IMPORTANT POINT
Pleading of corrupt practices in this election petition was vague & casual and the trial by High Court was in clear violation of Section 99 of Representation of the People Act, 1951 and no High Court s electoral verdict is liable to be set aside.

JUDGMENT

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. ... 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.

2. 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 ther 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 a under :-

"............. He further said that we are first Hindus and then Brahmin, Maratha, Koli, Mall, 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 Shriman who was Ekvachni EK Patne. It is necessary to erect the Ram temple and show the people who oppose to it there place......"

4. 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.

5. 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 nild 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 petiti