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1993 (11) TMI 243
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....") are against the judgment dated 30th March, 1993 in Election Petition No. 2 of 1991 E.V. Alia Balasaheb Vikhe Patil v. Gadakh Yashwantrao Kankarrao and Ors. passed by A.A. Halbe, J. of the Bombay High Court at the Aurangabad Bench. By the impugned judgment, the election of Gadakh Yashwantrao Kankarrao as a member of the Lok Sabha from 39 Ahmednagar Parliamentary constituency held in June 1991 has been set aside for commission of the corrupt practice under Section 123(4) of the R.P. Act; and E.V. Alias Balasaheb Vikhe Patil has been declared elected. Civil Appeal No. 2115 of 1993 is by Gadakh Yashwantrao Kankarrao (Gadakh) against declaration of his election to be void and the further declaration of E.V. alias Balasaheb Vikhe Patil (Vikhe Patil) to have been duly elected. Civil Appeal No. 2116 of 1993 is by Deshmukh Bhagwan Rangnath (Respondent No. 5 in the Election Petition) against declaration of Vikhe Patil to have been duly elected. Similarly Civil Appeal No. 2444 of 1993 is by Najan Rambhau Maruti (Respondent No. 6 in the Election Petition) against declaration of Vikhe Patil to have been duly elected. Civil Appeal No. 1758 of 1993 is by Sharad Chandra Govindrao Pawar (Sh....
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.... by him, with a view to prejudice the prospects of Vikhe Patil's election, in meetings held by him at Sonai on 30th April, 1991, Ahmednagar on 2nd May, 1991, Newasa on 3rd May, 1991 and in an interview given to a journalist on 10th May, 1991 which was published in the daily newspaper "Maharashtra Times" on 13th May, 1991. It was also alleged by Vikhe Patil that in the public meeting held at Newasa on 3rd May, 1991 and at Srigonda on 11th May, 1991, Sharad Pawar, the then Chief Minister of Maharashtra had made similar statements relating to the personal character of Vikhe Patil, in the presence of and along with Gadakh. It was alleged by Vikhe Patil that these statements relating to the personal character of Vikhe Patil made by Gadakh and Sharad Pawar amounted to corrupt practice under Section 123(4) of the R.P. Act on account of which Gadakh's election was void and Sharad Pawar was liable to be named in accordance with Section 99 of the R.P. Act. After the evidence was recorded at the trial and Gadakh had also been examined on commission on account of his illness, the High Court Issued a notice under Section 99 of the R.P. Act to Sharad Pawar to show cause why he ....
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....etitioners. 6. It is these conclusions and reliefs granted on by basis which are challenged by the returned candidate Gadakh and the notice Sharad Pawar, while respondent No. 5 Deshmukh Bhagwan Rangnath and respondent No. 6 Najan Rambhau Maruti have challenged merely the further declaration of Vikhe Patil to have been duly elected, in their appeals. 7. At this stage, a gist of the alleged false statements relating to the personal character of Vikhe Patil attributed to Gadakh and Sharad Pawar may be mentioned while the details thereof would be stated later at the time of considering each of them separately. It has been alleged by Vikhe Patil that Gadakh attributed to him the resort of corrupt methods for winning the election in his statements by stating the Vikhe Patil had a huge election budget of ₹ 3 crores; that Vikhe Patil had paid ₹ 50 lakhs to the election fund of Janata Dal; that ₹ 20 lakhs were by him to the Janata Dal candidate B.G. Kolse Patil to shift to another constituency; that he was to distribute 5000 bicycles to the participants in a bicycle rally to be taken out for him; that he had offered to the workers in the election campaign ₹ 25,000 ....
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....entation of People Act and forward the copy of the notice under Section 99 of the Representation of People Act and the judgment and order in this Election Petition to the Election Commissioner and also to the Speaker or the Chairman of the House of Parliament or the State Legislature, as may be found necessary. (v) The petitioner E.V. @ Balasaheb Vikhe Patil is declared as a candidate duly elected from the above parliamentary constituency. (vi) Petitioner be refunded his security deposit. 9. In these matters, Shri Ashok Desai appeared for Gadakh; Shri K. Parasaran for Sharad Pawur; Shri V.N. Ghanpule for Deshmukh Bhagwan Rangnath (respondent No. 5 in the election petition); and Shri Ram Jethmalani for Najan, Rambhau Maruti (respondent No. 6 in the election petition). In substance, the contention of Shri Ashok Desai was that Gadakh did not make any of the statements attributed to him and at any rate none of those statements amounts to the corrupt practice under Section 123(4) of the R.P. Act. Shri K. Parasaran contended that the statements attributed to Sharad pawar, which do not include the statement of payment of ₹ 50 lakhs to the election fund of Janata Dal and the pay....
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....the relevant portions in the election petition are as under: On 30th April, 1991, the first respondent had addressed a meeting at village Sonai.... Further he made a statement that the Petitioner had paid 20 lakhs of rupees for the candidate who was selected by Janata Dal Party for the Ahmednagar constituency to contest the election from Beed constituency. Respondent No. 1 further alleged that the Petitioner was going to spend ₹ 3 crores for Petitioner's election. Respondent No. 1 also alleged that Petitioner has declared rate of ₹ 25,000 for defecting worker of village level and ₹ 50,000 for worker of Tahsil.... The petitioner states that the statements made by the first respondent that petitioner paid ₹ 20 lakhs to the candidate of Janata Dal to withdraw from Ahmednagar Parliamentary constituency is false is known to first respondent as false and such a statement is relating to personal character and conduct of the petitioner the statement is false and also related to the candidate. This Statement was made by the first respondent believing it to be false. The said statement was made to prejudice prospects of the Petitioner in the election. The stat....
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....ns do not go here or there for money. Don't take test of self respect of those (poor men). Institutions have been erected by taking advantage of party. Voter can't be purchased by that money. Shri Pawar advised the voters that if the wealth is being distributed take the wealth but vote for Congress. Statement were repeated to the effect that the Petitioner was distributing bicycles and pairs of dhoties, and sarees, among voters in the constituency.... The Petitioner states that these statements were false. The first respondent and Shri Sharad Pawar were knowing that these statements were false. Shri sharad Pawar Knew well that these statements reflected on the personal character of the Petitioner. The petitioner was being painted by the first respondent and Shri Sharad Pawar, that the petitioner would do anything to get elected by use of his money. The Petitioner states that the first respondent gave an interview to Shri Girish Kulkarni representative of Maharashtra Times. The said interview has been published in the Maharashtra Times dated 13th May, 1991.... In the said interview it was put up to 1st respondent that first respondent had been accusing the Petitioner of ....
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....ate). I am not worried about the Bhartiya Janata Party candidate in this constituency because he is going to loose. He too is aware of this. The question is different while what to do about this adoptive candidate who was raised by the Congress made a member of Parliament for five times, and office bearer of the Zilla Parishad. On one occasion when he was asked to wait a little, he grew impatient and began searching. He filled up (nomination) forms in Kopergaon and in Nagar. He adopted a stand of interest parties while to rebel in South constituency. But while performing that role he saw that he could not get an opportunity in the north. So the idea entered his mind that this South constituency being a famine prone region and the people there being poor he could pocket them. So he started activating in this path with a view to take over Maharashtra from here and win the election by the efforts of interested parties by playing game of purchasing your self respect. We must face it and defeat such activity. That is the task to be done in this election. At some time or other you will have to tell (them) that money alone cannot be in important motivation in this election. What is needed....
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....statements are even published in the widely circulated news papers which are produced at Exhibit A to K. The statements amounted to an allegation that the Petitioner was ready to buy the voters by offering bribes, to them. The Petitioner states that bribing itself is a corrupt practice and it it is said against a candidate that he practices the corrupt practice of buying the votes by means of bribery and clearly and unequivocally constitutes an attack on the private character. The Petitioner states that the statements of the first respondent and Shri Sharad Pawar as reported above were totally false. He believed that the statements were false and the statements were made calculated to prejudice the election prospects of the Petitioner. 12. Recording of the evidence at the trial of the election petition was concluded on 4th September 1992 when the statement of Gadakh was recorded on commission. The High Court an order on 18th September, 1992 directing Issuance of a notice to Sharad Power under Section 99 of the R.P. Act pursuant to which the notice was actually issued on 3rd October, 1992 together with the annexure as directed in the order itself. This notice was served on Sharad P....
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....d sarees. He told you to accept them. I do not have any objection... Balasaheb has become one of them. And in celebration of that occasion, if the wealth is being distributed into this constituency, there should be no hesitation in getting benefited. Complete the renovations, if a bicycle is coming, let it be accepted. The symbol should be always in our hands. We should not worry ourselves about everything. May be there should be generous attitude behind the distribution of wealth in the shape of decentralisation. Let us welcome it. Let them do at the place and so far diverting the votes on the strength of money, let it be dear to whole of Maharashtra that voters cannot be bought.... Efforts are being made, to corrupt the people, attempts being made to put on the pressure. There will be an attempt to distribution and notwithstanding anything done as above.... And side by side, it this district, here is a fight between morality and honesty from one side and money resources and a tendency guided by ego to the other side. I am sure that in this fight, the morality and honesty would triumph. Though to that side, we see a mountain of wealth, but we also see that there is an infini....
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....n 123(4) are not proved to hold that the corrupt practice was committed by Gadakh. Shri Parasaran contended that the statements attributed to Sharad Pawar have not been duly proved and, therefore, the question of any rebuttal by Sharad Pawar does not arise; and even if the alleged statements are proved to have been made by Sharad Pawar, all the requirements of Section 123(4) have not been made out to justify naming him under Section 99 of the Act. Shri Ram Jethmalani supported the submissions of Shri Ashok Desai and Shri Parasaran. It was submitted by these learned Counsel that the charge of commission of a corrupt practice being of a quasi-criminal nature, the standard of proof applicable is of a criminal charge and not merely that of preponderance of probabilities of a civil case. It was further submitted that the statements which were made by Gadakh and Sharad Pawar were only to caution the electorate against possible misuse of money power and to exhort them to succumb to any such pressure or temptation. They submitted that this was done on account of the reasonable apprehension arising from the rumours afloat in the area of the likelihood of such tactics being adopted by Vikhe ....
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....ppreciation of evidence in the manner suggested in the existing political climate wherein mud-slinging' is common place, does not commend to us as the proper approach envisaged by the election law. If purity of election is the essence of democracy and providing for invalidation of an election on the ground of commission of any corrupt practice is the object of enacting these provisions, it cannot be accepted that the election scene having degenerated over the years, appreciation of evidence for determining the commission of a corrupt practice must be made liberally because of the lower values in the arena of elections. If the rule of law has to be preserved as the essence of the democracy of which purity of elections is a necessary concomitant, it is the duty of the courts to appreciate the evidence and construe the law in a manner which would subserve this higher purpose and not even imperceptibly facilitate acceptance, much less affirmance, of the falling electoral standards. For democracy to survive, rule of law must prevail, and it is necessary that the best available men should be chosen as people's representatives for proper governance of the country. This can be best....
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....persuading us not to attach any significance to statements relating to the personal character of conduct of a candidate since they are not taken seriously by the voters due to the falling ethical standard. 18. Real education of the electorate contemplates informing them of the past achievements and future plans of the political party on a positive note and its candidate's qualifications to serve that purpose compared with those of the other political parties and their candidates and not a projection of the comparative greater demerits of the opponents. This is with a view to emphasise that the functioning of the democracy depends on the quality of the men chosen for the governance of the country. This is the need which the election campaign is meant to serve in an election based on party lines, the qualifications of the candidates being material for this purpose. 19. The duty at the top echelons of leadership at the state and national level of all political parties is to set the trend for giving the needed information to the electorate by adopting desirable standards so that it percolates to the lower levels and provides a congenial atmosphere for a free and fair poll. A cont....
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....uestion therefore, is : Whether in the law as it exists, all or any of the statements proved to has been made by Gadakh or Sharad Pawar constitute the corrupt practice under Section 123(4) of the R.P. Act? CORRUPT PRACTICE UNDER SECTION 123(4) OF THE R.P. ACT 24. Several authorities were cited to emphasise the strictness of pleadings in election petitions and the pleadings necessary to raise a triable issue of the corrupt practice under Section 123(4). It is not necessary to deal with all the authorities cited since in the present case even assuming there is no such defect in the election petition, many statements attributed to Gadakh and all the statements attributed to Sharad Pawar do not constitute the corrupt practice under Section 123(4) of the R.P. Act. The cases on which particular emphasis was laid by Shri Ashok Desai on behalf of Gadakh are alone referred briefly. In Samant N. Balakrishna etc. v. George Fernandez and Ors. etc. [1969]3SCR603 , it was held that the facts which constitute the corrupt practice must be stated and the facts must be correlated to one of the heads of the corrupt practice; and that an election petition without the material facts relating to a cor....
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....3(4) of the R.P. Act may now be considered. The provision is as under: 123. Corrupt practices. The following shall be deemed to be corrupt practices for the purposes of this Act: xxxx xxxx xxxx (4) The publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false for does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election. 29. It is clear that every statement of fact in relation to the personal character or conduct of any candidate does not amount to a corrupt practice under Section 123(4) unless all the requirements of the provision are satisfied, notwithstanding the fact that such a statement may be defamatory in character. The additional requirements to constitute a corrupt practice are obviously to maintain the delicate balance between the freedom of speech of an individual and public interest of giving full information to the elec....
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....would be a matter of evidence. The maker of the statement knows best the material on which his belief was formed and, therefore, it is for him to prove the same. Whether the maker of the statement believed it to be false or did not believe it to be true, is then ordinarily a matter of inference from the facts so proved. 32. The meaning of the expression "statement of fact" was a point of considerable debate at the Bar. The true meaning of this expression is of significance because several statements attributed to Gadakh and Sharad Pawar relate to apprehensions about Vikhe Patil's likely future conduct and not to his acts done in the past or at the time of making the statements. It was contended by Shri Ashok Desai for Gadakh and Shri K. Parasaran for Sharad Pawar that every statements is not a 'statement of fact' and , therefore, a statement made about future apprehension or opinion of the maker, does not fall within the ambit of this expression. It was urged by them most of the statements attributed to Gidakh and all the statements attributed to Sharad Pawar do not constitute 'statement of fact' within the meaning of this expression in Section 123(4)....
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....(4) is that the statement of fact made should be 'reasonably calculated to prejudice the prospects of that candidate's election. This further requirement cannot be satisfied by merely stating a likely apprehension for the future and if the event does not happen, this requirement cannot be tested. It is a different matter if the statement amounts to an opinion relating to the personal character or conduct of any candidate which is based on existing or past acts of the candidate. In other words, if the statement made is that a candidate is a 'murderer', that would imply that he had committed a murder and that amounts to a 'statement of fact' . for the purpose of Section 123(4). 35. The view we have taken finds support from the meaning of fact' in the realm of jurisprudence. Relevant extracts from textbooks are as under: There is yet a third meaning of the expression "question or matter of fact" in which it is contrasted with a question or matter of opinion. A question of fact is one capable of being answered by way of demonstration - a question of opinion is one that cannot be so answered. The answer to it is a matter of speculation which cann....
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....us on an election petitioner under Section 123(4) is to show that a statement of fact was published by a candidate or his agent or by any other person with the consent of the candidate or his election agent and also to show that that statement was false and related to his personal character or conduct. Once that is proved and the complaining candidate has sworn as above indicated, the burden shifts to the candidate making the false statement of fact to show what his belief was. The further question as to prejudice to the prospects of election is generally a matter of inference to be arrived at by the tribunal on the facts and circumstances of each case. (at page 136) (emphasis supplied) 38. This decision summarises the extent of onus on the election petitioner and the manner in which it is discharged indicating that some of the requirements of Section 123(4) are matters of inference. This is the gist of the law on the point and is reiterated in the subsequent decisions of this Court; Nepal Chandra Ray v. Netai Chandra Das and Ors. : (1971)3SCC303 . 39. In T.K. Gangi Reddy v. M.C. Anjaneya Reddy and Ors. 22 E.L.R. 261, the same position with regard to the manner in which the b....
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....ted his private character as well and not merely the political character of the candidate. Thus the emphasis was on the allegation relating to the personal character of bribing the voters which cannot form part of the political character since the act of bribery has a personal element. 42. In Sheopat Singh v. Ram Pratap [1965]1SCR175 , it was held that any criticism of a person's political or public activities and policies is outside Section 123(4). It was further held that the word "calculated" means designed : It denotes more than mere likelihood and imports a design to affect voters. 43. The consent of the candidate for the purposes of Section 123(4) when the offending statement of fact which is false is published by any other person may be proved by inference from the circumstances and not necessarily by positive evidence to that effect since positive evidence of consent may not be available. See B.R. Rao v. N.G. Ranga AIR 1971 SC 267 , Narasingh Charon Mohanty v. Surendra Mohanty [1974] 2 SCR 39 , and Samant N. Balakrishna etc. v. George Fernandez and Ors. etc. [1969] 3 SCR 603. 44. The question, therefore, is : Whether the declaration of Gadakh's election....
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....and in the interview given to Girish Kulkarni on 19th May, 1991 which was published in the Maharashtra Times of 13th May, 1991. (8) In his speech, Gadakh had advised the voters to accept these articles from Vikhe Patil to vote for Gadakh only. Re.: Sharad Pawar 46. The gist of the statements attributed to Sharad Pawar according to the notice given to him under Section 99 of the R.P. Act, is as follows: (A) At Newasa on 3rd May, 1991 (1) Vikhe Patil had filed the nomination from the South instead of North constituency because the people of this constituency are poor having problems due to which Vikhe Patil thinks to win over easily, but he does not know the inner strength of the poor peoples. (2) Possessed with the illusion that Vikhe Patil will be able to purchase the poor people of the South with the help of the resources at his disposal, but every person of this part is a man possessing self respect who will remain without food and be in peril but he would never sell his vote. (3) They will distribute bicycle, distribute dhoties and sarees. He (Gadakh) told you to accept them. I do not have any objection. (4) If the wealth being distributed in the constituency, there....
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....ficant that all the statements alleged to have been made by Gadakh as enumerated earlier are not attributed to Sharad Pawar, Particularly those relating to Vikhe Patil's election budget of three crore rupees, payment by him of ₹ 50 lakhs to the Janata Dal election fund and ₹ 20 lakhs to the Janata Dal candidate B.G. Kolse Patil. On behalf of Sharad Pawar, it was also contended by Shri Parasaran that to constitute the corrupt practice under Section 123(4), the consent of the returned candidate Gadakh to the making of these statements by Sharad Pawar was also essential which had neither been pleaded nor proved. It was submitted that the fact of Gadakh's presence at the time when these statements are alleged to have been made by Sharad Pawar in the public meetings is not sufficient to prove the consent of the returned candidate requisite for constituting the corrupt practice under Section 123(4). 48. To enable proper appreciation of the question whether all or any of the aforesaid statements attributed to Gadakh and Sharad Pawar constitute the corrupt practice under Section 123(4), it is necessary at this stage to briefly restate the requirements of this Section, ....
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....the innuendo in that statement was that Vikhe Patil had rupees three crores of ill-gotten money which he could utilise for purchasing the voters and other electoral malpractices. In the first place, there is not even a hint of such an innuendo in the election petition or the evidence adduced in a sport thereof. This further suggestion has therefore to be ignored as indicated earlier. Faced with this difficulty, Shri Rao modified his argument to contend that even if this statement by itself did not constitute the corrupt practice under Section 123(4), it was a relevant fact to indicate the means or capacity of Vikhe Patil to probablise the other statements alleging the possibility of adopting malpractices to win the election. So far as the means of the candidates is concerned, it is sufficient to say that both Vikhe Patil and Gadakh appear to be considerably affluent being sugar barons of that area. The electorate must have been well aware of the their means and, therefore, this is a neutral circumstance which by itself has no significant bearing no the other statements attributed to Gadakh, No further consideration of this statement attributed to Gadakh is necessary even assuming h....
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....cessarily imply that this payment to Janata Dal was for shifting its candidate to another constituency particularly when no other details were given. There is not such clear pleading in the election petition to that effect. This statement has, therefore to be examined as the allegation of contribution to the election fund of a political party. There is no allegation that this payment was alleged to have been made it any time after Vikhe Patil had become a candidate at the election. In these circumstances, it is doubtful if the mere allegation of contribution to a political party's election fund prior to becoming a candidate can amount to the corrupt practice under Section 123(4) of the R.P. Act. 54. The position, however, is different with regard to the allegation of payment of ₹ 20 lakhs to the Janata Dal candidate B.G. Kolse Patil for withdrawing from this constituency and shifting to another constituency. Vikhe Patil has denied on oath the making of any of these payments by him. Each of these statements is undoubtedly a 'statement of fact' which is also proved to be false since there is no attempt made by Gadakh to prove it to be true by rebuttal of the testim....
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.... Ashok Desai submitted that in these circumstances, Gadakh had reasonable belief in the truth of the statement attributed to him and, therefore, this requirement of Section 123(4) was not satisfied on account of which the corrupt practice under Section 123(4) is not proved. We are unable to accept this contention. 57. Vikhe Patil had denied the payment of ₹ 20 lakhs to B.G. Kolse Patil and also asserted that Gadakh while making the statement did not believe it to be true. This is all that could be done by Vikhe Patil to prove the belief of Gadakh at the time of making the statement since that related to the state of mind of Gadakh which he knew est. Even though the burden on the pleadings to prove the satisfaction of this requirement was throughout on Vikhe Patil, the election petitioner, yet the initial burden of leading evidence of that fact on Vikhe Patil was clearly discharged in this manner shifting the burden rebutting the same to Gadakh. The evidence of Gadakh has, therefore, to be now examined to see if the burden so shifted to Gadakh had been discharged by his evidence. It is significant that in the deposition of Gadakh, there are statements on this point which prov....
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....urpose for asking this question is to wipe out the admission given by the witness under stress of cross-exam, and therefore, it should not be allowed. Moreover, this question is not permissible in re-examination. This objection shall be decided by the High Court) Ans. It is true that I believed the say of the congress workers before starting of the Sonai meeting that petitioner paid ₹ 20 lacs to Shri B.G. Kolse Patil for withdrawing from South A'nagar constituency but then when I gave admission in cross-examination as stated above in the question I believed it more, and it was to the effect that Janata Dal asked Shri B.G. Kolshe Patil to withdraw from South A'nagar constituency and to contest election from beed constituency. 59. It is clear from the above extracts that Gadakh admitted unequivocally in his cross-examination in para 222 of his deposition that he did not believe the information given to him by the workers that B.G. Kolse Patil was going to withdraw from Sough Ahmednagar constituency having accepted ₹ 20 lakhs from the petitioner. In other words, he did not believe in the truth of the information given to him about the payment of ₹ 20 lakh....
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.... with reference to this admission. It is sufficient to say that the explanation offered by Shri Desai cannot be accepted when even Gadakh does not say so and Gadakh's belief at the time of making the statements subsequent to withdrawal of B.G. Kolse Patil was the only fact in issue. 61. The dispute relating to the statement attributed to Gadakh alleging payment of ₹ 20 lakhs by Vikhe Patil to B.G. Kolse Patil for withdrawing from the South Ahmednagar constituency and shifting to another constituency is in a limited area. Gadakh says that this was the rumour afloat and his own workers had been repeatedly telling him so pointing out the workers of Vikhe Patil as the source of their information. It is significant that Gadakh has not examined any of his workers who according to him gave this information nor has he named any worker of Vikhe Patil as the source of this information. No circumstance justifying belief in the truth of the allegation has been relied on by Gadakh. There is also no dispute that in the interview which he gave to Girish Kulkarni (P.W. 11), a specific question to this effect was put to him. The news-item reporting Gadakh's interview in the Maharasht....
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....d taken by Gadakh. Some features are rendered beyond doubt on this point. Gadakh must take the consequence of the contents of the letter which he claims to have sent on 16th May, 1991, even though we have rejected his claim of sending such a letter. This letter appears to have been brought into existence later when Gadakh was faced with the consequence of his interview. Admittedly, Gadakh had known prior to 16th May, 1991 the contents of the news-item (Exh. 90) published in the Maharashtra Times attributing to him the statement alleging payment of ₹ 20 lakhs by Vikhe Patil to B.G. Kolse Patil but he did not choose to contradict the same by a denial through the Press or in any other authentic manner. Silence of Gadakh at that time reinforces authenticity and the correctness of the news-item. (Exh. 90). Another significant feature is that the contents of the letter dated 16th May, 1991 indicate at least his doubt in the correctness of the allegation against Vikhe Patil When he said-"it would not be proper on my part to subscribe to those unless I had evidence to that effect." This supports the conclusion that Gadakh did not believe in the truth of that allegation. Abs....
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.... itself significant since action of politicians contrary to their earlier declaration in such matters is not uncommon. Moreover, in view of the direct evidence in the form of admission by Gadakh of the kind of belief he entertained at the time of making the statement, these circumstances are in-consequential when Gadakh himself does not say so. The direct evidence of Gadakh himself about the kind of belief he entertained at that time is decisive of the matter and conclusive against him on this point. 66. It cannot, therefore, be doubted that Gadakh did not believe in the truth of this allegation made against Vikhe Patil when he said in his speech and interview that ₹ 20 lakhs had been paid by Vikhe Patil to the Janata Dal candidate B.G. Kolse Patil for withdrawing from this constituency and shifting to another constituency. It follows that all the requirements of Section 123(4) are satisfied and the false statement of fact(sic) made to this effect by Gadakh in respect of the personal character and conduct of Vikhe Patil amounts to the corrupt practice under Section 123(4) of the R.P. Act. This alone is sufficient for declaring the election of Gadakh to be void. The High Cour....
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.... hiring of workers by payment of money resulted in exceeding the permissible maximum limit of election expenditure to constitute the corrupt practice under Section 123(6), this fact alone would not constitute the corrupt practice under Section 123(4) since the mere hiring of workers during election campaign is not a corrupt practice. 70. Another statement attributed to Gadakh is that Vikhe Patil was likely to give money for the repair of Chawdies and renovation of temples. This too is a vague general statement without the details which could not be taken seriously by any one. No attempt has been made in the evidence by either side to prove the truth of falsity of this statement. Assuming such a statement was made which was also false, there is no evidence to prove the impact of such a vague statement. Mere repair of chawdies or renovation of temples is not a disparaging act relating to the personal character or conduct of anyone unless the further requirements of Section 123(4) are proved including the requirement of its impact on the mind of the electorate that it was reasonably calculated to prejudice the prospects of that candidate. We do not find any satisfactory evidence for ....
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....harad Pawar merely warned the electorate to be not misled by the same. It was also contended by Shri Parasaran that Sharad Pawar did not even mention the payment of any money by Vikhe Patil to the Janata Dal election fund or to the Janata Dal candidate B.G. Kolse Patil which are the allegations made against Gadakh, in spite of shifting of the Janata Dal candidate B.G. Kolse Patil to another constituency after a categorical statement to the contrary was made till the last minute by the Janata Dal Leader Smt. Mrinal Gore and rumours being afloat to that effect. Shri Parasaran in all fairness did not dispute that Sharad Pawar was given the requisite opportunity to lead evidence and to cross-examine the witnesses examined in support of the election petition, but added that this was unnecessary since the statements made by Sharad Pawar ex facie do not constitute corrupt practice under Section 123(4). Shri Parasaran also contended that the requisite consent of the returned candidate Gadakh was not pleaded regarding Sharad Pawar's statement at Newasa and it had also not been proved regarding Sharad Pawar's statements made both at Newasa and Srigonda. This is an additional submissi....
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....on of articles and wealth and proceeds to add: "Let them do to it at the place and so far diverting the votes on the strength of money, let it be clear to whole of Maharashtra that voters cannot be bought." The emphasis in this statement is on the fact that voters cannot be bought even if such a distribution was made by any candidate and not that any such distribution was being made by the candidate Vikhe Patil. This too does not fall within Section 123(4). The fifth statement also is a general statement to the same effect of the likelihood of corrupting the people and putting pressure on them with the further caution to guard against any such attempt. The sixth and the last statement made at Newasa is an exhortation to the electorate to support morality and honesty to belittle and destroy the force of wealth and ego opposed to it. This was merely an exhortation of the speaker to support morality and honesty against money power and ego. These general statements made by Sharad Pawar at Newasa projecting his party's candidate as the upholder of morality and honesty against the forces guided by money power and ego amounted to his opinion of the kind of representation mad....
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....ns for the future of the likelihood of distribution of the benefits in the constituency coupled with the exhortation that if such a thing has begun or is to happen in future, the same may be accepted without being influenced thereby in the choice of the candidate. For the reasons already given, this too does not come within Section 123(4). The fourth and the last statement at Srigonda made by Sharad Pawar was again an exhortation to act on principle, morality and humanity shunning disloyalty and arrogance of money and power. This is indeed high idealism better practiced than preached. This cannot obviously come within Section 123(4). 76. These being the only statements attributed to Sharad Pawar, we have no doubt that none of them constitutes the corrupt practice under Section 123(4) of the R.P. Act and, therefore, accepting that these statements were made by Sharad Pawar since there is no attempt by Sharad Pawar to dispute any of them, it must be he that none of them is a 'statement of fact' relating to the personal character and conduct of Vikhe Patil of the kind envisaged by Section 123(4). The question of examining whether the remaining requirements of Section 123(4) i....
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.... not measure upto the desired level of electioneering at the top echelon of political leadership to set the trend for a healthy election campaign. His suggestion to the voters to accept monies etc., if distributed by a candidate, without being influenced thereby as a means of propagating socialism exhibits a bizarre perception of socialism. It is shocking enough that Gadakh said so but far worse to find the Chief Minister endorse that view. Intended as sarcasm it depicts poor taste. If this be the level of election campaign at the top, it is bound to degenerate as it descends to the lower levels. Some portions of the speeches of Sharad Pawar were indeed high precept but the electorate would have benefited more by knowledge of the track record of the preachers' practice of the same. There was no such attempt. The degree of responsibility and the level of electioneering expected of the top leadership was wanting in these speeches. If probity in public life is to be maintained and purity of elections is not a myth or mere catch-phrase, a higher level of electioneering is expected at least at the highest level of political leadership. 80. It is with this note of caution we say tha....
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....ny logic in the assumption that votes cast in favour of a person who is regarded by the Returning Officer as validly nominated, but who is in truth disqualified, could still be treated as valid votes, for the purpose of determining whether a fresh election should be held. When there are only two contesting candidates, and one of them is under a statutory disqualification, votes cast in favour of the disqualified candidate may be regarded as thrown away, irrespective of whether the voters who voted for him were aware of the disqualification. This is not to say that where there are more than two candidates in the field for a single neat, and one alone is disqualified, on proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected. In such a case, question of notice to the voters may assume significance, for the voters may not, if aware of the disqualification have voted for the disqualified candidate. (emphasis supplied) 82. The law applicable being as above, the mere fact that Vikhe Patil secured the next highest number of votes after Gadakh is not sufficient to declare him elect....