- (1.) After spending considerable time on diverse questions canvassed across the Bar, we are of the opinion that this appealrequires to be posted before a Constitution bench for deciding the questions that arise in the appeal. We would, however, indicate in brief the facts, the findings recorded and the questions raised which impress us to refer the matter for decision by the Constitution bench. This appeal under Section 116-B of the Representation of the People Act, 1951 (for short, 'the Act') arises from the judgment dated 24/12/1991 of the Bombay High court passed in Election Petition No. 11 of 1991.
(2.) The respondent, since deceased, his legal representatives have been brought on record and a notice, as required under the Act, was also duly published. He contested as a Congress Party candidate in the election to No. 40, Santacruz Legislative Assembly Constituency in 1990 for the Maharashtra State Assembly. The appellant is the returned candidate who filed his nomination on 31/1/1990 which was accepted on 8/2/1990. The poll was held on 27/2/1990. The result of the election was declared on 1/3/19900 declaring that the appellant was duly elected. He contested election as a BJP candidate and was also Vice-President of the Bombay Unit of the said party. He secured single largest majority votes while the respondent secured second largest. By judgment dated 19-12-1991 the High court allowed the election petition.
(3.) In paragraph 186, the High court held that "The voluminous oral as well as documentary evidence leaves no room for doubt that the plank of Hindutva/hinduism/hindu was used". In paragraph 187 it is held that "It is clear from the voluminous material on record that the campaign was on the basis of appealing for votes on the basis of first respondent's community and religion, i. e. , the Hindu community and religion and that there was an attempt to create enmity and hatred between different classes of citizens on the basis of religion, community and caste particularly between the Hindus and the Muslims". In paragraph 198 it is further held that "Prima facie, it does appear that the leaders have appealed for votes for the Hindu candidates of the two parties on the basis of their religion and community. Prima facie, it does appear that the leaders did attempt to create enmity and hatred between different classes of citizens on the grounds of community and religion". In paragraph 197, it is held that: "(I) N my view, it will have to be held that the tape recordings contain the speeches made at these meetings. This of course is subject to hearing the leaders of these two parties on the notices under Section 99 of the Representation of the People Act, 1951 which have been issued to them in Election Petition No. 21 of 1990";