Election proceedings require clarity in charges of corrupt practices; consent is vital when actions involve candidates but not when others act independently.

1. As the arguments have been common, these are being dealt with by this common Order.

2. Mr. Chinoy and Mr. Korde raise a Preliminary Issue as to the maintainability of the three Notices, issued pursuant to the Order dated 25th March 1991. They submit that the question of maintainability be decided first. In support of this contention reliance is placed upon the case of Samar Singh v. Kedar Nath and Others reported in AIR 1987 SC 1926 . Based on this it is submitted that the Court is bound to raise this and try this as a Preliminary Issue. Mr. Vashi has no objection to these submissions being heard and decided first. I have accordingly heard parties on the question of maintainability of the Notices.

3. The challenge as to maintainability of the Notices is on two grounds. Firstly, that no charge under S.123 (3) and (3A) of the Representation of the People Act has been made out and that for that reason the Notices are not maintainable. Secondly, it is urged that the Notices do not comply with the directions of the Supreme Court in its Judgment dated 11th March 1991.

4. On the first ground it has been submitted by Mr. Chinoy and Mr. Korde that under S.123 (3) and 123 (3A) there are a number of distinct charges and that it is necessary that the Notices must specify each and every charge against the Party. They submit that in the notices issued by the Court, the charge is on the ground of (a) appealing themselves to vote for the candidate of Shiv Sena and B.J.P. on the ground of religion, race, caste and community; (b) appealing themselves to refrain from voting for the petitioner on the ground of religion, race, caste and community; (c) use of or appeal to religious symbols for furtherance of prospects of election of the candidate of the Shiv Sena and B.J.P. (This is only against Shri Bal Thackeray) and (d) attempting to promote feelings of enmity and hatred between different classes of citizens of India on the ground of religion, race, caste and / or community.

5. They submit that a Notice under S.99 of the Representation of the People Act, 1951 (hereinafter for sake of convenience referred to as 'the said Act') can only arise out of and in an Election Petition. They submit that the corrupt practice can only be one of those set out under S.123 of the said Act. They submit that under S.123 (3) and (3A) of the said Act, a corrupt practice could be (i) by a candidate, (ii) by his Agent or (iii) by any other person with the consent of the candidate or his Election Agent. They submit that from the Notices, it is clear that the charge against these persons is not in their capacity as a candidate, but in their capacity as "an agent" or "any other person". According to Mr. Chinoy and Mr. Korde, an act, even by "an agent" or "any other person", could be deemed to be a corrupt practice under S.123 of the said Act, only provided it is done with the consent of the candidate or his election agent. They submit that it is not, any act, by any person, at any time which can be termed as a corrupt practice. It is submitted that many people may commit acts which strictly speaking could be termed as a corrupt practice. They submit that all of them would not constitute a corrupt practice under the said Act. They submit that this is clear from the wording of S.123. They submit that S.123 being clear and specific, no other interpretation can be put upon this Section. They submit that the eleme