http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: MORESHWAR SAVE

       Vs.

RESPONDENT: DWARKADAS YASHWANTRAO PATHRIKAR

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) 394        JT 1995 (9)    68  1995 SCALE  (7)85

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T J.S. VERMA, J. :      This  is   an  appeal   under  Section   116A  of   the Representation of the People Act, 1951 (for short, "the R.P. Act") against  the  judgment  dated  16.4.1992  in  Election Petition No.  4 of 1991 by A.A. Halbe, J. of the Bombay High Court by  which  the  election  of  the  returned  candidate Moreshwar Save from 33-Aurangabad Parliamentary Constituency to the Lok Sabha held on 12.6.1991 has been set aside on the ground under  Section 100(1)(b)  for commission  of  corrupt practices under Sections 123(3) and 123(3A) of the R.P. Act.      The relevant paras of the election petition relating to the pleading  of corrupt  practices are  paras 6, 10, 11, 13 and 15.  Para 6 contains a general averment without pleading the relevant  material facts therein that the respondent had appealed  on   the  basis  of  religion  to  the  Hindus  by canvassing that  the Hindu  religion was  in danger  and the Hindus should  awaken and  meet the  challenge posed  by the minority specially  the Muslims.  In paras  10 and 11, it is pleaded that  Manohar Joshi  gave a  speech on  6.5.1991  at Aurangabad in  which he  said that the candidate of BJP-Shiv Sena belongs  to the  Hindutva faction  and that 85 per cent Hindus want  to live  with self-respect  and if  they do not want a  Government at  the Centre which pleases the minority they should  vote  for  the  appellant  (respondent  in  the election petition).  Then in para 13, it is pleaded that Bal Thackeray gave a speech on 12.5.1991 to the effect mentioned therein. At  this stage,  it is  common ground that the only relevant portion  of the  pleading which was attempted to be proved by evidence is as under :- 1)   ...... taking  the saffron  flag march forward with the slogan Har Har Mahadev. 2)   Hindutva was  not wave  but it  was the  breath and  if Hindutva was to stop the breath will also stop.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

3)   Hindutva is  the third  eye of  Lord Shankra  and if it opens it will reduce every thing to ash.      Then in para 15, it is pleaded that Chhagan Bhujbal had in his speech stated inter alia as under :-      ". .  . .  . .   He further said that we      are  first   Hindus  and  then  Brahmin,      Maratha, Koli,  Mali, Sali  etc. For the      Hindus to  stay alive it is necessary to      elect a  Government headed  by BJP, Shiv      Sena. He  further states  that to  bring      the culture  of Shriram who was Ekvachni      Ek Patne.  It is  necessary to erect the      Ram  temple  and  show  the  people  who      oppose to it their place ....."      It may  be mentioned at the outset that no evidence was led to prove the allegation of corrupt practice based on the speech of  Chhagan Bhujbal  and, therefore,  the pleading in that respect,  particularly  in  para  15  of  the  election petition, has  to be  ignored as it was not relied on by the election petitioner  and for  that reason  it also  does not form the basis of the impugned judgment.      Shri Ram  Jethmalani, learned counsel for the appellant submitted that  this stand of the election petitioner in the High Court as also in this appeal is evidently on account of the fact  that Chhagan  Bhujbal has, since then, shifted his allegiance from  Shiv Sena to its political opponents. There can be  no doubt that the pleadings of the three speeches by Manohar Joshi,  Bal Thackeray  and Chhagan  Bhujbal on which alone the election petition is based show that the speech of Chhagan Bhujbal  is comparatively  the harshest of all these speeches,  irrespective   of  the   fact  whether   it   too constitutes a  corrupt practice  or not.  It cannot  also be doubted that  if the  speech of  Chhagan  Bhujbal  does  not amount to  an appeal  for votes on the ground of religion to constitute a corrupt practice under Section 123(3), then the other two  speeches being  comparatively  mild  cannot  fall within  its   ambit.  In  such  a  situation,  the  election petitioner having  abandoned the  case based  on the alleged speech of  Chhagan Bhujbal  at the  stage of trial itself in the High Court, the criticism made by Shri Jethmalani cannot be said  to be baseless. At any rate, the credibility of the version of  the  election  petitioner  with  regard  to  the remaining two speeches which alone were pressed into service to  support   the  election   petition  does  appear  to  be considerably  shaken.   However,  there   is  another   more important aspect to which we shall now advert.      The only  basis for  the corrupt  practice found proved against the appellant is the two speeches by others, namely, on 6.5.1991  by  Manohar  Joshi  and  on  12.5.1991  by  Bal Thackeray and not any speech by the appellant himself. Thus, the liability  fastened on the appellant is vicarious on the basis of  the two  alleged speeches of Manohar Joshi and Bal Thackeray. No  notice under  Section 99  was given either to Manohar Joshi  or Bal Thackeray. We have already held in the connected Civil  Appeal No. 4973 of 1993 - Manohar Joshi vs. Nitin Bhaurao  Patil & Anr. - decided today, that a combined reading of  Sections 98  and 99  of the  R.P. Act  leaves no doubt that  the final  order holding the candidate guilty of corrupt practice  in such a situation vicariously, cannot be made under  Section 98  of the  Act  without  simultaneously complying with  the  requirement  of  Section  99.  This  is obviously  for  the  reason  that  in  such  a  situation  a simultaneous verdict against the notice under Section 99 and the candidate has to be given at one time while deciding the election petition  after proper  compliance of Section 99 of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

the R.P.  Act. Combined reading of Sections 98 and 99 leaves no doubt  that in  such a  situation, the  High Court has no option to ignore the allegation against the person for whose act the  candidate is held liable vicariously; and the court also cannot  proceed to decide the case of the candidate and the notice  separately or  piecemeal. This defect of want of notice to Manohar Joshi or Bal Thackeray is alone sufficient to vitiate the judgment requiring it to be set aside.      The question  now is  of the  course to adopt in such a situation. Ordinarily  the matter may require to be remanded for a  fresh decision  of the election petition after notice to the  persons to  be named  for commission  of the corrupt practice in  accordance with Section 99 ; or the decision of this appeal  may be  deferred and in the meantime notice may be given  under Section  99 to  those persons  and after the requisite inquiry  by the  High Court its finding in respect of those persons be called for deciding the case against the candidate and  the notices  at one  time while  deciding the appeal in  this Court.  However, the  second course does not appear to  be the  appropriate in  the present  case for the reasons given hereafter.      There  is   no  clear   pleading  or   finding  of  the appellant’s consent  which is  a  constituent  part  to  the corrupt practice  resulting from  an act of any person other than the  candidate or  his agent. This alone would indicate the absence  of one  of the constituent parts of the alleged corrupt practice.  Case in  the election  petition is  based only on  the ground  contained in  Section 100(1)(b) and not Section 100(1)(d)(ii)  of the  R.P. Act. Admittedly, neither Manohar Joshi  nor Bal Thackeray were the election agents of the appellant  to dispense  with the  requirement of consent for the  ground  under  Section  100(1)(b)  to  declare  the election void.  Any further  inquiry into  this  matter  is, therefore, futile  and sheer  waste for  the only  ground on which the election petition and the judgment are based.      Moreover, there  is nothing  pleaded or  proved in  the alleged speeches  of Manohar  Joshi and Bal Thackeray in the present case  to attract  the corrupt  practice  under  sub- section (3A)  of Section 123 by bringing therein the element of promotion  of or attempt to promote feelings of enmity or hatred as  envisaged in  that provision.  The allegations as well as  the attempted  proof are  all very  vague.  Similar vagueness is  there even  with regard  to the requirement of Section 123(3)  since that  requires an  appeal for votes on the  ground   of  ’his’  religion.  The  general  statements attributed  in   the  speeches  of  Manohar  Joshi  and  Bal Thackeray as  pleaded in the election petition are too vague to constitute  the  requisite  appeal  which  is  a  corrupt practice under  Section 123(3).  In this  context, it is not insignificant that  in spite of the averment in the election petition of  a more  critical speech  by Chhagan Bhujbal, no attempt was  made to prove the same and it was not relied on even in  the High Court to support the petition. This factor has  significance  for  assessing  the  credibility  of  the version of  the election  petitioner and the probative value to be  attached to  it for  the case pursued in the election petition. In  our opinion,  what is  attributed  to  Manohar Joshi and  Bal Thackeray  in  the  averments  made  in  this election petition, keeping in view the fact that the consent of  the  appellant  is  neither  clearly  pleaded  nor  duly considered  for  a  finding  of  its  proof,  this  election petition does not merit any further consideration or trial.      It  is  indeed  surprising  that  pleading  of  corrupt practice in  the  election  petition  made  so  vaguely  and casually occasioned  a serious  trial thereof and ultimately

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

was accepted  by the  High Court  to set aside the electoral verdict and that too in clear contravention of Section 99 of the R.P. Act. This appeal must, therefore, be allowed.      Consequently,  the  appeal  is  allowed.  The  impugned judgment of  the High  Court is  set aside  and the election petition is  dismissed. The  appellant would  get his  costs throughout from the respondent.