Himachal Pradesh High Court rejects objections to Abhishek Manu Singhvi plea against Rajya Sabha election loss

The Himachal Pradesh High Court on Monday rejected objections raised by BJP Member of Parliament (MP) Harsh Mahajan against maintainability of the petition moved by Congress leader Abhishek Manu Singhvi challenging the former's election to Rajya Sabha..Singhvi, who has subsequently been appointed to the Upper House of Parliament from Telangana, had lost the Rajya Sabha election from Himachal Pradesh in February this year after six members of the state legislature, then belonging to Congress, had cross voted in favour of the BJP candidate.The Congress leader had then moved the High Court challenging the procedure adopted by the Returning Officer to declare Mahajan successful when both of them had secured 34 votes each. Mahajan had moved an application seeking rejection of Singhvi's petition on the ground that Singhvi had not disclosed that he consented to the procedure and the declaration of the result after the draw of lots..Justice Jyotsna Rewal Dua today rejected Mahajan's application and said Singhvi's case does not revolve under agreeing or consenting to the procedure."The case set up by the petitioner in the election petition is entirely different. Petitioner’s case is that some other provisions of the R.P. Act 1951 were required to be applied and not the Rules, which were actually applied," the Court said..Singhvi's election petition has primarily challenged the Returning Officer's decision to hold a draw of lot and apply Rule 75(4) and Rule 81(3) of the Conduct of Election Rules, 1961, after both the candidates secured equal votes. The rules allow the authority to hold draw of lot and declare one candidate winner when two candidates have equal votes. "The returning officer shall decide by lot which of them shall be excluded; and after excluding him in the manner aforesaid, declare the other candidate to be elected," Rule 81(3) states..Singhvi's argument is that Section 65 of the Representation of the People Act should have been followed instead. The provision states that: "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.".The Court in the ruling today said whether Singhvi's signatures on proceedings for counting of votes would amount to his consent or not and acceptance or otherwise of the procedure adopted during counting of votes, are the aspects to be considered, deliberated upon and interpreted at an appropriate stage of the petition. "The petition disclosed all material facts, upon which the petitioner relies, both positive and negative. The ‘consent’ on part of the petitioner is not a fact on which the petitioner relies, but is a fact projected by the respondent. It cannot be said that the petition is liable to be rejected on the ground of nondisclosure of material facts," the bench said..The Court also examined whether Singhvi had a cause of action to challenge Mahajan's action.In this regard, it opined that in view of the interplay of Rules 75 and 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 him.The Court added that the contentions regarding it also need to be gone at the appropriate stage of the 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 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," said the Court..Senior Advocates P Chidambaram and Prashanto Chandra Sen argued for Singhvi along with Senior Advocate Neeraj Gupta. The senior counsel were assisted by advocates Ajeet Pal Jaswal, Aman Panwar, Mudit Gupta, Vedant Ranta and Yash Johivi. Senior Advocate Maninder Singh with advocates Vikrant Thakur, Virbahadur Verma, Prabhas Bajaj, Ramgasaran Mohan, Shriyek Sarda, Shubham Guleria and Ankit Dhiman represented Mahajan. .[Read Judgment]