GADAKH YASHWANTRAO KANKARRAO v. E.V. ALIAS BALASAHEB VIKHE PATIL AND ORS.

A on an election petitioner under s. 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. com- plaining candidate has sworn as above indicated, the burden shifts B to the candidate making the false statement offact to show what his belief was. The fulther 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."

c (at page 136) (emphasis supplied)

This decision summarises the extent of onus on the election petitioner and the manner in which it is discharged indicating that some of the require- D ments 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 Roy v. Netai Chandra Das and others, (1971] 3 SCC 303.

In T.K Gangi Reddy v. M.C. Anjaneya Reddy and others, 22 E.L.R. 261, the same position with regard to the manner in which the burden can E be discharged by the· election petitioner was stated and it was indicated that if on shifting of the burden to the respondent he fails to establish either that the petitioner did in fact commit the alleged act or to give any other circumstances which made him bona fide believe that he was so guilty, the court is entitled to say that the burden of proving the necessary facts has p been discharged by the petitioner.

In Guruji Shrihari Baliram livatode v. Vithalrao and others, (1969] 1 sec 82, while considering the meaning of the expression "personal char- acter or conduct", it was indicated that the allegations must reflect on the moral or mental qualities of the candidate relating to his pnsonal character G or conduct and not merely to his political personality. In Ram Chand v. Bhatia Hardaya4 (1986j 1 SCR 177, the distinction between the personal character or conduct of the candidate and his public or political character and conduct was explained and it was indicated that a statement relating to public or political character and conduct of the candidate is not a H corrupt practice under section (123(4)."

KANKARRAOv. B.V. PATIL[VERMA,J.) 771

Both sides referred to Jnder Lal v. Lal Singh, (1962) Supp, 3 SCR A

114. In that case, the allegation made against the candidate was that he was 'purchaser of the opponents of the Congress by means of money'. This was held to constitute the corrupt practice under Section 123(4) since the statement was construed to mean that the candidate buys 'by his offering bribes the votes of the opponents of the Congress'. It was held that bribery is itself a corrupt practice and if it is said against a candidate that he practices the corrupt practice of buying the votes of the opponents of the C'»lgress by means of bribery, that clearly and unequivocally affects his private character. Shri P.P. Rao strenuously urged that this allegation was construed as a 'statement of fact' for the purposes of Section 123(4) in Jnder Lal, even though of a general nature. It is clear that the allegation related to the personal character of the candidate based on the fact, not mere speculation about the future, of purchasing votes by bribery and it was not simply a statement of the maker's opinion of the candidate .. It was also made clear that having regard to the moral turpitude involved in the offering of the bribe, the statement in question affected his private charac- D ter 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.

In Sheopat Singh v. Ram Pratap, [1%5) l SCR 175, it was held that E 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. F The consent of the candidate for the purpC'ses of Section 123(4) when the offendfug 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, (1970) 3 SCC 576, Narasingh Charan Mohanty v. Surendra Mohanty, (1974) 2 SCR 39, and G Samant N. Balakrishna etc. v. George Fernandez and Ors. etc., (1%9) 3 SCR 603.

The question, therefore, is : Whether the declaration of Gadakh's election to be void is sustainable and so also the naming of Sharad Pawar H

772 SUPREME COURT REPORTS [1993] SUPP. 3 S.C.R ..

A under Section 99 of the R.P. Act? ALLEGATIONS OF CORRUPT PRACTICE UNDER SECTION I23(4) OF THE R.P. ACT

The gist of the several statements atributed to Gadakh and Sharad B Pawar which are alleged to constitute the corrupt practice under Section 123(4) of the R.P. Act are now enumerated for the sake of convenience before each of them is taken up for consideration. The requirements of Section 123(4) have been already indicated. •

Re. : Gadakh Yashwantrao KankfJ1Tao c (1) He Sated that Vikhe Patil has an election budget of Rs . .3 crores.

This was stated by Gadakh in the meeting at Sonai on 30.th April, 1991 and in the interview given to Girish Kulkarni on 10th May, 1991 which D was published in the Maharashtra Times of 13th May, 1991. .

(2) A sum of Rs. 50 liikhs was paid by Vikhe Patil to the Janata Dal election fund for the support of that party.

This was stated by Gadakh in the mattings at Sonai on 30th April, E 1991 and Ahmednagar on 2nd May, 1991 and in the interview given· to Girish Kulkarni on 10th May, 1991 which was published in the Maharashtra Time of 13th May, 1991.

(3) A sum of Rs. 20 lakhs was paid by Vikhe Patil to the Janata Dal candidate B.G. Kolse Patil for shifting to another constituency. F This was said by Gadakh in the meeting at Sonai on 30th April, 1991 and the interview given to Girish Kulkarni on 10th May, 1991 which was published in the Maharashtra Times of 13th May, 1991.

G (4) A rally of 5000 bicycles was to be taken out by Vikhe Patil and the participants were to be given those bicycles.

This was stated by Gadakh in the meetings at Ahmednagar on ind May, 1991 and Newasa on 3rd May, 1991 and in the interview given to Girish Kulkarni on 10th May, 1991 published in the Maharashtra Times of H 13th May, 199:.

KANKARRAO v. B.V. PATIL [VERMA, J.) 773

(5) Vikhe Patil had offered payment of Rs. 25.000 to each worker at the village level and Rs. 50.000 at the talukci level.

This was said by Gadakh in the meeting at Sonai on 30th April, 1991.

(6) Money was being given by Vikhe Patil for repair of Chawdies and temples in the constituency.

This was said by Gadakh in the meetings at Ahmednagar on 2nd May, 1991 and Newasa on 3rd May, 1991.

(7) Vikhe Patil was going to distribute sarees, dhoties, liquor and cash in the constituency.

This was said in the meeting at Newasa on 3rd May, 1991 and in the interview given to Girish Kulkarni on 19th May, 1991 which was published in the Maharashtra Times of 13th May, 1991. D (8) In his speech, Gadakh had advised the voters to accept these articles from Vikhe Patil to vote for Gadakh only.

Re. : Sharad Pawar

The gist of the statements attributed to Sharad Pawar according to the notice given to him und~r 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 S1Juth 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 pmchase the poor people of the South with the help of the resources at his dispn<;al, but every person of this part is a man p, ,;sessing self respecL who will remain without food and be in peril but he .¥ould 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. H

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A (4) If the wealth being distributed in the constituency, ther6 should . be no hesitation in getting benefited and the things given should be accepted, but let it be clear to whole of Maharashtra that voters cannot be bought.

(5) Efforts are being made to corrupt the people and put pressure n on them and there will be an attempt to distribute.

(6) There is a fight between morality and honesty from one side th~ money resources and the tend~ncy guided by ego on the other ·side but I am sure that in this fight the morality and honesty would c triumph. With the help of common man's support, the voters of the constituency have become able to belittle and destroy the mountain of wealth.

(B) At Srigonda on 11th May, 1991

D (1) The idea entered his (Vikhe Patil) mind that the South con- stituency being a famine prone region and the people there being poor he could pocket them.

(2) We will have to tell them that money alone cannot be an important motivation in this election. It is wrong to give up iµ.orality when one's wish is not fulfilled, to leave the party, programme and colleagues, when favourable decision if not taken and to join hands with the other parties. Once the 'kumkum' is applied, its sanctity must be maintained. But we did not know that the 'kumkum' was being applied in the name of one person and the eyes were looking at somebody else.

(3) The possibility cannot be ruled out that questions may arise whether chawdies will be built, temples renovated and motorbikes or bicycles at least be made available for riding. It will not behove our respect to accept the same but if the process of distribution has begun it is good for establishing socialism in this way and so take the same and use it against them.

(4) A decision must be taken to choose between principle or disloyalty, the morality or immorality, humanity or arrogance of money and power.

KANKARRAO v. B.V. PATIL [VERMA, J.] 775

It may be noted that in respect of the statements attributed to A Gadakh, the alleged offending portions being denied by him, it is also to be considered whether the making of those statements has been proved. On the other hand, Sharad Pawar has chosen not to adduce any evidence or pray for recall of any witness for cross-examination and, therefore, the statements attributed to him being pleaded and proved by the election B petitioner, the only question is whether they constitute the corrupt practice under Section 123(4) of the R.P. Act. It is also significant that all the s~atements 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 Rs. 50 lakhs to the Janata Dal election fund and Rs. 20 lakhs to the Janata Dal C ' candidate B.G. Kolse Patil. On behalf of Sharad Pawar, it was also con- tended 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 D 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).

To enable proper appreciation of the question whether all or any of E 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.

The essential requirements of the corrupt practice under Section p 123(4) are: (1) publication by the candidate or his election agent or by any other person with the consent of the candidate or his election agent; (2) of any 'statement of fact' which is 'false'; (3) which he either 'believes to the false' or does not believe to be true ; (4) in relation to the personal character or conduct' of any candidate or in relation to the candidature or withdrawal of the candidate; and (5) being a statement 'reasonably calcu- G lated to prejudice the prospects of that candidate's election. The plain meaning of the Section indicates that it is not every statement but only 'a statement of fact' to which the provision applies; that the statement of fact should be false; that such statement should be made believing it to be false or at least not true; that it should relate to the personal character or H

1 SUPREME COURT REPORTS [1993] SUPP. 3 S.C.R.

A conduct etc. of any candidate; and it should be reasonably calculated to prejudice the prospects of that candidate's election. Unless all these re- quirements' are satisfied, the statement does not constitute the corrupt practice· under· Section 123(4) of the R.P. Act howsoever undesirable; . morally or ethically, the making of that statement may be otherwise. This B is too well settled by a catena of decisions of this Court, some of which have been referred. Accordingly, it is this test which must be satisfied to hold that the statements attributed to Gadakh or Sharad Pawar constitute the corrupt practice.

R.: Gadakh c Vlkhe Patil's Election Budget of Rs. 3 Crores

One of the allegations made against Gadakh is that he stated that Vikhe Patil had an election budget of Rs. 3 crores. The question in the D presen( ~e relates only to the corrupt practice specified in sub-section (4) of Section 123 and not to the r.orrupt practice under sub-Section (6) thereof relating to the incurring o uthorising of expenditure in contraven- tion of Section 77 of R.P. Act. This being so, the only question is whether the statement that Vikhe Patil had an electi0n budget of Rs. 3 crores was a false statement of fact the kind envisaged by sub- section (~of Section E 1 since the allegation is not of incurring or authorising that expencliture but only of availability of that amount. A feoble attempt was made by Shri P.P. - Rao to argue that the innuendo in that statement was that Vikhe Patil had rupees three crores of ill-gotten money which he could utilise for purchas- ing the voters and other electoral malpractices. In the first place, there is an not even a hint of such 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, Sbri Rao modified his argument to contend that even if this statement by i!;self did not constitute the corrupt practice under Section 123(4), it was a televant 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 h!'ve 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 •

KANKARRAO v. B.V. PATIL [VERMA, J.) 777

Gada~h. No further consideration of this statement attributed to Gadakh A is necessary even assuming he had said so.

Payment by Vikhe Patil of Rs. 50 Lakhs to Janata Dal and Rs. 20 Lakhs to E.G. Kolse Patil

Two statements attributed to Gadakh relate to the payment by Vikhe B Patil of Rs. 50 lakhs to the Janata . Dall election fund and Rs. 20 lakhs to the Jan,.ta Dal candidate B.G. Kolse Patil. Gadakh is alleged to have said that Vikhe Patil had paid Rs. 50 lakhs to the Janata Dal election fund for getting the support of that party and Rs. 20 lakhs to the Janata Dal candidate for withdrawing his nomination from this constituency and shift- C ing to another constituency. These statements are alleged to have been made by Gadakh more than once. However, it is sufficient if such a statement is proved to have been made even once and it satisfies all the requirements of Section 123(4). The particulars of these statements have been given earlier. D The statement alleging payment of Rs. 50 lakhs to the Janata Dal election fund is alleged to have been made in the meeting at Sonai on 30th April, 1991 and Ahmednagar on 2nd May, 1991 as well as in the interview given by Gadakh on 10th May, 1991 to Girish Kulkarni (P.W. 11) which was published in the Maharashtra Times of 13th May 1991. The statement E by Gadakh of payment of Rs. 20 lakhs to the Janata Dal candidate B.G. kolse Patil for withdrawing from this ci>nstituency and shifting to another constituency is alleged to have been made in the meeting at Sonai on 30th April, 1991 and in the interview given by him to Girish Kulkarni on 10th May, 1991 which was published in the Maharashtra Time of 13th May,

1991. Form the evidence adduced, the making of both' these statements is F 11mply proved and we agree with the finding of the High Court to this effect on this point. Shri Ashok Desai took us through the entire evidence on the point and strenuously urged that these statements are not duly proved but we are unable to accept this contention. From the evidence adduced we have no doubt that these statement were_ made by Gadakh as alleged by. G Vikhe Patil. Admitted contemporaneous news reports and the conduct of Gadakh after knowing their contents further reassures us that these state- ments were made by Gadakh. Accordingly, we are referring only to some significant evidence on the point.

The statement of Gadakh alleging payment of Rs. 50 lakhs by Vikhe H

778 SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R.

A Patil to Janata Dal election fund does not necessarily imply that this payment to Janata Dal was for shifting its candidate to another constituen- cy particularly when no other details were given. There is not such clear pleading in the election petition to that effect. This statement has, there- fore to be exar_ .ied as the allegation of contribution to the election fund B 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. c The position, however, is different with regard to the allegation of payment of Rs. 20 lakhs to the Janata Dal candidate B.G. Kolse Patil for withdrawing from this constituency and ·shifting to another constituency. Vtkhe Patil has denied on oath the making of any of these payments by D 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 testimony of Vikhe Patil on this point. Obviously Vtkhe Patil was not required to examined B.G. Kolse patil after his own denial on oath. No attempt has been made by Gadakh to even suggest that the allegation is true. E The question, therefore, is : Whether the statement of Gadakh alleging payment of Rs. 20 lakhs by Vikhe Patil to the J anata Dal candidate B.G. Kolse Patil for this purpose, proved to be false, amounts to the corrupt practice under Section 123(4) of the R.P. Act? F As already held, the requirement of Section 123(4) that this state- ment of Gadakh about payment of Rs. 20 lakhs by Vikhe Patil to the J anata Dal candidate B.G. Kolse Patil for this purpose was a 'statement of fact' which was 'false' is duly proved. The publication of these statements was G by Gadakh himself in a public meeting and in the interview given to Girish Kulkarni for being published in the Maharashtra Times and, therefore, the further requirement of its publication as required by Section 123(4) is also proved. It cannot be doubted that th... false statement of fact was in relation to the personal character or conduct of Vikhe Patil and it did not relate merely to his political character or conduct so that this requirement of H Section 123(4) is also satisfied. It must also be held that the statement was

KANKARRAO v. B.V. PATIL [VERMA, J.) 779

reasonably calculated to prejudice the prospects of Vikhe Patil's elections inasmuch as it conveyed that Vikhe Patil had bribed B.G. Kolse Patil, the Janata Dal candidate by payment of Rs. 20 lakhs to withdraw his candida- ture from this constituency for his benefit. In fact the fulfilment of none of these requirements of Section 123(4) was seriously disputed by Shri Ashok Desai if the making of such a statement by Gadakh is found proved, as we have already held. The serious dispute by Shri Ashok Desai in this respect was only to the fulfilment of the remaining requirement of Section 123(4) that Gadakh had made this false statement of fact believing it to be false or not believing it to be true. Shri Ashok Desai very strenuously and ably, even through unsuccessfully, argued that a strong rumour to this effect was then afloat which together with the circumstances in which B.G. Kolse C Patil, the Janata Dal candidate withdrew from that constituency, lent credence to the rumour creating a reasonable belief in the mind of Gadakh that the same was true. Shri Ashok Desai submitted that in these cir- cumstances, 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.

Vikhe Patil had denied the payment of Rs. 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 1.1\e 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. Tt is significant that in the deposition of Gadakh, there are statements on this point which provide the best indication of his belief about the truth or falsity of the allegation made. In our opinion, the admission made by Gadakh in his deposition is decisive on the point.

In his deposition, Gadakh has spoken about his belief in the examina- tion-in-chief, cross-examination and re-examination and the relevant ex- tracts of his deposition, as given in Vol. V of the paperbooks, are as under: H

780 SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R.

A Examination-in-Chief

"............... On hearing the information, I was satisfied and got sured that the information given to me by the workers must be correct otherwise the J anata Dal· candidate would not have withdrawn and gone to other constituency for election ............ " B (para 31)

Cross-Examination

"Q. When information was given to you by Congress workers c which they had got from the workers of the petitioner that Rs. 20 lacs were paid to Shri B.G. Kolse Patil by the petitioner for withdrawing from South 'A'nagar constitUency and con- testing election from Beed constituency, did you think that his information was grave matter? D (This question was explained by commissioner to the ~tness and he was reqUired to restrict his reply to the extent of what was being asL~d)

Ans. Since Janata Dal had asked Shri B.G. Kolse Patil to contest election from Beed constit".lency, the information conveyed to me was not a grave matter.

I did not believe the infonnation. given to me by the workers that Shri B.G. Kolse Patil was going to withdraw from South ~· nagar constituency having accepted Rs. 20 lacs from the petitioner.............. "

(para 222) ·• ;mphasis ·supplied)

Re-examination G "Q. In paras. 21 and 31 of your Chief-exam. you have stated that information given by eongress worker before starting of the meeting at Sonai on 30.4.1991 that petitioner Balasaheb Vikhe Patil paid Rs. 20 lacs to Shri B.G. Kolse Patil to withdraw H from South 'A'nagar constituency and that statement was

KANKARRAO v. B.V. PATIL [VERMA, J.) 781

believed by you, whereas in para 222 of your cross-exam. at page no. 215 you have stated the you did not believe the information given to you that Shri B.G. Kolse Patil going to withdraw from South constituency A'nagar having accepted Rs. 20 lacs from the petitioner. What exactly did you want to say in this regard? B (Shri S.B. Mhase, Adv. for the petitioner objected asking this question, on the ground that there is no ambiguity in both these questions in the chief as well as cross-examination and the purpose for asking this question is to wipe out the admis- sion 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 Rs. 20 lacs to Shri B.G. Kolshe Patil for withdrawing from South A'nagar constifuency but then when I gave adm;ssion in cross-ex- amination as stated above in the question I believed it more, and it was to the effect that Janata Dal asked Shri B.G. Kblshe Patil to withdraw from South A'nagar co11stituency and to contest election from heed constituency"

(para 258)

It is clear from the above extracts that Gadakh admitted unequivo- cally 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 ac- cepted Rs. 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 Rs. 20 lakhs by Vikhe Patil to B.G. Kolse Patil and the latter withdrawing from this constituency for that reason. This admission about the kind of belief he had about the truth of this allegation made by Gadakh in his cross-ex- amination is notwithstanding a different statement in the ·examination-in- chief and an attempt to resile from that admission in the re-examinatiou. His statement in re-examination after being pointed out clearly the admi5- sion made in the cross-examination that he did not believe the allegation H

782 SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A of payment of Rs. 20 lakhs by Vikhe Patil to B.G. Kolse Patil to be true, does not have the effect of either withdrawing that admission or showing it to be made erroneously. In such a situation, Gadakh's admission in his cross-examination that he did not believe the allegation to be true has the effect of reinforcing Vikhe Patil's assertion to this effect instead of negativ- B ing it.

Shri Ashok Desai advanced an ingenious argument to avoid the logical adverse effect of this admission made by Gadakh in his cross-ex- amination. We have no doubt that nothing better could have been done in this situation. Shri Desai submitted that the belief about the allegation not C being true stated by Gadakh in his cross-examination related to his belief prior to 29th April, 1991 on which date B~G. Kolse Patil actually withdrew his candidature from the South Ahmednagar constituency and not the belief which he entertained later when he made the statement at Sonai on 30th ·April, 1991 and also subsequently. Shri Desai submitted that the admission merely means that when he was given such an information by D ·his workers, he did not believe in the likelihood of B.G. Kolse Patil withdrawing from the South Ahmednagar constituency which could be only prior to his actual withdrawal on 29th April, 1991. The obvious fallacy in the argument is that the admission has to be read in the context of the earlier question and the speeches made by him to this effect which were E all subsequent to withdrawal of B.G. Kolse Patil from South Ahmednagar constituency on 29th April, 1991. He was never questioned about his belief on this aspect prior to the making of these statements or prior to the actual withdrawal by B.G. Kolse Patil. It is also significant that the explanation offered by Shri Desai in his arguments is not the explanation given by F Gadakh even though he was re-examined pointedly 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.

G The dispute relating to the statement attributed to Gadakh alleging payment of Rs. 20 lakhs by Vikhe Patil to B.G. Kolse Patil for withdrawing from the South Ahmednagar constituency and shifting to another con- stituency 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

KANKARRAO v. B.V. PATIL [VERMA,J.] 783

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 Maharashtra Times is Exh. 90 (at page 116 to 122 of Vol. B II). This news-item had appeared in the Maharashtra Times of 13th May, 1991 wherein Gadakh was reported to have said as under :

"........... According to my reliable information Shri Vikhe Patil had paid Rs. 50 lakhs to the election fund of the party and Rs. 20 lakhs in order that Shri B. G. Kolse Patil should contest the election from Beed instead of Nagar."

The so-called "reliable information" mentioned by Gadakh has not been disclosed by specifying the name of anyone supposed to have given the information or by examining him. It is also of significance that Gadakh alleges having sent a letter dated 16th May, 1991 under certificate of posting to the Maharashtra Times Office disputing correctness of the news-item (Exh.90). The receipt of that letter by the addressee is denied and the likelihood of its despatch by Gadakh is extremely doubtful since it was not sent by registered post and a certificate of posting being easy to obtain is not reliable. Expense being immaterial in that election for both sides, It is extremely unlikely that Gadakh would send such a letter under certificate of posting and not by registered post. In view of the narrow controversy on this point, the criticisms levelled against the testimony of Girish Kulkarni is of no practical significance and his version about the interview to the e.xtent it was reported in the news-item (Exh.90) must be accepted as duly proved. The only significant question on this point is whether Gadakh did not believe this allegation to be true when he made it so that this further requirement to constitute the corrupt practice under Section 123(4) is made out. G Gadakh's version that he send the letter dated 16th May, 1991 (Exh.Q) under certificate of posting is unbelievable. A certificate of posting is easy to procure and does not inspire confidence. Moreover, the circumstances belie his version. With his considerable means and past experience of elections, he would have sent such a letter by registered post H

784 SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A to ensure its delivery and create cogent evidence of its despatch. Moreover, he would not merely send such a letter but have his denial published in newspapers because of its signfficancc during elections. We have no doubt that Gadakh's conduct belies his belated de,nial at the trial.

There is, however, another aspect of such a stand taken by Gadakh. B Some features are rendered ~eyond 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, C 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 Rs. 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 D 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 suppeits. the conclusion that Gadakh did not believe in the truth of that allegation. Absence of a E. clear denial by Gadakh even therein much less through the Press at that time, in these circumstances, reassures us about the correct reporting of the interview published in the news-item (Exh.90) in Maharashtra Times of 13th May, 1991 in addition to its proof by other evidence supported by conduct of Gadakh himself. The making of the statement of fact alleging payment of Rs. 20 lakhs by Vikhe Patil to. B.G. Kolse Patil, its falsity and the want of belief in its truth by Gadakh are proved beyond any doubt.

Shri Desai also submit~ed that there were strong reasons for Gadakh to believe in the truth of this allegation. These factors according to Shri Desai are; (1) Vikhe Patil was an important Congressman who was the likely party candidate earlier having won the Congress (I) Party ticket five times since 1971 from the adjacent Kopergaon (North Ahmednagar con- stituency); (2) Vikhe Patil was an extremely influential and affluent person; ( \;.. (3) Vikhe Patil had filed his nominations from both, that is, North and South Ahmednagar constituencies; (4) Smt. Mrinal Gore, President of the H State Janata Dal had said. on 28th April, 1991 that their party would npt

KANKARRAO v. B.V- PATIL [VERMA, J.] 785

support Vikhe Patil and B.G. Kolse Patil had already filed his nominations A from both, that is, South Ahmednagar and Beed constituencies; and (5) On 29th April, 1991, B.G. Kolse Patil withdrew his candidature from South Ahmednagar constituency while Vikhe Patil withdrew from Kopergaon (North Ahmednagar Constituency) and Janata Dal declared its support for Vikhe Patil. Shri Desai submitted that these were strong circumstances for B Gadakh to reasonably believe in the truth of the rumour that B.G. Kolse Patil had withdrawn from this constituency (South Ahmednagar) on pay- ment of Rs. 20 lakhs by Vikhe Patil to B.G. Kolse Patil. In our opinion, these factors are not necessarily consistent with the truth of the allegation of payment of money by Vikhe Patil to B.G. Kolse Patil inasmuch as they are equally consistent with B.G. Kolse Patil preferring to contest from the other constituency on a full assessment of his prospects in the election from of the South Ahmednagar constituenq against Vikhe Patil who even according to Gadakh was a very strong and influential candidate. The mere fact that Smt. Mrinal Gore had spoken against the likelihood of withdrawal of B.G. Kolse Patil from South Ahmednagar is not by 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 kin!f 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.

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 Rs. 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 constitue11cy. It follows that all the requirements of Sectiu;1 123(4) are satisfied and the false statement of lctc;. made to this effect by Gadakh in respect of the personal character and conduct of Vtlche Patil amounts to the corrupt practice under Section 12:.:tf4) of the R.P. Act. This alone is sufficient for dec 1aring the election of Gadakh to be void. The G High Court's conclusion to this effect is, therefore, sustainable only for this reason alone.

Remaining Allegations

We shall now take up for consideration the remaining statements H

786 SUPREME COURT REPORTS (1993] SUPP. 3 S.C.R.

A which do not require any elaborate discussion since the very first close look at them reveals that they cannot constitute the corrupt practice under Section 123(4). In respect of the statements of this category, we also do not consider it necessary to examine the remaining arguments advanced from both sides since no further consideration of the same appears neces- B sary.

The statement of a proposal to take out a rally of 5000 bicycles and then distrib.ute the bicycles to the participants obviously related to the future and was at best merely the expression of an apprehension. No one has even suggested that such a rally was taken out at any time during the C election campaign by Vikhe Patil. That means that it was at best an apprehension which did not materialise and, therefore, there was no reasonable likelihood of any imi.-..tct thereof on the mind of the voters. Similar is the statement alleged to have been made of the likelihood of distribution of sarees, dhoties, liquor and cash in the constituency. No one has said that such a distribution of any of these articles was made by Vikhe D Patil during the election campaign. Such a statement, if made, was there- fore another apprehension which did not come true and, therefore, could not affect the mind of the voters. This being so, the expression of a mere apprehension which did not come true apart from not being a 'statement of fact', does not satisfy the other requirements of section 123(4).

E The vague statement of offer by Vikhe Patil of payment to the workers at the rate of Rs. 25,000 at the village level and Rs. 50,000 at the taluka level being unrelated to the maximum permissible limit of election expense is not material for the purposes of Section 123(4) of R.P. Act. The only allegation in the statement is of hiring the workers to work for Vikhe F Patil in the election campaign by payment of money and the mere hiring of workers for election campaign is not an offending statement of fact .. under Section 123(4). Any further consideration of this aspect may have been necessary only if the corrupt practice alleged was that under sub-sec- tion (6) and not merely under sub-section (4) of Section 123 of the R.P. G Act. Unless the hiring of workers by payment of money resulted in exceed- ing 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.

H Another statement attributed to Gadakh is that Vikhe Patil was likely

KANKARRAOv. B.V. PATIL[VERMA,J.] 787

to give money for the repair of Chawdies and renovation of temples. This A 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 B 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 elec- torate that it was reasonably calculated to prejudice the prospects of that candidate. We do not find any satisfactory evidence for this purpose and, therefore, no serious notice need be taken of such a statement even it it c was made by Gadakh.

Another statement attributed to Gadakh is that he advised the voters to accept whatever was offered by Vikhe Patil but to vote for Gadakh. Merely saying that if some benefit was offered by a candidate, it should be D accepted by the voters without being influenced thereby in the choice of · the candidate, cannot be a statement reasonably calculated to prejudice the prospects of that candidate since the suggestion in the statement is to cast the vote uninfluenced by any extraneous consideration. This statement also, even if made by Gadakh, does not constitute the corrupt practice under Section 123(4) of the R.P. Act. It is difficult to appreciate how the E High Court overlooked this clear position in law and reached the con- clusion that each of these statements constitutes the corrupt practice under Section 123(4).

Re. : Sharad Pawar F In respect of the statements, attributed to Sharad Pawar which have led to naming him under Section 99 of the R.P. Act by the High Court, the submission of Shri K. Parasaran, learned counsel for Sharad Pawar, is twofold. He contended that the notice under Section 99 is invalid as there was no occasion for issuance of that notice on the material present. His G other submission was that assuming the alleged statements to have been made by Sharad Pawar, none of them constitutes the corrupt practice under Section 123(4) of the R.P. Act as the requirements of that provision are not satisfied. Shri Parasaran contended that none of those statements is a 'statement of fact' as required by Section 123(4) being merely the H

788 SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R.

A expression of certain apprehensions amounting at best to opinion and exhorting the electorate to beware of such attempts, if any, by Vikhe Patil to win over the electorate. According to Shri Parasaran, the thrust of the speeches of Sharad Pawar at Newasa and Srigonda was that the electorate should uphold the cause of morality instead of voting for Vikhe Patil who had exhibited lack of political morality by abandoning the .Congress (I) Party when the party ticket was not given to him after he had the benefit of representing the party in the Lok Sabha for five terms. Shri Parasaran contended that the rumours being afloat of the likelihood of such tactics to be adopted by Vikhe Patil to win the election, Sharad 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 Sml. 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 E Section 123(4). Shri Parasaran also contended that the requisite consent of the returned candidate Gadakh was not pleaded regarding Sharad Pawar's ~tatement at Newasa and it had also not been proved regarding Sharad Pawar's statements made both at Newasa and Srigonda. This is an addi- tional submission to contend that the requirements of Section 123(4) are not satisfied.

In our opinion, the statements attributed to Sharad Pawar in the meetings held at Newasa and Srigonda ex fade do not amount to 'state- ments of fact' relating to the personal character or conduct of Vikhe Patil being only the expression of his opinion based on apprehensions about the likely future conduct of Vikhe Patil or relating only to Vikhe Patil's political character which do not fall Within the ambit of Section 123(4) of the R.P. Act. For this reason, the remaining submissions of Shri Parasaran do not require consideration. We shall now deal with the statements attributed to Sharad Pawar specified in the notice under Section 99, which alone require consideration. These have been extracted and enumerated earlier.

KANKARRAOv. B.V. PATIL [VERMA,J.] 789

The statements made in the meeting at Newasa were these : In the first statement made by Sharad Pawar, he said that Vikhe Patil had filed h:s nomination from the South constituency instead of.the North because it was a poor region and a scarcity area thinking that it was a good circumstance to win easily. It is difficult to appreciate how this statement can relate to the personal character or conduct of Vikhe Patil envisaged by Section 123(4). The second statement ~as that Vikhe Patil suffered from the illusiqn that the poor people of South could be purchased with his resources but those people were men possessed of self respect who could not be purchased with anybody's money. The indi~ation was that any such illusion or impression of Vikhe Patil was incorrect and was meant for Vikhe · Patil and not the voters. This statement also is not of the kind envisaged by Section 123(4). This statement also is, therefore, of no significance in the present context. The third statement refers to the speech Of Gadakh wherein he said : "Tuey will distribute bicycles, distribute dhoties and sarees"; and then adds : "I do not have any objection". The statement of Sharad Pawar therein was that he had no objt!ction to acceptance of the articles if they were distributed. For the reason given while dealing with Gadakh's statement to this effect, Sharad Pawar's statement that he had no obje.;tion to acceptance of the same, does aot fall within the net of Section 123(4). The fourth statement again refers to the likelihood in future of distribution 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 doe~ not fall within Section 123(4). The fifth statement also is a general state- F ment to the same effect of the likelihood of corrupting the people and putting prelsure on the;n 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 belittie 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 G 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 made by the two candidates irrespective of the H

790 SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R.

A correctness or otherwise of that opinion. The exhortation made to the people to vote for his party's candidate as the upholder of morality and honesty cannot be treated as statements of fact relating to the character and conduct of Vikhe Patil amounting to vilification of his character or conduct. Thus, none of the statements of Sharad Pawar at Newasa con- B stitutes the corrupt practice under Section 123(4) of the R.P. Act.

In the meeting at Srigonda, Sharad Pawar is alleged to have made four statements to . which objection is taken by Vikhe Patil. The fir.st statement is similar to the first and second statements made at Newasa wherejn he said that Vikhe Patil chose to contest from the South Con- C stituency being a famine prone region wherein the people were poor for the purpose of purchasing their self respect. He then added that Vikhe Patil had .started activities to win the ele1,;t; .n by efforts of interested parties by playin~ their game of purchasing self respect of the poor pe 1e. For the re.asons alrear 1 given, this statement does not come within Section D 123(4). In the ~econd statement, Sharad Pawar said that money alone cannot be an 1- .Jrtant motivation in the election and there was need of ideology, policy, programme and morality. He then added that it is wrong to give up morality and leave the party when one's wish is not fulfilled and to join hand~ with other parties. He added that once the "kumkum" is applied its sanctity must be maintained and there should not be any flirting with a person 0ther than he to whom the "kumkum" is applied. This was in the background of Vikhe Patil leaving the Cor ....,.ess (I) Party when the party ticket was not given to him and he contesting the election with th". help of other parties. The suggestio1 was that abandoning the party and switching of loyalty was not morally a." rt ideologically correct. In the admitted background of Vikhe Patil, this comment was on his political morality and character because of his leaving the Congress (I) Party on denial of ticket to him and contesting against the Congress (I) Party's candidate. This statement did not relate to the personal character or conduct of Vikhe Patil but merely to his political character and morality. G This does not fall within Section 123(4). The third statement is a repetition of the apprehensions 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

KANKARRAOv. B.V. PATIL (VERMA,J.] 791

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).

These being the only statements attributed to Sharad Pawar, we have no doubt that none of them constitutes the corrupt practice under Section B 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 c remaining requirements of Section 123(4) including the consent of Gadakh and the reasonable likelihood of its impact on the mind of the electorate are satisfied, does not arise for consideration.

In the present case, it is unnecessary to deal with the arguments from D both sides pertaining to the decision in Manohar Joshi v. Damodar Tatyaba' and Others, (1991) 2 SCC 342, since without going into the arguments relating to the defects in the notice under Section 99 of the R.P. Act issued to Sharad Pawar, we have reached the conclusion that the statements attributed to him of which he was given the notice, do not constitute the corrupt practice under Section 123(4). E

We may, however, observe that the conclusion that these statements do not constitute the corrupt practice under Section 123(4) should not be construed as our opinion that the making of such statements during the election campaign is desirable or that they are necessary for edu~ation of the electorate. This caution is necessary in view of the attempt made by Shri Ram J athmalani to widen the scope by contending that the same a justified electoral practice for education of the electorate. In our view, the electorate by now is we educated about the justified means desirable during the election campaign and it looks forward to knowing the positive programmes of the candidates together with their comparative merits instead of being left to compare their demerits and choose from amongst them the one with the lease demerits. The shift in the election campaign has, therefore, to be in a positive direction to enable the electorate to cast its positive vote instead of the negative vote by rejecting those with greater demerits. This duty is cast more heavily on the senior leaders of all the H

792 SUPREME COURT REPORTS (1993] SUPP. 3 S.C.R.

A political parties to ensure that the election campaign does not degenerate into a campaign of vilification, which may tend to promote violence during elections and lead to criminalisation of politics. These are hard realities of the present trend of election campaign and this trend must be reversed to make the democracy more meaningful by ensuring purity of elections which can be achieved only by a shift in the trend towards the right direction. B Judging by these standards, we are constrained to observe that some of the statements made by Sharad Pawar, the Chief Minister of Maharashtra, even though not amounting to corrupt practice under the enacted law, do 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 m~ans of propagating socialism exhibits a bazarre 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 19wer 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 E was no such attempt. The degree of responsibility and the level of elec- tioneering 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.

F It is with this note of caution we say that all the statements attributed to Sharad Pawar and many attributed to Gadakh do not constitute the alleged corrupt practice under Section 123(4) of the R.P. Act. Accordingly, the notice issued under Section 99 to Sharad Pawar shoulu have been discharged by the High Court instead of Sharad Pawar being named for commission of any such corrupt practice. FURTHER RELIEF UNDER SECTION JOJ(b) OF THE RP. ACT

The further relief granted by the High Court of declaring Vikhe Patil to have been duly elected after declaring the election of Gadakh to be void is clearly unsustainable. This further relief declaring Vikhe Patil to have

KANKARRA01': B.V. PATIL[VERMA, J.] 793

been duly elected has been granted under Section 101 of the R.P. Act A which reads as under: -

"101. Grounds for which a candidate other than the returned candidate may be declared to have been elected, If any person who has lodged a petition has, in addition to calling in question the election of the re-turned candidate, claimed a declaration that he B himself or any other candidate has been duly elected and the High Court is of opinion : -

(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or C

(b) that but for the votes obtained by the returne4 candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes, the High Court shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, ?s the case may be, to have been duly elected."

Obviously it is clause (b) of Section 101 under which the further relief in the present case can be justified. To justify this further relief, it must be held that but for the votes obtained by Gadakh by the corrupt practice committed under Section 1 "3(4) of the R.P. Act, Vikhe Patil would have obtained a majority of tht.. ..rid votes. The High Court has taken the view that the election of Gadakh being void Vikhe Patil who polled the next highest number of votes must be declared to have been duly elected. Thei;e is no discernible cogent reason in the High Court's jul.fgment to support this conclusion. F In Konappa Rudrappa Nadoouda v. Vishwanath Reddy & Anr., (1969] 2 SCr 10. the Constitution Bench pointed out the cases falling under Section 101 (b) in which this further declaration can be m<ide. It was held therein as under : - G "........... We are again unable to see any 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 dis- qualified, could still be treated as valid votes, for the purpose of determining whether a fresh election should be .held. When there H

794 SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R..

A 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 seat, and one alone is disqualified, on proof of B 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 dis- qualification have voted for the disqualified candidate." · c (?ages 95-96) (emphasis supplied)

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 elected on the conclusion that Gadakh's electio~ is void for commission of a corrupt· practice. The High Court proceeded on an erroneous assumption to grant this further relief under Section lOl(b) of the R.P. Act declaring Vikhe Patil to have been duly elected. Shri P.P. Rao, with his usual fairness, in our view rightly, did not seriously support the grant of this further relief declaring Vikhe Patil to have been duly elected, bn account of the absence of the requisite evidence to support the grant of this further declaration in the present case. No further consideration of this point is, therefore, necessary.

CONCLUSION F The result is that the High Court's judgment declaring the election of Gadakh to be void for commission of the corrupt practice under Section 123(4) of the R.P. Act is upheld on the ground indicated by us; the further declaration made by the High Court that Vikhe Patil is duly elected is set G aside; and the High Court's order naming Sharad Pawar under Section 99 of the R.P. Act for commission of the corrupt practice under Section 123(4) is also set aside.

Consequently, we direct as under : -

H (1) Civil Appeal No. 2115 of 1993 filed by Gadakh Yashwantrao

KANKARRAOv. B.V. PATIL [VERMA,J.) 795

Kankarrao is allowed only in part. The appeal relating lo declaration of ;A election of Gadakh to be void is dismissed for the reason given by us. , However, the remaining part against grant of the further relief declaring· Vikhe Patil to have been duly elected, is allowed. This appeal partly succeeds to this extent only. Vikhe Patil would get Rs. 20,000 as cost from Gadakh. Other parties to bear their own costs. B (2) Civil Appeal No. 1758 of 1993 filed by Sharad Chandra Govindrao Pawar is allowed and the order naming him for commission of tf.e corrupt practice under Section 123(4) of the R.P. Act made by the High Court is set aside. No costs.

(3) Civil Appeal No. 2116 of 1993 by Deshmukh Bhagwan Rangnath C only against declaration of Vikhe Patil to have been duly elected is allowed and that further declaration is set aside. No costs.

(4) Civil Appeal No. 2444 of 1993 by Najan Rambahu Maruti similar- ly against declaration of Vikhe Patil to have been duly elected is allowed D and th~t further declaration is set aside. No costs.

R.A. Matters disposed of.