J. S. Verma, J. - (1.) This is an appeal under Section 116 A 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 110(1)(b) for commission of corrupt practices under Sections 123 (3) and 123 (3A) of the R. P. Act.
(2.) The relevant paras of the election petition relating to the pleading of corrupt practices are paras 6, 10, 11,13, 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. 3) Hindutva is the third eye of Lord Shankra and if it opens it will reduce every thing to ash.
(3.) 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 Patni. It is necessary to erect the Ram temple and show the people who oppose to it their place........" ;