Himachal Pradesh HC Rejects Challenge To Maintainability Of Abhishek Manu Singhvi's Plea Against Rajya Sabha Poll Defeat

A bench of Justice Jyotsna Rewal Dua DISMISSED an application moved by BJP Rajya Sabha MP Harsh Mahajan to reject the election petition filed by Dr Singhvi challenging the results of the February 2024 Rajya Sabha election in which Mahajan was declared as the winner.

The Court categorically noted that, as per the case set up by Dr Singhvi, it cannot be said at this stage that the election result had not been materially affected by the alleged non-compliance with the provisions of the RP Act. The Court also opined that his petition clearly disclosed a cause of action.

#JustIN | #HimachalPradeshHighCourt UPHOLDS the maintainability of Congress' Rajya Sabha MP Abhishek Manu Singhvi's (@DrAMSinghvi) election plea challenging his defeat in the #RajyaSabha polls of February 2024.

Court DISMISSES application of BJP's RS MP filed U/O 7 R 11 CPC. pic.twitter.com/TdMI2hVRrW

— Live Law (@LiveLawIndia) September 16, 2024

The case in brief

It may be noted that Dr Singhvi had lost to BJP's candidate, Harsh Mahajan, despite both getting an equal number of votes (34-34 each). Mahajan's win was determined by the decision of the chief electoral officer, who served as the returning officer, to conduct a draw of lots in accordance with Rule 75 of the Conduct of Election Rules, 1961.

Essentially, Singhvi's and Mahajan's names were written on separate slips and placed into a box in the presence of polling agents and the candidates. After that, a slip containing Dr Singhvi's name was randomly drawn from that box.

Consequently, Dr Singhvi was eliminated from the selection process, and the returning officer declared BJP's Mahajan the winner. Challenging this very decision of the officer concerned, Singhvi has moved the HC.

It is Dr Singhvi's case that if the name on the chit drawn in the lot had been given one vote as per Section 65 of the Act, then he would have been declared elected and not the respondent.

For context, Section 65 of the RP Act states thus:

"If, after the counting of the votes is completed, an equality of votes is found to exist between any candidates, and the addition of one vote will entitle any of those candidates to be declared elected, the returning officer shall forthwith decide between those candidates by lot, and proceed as if the candidate on whom the lot falls had received an additional vote."

During the pendency of the election petition, Mahajan moved an application under Order 7 Rule 11 R/W Section 151 of the Civil Procedure Code (CPC) read with Sections 81, 83, 86 and 87 of the Representation of the People Act, 1951 (in short 'the R.P. Act 1951'), seeking rejection of Dr Singhvi's plea.

Before the Court, Mahajan argued that Dr Singhvi's petition failed to state the material facts and did not disclose any cause of action against him.

It was also contended that principles of estoppel and waiver barred the Petition and that the infraction of statutory provisions/rules/ regulations, etc., as alleged in the election petition, would have no material effect upon the election result.

High Court's observations

In its 51-page order, the single judge found no grounds to reject Dr Singhvi's election plea as it observed that all the material facts, both positive and negative, upon which the petitioner was relying had been disclosed in the same.

The Court noted that the issue raised in the election plea was whether the exclusion of the name of the person on whom the draw of the lot falls was in the teeth of Section 65 of the RP Act, a provision which contemplates draw of lots and provides that the candidate on whom the lot falls, shall receive an additional vote.

“The petitioner has invoked Section 65 of the R.P. Act 1951 to contend that in the given facts, the petitioner upon whom draw of lot fell cannot be excluded, rather, it is he who is to be declared elected and not the other candidate-the respondent. In view of the interplay of Rules 75 & 81, Section 65 and other provisions of the Statute and the Rules invoked by the parties, it cannot be said that there is no cause of action available to the petitioner. Petition discloses cause of action,” the Court remarked as it stressed that at this stage, it can't be said that there is no cause of action available to the petitioner.

Further, the Court added that the defences of the respondent to the election petition on the merits of the petitioner's contentions would not be relevant for deciding the application under Order 7 Rule 11 CPC.

Against this backdrop, the Court drew the following conclusion:

• Election petition discloses all material facts as are required to be disclosed in law. Law does not obligate the petitioner to project respondent's case in his petition.
• Petitioner/non-applicant has made out a cause of action in his petition. Petitioner has alleged non-compliance of statutory provisions by the Returning Officer. According to the case set up by the petitioner: the RO had not acted as per mandate of Section 65 of the Representation of the People Act, 1951; It is only this provision that expressly provides for the manner in which a candidate is to be declared elected in the given case of equality of votes.
• The question as to whether the actions of the petitioner during Proceedings for Counting of Votes, amount to consent/acceptance on his part to the procedure applied by the RO, and if so, what would be its effect upon the relief claimed by him; whether the petitioner is debarred in law to take the pleas/plead cause of action that: the RO had infracted Section 65 of the Representation of the People Act, 1951; The RO had erroneously applied Rules 75(4) & 81(3) of the Conduct of Election Rules; and even the application of Rules applied by the RO was flawed; are to be considered & deliberated upon at an appropriate stage of the trial/petition.
• The case projected by the petitioner, viz. noncompliance of the provisions of the R.P. Act 1951 and/or completely flawed invocation of Rule 75(4) & 81(3) of the Conduct of Election Rules, 1961 by the RO, if ultimately found to be correct & legitimate, would definitely materially affect the result of election as in that situation the declaration of respondent as the returned candidate would become illegal.

Consequently, the court dismissed Mahajan's Order 7 Rule 11 CPC application, finding no merit in it.

Case title - Dr. Abhishek Manu Singhvi vs. Harsh Mahajan

Case citation: 2024 LiveLaw (HP) 57

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