Himachal Pradesh HC dismisses challenge on legality of Abhishek Manu Singhvi’s appeal against defeat in Rajya Sabha election

A bank made of Justice Jyotsna Rewal Dua REJECTED a lawsuit by BJP Rajya Sabha MP Harsh Mahajan to reject the election petition filed by Dr Singhvi challenging the result of the February 2024 Rajya Sabha election in which Mahajan was declared the winner.

The court categorically observed that as per the case set out by Dr Singhvi, it cannot be said at this stage that the election result was not materially affected by the alleged non-compliance with the provisions of the RP Act. The court also held that his petition clearly stated a cause of action.

The case in brief

It may be noted that Dr Singhvi had lost to BJP candidate Harsh Mahajan despite both receiving the same number of votes (34 to 34 each). Mahajan’s victory was determined by the decision of the returning officer, who was acting as the Chief Election Officer, to conduct a draw of lots as per Rule 75 of the Election Rules 1961.

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

As a result, Dr Singhvi was excluded from the selection process and the Returning Officer declared Mahajan of BJP as the winner. Singhvi challenged this very decision of the officer concerned and approached the Supreme Court.

Dr. Singhvi is of the view that if the name on the drawn ticket had been given a vote under Section 65 of the Act, he and not the respondent would have been declared the respondent.

For context, Section 65 of the RP Act states:

“If, after the votes have been counted, it is found that there is a tie between the candidates and the addition of a vote results in one of those candidates being declared elected, the Returning Officer shall immediately draw lots between those candidates and proceed as if the candidate chosen by lot had received an additional vote..”

During the election appeal, Mahajan filed a motion pursuant to Order 7 Rule 11 R/W Section 151 of the Code of Civil Procedure (CPC) read with sections 81, 83, 86 and 87 of the Representation of the People Act, 1951 (“RP Act 1951”) seeking dismissal of the application of Dr Singhvi.

In court, Mahajan argued that Dr Singhvi’s petition did not state the essential facts and did not show any cause of action against him.

It was further argued that the principles of estoppel and renunciation were preclusive in the petition and that the violation of statutory provisions/rules/regulations etc. as alleged in the election petition would not have any material impact on the outcome of the election.

Supreme Court comments

The Single Judge in his 51-page order found no reason to dismiss Dr Singhvi’s election petition as he observed that all the material positive and negative facts relied upon by the petitioner had been disclosed therein.

The court found that the point raised in the election petition whether the exclusion of the name of the person drawn by lot is contrary to Section 65 of the RP Act, a provision which governs the drawing of lots and provides that the candidate drawn by lot shall be entitled to one additional vote.

“The petitioner has relied on Section 65 of the RP Act, 1951 to contend that in view of the facts on hand, the petitioner on whom the lot fell cannot be disqualified but he should be declared elected and not the other candidate, the respondent. In view of the interplay of Rules 75 and 81, Section 65 and other provisions of the Statute and the Rules relied upon by the parties, it cannot be said that no cause of action is available to the petitioner. The petition states the cause of action‘, the Court noted, stressing that at this stage it cannot be said that the plaintiff has no cause of action.

Further, the Court added that the defence of the respondent in the election petition regarding the merits of the allegations made by the plaintiff was not relevant for the purpose of deciding the application under Order 7 Rule 11 CPC.

Against this background, the Court concluded:

• The election objection discloses all material facts that are required to be disclosed by law. The objector is not required by law to set out the defendant’s case in his objection.
• The applicant/non-candidate has set out a cause of action in his petition. The applicant has alleged that the Returning Officer has failed to comply with statutory provisions. According to the argument advanced by the applicant, the Returning Officer has not acted in accordance with the mandate of Section 65 of the Representation of the People Act, 1951. This provision is the only one which specifically lays down how a candidate is to be declared elected in the event of a tie.
• The question whether the actions of the petitioner during the vote counting process amount to consent/acceptance on his part to the process followed by the RO and if so, what effect this would have on the compensation sought by him; whether the petitioner is barred by law from raising objections/pleas that: the RO has contravened Section 65 of the Representation of the People Act, 1951; the RO has erroneously applied Rules 75(4) and 81(3) of the Election Rules; and even the application of the Rules followed by the RO was erroneous, has to be considered and deliberated upon at an appropriate stage of the proceedings/petition.
• The case raised by the appellant, namely, non-compliance with the provisions of the RP Act, 1951 and/or the totally erroneous invocation of Sections 75(4) and 81(3) of the Conduct of Election Rules, 1961 by the RO, if ultimately found to be correct and legitimate, would definitely have a significant impact on the outcome of the election, in which case the declaration of the respondent as the elected candidate would become illegal.

Consequently, the Court dismissed Mahajan’s application for CPC proceedings under Order 7 Rule 11, finding it to be without merit.

Case Title – Dr. Abhishek Manu Singhvi vs Harsh Mahajan

Case citation:

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