J. S. Verma, J. - (1.) This is an appeal by the returned candidate under Section 116A of the Representation of the People Act, 1951 (for short "the R. P. Act") against the judgment dated 5th/6th August. 1991 in Election Petition No. 21 of 1990 by S. N. Variava, J. of the Bombay High Court whereby the election of the appellant to the Maharashtraa Legislative Assembly from 49 - Kurla Legislative Constituency held on 27-2-1990 has been declared to be void on the ground under Section 100 (1)(b) for commission of corrupt practices under sub-sections(3)and(3A) of the R. P. Act. By the said judgment, the learned Judge has decided the election petition and made the order under Section 98 declaring the election of the appellant to be void but the findings on issue Nos. 2 and 5 have been reserved for being recorded after the inquiry under Section 99 of the R. P. Act is concluded against Chhagan Bhujbal, Pramod Mahajan, Bal Thackeray, Manohar Joshi and Pramod Navalkar to whom notices have been issued under Section 99 of the R. P. Act by the order made therein. The ultimate conclusion in the final order made in the impugned judgment is quite involved because of the unusual mode adopted of deciding the election petition piecemeal. Instead of attempting to summarise the conclusion, it is safer to quote certain portions of the concluding part of the judgment, as under:-"I have already held that the cassette was displayed in the Constituency with the consent of the Respondent. There is however no proof that it was personally exhibited by the Respondent. Accordingly it will have to be held that, by mode of display of this video cassette, some other persons with the consent of the Respondent have committed the corrupt practice of appealing for votes on the ground of the Respondent's religion i.e. Hindu religion and have attempted to create enmity and hatred between different communities and religions particularly Hindu and Muslims. On this count itself the election of the Respondent must be set aside. Accordingly, Issues Nos. 3 and 6 have been answered in the Affirmative and Issue Nos. 1 and 4 have been answered in the Negatives. However, before the final order is passed the last and the main mode of canvassing i.e. by means of the speeches made by Mr. Bal Thackeray and the other leaders of the Shiv Sena and B.J.P. alliance at the meetings held on 29th January, 1990 and 24th February, 1990, has to be considered. I have read the speeches of Mr. Bal Thackeray, Mr. Pramod Mahajan, Mr. Pramod Navalkar ......On reading of these speeches, I am of the prima facie opinion that all the abovenamed persons have by their speeches committed the corrupt practice of having appealed for votes on the ground of the Respondents community and religion i.e. Hindu community and religion. They have also, prima facie at least, committed the corrupt practice of attempting to create enmity and hatred between different classes of citizens on the basis of religion and community, particularly between Hindus and Muslims. I have already set out above that in cases like the present the consent of the Respondent can be and is implied. As stated above the effect and import of the entire speech has to be considered. At this prima facie stage it is therefore not possible to pin point any particular portion or portions. That can only be done after hearing the import and effect and interpretation of the speeches from the person who made the speeches. Thus before I express my final opinion I intend to issue notices under Section 99 of the Representation of People Act, 1951 to all the above named persons, thus the answer to Issues 2 and 5 has been reserved till after the final disposal of the Notices issued hereunder. Accordingly, I direct that separate Notices under Section 99 of the Representation of People Act, 1951 be issued to Mr. Bal Thackeray, Mr. Manohar Joshi, Mr. Chhagan Bhujbal, Mr. Pramod Navalkar and Mr. Pramod Mahajan. ............... To each Notice shall also be annexed a copy of this Judgment. In each Notice it will be pointed that in the Judgment it is already held that the concerned speech/speeches were with the implied consent of the Respondent." ********** "As it has been held that corrupt practice has been committed by mode of wall paintings and display of video cassettes, the petition is made absolute in terms of prayers (a) and (b) i.e. the Election of the Respondent to the Maharashtra Legislative Assembly election held on 27th February, 1990 from Constituency No. 49 i.e. Kurla constituency is declared as null and void. This is on the ground that corrupt practice set out above under sub-sections (3) and (3A) of Section 123 of the Representation of People Act, 1951 have been proved to have been committed with the consent of the Respondent i.e. that there has been an appeal to vote for the Respondent in the name of his religion i.e. Hindu religion and an attempt has been made to promote feelings of enmity and hatred between the different classes of citizens of India on the ground of religion and community." (Emphasis supplied)
(2.) After the impugned judgment was rendered, notices under Section 99 of the R. P. Act were issued to the aforesaid five persons who then raised certain preliminary objections to the validity of the notices. Variava, J. by his order dated 6-1-1192 rejected those objections. The notices given to these persons related to certain speeches alleged to have been made by them on 29-1-1999- and 24-2-1990 which, it was alleged, constituted corrupt practices under Sections 123(3) and 123(3A) of the R. P. Act. In the said order dated 6-1-1992, Variava, J. has mentioned certain facts in the background of which the objections to the notices under Section 99 were considered in that order. Those facts mentioned at the outset in the said order are as under:- "Petition No. 21 of 1990 is not an individual Election Petition before this Court. In respect of the same elections i.e. the elections to the Maharashtra Legislative Assembly held in February 1990, ten such petitions have been filed before this court. All of these are against various successful candidates of Shiv Sena and Bharatiya Janata Party. All these petitions are based on a plank of Hindutva/Hinduism alleged to have been adopted by these parties and allegedly declared by their leaders at the joint Public meetings held by these two parties on 29th January 1990 and 24th February 1990. In all these petitions the charges are that the respective respondents, their election agents and/or some other persons have with the consent of the respective Respondents, committed corrupt practices of appealing for votes on the grounds of the candidates religion, community and caste and the corrupt practice of creating enmity and hatred between various classes of citizens on the ground of religion, community and caste particularly between Hindus and Muslims. Thus the charges are under Secs. 123(3) and 123(3A) of the Representation of the People Act, 1951. The mode of resorting to these corrupt practices have been by way of speeches made by the leaders of the two parties at the joint meetings held on 29th January, 1990 and 24th February, 1990, by use of offending poster, banners, wall writings and a video cassette "Awahan and Avhan." This is the same material in all these Petitions. Then in individual Petitions, there are allegations of speeches made in the individual constituencies, either by the respective Respondent or somebody else with his consent. In this Petition also the charges against the Respondent and the alleged mode of canvassing are the same. Thus the charge is that the Respondent, his election agents and/or some other persons have with his consent, committed the corrupt practices of appealing for votes on the grounds of the Respondent's religion, community and caste viz. Hindu religion, community and caste and the corrupt practice of creating enmity and hatred between various classes of citizens on the ground of religion, community and caste particularly between Hindus and Muslims. Thus the charges are under Secs. 123 (3) and 123(3A) of the Representation of the People Act, 1951. In this petition also the alleged mode of resorting to these corrupt practices is by way of speeches made by the leaders of Shiv Sena and B.J.P. at the joint public meetings held on 29th January 1990 (at Girgaon Chowpatty) and 24th February 1990 (at Shivaji Park) and by use of offending posters, banners, wall writings and the video cassette 'Awahan and Avhan'." (Emphasis supplied)
(3.) At the beginning of the impugned judgment, the scope of the election petition and the true perspective in which it has to be decided has been stated by Variava, J. as under:- "It must also be noted that these group of petitions are to a large extent unlike other election petitions. This because these petitions are not based upon individual acts of individuals. They are mainly based upon the abovementioned plank and/or policy decision of these parties. This will have a bearing on the question of consent. It is therefore necessary to note the make up of the Shiv Sena party. This already forms part of two Judgments of this court." ********** "..........Unlike other Election Petitions the main charge is not of an individual corrupt practice committed by an individual candidate in his constituency. Really speaking, the charge against the candidate is the charge of implementing the plank as decided by the party. .......... In my view, in cases like this where the plank has been declared by the leader of the party and the leader of the party has complete control of the affairs of the party, once it is proved and held, that the plank declared by the leader amounts to a corrupt practice, every candidate of that party will be bound by that plank........... As is set out hereafter, prima facie it does appear that the plank of Hindutva/Hinduism. as declared by the leaders at these two meetings amounts to the corrupt practice of appealing for votes in the name of the Hindu candidate's religion and also amounts to the corrupt practice of attempting to create enmity and hatred between different classes of citizens on the grounds of community and religion, particularly between Hindus and Muslims. ..........." ;