DAS RAO DESHMUKH Vs. KAMAL KISHORE NANASAHEB KADAM

JUDGEMENT

(1.) This appeal is directed against the judgment dated July 18, 1991 passed by the Bombay High Court (Aurangabad Bench) in Election Petition No. 8 of 1991. The respondent No. 1 in this appeal, Sri Kamal Kishore Nanasaheb Kadam preferred Election Petition No. 8 of 1991 before the Aurangabad Bench of the Bombay High Court inter alia challenging the election of the appellant Dr. Das Rao Deshmukh from Assembly Constituency No. 170 Nanded in the Maharashtra Legislative Assembly held on February 27, 1990. Having secured the highest vote in the said election, the appellant was declared elected to the Maharashtra State Legislative Assembly in the said election from the Nanded Assembly Constituency. By the impugned judgment, such election of the appellant was declared null and void on the ground of corrupt practice indulged by the appellant Dr. Das Rao Deshmukh under S.123(3) and 123(3A) of the Representation of the People Act, 1951 (hereinafter refered to as the Representation Act). The High Court, by the impugned judgment, also awarded a cost of Rs. 10,000/- against the appellant and in favour of the election petitioner. It may be indicated here that shortly after the hearing of this appeal was concluded, the general election of the Maharashtra State Legislative Assembly including the Nanded Assembly Constituency was held in February, 1995. In view of such election, the contest as to general election in 1990 would have lost, for all practical purposes, any importance and this appeal would have become infructuous. But in view of the finding of the High Court that the appellant had indulged in corrupt practice under S.123(3) and 123(3A) of the Representation Act which has serious consequence concerning the appellant; a decision of this appeal on merit is necessary.

(2.) In the election petition preferred by Sri Kamal Kishore Nanasaheb Kadam, the election petitioner alleged that the appellant Dr. Das Rao Deshmukh was a nominee of Shiv Sena party in the said Nanded Constituency but he carried out his election campaign on the basis of Hindu Religion and for that purpose promoted and attempted to promote communal hatred between two cammunities namely the Hindus and the Muslims. The election petitioner gave detailed accounts as to how such compaign on the ground of religion was carried out by the appellant Dr. Das Rao Deshmukh with the active support of his election agents and leaders of Shiv Sena and Bharatiya Janata Party (hereinafter referred to as BJP). The last Assembly election in the State of Maharashtra was held on February 27, 1990. As per the schedule declared by the Election Commission for the 9th General Election for the Legislative Assembly for the State of Maharashtra, the nomination papers were to be filed on February 3, 1990, nominations were to be scrutinised on the very same day. Last date for withdrawal of nomination papers was February 7, 1990 and the result of election was to be declared on March 2, 1990. The election petitioner was the Congress (I) nominee and the appellant Dr. Deshmukh was the nominee of Shiv Sena party. The appellant secured 48465 votes and election petitioner secured 33270 votes. Chandrakant Bagve and Vinayak Partharkar respectively Shakha Pramukh of Shiv Sena and Local President of the said Shakha were in charge of the election campaign on behalf of Dr. Deshmukh, Shri Chander Shekhar Sonavane was the election agent of Dr. Deshmukh. The election-petitioner alleged that the Shiv Sena Party conducted election campaign by holding public meetings, distributing banners and hand bills, pamphlets playing audio and video cassettes, depicting the election manifesto as well as the election campaign of Shiv Sena. It was alleged that Shiv Sena party had recorded two cassettes namely 'Avhan and Awahan' and 'Ajinkya'. It was alleged that all such campaigns were with the consent of Dr. Deshmukh. The election petitioner divided the allegations in Part II to Part VII of the election petition. The allegations about the campaign on the basis of religion were indicated in Part V and Part VI. Part VI is the synopsis of the particulars of the campaign which, according to the election petitioner, were offensive. The classification in those parts has been made with reference to various types of documents, cassettes, both audio and video for facilitating the understanding of the allegations of the election petitioner. The organisation of the Shiv Sena party was registered as political party on October 29, 1988. According to the election petitioner, the main idea of establishing the Shiv Sena party was to promote and espouse the cause of Hinduism. The election petitioner alleged that the Shiv Sena came out with the message in a daily newspaper called "Samna" and the thrust of the said newspaper was that the Hindus and the Hindu religion were in danger and that they needed awakening. The election petitioner further alleged that in Nanded Constituency the said newspaper had wide circulation. The main allegation of the said Shiv Sena party was that Hindu religion was in peril in the hands of the ruling Congress (I) Party. It was alleged that during the entire tenure of the rule by the Congress I, the said party had espoused the cause of Mohammadens and Christians and it was required to be checked by constituting 'Hindu Vote Bank'. The 'Supremo' of Shiv Sena party Shri Balasaheb Thackrey had openly canvassed for capturing political power by indicating that such power had to be owned by 'Dharmayudh'. It was alleged that when the election of Shiv Sena candidate Dr. Ramesh Prabhoo from the Vile Parle Constituency on December 13, 1987 was set aside on the ground that the campaign was found to be in breach of S.123(3) and 123(3A) of the Representation Act. Shri Thackrey came out in the newspaper 'Samna' that Hindus must unite. Hindu religion must grow and this concept should make new Hindustan. Similar speeches were also delivered thereafter. It was further alleged that on the eve of election of four Shiv Sena candidates at the 9th Lok Sabha Elections, the same message was delivered by Shri Thackrey and he declared that he would desire to hoist Saffron Flag at Vidhan Bhavan at Bombay. The election petitioner contended that the appellant Dr. Deshmukh joined Shiv Sena and adopted the entire election campaign carried out by Shiv Sena through out the State of Maharashtra. The said Shri Deshmukh also consented that persons named in para 3.03 of the election petition would campaign for him. The said list mentioned several names including the names of respondents Nos.2 to 6 to the election petition. In Part IV, the election petitioner gave the area of Nanded Constituency No.170 and in para 5, the detailed corrupt practice was indicated. It was alleged by the election petitioner that on February 2, 1990, there was an announcement by the Nanded Shakha of Shiv Sena party that the meeting would be addressed by Shri Balasaheb Thackrey on February 4, 1990 at about 1.30 p.m. and an advertisement was published in local newspaper 'Godatir Samachar'. It was indicated that the meeting would be held at Indira Gandhi Maidan where Dr. Deshmukh would remain present. At the said meeting. Dr. Deshmukh was given a welcome by Shri Thackrey and Shri Thackrey delivered a lengthy speech in the meeting. Shri Ashok Deshmukh, Nandu Kulkarni and Chandrakant Bagve also addressed the same meeting. The report of such meeting and the speeches delivered therein were published in 'Godatir Samachar' on February 5,1990. In the said meeting, Shri Thackrey made a speech and he made no secret that he sought votes on the plank of religion. The entire speech was tape recorded and there were audio and video cassettes of such speech. The synopsis of the said speech was that Nanded was the city of Gurdwara and it should be kept in mind that Guru of the Sikh religion had given kripan for protection of the Sikh religion. He further stated that the Hindus were leaving Kashmir and they were killed in Punjab. Shri Thackrey further stated that the country was Hindustan and the Hinduism needed protection. Referring to the political leaders like Sharad Pawar and Shri V.P. Singh, Shri Thackrey stated that they had only praised the Mohammadens and Shri V.P. Singh visited Shahi-Imam after the elections but he did not care for Hindu votes. Shri Thackrey warned that Hindus could not be insubordinated and neglected and at the Assembly elections they would fly the Saffron Flag and rule in the State of Maharashtra. He stated that he had the blessings of Tulja Bhavani, Goddess of Tuljapur and Goddess of Shivaji Maharaj. He also indicated that the history was twisted and the facts which would not be liked by Mohammadens had been altered. Shri Thackrey referred to a book written by Dr. Babasaheb Ambedkar "Ridders in Hinduism" published by the Government where Lord Rama and Lord Krishna had been maligned. It was further stated by the election petitioner that Dr. Deshmukh also addressed by saying that it was a golden day at Nanded because the feet of Balasaheb Thackrey had touched the soil of Nanded. The strength of Hindustan and the Saffron Flag should be hoisted at Vidhan Bhavan.

(3.) With reference to 'Avhan and Awahan' the video tapes, it was contended by the election petitioner that in the said video tapes powerful exhortation and inducement to the voters to vote on the ground of religion had been made. There was an appeal that if a Muslim would try to destroy Hinduism in Hindustan public would not keep quiet but take out the intestines like that of Afzulkhan. It was alleged that Muslims were loyal to Pakistan and Urdu could not be the national language of Hindustan. An appeal was also made to the fact that the Rulers would visit Muslims and Mosques but not the Hindu temples and the Hindus should therefore, constitute a Vote Bank and should hoist Saffron Flag on the Assembly building. The election petitioner alleged that the said tapes were circulated in Nanded and other places.