MORESHWAR SAVE versus DWARKADAS YASHWANTRAO PATHRIKAR

Citation: [1995] SUPP. 6 S.C.R. 515 · Decided: 11-12-1995 · Supreme Court of India · Bench: J.S. VERMA · Disposal: Appeal(s) allowed

Judgment (excerpt)

MORESHWAR SAVE 
A 
v. 
DWARKADAS YASHWANTRAO PATHRIKAR 
DECEMBER 11, 1995 
[J. S. VERMA, N.P. SINGH AND K. VENKATASWAMI, JJ.] 
B 
Representation of the People Act, 1951 : 
Sections 98, 99, 100, 123(3) and 123(3A)-Conupt practices-Speeches 
made by leaders supporting a partic«lar candidate-High Court accepti11g the C 
pleadi11gs and setti11g aside the electim1 of the returned candidate-011 appeal 
held, since. 110 notices issued to the leaders who delivered the alleged speeches 
this defect vitiates the impugned Judgme11t-Si11ce the leaders were not the 
ca11didate's election agents dispensing with consent not possible-Jn view of 
the facts and circumstances of the case held, remand would be futile and D 
sheer waste of time. 
The appellant was a candidate from Aurangabad parliamentary 
constitnency and he was declared elected. An Election petition was filed by 
the respondent, alleging certain corrupt practices viz. that the appellant 
had appealed on the basis of religion to the Hindus by canvassing that the E 
Hindu religion was in danger and Hindus should awake and meet the 
challenge posed by the minority specially the muslims: that Manobar Joshi 
in bis speech at Aurangabad bad said that the candidate of BJP-Sbiv Sena 
belongs to the Hindutva faction and that 85% Hindus want a government 
at the Centre which pleases the minority they should vote for the appellant; 
and that Bal Thackeray also made a speech to the same effect. 
The High Court set aside the election of the appellant on the ground 
of corrupt practices under Sections 123(3) and 123(3A) of the Repre-
sentation of the People Act. Hence this appeal. 
Allowing the appeal, this Court 
HELD : 1. 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 only basis for the corrupt practice found proved against 
F 
G 
the appellant is the two speeches by others, namely, on 6.5.1991 by H 
515 
516 
SUPREME COURT REPORTS [1995] SUPP. 6 S.C.R. 
A Manohar Joshi and on 12.5.1991 by Bal Thackeray and not any speech by 
the appellant himself. Thus, the liability fastened on the appellant is 
vicarious on the basis of the two alleged speeches of Manohar Joshi and 
Bal Thackeray. No notice under Section 99 of the Representation of the 
People Act was given either to Manohar Joshi or Bal Thackeray. A com-
B bined reading of Sections 98 and 99 of the R.P. Act leaves no doubt that 
the final order holding the candidate guilty of corrupt practice in such a 
situation vicariously, cannot be made under Section 98 of the Act without 
simultaneously complying with the requirement of Section 99. This is 
obviously for the reason that in such a situation a simultaneous verdict 
against the noticee under Section 99 and the candidate has to be given at 
C one time while deciding the election petition after proper compliance of 
Section 99 of the R.P. Act. A combined reading of Sections 98 and 99 leaves 
no doubt that in snch a situation, the High Conrt has no option to ignore 
the allegation against the person for whose act the candidate is held liable 
vicariously; and the court also cannot proceed to decide the case of the 
D candidate and the noticee separately or piecemeal. This defect of want of 
notice to Manohar Joshi or Bal Thackeray is alone sufficient to vitiate the 
impugned judgment requiring it to be set aside. [519-G-H, 520-A-C] 
E 
Manohar Joshi v. Nitin Bhaurao, Patil & Anr., [1995) Suppl. 6 SCR, 
relied on. 
2. Ordinarily the matter requires to be remanded for a fresh decision 
of the election petition after notice to the persons to be named for com· 
mission of the corrupt practice in accordance with Section 99; or the 
decision of this appeal may be deferred and in the meantime notice may 
F 
be given under Section 99 to these persons and after the requisite inquiry 
by the High Court its finding in respect of those persons be called for 
deciding the case against the candidate and the noticee at one time while 
deciding the appeal in this Court, However, the second course does not 
appear to be appropriate in the present case. There is no clear pleading 
or finding of the appellant's consent which is a constituent part of the 
G corrupt practice resulting from an act of any person other than the 
candidate or his agent. This alone would indicate the absence of one of the 
constituent parts of the alleged corrupt practice. Case in the election 
petition is based only 

Excerpt shown. Read the full judgment & AI analysis in Lexace.