Himachal Pradesh High Court: In the present application filed by the respondent under Order 7 Rule 11 read with Section 151 of the Civil Procedure Code, 1908 read with Sections 81, 83, 86 and 87 of the Representation of the People Act, 1951 (‘the RP Act’), seeking rejection of Election Petition filed by the petitioner, Jyotsna Rewal Dua, J., stated that the fact that 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 whether the petitioner was debarred in law to plead cause of action that the RO had infracted Section 65 of the RP Act and erroneously applied Rules 75(4) and 81(3) of the Conduct of Election Rules, 1961 (‘the Rules’) were to be considered and deliberated upon at an appropriate stage of the trial/petition.
The Court stated that if the case projected by the petitioner regarding non-compliance of the provisions of the RP Act and/or flawed invocation of Rule 75(4) and 81(3) of the Rules, was found to be correct and legitimate, it would definitely materially affect the result of election as in that situation, the declaration of respondent as the returned candidate would become illegal. Thus, the Court stated that it found not merit in any of the contentions raised by the respondent for rejecting the election petition filed by the petitioner and accordingly, dismissed the present petition.
Background
In the present case, Dr. Abhishek Manu Singhvi- the petitioner and Harsh Mahajan-the respondent contested biennial elections to Council of States on 15-02-2024 from the single seat in the State of Himachal Pradesh. They were the only candidates for the said seat and on counting, petitioner and respondent secured 34 votes each. Thereafter, the Returning Officer (‘RO’) proceeded to determine the result by draw of lots and applied Rules 75(4) and 81(3) of the Rules.
The lot fell on petitioner’s name, but instead of adding one vote to petitioner’s tally of votes, the RO erroneously applied Rule 75(4) of the Rules and added one vote to the respondent, who was consequently declared as the ‘returned candidate’. Petitioner’s stated that he had been wrongly excluded and the respondent was wrongly declared as the returned candidate due to non-compliance to the statutory provisions by the RO. Petitioner sought to declare the election result announced on 27-02-2024, declaring the respondent as the returned candidate, as void under Section 100(1)(d)(iv) of the RP Act. Petitioner further sought to be declared as elected to Council of States from Himachal Pradesh as per Section 84 read with Section 101(a) of the RP Act.
A. Material Facts
The Court observed that in the present case, the petitioner had challenged the election not on the grounds of corrupt practice, but on account of alleged non-compliance of statutory provisions by the RO. The petitioner was required to disclose all material facts, not only the positive ones, but also the negative facts involved. Non-disclosure of even a single material fact would entail rejection of the election petition at the threshold. It was a duty upon the Court to dismiss an election petition where material facts were not disclosed. The Court stated that from the holistic reading of paragraph 5 of the election petition that described the events, it could not be said that material facts were not disclosed or that there was any concealment of material facts in the election petition.
The Court stated that the case set up by the petitioner was entirely different. Petitioner’s case was that some other provisions of RP Act were required to be applied and not the Rules, which were applied. As per the petitioner, the RO ought to have determined the result as per provisions of Section 65 of the RP Act and ought to have declared the petitioner as the successful candidate. The Court stated that in view of the case set up by the petitioner, it could not be said that there was suppression or intent to suppress the material facts in the petition upon which the petitioner relied.
The Court opined that the petitioner had disclosed entire proceedings that were carried out during the election process and the fact that he was present and had signed the proceedings. Further, the consequence of his signatures on the proceedings drawn for Counting of Votes, whether it amounted to his consent or acceptance, and if so, the effect upon the relief prayed for, and whether petitioner’s so-called consent would have estopped him from filing the election petition, were entirely different issues. Thus, the petition was liable to be rejected on the ground of non-disclosure of material facts.
B. Cause of action
Regarding the respondent’s contention that the election petition was liable to be rejected as it did not disclose cause of action. The Court stated that the petitioner had made out a cause of action in the present petition. The petitioner had alleged the non-compliance of statutory provisions by the RO and as per the case set up by the petitioner, the RO had not acted as per mandate of Section 65 of the RP Act. The Court observed that the petitioner had pleaded that the RO had erroneously invoked Rules 75(4) and 81(3) of the Rules during proceedings for counting of votes and even these Rules were also not correctly applied. Thus, the Court stated that the clear cause of action was pleaded by the petitioner.
C. Barred by Principle of Waiver/Estoppel
The Court stated that the fact that 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 whether the petitioner was debarred in law to plead cause of action that the RO had infracted Section 65 of the RP Act and erroneously applied Rules 75(4) and 81(3) of the Rules were to be considered and deliberated upon at an appropriate stage of the trial/petition.
D. No material effect upon result of the election
The respondent had contended that non-compliance or violation of provisions of the Acts/Rules would not by itself be a permissible ground to pray for setting aside the election unless it also materially affects the election result. The Court stated that if the case projected by the petitioner regarding non-compliance of the provisions of the RP Act and/or flawed invocation of Rule 75(4) and 81(3) of the Rules, was found to be correct and legitimate, it would definitely materially affect the result of election as in that situation, the declaration of respondent as the returned candidate would become illegal. Thus, in view of the case set up by the petitioner, it could not be said at this stage, that the result of the election had not been materially affected by the alleged non-compliance of the provisions.
Thus, the Court stated that it found no merit in any of the contentions raised by the respondent for rejecting the election petition filed by the petitioner and accordingly, dismissed the present petition.
[Dr. Abhishek Manu Singhvi v. Harsh Mahajan, 2024 SCC OnLine HP 4683, decided om 16-09-2024]
Advocates who appeared in this case :
For the Petitioner: P. Chidambaram and Prashanto Sen, Senior Advocates; Neeraj Gupta, Senior Advocate with Ajeet Pal Singh Jaswal, Vedhant Ranta, Aman Panwar, Muddit Gupta and Yash Johivi, Advocates.
For the Respondent: Maninder Singh, Senior Advocate with Prabhas Bajaj, Ramgasaran Mohan, Virbahadur Verma, Vikrant Thakur, Shriyek Sharda, Shubham Guleria and Ankit Dhiman, Advocates.