Judgment

J. S. VERMA

( 1 ) THIS is an appeal by the returned candidate under Section 116-A of the Representation of the People Act, 1951 (for short "the R. P. Act") against the judgment dated 5/8/1991/6/8/1991 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 Maharashtra 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 Ss. (3 and (3-A) 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 Issues 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 Jeshi 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 respondents 403 religion i. e. Hindu religion and have attempted to create enmity and hatred between different communities and religions particularly Hindus and Muslims. On this count itself, the election of the respondent must be set aside. Accordingly, Issues 3 and 6 have been answered in the affirmative and Issues 1 and 4 have been answered in the negative.

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 BJP alliance at the meetings held on 29/1/1990 and 24/2/1990, has to be considered. I have read the speeches of Mr Bal Thackeray, Mr Pramod Mahajan, Mr Chhagan Bhujbal, Mr Manohar Joshi and Mr Pramod Navalkar. . . . On reading of these speeches, I am of the prima facie opinion that all the above-named 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 pinpoint 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 the 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 the 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 cop