCR 399 at 481-482).  Mr.Poti has submitted that the learned counsel for the  appellant has referred to various decisions of this Court including  the declsion  mde in  Gerge Fernadex’s case (ibid) relating  to Madhu  Limays’s speech  that  new  paper reports are  not evidence  by themaselves.  He has submitted that it  is now  well  settled  that  newspaper  reports  by themselves are  not evidence  but in  the faors of the case. such decisions  have no  manner of  application. Mr.Poti has submitted that  publication of a newspaper report only shows that such  news itam  has been  published  but  standing  by itself it  is of  very little evidentiary value. Mr.Poti has submitted that it is, therefore, necessary that the contents of the  speech should  be proved by one of the known methods either  by   examining  the   reporter  or  by  proving  the contemporaneopus record  of the  report  or  by  such  other evidence  as   may  be   considered  relevant  or  material. Evidentiary value  of the  nespaper reports  will ultimately depend upon  haon how  and in  what manner  the   report  is sought to  be proved.  Mr.P{oti has  submitted that  in  the instant case,  the newspaper  reports are  not  the  primary evidence but  the secondary  of P.W.  14 and P.W.24. Mr.Poti has submitted  that even without newspaper reports, speeches made by  persons at  a meeting  could be proved by those who listened to  the speeches. It is not expected that a witness will be  in a position to recollect the speeches in full and reproduce the  same verbatim  in Court particularly when the speeches are long. The gist of the points which go home will be  spoken   by  such  withesses.  The  acceptance  of  such evidences will  depend upon  various circumstances including the power  to recall  the speeches  at the  distance of time when they  are examined.  In a  case where  it is undisputed that the speeches were made and it is further proved that it was listened  to by  gentlemen professionally trained to get at the  gist of  the speeches  then unless  there is  strong reason to  disbelived their  evidence  or  there  is  strong evidence in  rebuttal, the depositions about the gist of the speech would  normally be  accepted. Mr.Poti  has  submitted that it  is also an i mportant fact that the said withnesses were able  an important  fact that  the said  withesses were able to  recall from  the speeches  because of the newspaper publications were  based on  their own  reports. Mr.Poti has also submitted  that thw  conduct of the appellant Dr. Vimal is of  considerable significance  in the  facts of the case. Apart from  the vague  pleadings and  evasive denials in her written statement,  the appellant  who was  declared elected and whose  election was  challenged, did not choose to enter the withess box and honestly place her version of the matter before the  court. Her fallure to examine herself should not place her  at an  advantage over  a  party  who  enters  the witness box  and speaks  about his  case and stands to cross examination. Mr.Poti  has submitted that in the instant case the appellant  has not  deposed that P.Ws. 14 and 24 did not attenc the  respective meetings  or they had not stated what exactly  was   spoken  at  the  meetings  in  question.  The appellant has  also not  made  any  statement  by  examining herself as  to what  was the  actual gist  of the speech and

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whether the  gist of  the speech  reported was  incorrect or quoted out  of context.  Even in  the examination of P.Ws.14 and 24,  there is  no suggestion  to the said withesses that the particular  portions of the speech as reported were made in different from or had not been made at all. Coming to the scope of  appreciation of  question of finding of fact in an appeal before this Court arising from a decision rendered by the High Cout in an election petition, Mr.Poti has submitted that it  is well  setteld that  though an  appeal lies  on a question of  law and  fact from  a decision  rendereds in an election  petition,   this  Court  does  not  by  convention interfere with  the finding  of fact unlessa tere is a clear infirmity against  the judgment.  for  the  said  contention Mr.Poti referred  to the  decision of  this  Court  made  in Nanothombam Ibomcha  singh Vs.  Leisanghem Chandramani Singh and others   (1977  (1) SCR  573). It  has also been held by this Court  in Mohd .Yanus Saleem Vs. Shiv Kumar Shastri and others (1974  (3) SCR  738) that unless there are convincing and clinching  reasons to take a different view, the finding arrived at  by the High Court should not be interfered with. In Prahladdas  Khandelwal Vs. Narendra Kumar Salve (1973 (2) SCR 157)  it has  been held  that  no  interference  to  the findings of fact by this Court is called for unless there is grave error in the appreciation of the facts of the case. In Shri Shreewant  Kumar Chodhary  Vs. Shri  Baidyanath Panjiar (1973 (1)  SCC 95)  it has been indicated by this Court that this Court  does not reapporeciate the case specially in the matter of corrupt practice.       Coming to the conclusion as to whether the gist of the speeches if  correctly reported  justifies  the  finding  of corrupt practice  under Section  123 (3) and 123 (3A) of the Representation  Act,  Mr.Poti  has  submitted  that  abefore assessing the  impact of  the speeches,  it is  necessary to notice the  object of  these two sections as well as certain Principles  laid  down  by  this  Court  in  the  matter  of appection of  evidence. In  Z.B.Bukhari’s case  (ibid)  this Court has  dealt with  the object of Section 123 (3) and 123 (3A) of  the Representation  Act relating to the Question of disqualification on  account of corrupt practice. This Court has  indicated   that  our   political  history   makes   it particularly necessary  to ensure  that differences  on  the basis of  religion, culture  and creed  do not  deprive  the basis of  religion, culture  and creed  do not  deprive  the people of  their rational  thought and  action. In  the case reported in  (1985 (2) SCR 159) Justice Sabyasachi Mukherjee (as His Lordship then was) has indicated that :-      Every  citizen  must  remember that      while he has a fundamental right to      speak  he  cannot  speak   at    an      election meeting what  long  speaks      at  a   political  meeting.  So  he      speaks  at a  political meeting .So      long as the political parties based      on religion are not banned in  this      country, it may be open to them  to      organanise themselves on the  basis      of religion and  avowdly promoting,      what  they  consider  true    falth      namely their  religious faith.  But      so   long   as   their   activities      transgress the provisions  of Penal      Law intended to preserve  peace and      communal     harmony,         their      fundaamental  right  of speech will      not be protected.  Section 123 (3A)

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    carves out an area   out   of  this      freedom and restricts such  freedom      during   such  election  campatigh.      Section 123 (5) and 124 (5) as they      stood  at  the  relevant  time were      challenged    as   ultra  vires  as      ofrending the fundamental right  of      freedom of speech. The  court  said      "these laws do not  stop a man from      speaking. They  merely    prescribe      condition which   must be obsereved      if you  want  to  enter  Parliament      (vide  1955  (1)  SCR 608 para 5) .      Therefore, a speaker speaking at an      election meeting must alert himself      that  his  soeeches  do   not  fall      within   the  provisions   of   the      concerned sections       Mr.  Poti has  also submitted  that  it  is  now  well settled that the Court is required to consider the effect of speech in  the mind  of the  voter. It  is not the statement here or  another statement there but the total effect of the speech in  the mind  of the voter which calls for assessment to be  considered before  the Court.  Mr.Poti has  submitted that it  is evident  from the speech delivered by Smt. Mehta that an  apport to  the hindu  voters to  unite and  vote in support of  the appellant   Dr.Mudanda  was made so that the sparks of  Hinduism could be lit not only in Maharashtra but there would  be a  march of  such Hinduism  upto the seat of power. In  the speech  there was  no appeal to vots only for the Bjp  candidate or  a candidate  of the  BJP -  Shiv sena alliance so  that ideologies  of the  said political parties are implemented.  Smt,Mehta  addressed  the  voters  to  the effect that the coters as hindus would support the candidate of BJP so that success of the candidate was ensured. Mr.Poti has submitted  that the  very approach that the hindus alone shall be  in power  and election speeches made on that basis is bound  to create  in the mind of hindu voters uncommitted so fdar  that hindus  should rule  and for that purpose they should vote for ’Hinduism’.       Mr.Poti  has submitted  that  the  Representation  Act provides for  issue of  notice for taking action against the collaborators fdor giving them an opportunity of being heard if the  Court comes to the finding that xorrupt practice was resorted to with the help of the collaborators. Mr. Poti has submitted that althought it is the duty of the Court to name the collaborators  by giving  them an  opportunity of  being heard, it cannot be contended that a party who has committed corrupt  practice  has  right  to  insist  upon  naming  the collaborators. He  has submitted  that commission of offence by the  party to  election petiton  has been found on cogent evidence and  so far the as the said party is concerned such finding is  complete. He  has also submitted that though the Court  is   concerned  for   taking   action   against   the collaborators of  a corrupt  practice the  decision rendered sgainst the  appellant about  resorting to  corrupt practice must be  held to  be final and the mather should not be kept pending for  making a  finding  against  the  collaborators. Mr.Poti has  submitted that  although the Court has the duty to name  the collaborators  of corrupt  oractice, since  the court has not chose, tro name the collaborators in the facts of the case, there is no compelling reason for this Court to interfere with  the decision  made against  the appellant by issuing notice  Section 99  of the Representation Act to the collaborators and to defer the decison against the appellant

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until the collaborators are given opportunity of being heard for being  named as  collaborators of  corrupt practice. Mr. Poti has  submitted that  even if  Court is of the view that collaborators, this  Court should make only a limited remand for the purpose of naming the collaborators by following the procesures for  such naming  without disturbing  the finding made against  the apoellant and his appeal before this Court should be dismissed.                      After  giving  our anxious consideration  to the facts and circumstances of the case the  submissions  of  the  respective  consel  for  the partiies it  appears to  us that  the appellan  Dr.Vimal was deciared electre  from 201  kaij  Constituency  by  securing highest votes.  She had  secured 9221  votes more  than  her nearest rival  the election  Petioner Sri  Satpute. The High Court has held that Sri Maruti Nivrutti and Sri Mangesh were not members  of scheduled  caste and their nomination papers ere wrongly  accepted but  the High  Court has held that Sri Maruti  Nivrutti  and  Sri  Mangesh  were  not  memmbers  of scheduled caste  and their  nomination papers  were  wrongly accepted but the Hight Court. has also held that the contest by them  had  not  affected  the  polling  prospect  of  the election petitioner.  The  allegations  of  unfair  practice adopted by  the appellant Dr. Vimala and her election agents and  supporters  in  presenting  herself  as  ’Marwari’  for securing Marwari  votes and publishing banners , posters and also making newspaper publications imputing the character of the election  petitioner and  attempting to  himlate him and lowereing  him  down  in  the  estimate  of  voters  in  the constituency to gain advantage in the election propspect hav not been  accepted by  the High  Court and  issues  on  such contentions have  been answered  in the nagative. It is only on the  ground that  Dr. Vimal had canvassed on the score of religion and had attempted to spread hatred of one community against  the   other  community   thereby  adopting  corrupt practice  under   Section  123   and   123   (3A)   of   the Representation Act in view of speeches made by Smt.Mehta and Sri Mhajan  with her consent that the election  petition was allowed by declaring that election of Dr. Vimal was void and the election  petitioner haveing  secured next highest vote, should be  declared elected  from the  said  said  201  Kaij Constituency. It apperars to us that the said Smt. Mehta and Sri Mahajan  addressed election meetings of Dr. Vimal on two dates. Such election meetings were addressed by the said two speakers for  the benefit  of Dr.  Vimal in the election. We agree  with  the  finding  of  the  Hight  Court  that  they addressed such  meetings with  consent of  Dr. Vimal. In our view there  os force  in the  contention of  Mr.  Poti,  the learned Senior  Counsel of the respondent No.1 that although reports published in Maratha Sathi and Ambajogai Times about the contents  of the  speeches of Smt. Mehta and Sri Mahajan by themselves  are not  admissible and  they may  at best be secondary evidence but direct evidevne about the speeches by the two  reporeters  p.w.  14  and  P.W.  24  being  peimary evidence about the contests of the speeches delevered by the said  tow   speakers,  such  speeches  amounted  to  corrupt practice  under   Section  123   and   123   (3A)   of   the Representation Act. There is also force in the contention of Mr.Poti that  even if  there was  no publication  of the the speeches, the  contents of  such speeches could be proved by examining the persons who had attended the meeting and heard the speakers.  Both P.W.  14 and  24 have  stated that  they attended the  respective meeting  and noted  the portions of the speech  which according  to their assessment appeared to be important  and relevant.  It is  true trhat both P.Ws. 14 and 24  are reporters  and it is quite likely that they have

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some expertise  in noting  down the  gist of the speeches or statements made  by others  for the  purpose of  effectively reporting the  contents of  such speeches  or statments  for publication in  the newspapers. Both the said withesses have stated that  the speeches  were long  and the speeches could not be  recored verbatim but gist of portions of speeches as appeared to  them important and relevant were noted by them. Such notings.  or ’tipans’  therefore become  very  relevant because admittedly  on the  basis of  notings  made  at  the sport, the  reports were  prepared by the said reporters and such   reports    were   published    in   the   newspapers. Unfortunately, such notings or tipans have not been produced for inexplixable  resons. such  tipans and notings the basis of the  reports published  in the newspapers, requires to be considered for  consistent with the notings made at the time of listening  to the speeches by the authours of the report. In our view, the Court should draw adverse inference against the authenticity of the gist of the speeches since published in the newspapers for non production of the said notings. It may be indicated here that the authors of the report did not take down the speeches or even parts of  such speeches  in the  language in which they were expressed.  Admittedly,  the  notes  were  prepared  in  the language of  the authors  of the  notes were prepared in the language of the authors of the notes and such protion of the speeches were highlighted in the notes in their own language as appeared  to the  authors of  the  reports  important  or relevant. In  such circumstances, even though the authors of the reports  were reporters  to  newspapers  by  profession, chances of misquoting or quoting some portions of speech out of their  context cannot  be ruled  out. The  said reporters deposed about  thw contents  of the  speech but such deposed about the  contents of  the speech but such depositions were made at  a later  date when chances of not fully remembering the speeches in their proper context xannot be ruled out.       Reliance  to the depositions of the reporters was made by the  High Cout  because having  attended the meetings for the purpose  of reporting  they were  likely to remember the portions of  speeches since  noted by  them. In our view, in such circumstsances,  it becomes  all the  more important to look to  the notings  made so as tro ascertain wherther oral depositions are  consistent with  the notings  so that  oral depositions may  be held  relible. In  Manmohan Kalia’s case (1984 (3)  SCC 449),  this Court  has indicated as a note of caution that unless oral evidence about the corrupt practice is satisfactory,  the Court  should the  corrupt practice is stisfactory, the  Court should  not rely  on such  evidence. This Court has held that :- <SLS>      "It is very difficult  to   prove charge of corrupt      practice merely on the face  of  oral    evidence      because in  election  case it  is very  easy  to   get      the help of interested  withesses,   but very      dilfficult  to  prove  charges of corrupt practices." <SLE>       We,  therefore, feel hesitant in finding the appellant quilty of corrupt practice under Section 123 and 123 (3A) of the Represention  Act for want of  relible and unimpeachable evidence. The  finding of  fact made by the High Court in an election petition  normally  should  not  be  tinkered  with unless there  are goog  reasons to take a different view. As it appears  to us  that the evidence about the foundation of corrupt practice alleged against the appellant Dr. Vimal, is not clinching and unimpeachable, we feel that the finding of corrupt practice  against the appellant having serious civil

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and criminal  import is  not  warranted  in  the  facts  and circumstances of  the case.  In view  of such finding, it is not necessary  to consider,  whether the  speeches are  only related to  ’Hindu Tatwa’  or Hindu  philosophy and  not  an appeal to  only hindus  on the  score of religion to vote in favour of  the appellant  but on the contrary, such speeches were intended  to whip out communal passion and raise hatred between two  classes od  citizens. We may only indicate here that in  earlier decisions, this Court has sounded a note of caution that  finding about  corrupt practice should be made on the  basis of clear, cogent and reliable evidence because such finding  entails serious  consequences both  civil  and criminal against the persons concerned. We may also indicate here that  in order to maintain national integrity and amity amongst the  citiziens of  the country  and to  maintain the secular character  of the  pluralistic society  to which  we belong section  123 and  123 (3A)  of the Representation Act have  been  incorporated.  For  maintaining  purity  in  the election process  and for  maintaining peace  and harmony in the social fabric, it becomes essentially necessary not only to indict  the  party  to  an  election  guilty  of  corrupt practice but  to name  the  collaborators  of  such  corrupt practice if  there be  any. Precisely,  for the  said reson, Provisions have  been made in the Representation Act to give notices to the collaborators on the basis of the prima facie finding against them so that after giving them an opportunty of being  heard a firm finding against the collaborators can be made  and such  collaborators are named. In our view, Dr. Ghatate has  very justly  contended that  the Court  has not only a  duty to  name the  collaborators  by  following  the appropriate procedures  but  a  final  decision  of  corrupt practice should  not be made without giving collaborators an opportunity of  veing heard if corrup practice by a party to the election  has been  resorted  to  not  by  his  own  act directly but by acts of the collaborators. It will indeed be an anamolous  position if  on the  basis of  misdeeds of the collaborators a  finding of corrupt practice is finally made against a party to the election but later on the Court after hearing the  collaborators for  the purpose  of naming  them comes to  a different  finding namely  the collaborators had not done anything on the basis of which a finfing of corrupt practice should  be made.  We woulfd  have inclined to remit the case bak to the Hight Court for making the finding about corrupt  paractice  only  after  following  the  appropriate procedures of giving opportunty to the alleged collaborators of being  heard. But  as we  have indicated  that even prima facie such  finding of  corrupt practice  cannot be made for want of  convincing and unimpeachable evidence, the question of remitting  the matter  to High  Court does not arise. For the aforesaid  reasons, We  allow the  appeal of  Dr.  Vimal Mudanda being Civil Appeal No.1117 of 1991 and set aside the judgmwnt so far Dr. Mudanda is concerned.       In the other appeal i.e. Civil Appeal No.2571 (NCE) of 1991 the  appellant Sri  Mangesh who was respondent No.17 in the election  petition before the Aurangabad Banch of Bombay High Court  has Challenged  the finding of the High Court so far as  his caste  is concerned. The High Court has that Sri Mangesh was ’Kalal’ by caste which is not Scheduled Caste in the State  of Maharashtra. The High Court has referred to in great detail  in paragraphs  71 to  to 91  of the  impugened judgment evidences  documentary and oral adduced by both the parties in  support of  the rival contention about the caste of Sri  Mangesh. The  High Court  has noted  that the  caste certificate was not issued to Sri Mangesh in a proper manner after adverting  to relevant  documents. The revenue records

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and school  leaving certificate  are required  to be  looked into for  deciding the caste of the person concerned. It has been indicated  by the  High Court  that the grand father of Sri Mangesh  had affiremed affidavit declaring him as ’Kala’ by caste  and not  ’hatik’ as  claimed by  Sri Mangesh. Such affidavit had been affirmed long back. In the school leaving certificate of  the brother  of Sri  Mangesh, such brother’s caste has  been mentioned  as ’Kalal’.  Considering  revenue records and  other materials produced before the High Court, the High  Court has  come to  the  finding  that  the  caste certificate issued  in favour of Sri mangesh does not depict the caste of Sri Mangesh correctly. After elaborate analysis of the  evidences oral  and documentary,  the High Court has held that  Sri Mangesh  is ’Kala’  by caste and not ’Khatik’ and ’Kala’  is  not  a  Scheduled  Caste  in  the  State  of Maharashtra, We  have been taken through the said paragraphs 71 to  91 of the judgment and after considering the same, we do not  find any  reason to take a contrary view. The consel for the  appellant has  very strenuousl  contended that  the finding of  the High  Court that Sri Mangesh foes not belong to scheduled caste not only affects his chance to contest in the constituency  reserved for  scheduled caste  but it also affects him  prejudicially in  various other  matters. He is going to  be deprived  of all  the benefits  available to  a member of scheduled caste. As it appears to us that the High Court on the basis of materials placed before it has come to a proper conclusion that Sri Mangesh could not be held to be a ’Khatik’  by caste  but ’Kalal’ by caste, we do not intend to interfere with such finding. It will, however, be open to Sri Mangesh  to have  his caste redetermined on the basis of further materials  relevant for such determination of caste. With the above observations, this appeal is dismissed.