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However, before the final order is passed the last and the main mode of canvassing i.e. by means of the speeches made by Mr. Bal Thackeray and the other leaders of the Shiv Sena and B.J.P. alliance at the meetings held on 29th January, 1990 and 24th February, 1990, has to be considered. I have read the speeches of Mr. Bal Thackeray, Mr. Pramod Mahajan, Mr. Chaggan Bhujbal, Mr. Manohar Mahajan, Mr. Pramod Navalkar........ On reading of these speeches, I am of the prima-facie opinion that all the abovenamed persons have by their speeches committed the corrupt practice of having appealed for votes on the ground of the Respondents community and religion i.e. Hindu community and religion. They have also, prima-facie at least, committed the corrupt practice of attempting to create enmity and hatred between different classes of citizens on the basis of religion and community, particularly between Hindus and Muslims. I have already set out above that in cases like the present the consent of the Respondent can be and is implied. As stated above the effect and import of the entire speech has to be considered. At this prima-facie stage it is therefore not possible to pin point any particular portion or portions. That can only by done after hearing the import and effect and interpretation of the speeches from the person who made the speeches. Thus before I express my final opinion I intend to issue notices under Section 99 of the Representation of People Act, 1951 to all the above named persons. thus the answer to Issues 2 and 5 has been reserved till after the final disposal of the Notices issued hereunder.

The pleading in respect of speeches made in the public meeting held at Shivaji Park, Dadar on 24.2.1990 is in paras 22, 23 and generally in para 27 of the election petition. These are the only portions of the election petition on which reliance is placed by learned counsel for the respondent as the pleading on this point. It is pleaded in para 22 that the speeches were made by Bal Thackeray and other leaders of the alliance in that meeting where the present appellant (respondent in the election petition) and all other candidates of Shiv Sena - BJP alliance were present. Thereafter, in paras 23 and 27, there is only a general averment that the appeal made by Bal Thackeray and other leaders to the voters was with the consent of the appellant (respondent in the election petition). No fact other than the averment of personal presence of the appellant was pleaded to make out the consent of the appellant required for constituting the corrupt practice. As earlier indicated, the High Court has held that the presence of the appellant at that meeting has not been proved. Thus, the only basis for pleading and attempting to prove the appellant's consent to the making of those speeches in the meeting held on 24.2.1990 has been held to be not proved. There is thus no foundation even for a tentative finding of any corrupt practice on the basis of speeches alleged to have been made by Bal Thackeray and some other leaders in this case against the present appellant, inasmuch as a necessary ingredient of the corrupt practice, i.e., consent of the appellant has been found to be not proved. There being not even a tentative basis to hold the charge of this corrupt practice proved against the appellant, the further question of invoking Section 99 to name any other person for the commission of that corrupt practice along with the returned candidate does not arise.

"..... Bal Thackeray also boasted that if any one is obstructing the Hindu religion, he will fix him. That they (Shiv Sena) will stop all offering of "Namaz" on roads and bring down the loudspeakers from the mosques. Bal Thackeray has gone to the extent of coaxing the voters to scream aloud that they will not tolerate any one coming into power with the help of Muslim votes."

It is significant that here also the pleadings are deficient and the only averment which may be treated as specific is the above extract attributing certain speech to Bal Thackeray of which also no particulars are given. The requisite pleading of the candidate's consent for this act of Bal Thackeray to constitute a corrupt practice by the candidate (appellant) is not pleaded apart from the general pleading of consent elsewhere.

Even otherwise the only specific pleading on the point which is extracted above is insufficient to plead this corrupt practice against the appellant, howsoever reprehensible it may be in relation to the alleged conduct of Bal Thackeray. The more fact that Bal Thackeray was leader of Shiv Sena of which party the appellant was a candidate is by itself not sufficient to hold any candidate guilty of the corrupt practice on the basis of an act done by Bal Thackeray unless that liability can be fastened on the candidate on further proof that the act was done with the consent of the candidate or the display of that cassette was made with the candidate's consent at the specified time and place etc. during his election campaign. All these material facts were required to be pleaded and proved, but, instead, they have been assumed and even the finding is not related to any such specific act.