Manohar Joshi Vs. Nitin Bhaurao Patil & Anr [1995] INSC 817 (11 December 1995)

Verma, Jagdish Saran (J) Verma, Jagdish Saran (J) Singh N.P. (J) Venkataswami K. (J) J.S. Verma, J. :

CITATION: 1996 AIR 796 1996 SCC (1) 169 JT 1995 (8) 646 1995 SCALE (7)30

ACT:

HEAD NOTE:

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.

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 (I) 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 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 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 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 (3A) 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 casettes. Further details of the same would be given later at the appropriate stage.

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.

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 the dismissed under Section 86 thereof. The arguments of Shri Jethmalani in this respect have to be considered with reference to Sections 81, 83 and 86(1) which are as under :- "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 date 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 election petition relates, whether he has voted at such election or not.

#[xx xx xx ##[(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition ### and every such copy shall be attested by the petitioner under his own signature to be a true coy of the petition.] ------------------ *Sub. by Act 27 of 1956, s.44, for "sub- sections (1) and (2)".

**Subs. by Act 47 of 1966, s.39, for "Election commission" (w.e.f. 14-12- 1966).

***Subs. by Act 27 of 1956, for certain words, i.e., "in such form and within such time but not earlier than the date of publication of the name or names of the returned candidate or candidates at such election under Section 67, as may be prescribed." #Sub-section (2) omitted by Act 47 of 1966, s. 39 (w.e.f. 14-12-1966).

##Ins. by Act 40 of 1961, s. 17 (w.e.f.20-9-1961).

###Certain words omitted by Act 47 of 1966, s. 39 (w.e.f. 14-12-1966)."

"83. Contents of petition.-

(1) An election petition â€“

(a) shall contain a concise statement of the material facts on which the petitioner relies;

(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date of place of the commission of each such practice; and

(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:

Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.

(2) Any Schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition." "86. Trial of election petitions.- (1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117.

Explanation. - An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a) of section 98.

xxx xxx xxx Shri Jethmalani contended that the election petition should have been dismissed by the High Court in accordance with Section 86(1) of the R.P. Act for non-compliance of sub-section (1) of Section 81 because it was not presented within the prescribed limitation; and it ought to have been dismissed thereunder, also for non-compliance of sub-section (3) of Section 81. For the second part of the submission, Shri Jethmalani contended that sub-section (3) of Section 81 must be read along with Section 83 and, therefore, the copy of the election petition must be the copy of a petition satisfying the requirement of Section 83(1) of the R.P. Act.

These are the two parts of the argument for invoking Section 86 for dismissal of the election petition at the threshold.

The question, therefore, is: Whether there has been non- compliance of any part of Section 81 to attract Section 86 of the R.P. Act ? We will consider this argument at the outset.

NON-COMPLIANCE OF SUB-SECTION (1) AND/OR SUB-SECTION (3) OF -----------------------------------------------------------

SECTION 81 OF THE R.P. ACT

-------------------------- Re: Sub-section (1) of Section 81 --------------------------------- In substance, the point for decision is whether the election petition filed on 16.4.1990 was presented within 45 days from the date of election of the returned candidate as required by sub-section (1) of Section 81, since the last day of limitation, so reckoned, fell on 14.4.1990.

Admittedly, the High Court and its office was closed on 14.4.1990 as well as 15.4.1990 on account of which the election petition could not have been presented in the High Court on any of these two days. Incidentally, even 13.4.1990 was a holiday when the High Court and its office was closed, but that is not of any significance since the last day of limitation was 14.4.1990. There is no controversy that the provisions of the Limitation Act, 1963 are not applicable to the election petitions required to be presented under the R.P. Act and, therefore, Section 4 of the Limitation Act is of no avail.

The only question is whether Section 10 of the General Clauses Act, 1897 applies to an election petition to permit filing of the election petition on the date when the High Court opened after the holidays. If Section 10 of the General Clauses Act is applicable then the election petition presented on 16.4.1990 was within the time prescribed by sub-section (1) of Section 81 and there would be no non- compliance of that provision to attract Section 86(1) of the R.P. Act requiring dismissal of the election petition as time barred.The submission of Shri Jethmalani is that the R.P. Act is a self-contained Code and, therefore, no provision outside the Act can be imported for the purpose of computing the limitation for presentation of an election petition. On this basis, he submitted that Section 10 of the General Clauses Act has no application. In reply, Shri Ashok Desai, learned counsel for the respondents submitted that the scheme of the R.P. Act and the legislative history of the limitation prescribed by the Act for presentation of an election petition clearly show that Section 10 of the General Clauses Act applies for computing limitation for presentation of an election petition. Shri Desai also relied on the legal maxim - `lex non kojit ad impossibillia' - which means `the law does not compel a man to do that cannot possibly perform.' Shri Desai submitted that the election petitioner was entitled as of right to present the election petition on the last day of limitation which fell on 14.4.1990, but that day and the next day being holidays when the High Court and its office was closed, the election petition presented on 16.4.1990, the first day on which the Court and its office opened after the holidays, was presented within the prescribed period of limitation. On this basis, Shri Desai submitted, there was no non- compliance of sub-section (1) of Section 81 of the R.P. Act.

Section 10 of the General Clauses Act, 1897 is as under:- "10. Computation of time.- (1) Where, by any Central Act or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open:

Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877, applies.

(2) This section applies also to all Central Acts and Regulations made on or after the fourteenth day of January, 1887." A brief reference to the legislative history of the limitation prescribed by sub-section (1) of Section 81 is relevant. The limitation of 45 days from the date of election of the returned candidate for the presentation of an election petition, has been prescribed in sub-section (1) of Section 81 itself by an amendment by substitution of certain words by Act 27 of 1956. Prior to it, the period of limitation was required to be prescribed by the Rules framed under the R.P. Act according to the words then used in sub- section (1) of Section 81. Rule 119 of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951 (for short "1951 Rules"), prescribed that period. The 1951 Rules also contained Rule 2(6) which expressly provided for the application of the General Clauses Act to the provisions in the Rules.

A similar question relating to applicability of Section 10 of the General Clauses Act arose when the limitation was prescribed by the Rules as required by the then existing sub-section (1) of Section 81 in, H.H. Raja Harinder Singh vs. S. Karnail Singh, 1957 SCR 208. It was held by this Court that Section 10 of the General Clauses Act is applicable to the presentation of election petitions.

Thereafter, the same view has been taken in Hukumdev Narain Yadav vs. Lalit Narain Mishra, 1974 (3) SCR 31; Hari Shankar Tripathi vs. Shiv Narayana Rao vs. M. Budda Prasad and Others, 1994 Suppl. (1) SCC 449 = 1991 (1) SCJ 281. The later decisions were in relation to election petitions filed after amendment of Section 81(1) by Act 27 of 1956 prescribing the limitation in this Section itself. Shri Jethmalani tried to distinguish those decisions on the ground that the earlier decision in H.H. Raja Harinder Singh vs. S. Karnail Singh, 1957 SCR 208 was followed without noticing the legislative change by amendment of sub-section (1) of Section 81. In view of the fact that this point was not raised in the manner it has been done by Shri Jethmalani before us, it is appropriate that we consider the merit of this submission.

It is settled by the decision of this Court in Ramlal, Motilal and Chhotelal vs. Rewa Coalfields Ltd., 1962 (2) SCR 762 at page 767 that the litigant has a right to avail limitation upto the last day and his only obligation is to explain his inability to present the suit/petition on the last day of limitation and each day thereafter till it is actually presented. This being the basic premise, it cannot be doubted that the election petitioner in the present case was entitled to avail the entire limitation of 45 days upto the last day, i.e., 14.4.`990 and he was required to explain the inability of not filing it only on 14.4.1990 and 15.4.1990 since the petition was actually presented in the High Court on 16.4.1990. If Section 10 of the General Clauses Act applies, the explanation is obvious and the election petition must be treated to have been presented within time.

The question now is : Whether the applicability of Section 10 of the General Clauses Act to the presentation of election petitions under the R.P. Act is excluded ? No doubt the R.P. Act is a self-contained Code even for the purpose of the limitation prescribed therein. This, however, does not answer the question. It has to be seen whether the context excludes the applicability of Section 10 of the General Clauses Act which is in the part therein relating to the General Rules of Construction of all Central Acts. The legislative history of prescribing limitation for presentation of election petitions in accordance with sub- section (1) or Section 81 is also significant for a proper appreciation of the context. Admittedly, Section 10 of the General Clauses Act applied when by virtue of the requirement in the then existing sub-section (1) of Section 81, the period of limitation was prescribed by Rules framed under the R.P. Act, in Rule 119 of the 1951 Rules. This was expressly provided by Rule 2(6) of the 1951 Rules. There is nothing to indicate that providing the period of limitation in sub-section (1) of Section 81 itself by substitution of certain words by Act 27 of 1956 instead of prescribing the limitation by Rules, was with a view to exclude the applicability of Section 10 of the General Clauses Act. The change appears to have been made to provide for a fixed period in the Act itself instead of leaving that exercise to be performed by the rule making authority. An express provision in Rule 2(6) of the 1951 Rules was required since the General Clauses Act ipso facto would not apply to Rules framed under the Central Act, even though it would to the Act itself. The context supports the applicability of Section 10 of the General Clauses Act instead of indicating its exclusion for the purpose of computing the limitation prescribed in sub-section (1) of Section 81 for presentation of election petition.

In view of the basic premise that the election petitioner is entitled to avail the entire limitation of 45 days for presentation of the election petition as indicated by Ramlal (supra), if the contrary view is taken, it would require the election petitioner to perform an impossible task in a case like the present, to present the election petition on the last day of limitation on which date the High Court as well as its office is closed. It is the underlying principle of this legal maxim which suggests the informed decision on this point, leading to the only conclusion that Section 10 of the General Clauses Act applies in the computation of the limitation prescribed by sub-section (1) of Section 81 of the R.P. Act for presentation of an election petition. So computed, there is no dispute that the election petition presented in the present case on 16.4.1990 was within limitation and there was no non-compliance of sub-section (1) of Section 81 of the R.P. Act.

We have reached the above conclusion independent of the above decisions of this Court rendered on petitions presented subsequent to the amendment of sub-section (1) of Section 81. It may straightaway be said that in all these cases applicability of Section 10 of the General Clauses Act was either not doubted or was taken for granted. This is how the position has been understood for all these years and no case taking the contrary view has been cited at the Bar.

This settled position is in conformity with the view we have taken on this point. There is no basis is law to take a different view.

Re: Sub-section (3) of Section 81 --------------------------------- Sub-section (3) of Section 81 requires `every election petition to be accompanied by as many copy thereof' as there are respondents, obviously for the purpose of a copy of the election petition being served upon each respondent along with the notice of the election petition. The submission of Shri Jethmalani is that the election petition and, therefore, its accompanying copy in accordance with Section 81(3) should satisfy the requirement of sub-section (1) of Section 83 as to the contents of the petition. He argues that if the contents of the election petition which has been filed and the copy accompanying it do not satisfy the requirement of Section 83(1), there is non-compliance of Section 81(3) attracting Section 86 for dismissal of the election petition. The argument is that the defect in such a case is in the accompanying copy of the election petition which is dificient in its contents as required by Section 83(1). For this reason, he submits, it results in non- compliance of Section 81(3) which attracts Section 86 of the R.P. Act.

In the present case, there is reference in paras 32 and 33 of the election petition to certain video cassettes, the contents of which are deemed to be incorporated by reference in the election petition, and since the video cassettes or a transcript of its contents was not filed along with the election petition and was not supplied with the copy of the election petition to the respondent (returned candidate), it is argued, that it has resulted in non-compliance of Section 81(3) which attracts Section 86. No further reference to the audio cassettes is necessary since the audio cassettes were not produced even at the trial and were not relied on by the election petitioner for proof of the corrupt practice. These video cassettes were later produced at the trial but the subsequent production of the video cassettes at the trial, it is urged, does not cure the defect of non-compliance of Section 81(3). In reply, Shri Ashok Desai submitted that the video cassettes did not form part of the election petition as the contents thereof are not incorporated by reference in the election petition and, therefore, non-production of the video cassettes or their transcript with the election petition and failure to annex the same to the copy of the election petition served on the returned candidate did not amount to non-compliance of Section 81(3). Shri Desai submitted that Section 81(3) merely requires the copy to conform with the election petition as presented in the court and not an election petition as required to be drafted according to Section 83(1) of the R.P. Act. He further submitted that any defect or deficiency in the contents of the election petition found with reference to Section 83(1) of the R.P. Act may have any other consequence requiring the court to act under Order 7 Rule 11 C.P.C. or order 6 Rule 16 C.P.C., but there is no non-compliance of Section 81(3) if the copy accompanying the election petition which is served on the respondent is identical with the election petition as it is actually presented in the court. In short, Shri Desai submitted that non-compliance of Section 83(1) of the R.P.Act is not visited with the consequence of dismissal of the election petition at the threshold under Section 86 and, therefore, the non-compliance of Section 81 which attracts Section 86 has to be seen without reference to Section 83 of the R.P. Act. Both sides have placed reliance on the same set of decisions to support the rival contentions.

There is no dispute that the election petition as presented in the court, was accompanied by as many copies thereof as there were respondents in the election petition;

and the copy of the election petition served on the returned candidate with the notice of the election petition was identical with the election petition as it was presented in the court. The requirement of the plain language of Section 81(3) was, therefore, fully met. The object of the provision is clearly to ensure that each respondent to the election petition gets an identical copy of the election petition as presented in the court to acquaint the respondent with the actual and full contents of the election petition as it is presented in the court. On the basis of the idential copy the respondent can prepare his defence and also take the plea of deficiency, if any, in the contents of the election petition with reference to Section 83 of the R.P. Act, in order to apply in the court for action being taken under order 7 Rule 11 or Order 6 Rule 16, C.P.C., as the case may be. These provisions are attracted only after the election petition survives the liability for dismissal at the threshold under Section 86 of the R.P. Act.

Section 86 empowers the High Court to dismiss an election petition at the threshold if it does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act, all of which are patent defects evident on a bare examination of the election petition as presented. Sub- section (1) of Section 81 requires the checking of limitation with reference to the admitted facts and sub- section (3) thereof requires only a comparison of the copy accompanying the election petition with the election petition itself, as presented. Section 82 requires verification of the required parties to the petition with reference to the relief claimed in the election petition.

Section 117 requires verification of the deposit of security in the High Court in accordance with rules of the High Court. Thus, the compliance of Section 81, 82 and 117 is to be seen with reference to the evident facts found in the election petition and the documents filed along with it at the time of its presentation. This is a ministerial act.

There is no scope for any further inquiry for the purpose of Section 86 to ascertain the deficiency, if any, in the election petition found with reference to the requirements of Section 83 of the R.P. Act which is a judicial function.

For this reason, the non-compliance of Section 83, is not specified as a ground for dismissal of the election petition under Section 86.

Acceptance of the argument of Shri Jethmalani would amount to reading into Section 86 an additional ground for dismissal of the election petition under Section 86 for non- compliance of Section 83. There is no occasion to do so, particularly when Section 86 being in the nature of a penal provision, has to be construed strictly confined to its plain language.

We may now refer to the decisions of this Court on which reliance is placed by both sides to support the rival contention on this point. In Sahodrabai Rai vs. Ram Singh Aharwar, 1968 (3) SCR 13, a translation in English of the pamphlet annexed to the election petition was incorporated in the body of the election petition and it was stated in the petition that it formed part of the petition. Along with the copy of the election petition which contained the entire transcript in English of the pamphlet, a copy of the pamphlet had not been annexed. The respondent raised the objection that the copy of the election petition served on him was not a copy of the election petition presented in the High Court and, therefore, the election petition was liable to be dismissed under Section 86 of the R.P. Act. It was held by this Court that the pamphlet which was filed as an annexure to the election petition must be treated as a document filed with the election petition and not a part of the election petition in so far as the everments are concerned. Obviously, this view was taken because the contents of the pamphlet were incorporated in the body of the election petition of which a copy was duly served on the respondent. Accordingly, it was held that there was no non- compliance of Section 81(3) and the petition was not liable to be dismissed under Section 86 of the R.P. Act.

In A. Madan Mohan vs. Kalavakunta Chandrasekhara, 1984 (2) SCC 288, the earlier decision in Sahodrabai Rai (supra) was followed. It was held that failure to furnish copy of schedules and documents which did not form an integral part of the election petition was not fatal to the petition and it was not liable to be dismissed under Section 86 of the R.P. Act. An earlier decision in M. Karunanidhi etc. etc. vs. Dr. H.V. Hande and others etc. etc., 1983 (2) SCC 473 was distinguished and it was pointed out that M. Karunanidhi (supra) did not depart from the ratio laid down in Sahodrabai Rai (supra). Para 15 of the decision in A. Madan Mohan (supra) is as under:- "This decision in no way departs from the ratio laid down in Sahodrabai case. The aforesaid case, however, rested on the ground that the document (pamphlet) was expressly referred to in the election petition and thus became an integral part of the same and ought to have been served on the respondent. It is, therefore, manifest that the facts of the case cited above are clearly distinguishable from the facts of the present case. Furthermore, the decision in M. Karunanidhi case has noticed the previous decision and has fully endorsed the same." (at page 292) This decision by a 3-Judge Bench also indicated that this stringent provision must be construed literally and strictly. Para 13 of the decision is as under:

"It is a well settled principle of interpretation of statute that wherever a statute contains stringent provisions they must be literally and strictly construed so as to promote the object of the Act. As extracted above, this Court clearly held that if the arguments of the appellant (in that case) were to be accepted, it would be stretching and straining the language of Section 81 and 82 and we are in complete agreement with the view taken by this Court which has decided the issue once for all." (at page 291) Another decision referred is U.S. Sasidharan vs. K. Karunakaran and Another, 1989 (4) SCC 482. That was a case in which a document was incorporated in the election petition by reference and was filed with the election petition in a sealed over but a copy was not supplied to the returned candidate along with a copy of the election petition. In such a situation, it was held to be non- compliance of Section 81(3) rendering the election petition liable for dismissal under Section 86(1) of the R.P. Act.

This conclusion was reached on the view that non-supply of copy of the document with a copy of the election petition was a fatal defect because the document was filed in the High Court with the election petition and it formed an integral part of the election petition. This decision also indicates the distinction between a document forming an integral part of the election petition and being produced merely as evidence of an averment made in the election petition.

The distinction brought out in the above decisions is, that in a case where the document is incorporated by reference in the election petition without reproducing its contents in the body of the election petition, it forms an integral part of the petition and if a copy of that document is not furnished to the respondent with a copy of the election petition, the defect is fatal attracting dismissal of the election petition under Section 86(1) of the R.P. Act. On the other hand, when the contents of the document are fully incorporated in the body of the election petition and the document also is filed with the election petition, not furnishing a copy of the document with a copy of the election petition in which the contents of the document are already incorporated, does not amount to non-compliance of Section 81(3) to attract Section 86(1) of the R.P. Act. In other words, in the former case the document filed with the election petition is an integral part of the election petition being incorporated by reference in the election petition and without a copy of the document, the copy is an incomplete copy of the election petition and, therefore, there is non-compliance of Section 81(3). In the other situation, the document annexed to the petition is mere evidence of the averment in the election petition which incorporates fully the contents of the document in the body of the election petition and, therefore, non-supply of a copy of the document is mere non-supply of a document which is evidence of the everments in the election petition and, therefore, there is no non-compliance of Section 81(3). In U.S. Sasidharan (supra), this distinction is clearly brought out as under:- "........

The material facts or particulars relating to any corrupt practice may be contained in a document and the election petitioner, without pleading the material facts or particulars of corrupt practice, may refer to the document. When such a reference is made in the election petition, a copy of the document must be supplied inasmuch as by making a reference to the document and without pleading its contents in the election petition, the document becomes incorporated in the election petition by reference. In other words, it forms an integral part of the election petition.

Section 81(3) provides for giving a true copy of the election petition. When a document forms an integral part of the election petition and a copy of such document is not furnished to the respondent along with a copy of the election petition, the copy of the election petition will not be a true copy within the meaning of Section 81(3) and, as such, the court has to dismiss the election petition under Section 86(1) for non-compliance with Section 81(3)."

"On the other hand, if the contents of the document in question are pleaded in the election petition, the document does not form an integral part of the election petition. In such a case, a copy of the document need not be served on the respondent and that will not be non-compliance with the provision of Section 81(3). The document may be relied upon as an evidence in the proceedings. In other words, when the document does not form an integral part of the election petition, but has been either referred to in the petition or filed in the proceedings as evidence of any fact, a copy of such a document need not be served on the respondent along with a copy of the election petition." (paras 15 and 16 at page 489) It may be mentioned that in all the above decisions cited at the Bar, the document in question had been filed in the court along with the election petition, but a copy of that document was not supplied to the respondent with the copy of the election petition. In those cases wherein the annexed document was treated to be incorporated by reference in the election petition forming an integral part of the election petition, non-supply of a copy of the document was held to be fatal warranting dismissal of the election petition under Section 86(1) for non-compliance of Section 81(3). In the other cases, the document was filed with the election petition, but the contents thereof were also incorporated in the body of the election petition, a copy of which had been supplied to the respondent even though copy of that document was not furnished in addition. In those cases, non-supply of a copy of the document was held not to be non-compliance of Section 81(3) because the document annexed to the election petition was treated as evidence of the averments contained in the body of the election petition, a copy of which had been furnished to the respondent. This is the gist of these decisions which also indicates that the question has to be answered with reference to the kind of use made of the document annexed to the petition, whether as an integral part of the election petition or merely as evidence of the pleadings contained in the body of the election petition.

In the present case, the video cassettes, non-supply of a copy of transcript of which is urged by Shri Jethmalani to be a ground for non-compliance of Section 81(3), were not even filed in the High Court with the election petition in the High Court. This is, therefore, not a case of non-supply of a copy of a document which was filed along with the election petition. What was supplied to the returned candidate in the present case, was a true copy of the election petition as it was presented in the court without the video cassettes of which mere mention was made without incorporating its contents by reference of enumerating it in the election petition. It is not the case of the election petitioner that the full contents of the video cassettes or their transcripts are incorporated by reference in the election petition in order to make the video cassettes an integral part of the election petition, inasmuch as no video cassette was filed along with the election petition as it was presented in the High Court. Reliance is placed by the election petitioner on the video cassettes produced later during the trial as only evidence of the pleading in paras 32 and 33 of the election petition. It is, therefore, clear that the contents of the video cassettes except to the extent pleaded in paras 32 and 33 of the election petition, cannot be treated to be incorporated by reference in the election petition as a part of the pleadings and its use is sought to be made by the election petitioner only as evidence of the averments contained in paras 32 and 33 of the election petition. Admittedly, a true copy of the election petition as presented in the High Court was furnished to the returned candidate along with the notice of the election petition. There was thus no non-compliance of sub-section (3) of Section 81 of the R.P. Act. The election petition was, therefore, not liable to be dismissed under Section 86(1) even on the ground of non-compliance of section 81(3) of the R.P. Act.

26 The contention of Shri Jethmalani that the entire election petition is liable to be dismissed under Section 86(1) of the R.P. Act for non-compliance of subs-section (1) and/or sub-section (3) of Section 81 is, therefore, rejected.

Non-compliance of Section 83 (1) of the R.P. Act - its effect.

------- The next question now is : Whether the contents of the election petition are as required by Section 83 of the Act or there is any deficiency therein to attract Order 7 Rule 11 or Order 6 Rule 16, C.P.C. ? This question arises from the alternative submission of Shri Jethmalani who contended that the pleading of corrupt practice with reference to the use of video cassettes is deficient and is, therefore, liable to be struck out under Order 6 Rule 16, C.P.C. He submitted that this would leave for consideration only the speeches of Manohar Joshi, Bal Thackeray, Pramod Nawalkar and Chhagan Bhujbal on 24.2.1990 as the only basis for the charge of the corrupt practice under sub-section (3) and (3A) of Section 123 for consideration in the election petition. He urged that there is no pleading of any part of the speech of Chhagan Bhujbal in the election petition and, therefore, reference to his speech is innocuous. For the speeches of Manohar Joshi, Bal Thackeray and Pramod Nawalkar, he urged that the specific pleading contained in the body of the election petition alone requires consideration, excluding all other material brought on record during the trial which is an impermissible addition to the record on account of a serious mistrial resulting from the unusual procedure adopted by the learned trial Judge in the High Court. Shri Jethmalani referred copiously to the evidence to support his submission that the learned trial Judge himself directed a witness to search for certain documents and produce them in addition to extensively cross- examining that witness himself to bring on record a log of material which is wholly irrelevant and inadmissible. In sort, his submission is that on the basis of the only pleading contained in the body of the election petition and the admissible and relevant evidence alone, no corrupt practice under sub-section (3) or sub-section (3A) of Section 123 is made out.

Some other questions arising out of the remaining arguments of Shri Jethmalani and reply of Shri Ashok Desai which are referred later, have to be considered with reference to the pleadings of the parties. It is, therefore, appropriate at this stage to quote the relevant pleadings in the election petition and the written statement of the returned candidate.

We must observe that the pleadings of the parties are frivolous and prolix of which only certain portions were relied at the hearing of the appeal by the learned counsel for the parties and, therefore, reference only to the relevant partitions of the pleadings is necessary. We may add that the failure to exclude from consideration the pleading which is prolix and irrelevant, has led to the reception of considerable evidence which too is irrelevant and inadmissible resulting in needless increase in the bulk of the record of the trial court and an excursion by the High Court into an irrelevant area. There has been a failure to invoke and apply the provisions in the Code of Civil Procedure at the pretrial stage which has led to an improper frame of the issues resulting in lack of focus on the real points in controversy alone confined to the actual pleadings.

According to Shri Ashok Desai, learned counsel for the respondents, the relevant pleadings relating to the allegation of corrupt practices pleaded in the election petition are in paras 2, 5 (o), 7, 8, 16, 17, 18, 30, 31, 32, 33 and the first sentence of para 35 as well as pars 59 and 60 of the written statement. According to Shri Jethmalani, learned counsel for the appellant, the relevant pleadings are only in paras 30, 31, 32, and 33 of the election petition. At any rate, nothing more has to be seen in the election petition for this purpose in addition to the portions pointed out by Shri Desai. These portions of the election petition and the written statement are as under:

From Election Petition No.24/1990 --------------------------------- (as typed in paper book) "(2) The Petitioner says that the petitioner had contested the general election to the Maharashtra Legislative Assembly held on 27/2/1990 (hereinafter referred to as "the said election') as a candidate of Indian National Congress (Congress-I) with the election symbol of "Hand". The Respondent was the candidate of Shiv Sena Party with the election symbol of "Bow & Arrow" put by the alliance of two parties viz. Shiv Sena and Bhartiya Janata Party (BJP). The other candidates were either independent candidates or belonging to other political parties like Janata Dal, etc."

"5. The Petitioner states that before setting out the nature of corrupt practices committed by the first respondent, it is necessary to give certain facts which have transpired in India over the last one decade, which are as under:

xxx xxx xxx (o) The petitioner states that all the aforesaid facts show that the said two parties, viz; BJP and Shiv Sena have systematically exploited various unfortunate disputes set out hereinabove so as to seek votes during the parliamentary election and the election in question in the name of `Hindutva' i.e. Hindu religion." "7. The petitioner states that accepting a candidature in the election of the said alliance meant that the said particular candidate had accepted the basic concept and plank on which the said two parties were jointly contesting the elections for the Assembly. It further meant that the candidate accepted Bal Thackeray, Pramod Mahajan, Kirti Somaiya as their leaders and consented to the said leaders making an appeal to vote for the candidates of the said alliance. It further meant that the philosophy and ideology of the leaders of the alliance, and particularly Bal Thackeray, such as

(a) Hindus are and Hindu religion is in danger,

(b) that only the alliance can protect Hindus and Hindus religion,

(c) that the Congress-I and Janata Dal have failed to protect, and will not protect Hindus and Hindu religion and their candidates are unfit to be elected,

(d) that Hindus have suffered and will continue to suffer indignity, discrimination and unequal treatment,

(e) that the problems in states like Kashmir, Punjab, Assam etc. have arisen because of the pampering of the minorities,

(f) that Hindus must come together and fight the attack on them and their religion and say with pride that they are Hindus,

(g) that Hindus owed a duty to their religion and if necessary must give their life for it,

(h) that minorities, and particularly the Muslims, were treated more favourably for their votes than Hindus.

8. The petitioner states that the respondent being a candidate of the said alliance, has accepted the ideology and philosophy of the said alliance, some of which is set out hereinabove. The respondent also consented to the leaders of the said alliance such as Bal Thackeray, Pramod Mahajan, Kirit Somaiya, Gopinath Mundhe and others making appeals to the voters to vote for her. In fact, as more particularly set out hereinbelow the respondent herself has expressly made an appeal to vote for her to fight for Hinduism."

"16. The petitioner states that similarly another joint public meeting was held in the said constituency i.e. at Shivaji Park, Dadar on 24/2/1990. At the said meeting most of the candidates of the BJP-Shiv Sena alliance, including the Respondent herein, were present. The said meeting was addressed by the leaders of the said alliance. At the said meeting Bal Thackeray reiterated that the said alliance was contesting the elections sin the name of Hindu religion and to fight for Hindutva. The proceedings of the said meeting were widely reported in various dailies viz;

`Mumbai Sakal', `Nava Kal', `Navshakti', `Maharashtra Times', `Navbharat Times', `Loksatta', `Sunday Observer', `The Times of India', `Indian Express' all dated 25/2/1990 and `Samma' dated 25/2/1990 and 26/2/1990. The petitioner craves leave to refer to and rely upon the said press reports as and when produced.

17. Some of the most offending statements made at the said meeting by the leaders of the said alliance are as under:-

(a) To handle the Congress-I hoodlums the Shiv Sainiks may take law in their hands and use firearms if necessary (Thackeray).

(b) To save `Hindutva' vote for BJP-sena Nominees (Pramod Mahajan, BJP- MP).

(d) The result of these elections will not only depend on the solution to the problem of food, cloth but the same will also decide whether in the state the flame of Hindutva will grow or will be extinguished. If in Maharashtra the flame of Hinduism is extinguished, then anti-national Muslims will be powerful and they will convert Hindustan into Pakistan. If the flame of Hindutva will grow then in that flame the anti- national Muslims will be reduced to ashes (Pramod Mahajan).

(e) We must protect `Hindutva' at all costs and for that we must not allow the saffron (Bhagwa) of Shri Chhakravarthi Shivaji Maharaj to fall from our shoulders (Pramod Mahajan).

(f) Rajiv Gandhi speaking on Hindutva is like a prostitute lecturing on fidelity. The country is again heading for partition. It is, therefore, necessary that in these circumstances and to keep the flame of Hindutva aline, the alliance of BJP-Shiv Sena should be elected (Mahajan).

(g) (Referring to Rajiv Gandhi), wife Christian, mother Hindu, father a Parsee and therefore himself without any (Hindu) culture/teaching (vevarsi). Pramod Mahajan).

18. The petitioner states that the proceedings of the said meeting were tape-recorded and taken down in shorthand by the police authorities. The petitioner craves leave to refer to and rely upon the said tape-recorded speeches and the speeches taken down in shorthand by the police authorities." "30. The petitioner states that the respondent himself in his capacity as a candidate from the said constituency as well as a leader of the said alliance made appeals which offends the provisions of the said Act, For e.g. in the meeting held on 24.2.1990 at Shivaji Park, the respondent stated the first Hindu State will be established in Maharashtra Similarly in various other public meetings, the respondent herein made objectionable appeals. Some of the meetings were reported in newspapers.

The petitioner states 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 on 19.2.1990. At all the said meetings, as well as meetings at other places, the other speakers who were present for e.g. Pramod Mahajan (M.P.-BJP) Dada Kondke (Marathi Actor) Jayantiben Mehta, Chandrika Kenia (MPs) made objectionable appeals to vote for the respondent.

31. In fact the speakers went on to say that on the respondent being elected and on the said alliance establishing a Hindu Government, we will give jobs to all Hindus. The petitioner craves leave to refer to and rely upon the election diaries maintained by the local police stations, the speeches recorded by the Special Branch-I on audio cassettes, video cassettes and the speeches recorded in Marathi shorthand.

The petitioner also craves leave to refer to and rely upon the press reports of the said meetings.

32. The petitioner states that in addition to holding public meetings, the said alliance had also taken out video cassettes and audio cassettes. The video cassettes were titled "Challenge & Appeal "Shiv Sena" and the other called "Ajinkya". The said video cassettes and audio cassettes discloses promises, appeals, exhortations and inducements to the voters to vote for the said alliance and their candidates. The said cassettes show that the said alliance has scant respect for the religious beliefs and practices of other religions like Muslims, Christians etc. Not only the other religions are ridiculed but the followers thereof are termed as "traitors" and "betrayers". Under the guise of protecting Hindu religion/Hindutva the said cassettes attach other religions and whips up lowered instincts and animosities. The concept of secular democracy is totally eliminated. It generates powerful emotions by appealing to the Hindu voters to vote for the candidates of the alliance on a false impression given to voters that only the alliance and its candidates can protect Hindu religion.

The petitioner will rely upon the visuals which have the aforesaid effect on the voters. The petitioner also craves leave to refer to and rely upon the said video cassettes as and when produced.

33. The petitioner states that the said alliance had also issued audio cassettes wherein the speeches of the leaders of the said alliance like Bal Thackeray, at various places in Maharashtra are recorded, e.g. Parbhani, Sely Aurangabad, Panvel, Girgaon, Vashi (New Bombay) etc. The said audio cassettes as well as the video cassettes were played in the said constituency, particularly at the Shakha offices, street corners after 6.30 p.m. They were regularly exhibited at or near the places of residence of some of the active workers of the said alliance in the said constituency. The exhibition and playing of the cassettes was on a large scale in the said constituency.

The petitioner craves leave to refer to and rely upon the said audio cassettes as and when produced." "35. The petitioner states that the aforesaid facts clearly prove that the respondent and his agents with his consent have indulged into corrupt practices listed under section 123 of the said Act. ......." From Written Statement ---------------------- (as typed in paper book) "59. With reference to para 32 of the Petition, it is true that the said alliance has taken two video cassettes known as "AJIMKYA" and "AVAHAN AND VAWHAN". However, it is totally false to the knowledge of the petitioner to allege that the said alliance and/or Shiv Sena party and/or I have and/or my election agent and/or any person has with my consent and/or election agent and/or any person has with my consent and/or knowledge has taken out any audio cassettes as alleged. This respondent denies that the said video cassettes disclose any promises and/or appeals and/or extortions and/or inducements which in any manner amount to corrupt practice and or any other offence under the Representation of People Act, 1951 as alleged or at all and puts the petitioner to the strict proof thereof.

This respondent denies that the said cassettes or either of them show any religious beliefs and/or practices as alleged. This Respondent categorically denies that the said cassettes or either of them show any scant respect for Muslims and/or Christian and/or any other religion as alleged or at all and puts the petitioner to the strict proof thereof. This Respondent categorically denies that any religion has been ridiculed and/or followers thereof are termed as "Traitors" and/or "Betrayers" as alleged or at all and puts the Petitioner to the strict proof thereof.

This Respondent denies that the said cassettes and/or either of them attach other religions and/or whips up lowered instincts and/or animosities as alleged or at all. This respondent denies that the said cassettes or either of them had appealed to the voters in the name of religion as alleged. This respondent submits that it has been held by the Supreme Court of India innumerable cases that whenever a reference is made in the election petition to a document, and the document includes an audio or video cassette, copy of such document must be supplied along with the Election Petition to the concerned Respondent inasmuch as by making a reference to the document and without pleading its contents in the Election Petition, the documents becomes incorporated in the Election Petition by reference. It becomes an integral part of the Election Petition under Section 81 and as required by Section 81 when document forms an integral part of the petition and the copy of the said document is not furnished to the Respondent alongwith the Election Petition, copy of the Election Petition will not be a true copy within the meaning of Section 81 and the same is liable to be dismissed under the provisions of Section 86.

paragraph 32 of the Petition does not give any material particulars about the allegations which are sought to be made.

It is submitted that the test to be applied where the pleadings discloses material facts and cause of action is that in absence of answer from the Respondent, would the court be in a position to give a judgment in favour of the petitioner. It is submitted that in the instant case, the answer is emphatically no and hence the entire contents of para 32 are wholly irrelevant, vexatious and abuse of this Hon'ble Court. The said pleadings, therefore, are not a complete cause of action and in breach of provisions of Sections 81, 82 and 86 of the Representation of People act and the election petition is liable to be and should be dismissed.

60. With reference to para 33 of the Petition, this Respondent categorically denies that the said alliance and/or Shiv Sena Party and/or B.J.P. Party issued any audio cassette as alleged and this Respondent puts the petitioner to strict proof thereof. The said paragraph alleges that the said video and/or audio cassettes were played in the said constituency particularly at Shakha Office, Street, corners. The said paragraph does not state the place, date and time when the said cassettes are alleged to have been played. It further does not mention the names of the persons who are alleged to have played the said cassettes. This Respondent submits that it has been held by the Supreme Court of India that the allegations of corrupt practice are in the nature of criminal charges, and it is necessary that there should be no vagueness in the allegations so that the returned candidate may know how the case he has to meet. If the allegations are bogus and general and the particulars of corrupt practice are not stated in the petition then in such a case the petition does not disclose any cause of action and the Petition does not disclose any cause of action and the petition is liable to be and should be dismissed. Furthermore, as mentioned in the above paragraph, it has been held by the Supreme Court of India that when a reference has been made in the Petition to any document including a video or audio cassette, a copy of the said document, must be supplied along with the Election Petition because by making a reference to such a document the same forms integral part of the petition and therefore, without a copy of the said document the petition is incomplete.

This Respondent, therefore, submits that for the reasons mentioned above, the Petition is liable to be and should be dismissed with costs." It would also be appropriate to quote the issues framed on 9.1.1992 by the High Court on these pleadings, as under - -

"1. Whether the Respondent has committed any of the corrupt practices as defined in Section 123(3) of the Representation of Peoples Act, 1951 as alleged in the Petition ?

2. Whether the Election Agent or any other Agent of the Respondent has committed any of the corrupt practices as defined in Section 123(3) of the Representation of Peoples Act, 1951 as alleged in the Petition ?

3. Whether any other person with the consent of the Respondent or his Election Agent has committed any of the corrupt practices as defined in Section 123(3) of the Representation of Peoples Act, 1951 as alleged in the Petition ?

4. Whether the Respondent has committed any of the corrupt practices as defined in Section 123(3A) of the Representation of Peoples Act, 1951 as alleged in the Petition ?

5. Whether the Election Agent or any other Agent of the Respondent has committed any of the corrupt practices as defined in Section 123(3A) of the Representation of Peoples Act, 1951 as alleged in the Petition?

6. Whether any other person with the consent of the Respondent or his election Agent has committed any of the corrupt practices as defined in Section 123(3a) of the Representation of Peoples Act, 1951 as alleged in the Petition ?

7. Whether the Petitioner proves that the Respondent has committed the corrupt practices as defined in Section 123(7) of the Representation of the Peoples Act 1951 as alleged in the Petition ?

8. Whether the Election of the respondent is to be set aside ?

9. Generally ?

It may be mentioned that issue No. 6(A) was framed suo motu by the High Court almost at the fag end of the trial, as under :-

"6.(A) Whether the Hindutva as used by the Shiv Sena Party during the Maharashtra Legislative Assembly Election 1990 is as alleged in the Petition or as alleged in the Written Statement ?" After both sides closed their respective cases, on the submission of Shri Jethmalani, the following issues were also permitted to be raised by order dated 4th January, 1993:- "1.(A) Whether the Petition is filed beyond the period of 45 days fixed by Section 81 of the Representation of Peoples Act, 1951 and requires to be peremptorily dismissed under Section 86 thereof ? 1.(B) Whether the Petition must be dismissed for its failure to plead or disclose under what part of Section 100 of the Act relief is claimed ?" It was strenuously argued by Shri Desai that there is admission of the returned candidate in his written statement about the existence and use of the video cassettes during the election campaign in the constituency and even of its contents, the only dispute being related to the meaning of the contents. On this basis, it was urged that there is no deficiency in the pleading of the corrupt practice in the election petition and the requirement of its proof is reduced to a great extent by admission in the written statement. The High Court has taken this view which is supported and relied on by Shri Desai in his submission. The High Court's judgment proceeds on this basis. It is, therefore, necessary to examine this aspect at this stage.

Assuming the contents of the video cassette amount to the kind of speech or act which is a corrupt practice under sub-section (3) or sub-section (3A) of Section 123, in order to constitute that corrupt practice it must further be shown that the act was done during the election campaign between 8.2.1990 when the returned candidate became a `candidate' and 27.2.1990 the date of poll, and that it was the act of the candidate or his agent or any other person with his consent. Unless all these constituent parts of the corrupt practice are pleaded to constitute the cause of action raising a triable issue and are then proved by evidence, the corrupt practice cannot be held to be pleaded and proved. If the act attributed is by the display of a video cassette recorded some time earlier, the display being between the above dates in the constituency, a mere display of the video cassette does not prove all the constituent parts of the corrupt practice, inasmuch as it must also be pleaded and proved that such display was by the candidate or his agent or any other person with his consent. Where the display of the cassette is attributed to any other person with the consent of the candidate, the liability of the candidate for commission of the corrupt practice results vicariously from the act of the other person done with the consent of the candidate. In such a case, the constituent part of the corrupt practice is the act done by any other person, not by the candidate himself or his agent for whose act the candidate's consent is assumed, with the authorisation for the act being done by any other person with the candidate's consent. This distinction between the act amounting to corrupt practice done by the candidate himself or his election agent and any other person with his consent has to be kept in view. This has relevance also for the purpose of Section 99 of the R.P. Act with reference to which one of the arguments has been addressed.

It was argued by Shri Ashok Desai that in case of the provocative and incendiary speeches given by acknowledged leaders of the political party the consent of the candidate set up by their party has to be assumed being implicit from the relationship of the candidate with the speaker through the medium of the party. On this basis, it was urged that a party candidate must be held to have consented to such speeches made by the leaders of that party and, therefore, if the speech of the leader satisfies the other requirements of the corrupt practice, the consent of the candidate which too is a constituent part of the corrupt practice, must be assumed to make out the ground under Section 100(1)(b) of the R.P. Act for declaring his election to be void. Shri Desai made a fervent emotive appeal that unless the law is so construed, a candidate of the party will get the benefit of appeal for votes on the ground of his religion on the basis that his consent has not been pleaded and proved, thereby frustrating the object of the enactment and adversely affecting the purity of elections which is of essence in a democracy. It was argued that leaders of the party must be assumed to be agents of the candidates of that party for the purpose of the ground of corrupt practice.

In our opinion, the fallacy in the argument i s that it overlooks certain other provisions of the R.P. Act. Section 100 of the R.P. Act is as under :- "100. Grounds for declaring election to be void. - (1) Subject to the provisions of sub-section (2) if the High Court is of opinion â€“

(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963); or

(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or

(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected â€“

(i) by the improper acceptance of any nomination, or

(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or

(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or

(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.

(2) If in the opinion of the High Court, a returned candidate has been quality by an agent, other than his election agent, of any corrupt practice but the High Court is satisfied â€“

(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent;

(b) Omitted.

(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and

(d) that in all