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SUPREME COURT OF INDIA
J.S. Verma, N.P. Singh and K. Venkataswami, JJ.
Civil Appeal No. 4973 of 1993
Decided On: 11.12.1995
Manohar Joshi Appellants
Vs.
Nitin Bhaurao Patil and Another Respondent
Civil Procedure Code,1860 - Order 6,7 Rule 11,16 - Representation of the People Act, 1951 - Sections 116A,100(1)(b),81(1),86,101, 123(3),123(3A),83,88(1),98,99 - Limitation Act, 1963 - , Section 4 - General Clauses Act, 1897 - Section 10 - Unlawful Activilies (Prevention) Act. 1967 - Section 4 - Bombay High Court in Election Petition - Maharashtra Legislative Assembly - candidate of the BJP-Shiv Sena alliance at that election while the original election petitioner Bhaurao Patil (now dead), was the candidate of the Congress (1) Party. Manohar Joshi secured the highest number of votes i.e. 47,737, while Bhaurao Patil secured 24,354 votes. Accordingly, Manohar Joshi was declared duly elected on 1-3-1990.. Admittedly, the last date for filing the election petition according to the limitation prescribed in sub-section (1)of Section 81 of the R. P. Act was 14-4-1990 but the election petition was actually presented in the Bombay High Court on 16-4-1990. It is also admitted that 14-4-1990 was a Saturday on which date the High Court as well as its office was closed on account of a public holiday and 15-4-1990 was a Sunday on which date also the High Court as well as its office was closed and, therefore, the election petition could not have been presented on either of these two dates. The first question which arises, relates to compliance of Section 81 of the R. P. Act, the non-compliance of which renders the election petition liable for dismissal under Section 86 of the R. P. Act.The election petition alleged the commission of corrupt practices under sub-sections (3) and (3 A) of Section 123 of the R. P. Act and sought declaration of the election of Manohar Joshi to be void on the ground under Section 100(1)(b) of the R. P. Act.The corrupt practices alleged were, in substance, speeches on 24-2-1990 at Shivaji Park by the returned candidate Manohar Joshi and leaders of the BJP-Shiv Sena alliance, namely, Bal Thackeray, Chhagan Bhujbal and Pramod Nawalkar; and some audio and video cassettes played during the election campaign alleged to contain material constituting these corrupt practices. Any further reference to the audio cassettes is unnecessary since none was either produced or relied on at the trial. The petition was supported only on the ground of the said speeches and video cassettes. Further details of the same would be given later at the appropriate stage. – Held, We would now consider the only surviving question based on the pleading in para 30 of the election petition. The specific allegation in para 30 against the appellant is that in the meeting held on 24-2-1990 at Shivaji Park. Dadar. he had stated that the first Hindu Slate will be established in Maharashtra. It is further pleaded therin that such meetings were held at Khaddke Building, Dadar on 21-2-1990. Prabhadevi on 16-2-1990. at Kumbharwada on 18-2-1990, and Khed Galli in 19-2-1990. These further facts are unnecessary in the context because the maximum impact thereof is to plead that the same statement was made by the appellant in the other meetings as well, even though such an inference does not arise by necessary implication. In our opinion, a mere statement that the first Hindu Slate will he established in Maharashtra is by ilself not an appeal for votes on the ground of his religion but the expression, at best, of such a hope. However, despicable be such a statement, it cannot he said to amount to an appeal for Mites on the ground of his religion. Assuming that the making of such a statement in the speech of the appellant at that meeting is proved, we cannot hold that it constitutes the corrupt practice either under sub-section (3) or sub-section (3A) of Section 123. even though we would express our disdain at the entertaining of such a thought or such a stance in a political leader of any shade in the country. The question is whether the corrupt practice as defined in the Act to permit negation of the electoral verdict has been made out. To this our answer is clearly in the negative. - It is significant that the mere production of the official record including the literature of Jamaat-e-lslami Hind depicting its philosophy and aims, inul the intelligence reports without examining any witness who couId depose from personal knowledge to the alleged unlawful activities of the Association was held to be inadequate to support the declaration that Jamaat-e-Islami Hind is an unlawful association as defined in Ihe said Act. It need hardly be mentioned that the requirement of proof of a corrupt practice at the trial of an election petition is higher and confined to strict legal evidence, in comparison to the material on which Ihe Tribunal can rely for its decision under Section 4 of the Unlawful Activilies (Prevention) Act. 1967 to confirm the declaration by the Central Government of an association as unlawful. . The High Court midsdrrecled itself by starting on a wrong premise in frying an allegation not in the pleading and then in admitting and relying on material which is not legal evidence for the proof of a corrupt practice. The error was aggravated by an incorrect appreciation of the legal principles and overlooking the meaning of certain terms explained in earlier decisions. The significance of the trial of a corrupt practice and the consequence of the finding thereon, appears to have been missed in the High Court. - Appeal allowed.
ORDER
J. S. Verma, J.
1. 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 26-4-1993 by S.N.Variava, J. of the Bombay High Court in Election Petition No. 24 of 1990 whereby the election of the appellant Manohar Joshi to the Maharashtra Legislative Assembly from 32, Dadar Constituency of Greater Bombay held on 27-2-1990 has been declared to be void on the ground under Section 100(1)(b) of the R. P. Act.
2. Manohar Joshi was the candidate of the BJP-Shiv Sena alliance at that election while the original election petitioner Bhaurao Patil (now dead), was the candidate of the Congress (1) Party. Manohar Joshi secured the highest number of votes i.e. 47,737, while Bhaurao Patil secured 24,354 votes. Accordingly, Manohar Joshi was declared duly elected on 1-3-1990.
3. Admittedly, the last date for filing the election petition according to the limitation prescribed in sub-section (1)of Section 81 of the R. P. Act was 14-4-1990 but the election petition was actually presented in the Bombay High Court on 16-4-1990. It is also admitted that 14-4-1990 was a Saturday on which date the High Court as well as its office was closed on account of a public holiday and 15-4-1990 was a Sunday on which date also the High Court as well as its office was closed and, therefore, the election petition could not have been presented on either of these two dates. The first question which arises, relates to compliance of Section 81 of the R. P. Act, the non-compliance of which renders the election petition liable for dismissal under Section 86 of the R. P. Act.
4. The election petition alleged the commission of corrupt practices under sub-sections (3) and (3 A) of Section 123 of the R. P. Act and sought declaration of the election of Manohar Joshi to be void on the ground under Section 100(1)(b) of the R. P. Act.The corrupt practices alleged were, in substance, speeches on 24-2-1990 at Shivaji Park by the returned candidate Manohar Joshi and leaders of the BJP-Shiv Sena alliance, namely, Bal Thackeray, Chhagan Bhujbal and Pramod Nawalkar; and some audio and video cassettes played during the election campaign alleged to contain material constituting these corrupt practices. Any further reference to the audio cassettes is unnecessary since none was either produced or relied on at the trial. The petition was supported only on the ground of the said speeches and video cassettes. Further details of the same would be given later at the appropriate stage.
5. The High Court rejected the contention that the election petition was time barred and, therefore, liable to be dismissed under Section 86 of the R. P. Act. The High Court has held that the corrupt practices alleged have been proved. Consequently, the election petition has been allowed and the election of the returned candidate Manohar Joshi has been declared to be void on the ground under Section 100(1)(b) of the R. P. Act. Hence this appeal.
6. It would be appropriate to first deal with the contention of Shri Ram Jethmalani relating to non-compliance of Section 81 of the R. P. Act which, if correct, renders the election petition liable to be dismissed under Section 86 thereof. The arguments of Shri Jclhmalani in this respect have to be considered with reference to Sections 81, 83 and 86(1) which are asunder :--
"81. Presentation of petitions.-- (1) An election petition calling in question any election may be presented on one or more of the grounds specified in (sub-section (1)) of Section 100 and Section 101 to the (High Court) by any candidate at such election or any elector (within forty-five days from, but not earlier than, the dale of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates.) Explanation.-- In this sub-section, "elector" means a person who was entitled to vote at the election to which the el
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