Himachal Pradesh High Court
Reserved On: 27Th August vs Harsh Mahajan … on 16 September, 2024
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
2024:HHC:8582
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
EMP No.2 of 2024 in
Election Petition No.1 of 2024
.
Reserved on: 27th August, 2024
Decided on: 16th September, 2024
————————————————————————————-
Dr. Abhishek Manu Singhvi …Non-applicant/Petitioner
Versus
Harsh Mahajan …Applicant/Respondent
————————————————————————————-
Coram
Ms. Justice Jyotsna Rewal Dua
Whether approved for reporting? Yes.
For the Non-applicant/ : Mr. P. Chidambaram & Mr. Prashanto
Petitioner Sen, Senior Advocates (through video
conference), Mr. Neeraj Gupta, Senior
Advocate with Mr. Ajeet Pal Singh
Jaswal, Mr. Vedhant Ranta, Mr. Aman
Panwar, Mr. Muddit Gupta and
Mr. Yash Johivi, Advocates.
For the Applicant/ : Mr. Maninder Singh, Senior Advocate
Respondent (through video conference) with
Mr. Prabhas Bajaj, Mr. Ramgasaran
Mohan, Mr. Virbahadur Verma
(through video conference), Mr. Vikrant
Thakur, Mr. Shriyek Sharda,
Mr. Shubham Guleria and Mr. Ankit
Dhiman, Advocates.
————————————————————————————
___________________
Whether reporters of print and electronic media may be allowed to see the order? Yes
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Jyotsna Rewal Dua, Judge
INDEX
Sr. Particulars Pages
No.
.
1. Overview 2-3
2. Grounds for rejection of Election 4
Petition.
3. Disclosure of material facts 4-21
4. Cause of action 21-43
5. Consent/Waiver 43-46
6. Material effect on election result 46-49
7. Conclusion 49-51
EMP No.2 of 2024
Respondent has moved this 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 Election Petition No.1 of
2024.
2. Overview of Election Petition No.1 of 2024
filed by the non-applicant/election petitioner:-
Petitioner/non-applicant and respondent/
applicant contested biennial elections to Council of States
on 15.02.2024 from the single seat in the State of Himachal
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2024:HHC:8582Pradesh. They were the only candidates for the said seat.
On counting, petitioner and respondent secured 34 votes
each. The Returning Officer (RO) proceeded to determine
.
the result by draw of lots. He applied Rules 75(4) and 81(3)
of the Conduct of Election Rules, 1961 (in short ‘Rules’).
The lot fell on petitioner’s name, however, instead of adding
one vote to petitioner’s tally of votes in terms of Section 65
of the R.P. Act 1951, the RO erroneously applied Rule 75(4)
and added one vote to the kitty of the respondent, who was
consequently rdeclared as the ‘returned candidate’.
Petitioner’s case is that he had been wrongly excluded and
the respondent was wrongly declared as the returned
candidate on account of non-compliance to the statutory
provisions by the RO. Petitioner seeks to declare the
election result announced on 27.02.2024, declaring the
respondent as the returned candidate to Council of States
from Himachal Pradesh, as void under Section 100(1)(d)(iv)
of the R.P. Act 1951. Petitioner seeks further relief of his
being declared as elected to Council of States from
Himachal Pradesh in accordance with Section 84 read with
Section 101(a) of the R.P. Act, 1951.
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3. Learned Senior Counsel for the respondent/
applicant has focused on following pleaded grounds for
rejection of Election Petition No.1 of 2024:-
.
A. Material facts have not been stated in the
petition.
B. Petition does not disclose any cause of action
against the respondent.
C. Petition is also barred by principles of estoppel
and waiver.
D. Infraction of statutory provisions/rules/
regulations etc. as alleged in the election
petition will have no material effect upon the
result of the election.
4. For convenience and to avoid repetition,
submissions of learned Senior Counsel for the parties and
observations thereupon are being discussed hereinafter
head-wise.
4A. Material facts:-
4(i). Learned Senior Counsel for the respondent/
applicant submitted that:-
4(i)(a). Section 83 of the R.P. Act 1951 mandates that
an election petition must contain all material facts of the
case. In absence of same, the petition is liable to be
rejected.
4(i)(b). Instant election petition lacks material facts as
also the particulars. Petitioner has made only vague and
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misconceived allegations regarding non-compliance of the
provisions of the R.P. Act 1951 against the RO. No
allegation has been made against the returned candidate.
.
4(i)(c). Material facts required to be disclosed in the
election petition would include not only the positive facts,
but also the negative facts involved. Petitioner has not
disclosed all material facts in the petition, rather, concealed
material facts, viz. at the time of conduct of the elections,
the RO had clearly explained the procedure to both the
candidates that
r draw of lot shall be conducted in
accordance with Rules 75(4) & 81(3) of the Rules, whereby
the person whose name shall appear on the lot drawn,
would stand excluded from the election and the other
candidate shall be declared successful. Both the candidates
had consented to drawing the lot in such manner. Draw of
lots was conducted by the RO after both candidates
consented to such procedure and appended their
signatures in acceptance of this procedure, on the
proceedings drawn for the purpose.
4(i)(d). Petitioner had consented to the above procedure
as explained and intended to be applied by the RO not only
before the draw of lots, but also consented to the
declaration of respondent as the returned candidate after
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the draw of lots, consequent upon his own exclusion.
Petitioner’s signatures on the proceedings drawn at two
stages of the election, i.e. pre and post draw of lots,
.
evidences this fact. These material facts have not been
disclosed in the petition. Petitioner has not approached the
Court with clean hands.
4(i)(e). Procedure adopted by the RO was in conformity
with law. It was duly explained to the contesting candidates
at every stage of the election and was given effect to with
their consent. Petitioner had accepted the applicability of
the procedure and also his resultant exclusion. But these
facets have not been pleaded in the petition. The petition is
silent on these material facts.
4(i)(f). Learned Senior Counsel for the respondent has
further endeavored to elaborate that though the
Proceedings of Counting of Votes dated 27.02.2024 have
been enclosed with the election petition, however, the
requisite pleadings thereto are lacking in the election
petition. The election petition, therefore, suffers from defect
of non-disclosure of material facts or concealment thereof.
Petitioner has not disclosed material facts,
which are evident from Proceedings of Counting of Votes
appended at Annexure P-5 with the election petition.
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4(i)(g). The petitioner has not disclosed in the election
petition that the RO had specifically explained the
procedure for draw of lots and declaration of result for
.
breaking the tie to the candidates and their agents in the
counting hall. Both the contesting candidates were clearly
informed that by excluding the name that would appear on
the chit during draw of lots, the other candidate will be
declared elected. Petitioner had accepted and consented to
this procedure applied by the RO as per Rules 75(4) and
81(3) of the r Rules, but did not disclose his such
acceptance/consent to the procedure adopted by the RO, in
the petition. By merely appending the Proceedings of
Counting of Votes dated 27.02.2024, the petitioner is not
absolved from his duty cast in law to make full disclosure of
all material facts in the petition, which he failed to do. The
events and facts, which are recorded in the Proceedings of
Counting of Votes dated 27.02.2024, were required to be
incorporated & pleaded in the petition. The documents
appended with the petition and Proceedings of Counting of
Votes dated 27.02.2024 (Annexure P-5) cannot be read into
the petition. There had to be specific pleadings in that
regard inclusive of all the positive and negative facts. It is
only in reply to the present application under Order 7 Rule
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11 CPC that the petitioner has attempted to plead some of
the material facts. Mere appending the proceeding sheet
and omitting to plead material facts in the election petition
.
makes it evident that despite being aware of the facts, the
same had not been pleaded. There had been deliberate
concealment of facts. The petition as instituted was in
violation of the provisions contained in Section 83(1)(a) of
the R.P. Act 1951.
4(i)(h). In support of the above submissions, reliance
was placed upon several judicial pronouncements including
Kanimozhi Karunanidhi Versus A. Santhana Kumar
and others1; Ajay Maken Versus Adesh Kumar Gupta
and another2; Hari Shankar Jain Versus Sonia
Gandhi3; and Mahadeo Rao Sukaji Shivankar Versus
Rama Ratan Bapu4.
In view of the above submissions (encapsulated),
prayer has been made for the respondent/applicant to
reject the election petition.
4(ii). Learned Senior Counsel for the petitioner/
non-applicant opposed the above plea. The stand taken is
that:-
1
2023 SCC OnLine SC 573
2
(2013) 3 SCC 489
3
(2001) 8 SCC 233
4
(2004) 7 SCC 181::: Downloaded on – 16/09/2024 20:30:57 :::CIS
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2024:HHC:85824(ii)(a). All material facts have been comprehensively
pleaded in the petition.
4(ii)(b). It has been pleaded that there was a tie. The RO
.
sought to determine the result by applying a certain
procedure, viz. by draw of lots as per Rules 75(4) and 81(3)
of the Rules.
4(ii)(c). Exercise of draw of lots carried out on
27.02.2024 as per Annexure P-5 has been mentioned in the
petition. Annexure P-5 was filed by the petitioner. It clearly
reflects that the petitioner and respondent were made
aware of the procedure applied by the RO. There are
specific pleadings that the contesting parties and their
agents had signed on the procedure/proceedings that were
conducted by the RO.
4(ii)(d). Petitioner has pleaded that the RO had picked
up one of the two chits during draw of lots. The chit picked
up carried name of the petitioner. By applying Rule 75(4) of
the Rules, the respondent was declared the returned
candidate.
4(ii)(e). All material facts have been disclosed in the
petition. Petition contains a concise statement of material
facts as required under Section 83(1)(a) of the Act.
Petitioner has also disclosed that all the Proceedings of
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Counting of Votes that took place were in presence of the
contesting candidates and duly signed by all present.
4(ii)(f). Petitioner has nowhere pleaded that the RO had
.
carried the proceedings at the back of the petitioner or the
petitioner was not made aware of the procedure being
applied by RO.
4(ii)(g). Proceedings of Counting of Votes dated
27.02.2024 have been annexed at Annexure P-5 by the
petitioner himself alongwith election petition. There is no
concealment of facts much less of material facts. The said
annexure has been duly signed and verified by the
petitioner as per provisions of the Act. It gives complete
detail of the proceedings carried out at the time of counting
of votes. The document forms part of the petition.
4(ii)(h). In support of above submissions (encapsulated),
reliance was placed upon several judicial pronouncements,
i.e. Kanimozhi Karunanidhi Versus A. Santhana Kumar
and others1, Mohan Versus Bhairon Singh Shekhawat5
and Ashraf Kokkur Versus K.V. Abdul Khader and
others6.
5
(1996) 7 SCC 679
6
(2015) 1 SCC 129
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4(iii). Consideration (material facts):-
4(iii)(a). Section 83 of the R.P. Act 1951 mandates
disclosure of all material facts on which the petitioner relies
.
and reads as under:-
“83. Contents of petition.- (1) An election petition-
(a) shall contain a concise statement of the material
facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice
that the petitioner alleges including as full a
statement as possible of the names of the parties
alleged to have committed such corrupt practice and
the date and place of the commission of each suchpractice; and
(c) shall be signed by the petitioner and verified in the
manner laid down in the Code of Civil Procedure,
1908 (5 of 1908) for the verification of pleadings:
Provided that where the petitioner alleges any
corrupt practice, the petition shall also be accompanied
by an affidavit in the prescribed form in support of the
allegation of such corrupt practice and the particulars
thereof.
(2) Any schedule or annexure to the petition shall also be
signed by the petitioner and verified in the samemanner as the petition.”
Section 83 of the R.P. Act 1951 is concerning
contents of the election petition. Section 83(1)(b) pertains to
a case where the election petition is on the grounds of
corrupt practice. Section 83(1)(a) requires the election
petition to contain concise statement of the material facts
on which the petitioner relies. This would encompass all
other grounds including the case of non-compliance with
statutory provisions.
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In the instant case, the petitioner has
challenged the election not on grounds of corrupt practice,
but on account of alleged non-compliance of statutory
.
provisions by the RO.
4(iii)(b). There can be no dispute about the settled legal
position as highlighted by learned Senior Counsel for the
respondent/applicant that the petitioner is required to
plead and 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 is rather a duty cast
upon the Court to dismiss an election petition where
material facts are not disclosed.
4(iii)(c). It would be appropriate at this juncture to refer
to relevant pleadings made in para 5 of the election petition
that describe the factual position:-
i). Paragraphs 5(a) to 5(e) of the petition describe
the events, such as notification of elections, fixation of
election schedule, appointment of the RO, Assistant RO,
submission of nomination by the petitioner etc.
ii). Paragraph 5(f) pleads about total number of
votes cast. Paragraph 5(g) mentions that both the petitioner
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2024:HHC:8582and respondent had secured 34 votes each and reads as
under:-
“5(g). That upon counting of the votes cast, the Petitioner as
well as the Respondent received equal number of votes.
i.e. 34 votes each. Both candidates only received first
preference votes (34 votes each) and there were no
second preference votes in favour of either of the
candidate.
True copy of result of counting dated 27.02.2024
for the Biennial Election to the Council of States (Rajya
Sabha) from Himachal Pradesh, 2024 is attached hereto
and marked as ANNEXURE P-4.”
iii). Paragraphs 5(h) and 5(i) contain the averments
that since there was a tie in the number of votes secured by
the candidates, the RO proceeded to resolve the tie by
referring to the Rules. That the person whose name is
drawn on the lot would be excluded. Paragraphs, as
extracted from the Proceedings of Counting of Votes dated
27.02.2024, have also been highlighted in para 5(i) to
emphasize that the RO had explained that the procedure as
per Rules 75(4) and 81(3) of the Rules would be applied and
the candidate whose name appeared on the chit in draw of
lots will be excluded. These paras inclusive of the
paragraphs extracted from the Proceedings of Counting of
Votes drawn on 27.02.2024, read as under:-
“5(h). That since there was a tie, inasmuch as, both the
contesting candidates had received equal number of
votes for the single notified vacancy for the subject
election, the RO proceeded to resolve the tie by making
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2024:HHC:8582(hereinafter also referred to as “the Rules” or “the
Election Rules”). It was observed by the R.O. as
recorded in the ‘Proceedings of Counting of Votes’ dated
27.02.2024, that “since there is only one vacancy to be
filled in this election for Council of States from Himachal
Pradesh, provisions of Rule 75 & Rule 81(3) of the.
Conduct of Election Rule 1961 will be applicable …”.
True and typed copy of the Certified ‘Proceedings
of Counting of Votes’ for Election to the Council of States
(Rajya Sabha) from Himachal Pradesh dated
27.02.2024 is attached hereto and marked as
ANNEXURE P-5.
5(i). That further, as recorded in the ‘Proceedings of
Counting of Votes’ dated 27.02.2024, the returning
officer observed the following:
“… As per the provisions to Rule 75(4) if, when a
candidate has to be excluded under clause (a) of
sub rule (3), 2 or more candidates have been
credited with the same value and stands lowest on
the poll, and the candidates for whom the lowest
number of original votes are recorded shall be
r excluded, and if their number also is the same inthe case of two or more, the RO shall declare by
lot, which of them shall be excluded.
Similarly Rule 81(3) of the Conduct of Election
Rule 1961 says “when at the end of any count
only one vacancy remains unfilled and there areonly two continuing candidates and each of them
has the same value of votes and no surplus
remains capable of transfer, the returning officer
shall decide by lot which of them shall beexcluded; and after excluding him on the manner
aforesaid, declare the other candidate to beelected.
(emphasis supplied)”
iv). Paragraph 5(j) details the exercise of draw of lots
conducted by the RO as under:-
“5(j). Accordingly, as recorded by the Returning Officer in the
‘Proceedings of Counting of Votes’ dated 27.02.2024,
considering that both candidates had obtained equal
number of votes, the result was sought to be determined
by draw of lots in accordance with Rule 75(3), Rule
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2024:HHC:8582draw of lots, the Returning Officer undertook the
following procedure:
i. Two equal slips were made of two A4 size paper
taken from a new ream opened in front of the
candidates/election agents.
ii. The name of each candidate printed on an A4 size
.
paper was shown to the candidates and all present
in the counting hall.
iii. Then the slips were folded multiple times and put in
a specially designed and prepared cardboard box
for draw of lots.
iv. The box was shown as empty to the
candidates/agents before putting these slips in the
cardboard box.”
v). Paragraph 5(k) states that the RO shuffled the
two slips and picked one, which had the name of the
petitioner. The para reads as under:-
“5(k). Thereafter, the RO shuffled the two slips by and inside
the cardboard box and thereafter picked one of the slip
for the draw of lots and showed the same to all present
in the counting hall. Admittedly, the name on the
picked-up slip was “Dr. Abhishek Manu Singhvi” i.e. the
Petitioner herein and the same was shown to allpresent.”
vi). Paragraph 5(l) speaks as under about RO’s
applying Rule 75(4) of the Rules and declaring the
respondent as the returned candidate on 27.02.2024:-
“5(l). That thereafter, the R.O. by applying Rule 75(4) of the
Rules excluded the name of the Petitioner, and
announced, as well as, declared the Respondent as the
elected candidate. Subsequently, the R.O. informed the
candidates that he would now submit a report
regarding the same to the Election Commission of India
and thereafter handover the Election Certificate to the
Respondent.”
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vii). Paragraph 5(m) states that entire proceedings
(conduct of election) narrated in previous paras were duly
recorded in writing. The proceedings were signed by all
.
those, who were present.
From holistic reading of paragraph 5 of the
election petition that describes the events, it cannot be said
that material facts have not been disclosed or that there is
any concealment of material facts in the election petition.
An aspect much pressed upon by learned Senior Counsel
for the respondent/applicant is that facts apparent from
perusal of Annexure P-5 have not been pleaded in the
petition; It has not been pleaded that the petitioner had
given his consent to the procedure intended to be applied
by the RO, i.e. recourse to Rules 75(4) and 81(3), for
drawing of lots and exclusion of the name that would
appear on the chit; It has not been disclosed that the
petitioner had consented to this procedure and had put his
signatures in acceptance thereof; It has not been disclosed
that after the exclusion of the name of the petitioner
consequent to draw of lots, he had also accepted the result
so declared and had accordingly appended his signatures
on the Proceedings for Counting of Votes. The point being
made out by the respondent is that the petitioner had not
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disclosed material facts that he had consented to the
procedure adopted by the RO for determining the result of
election and also the fact that he had consented to the
.
consequent declaration of the result in that manner,
therefore, the petition is liable to be rejected.
4(iii)(d). Import of Section 83(1)(a) of the R.P. Act 1951 is
for disclosure of such material facts upon which the
petitioner relies, of course that would include positive and
negative both sides of those facts. The case of the petitioner
as projected does
r not revolve around his agreeing/
consenting to the procedure applied by the RO for draw of
lots and consequent exclusion of his name that appeared
on the chit so drawn. Signatures of the petitioner at two
places on the Proceedings for Counting of Votes is a fact
evident from Annexure P-5. The petitioner does not dispute
his signatures on Annexure P-5. The petitioner in his
petition has acknowledged this procedure as adopted and
followed by the RO during counting of votes, i.e. application
of Rules 75(4) and 81(3) of the Rules. It is also not the case
of the petitioner that he objected to the application of this
procedure during counting of votes or at the relevant time.
Rather, the petitioner has himself appended Annexure P-5,
i.e. the Proceedings for Counting of Votes. The annexure
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has been signed and verified by the petitioner as per
provisions of the R.P. Act 1951. The annexure makes it
evident, as has been pleaded in the election petition also,
.
that to break the tie during counting of votes, Rules 75(4)
and 81(3) of the Rules were applied. It is not the case of the
petitioner that RO had carried out the proceedings behind
the back of the petitioner or the petitioner was not made
aware of the procedure being applied by the RO. 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. According to the
petitioner, the RO ought to have determined the result as
per provisions of Section 65 of the R.P. Act 1951 and ought
to have declared the petitioner as the successful candidate.
According to the petitioner, the election result is materially
affected by non-compliance with Section 65 of the R.P. Act
1951 and the flawed invocation of Rule 75(4) of the Rules
by the RO. In view of the case set up by the petitioner, it
cannot be said that there is suppression or intent to
suppress the material facts in the petition upon which the
petitioner relies. Noticeably, even the respondent has
comprehended the election petition in that manner, which
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is evident from respondent’s following pleadings in para 27
of this application:-
“27. At this stage it is extremely significant to submit that
the factum of Petitioner’s consent to the aforementioned.
manner/procedure of counting of votes- is admitted and
thus, undisputed even in the Petition. This admission by
the Petitioner reinforces the legality and propriety of the
Returning Officer’s actions, confirming that they were
executed in strict adherence to the statutoryrequirements and cannot be contended to be improper
or illegal.”
(emphasis supplied)
The above being respondent’s own
understanding of the election petition, defies logic as to how
the respondent is seeking to reject the election petition on
the projected ground that the petitioner has not disclosed in
the petition of his having consented to the procedure
applied by the RO.
4(iii)(e). In Kanimozhi Karunanidhi’s1 case, the
petitioner’s allegations were that Kanimozhi had omitted to
disclose the Income Tax Return (ITR) and Permanent
Account Number (PAN) of her husband, who was a foreign
citizen. Despite relying upon these facts, the particulars of
ITR and PAN number of Kanimozhi’s husband and how the
other details furnished by her were insufficient, were not
disclosed by the petitioner in the petition. It was in the
given facts that the Hon’ble Apex Court held that absence of
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such disclosure was concealment of material facts and that
the petition did not disclose complete cause of action.
In the instant case, whether the signatures of
.
petitioner on Proceedings for Counting of Votes would
amount to his consent or not, acceptance or otherwise of
the procedure adopted by the RO during counting of votes,
the interpretation of the Proceedings of Counting of Votes
inclusive of the consequence of petitioner having signed the
Proceedings before applying the procedure under Rules
75(4) and 81(3) of the Rules and also thereafter to the
declaration of the respondent as successful candidate-to
the exclusion of the petitioner, are the aspects to be
considered, deliberated upon & interpreted at an
appropriate stage of the petition. In my considered view, the
petitioner has disclosed entire proceedings that were
carried out during the election process and the fact that he
was present & had signed the proceedings. The
consequence of his signatures on the Proceedings drawn for
Counting of Votes, whether it amounts to his consent or
acceptance, or acquiescence or waiver, and if so, the effect
thereof upon the relief prayed for, whether petitioner’s so
called consent would estop him from filing the election
petition, are entirely different issues. The petition discloses
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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 non-
disclosure of material facts.
Point is answered accordingly.
4B. Cause of action:-
4(iv). Next contention raised for the respondent/
applicant is that the election petition is liable to be rejected
in terms of Order 7 Rule 11(a) CPC as it does not disclose
cause of action. Learned Senior Counsel for the
respondent/applicant has submitted that:-
4(iv)(a). Not only the material facts are required to be
pleaded in the election petition, but such material facts
should also clothe the petition with cause of action.
4(iv)(b). In the instant case, even assuming for
arguments that the petition divulges complete facts, then
also they do not disclose any cause of action in favour of
the petitioner or against the respondent. Hence, the petition
is liable to be rejected at the threshold under Order 7 Rule
11(a) CPC.
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4(iv)(c). Reliance placed by the petitioner upon Section
65 of the R.P. Act 1951 to question the procedure followed
for counting of votes is misconceived. Section 65 of the R.P.
.
Act 1951 has no applicability to the facts of the instant
case:-
i). Under the scheme of Constitution read with
provisions of the Act and the Rules made thereunder,
following two categories of elections have been clearly
demarcated:-
(a). Elections through single ballot without
transferability of vote; and
(b). Elections through system of proportional
representation by means of single transferable
vote.
Section 65 of the R.P. Act 1951 does not deal
with latter category. It only deals with the elections, where
there is a single ballot without transferability of the vote.
Wherever there is a single ballot with
transferability of vote such as elections to seats in the
Council of States, the procedure for conduct of such an
election would be covered by Section 169(2)(f) of the R.P.
Act 1951 read with the Rules.
ii). Elections to Lok Sabha and Assembly
Constituencies, not based upon system of proportional
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2024:HHC:8582
representation by means of the single transferable vote are
covered by Rules in Part IV and Part V of the Rules.
iii). Rule 64 of Part V of the Rules makes reference
.
to Section 65 of the R.P. Act 1951. Part V of the Rules
pertains to counting of votes in Parliamentary and
Assembly constituencies. It stipulates declaration of
election results subject to Section 65 of the Act wherever
applicable. This governs elections characterized by direct
voting by electorate. However, Rule 64 and Section 65 have
no applicability to the conduct of elections to seats in
Council of States.
iv). Rules under Part VI and Part VII of the Rules
would apply for conduct of elections to seats in Council of
States. Rule 75 falls under Part VII of the Rules and is,
therefore, applicable for election to seats in the Council of
States. It is Part VII of the Rules, which addresses the
elections conducted through proportional representation by
means of single transferable vote. Rule 75 falls under this
part and governs the election. The RO had correctly
proceeded as under in accordance with Rule 75:-
After counting all valid ballots, both candidates
were found to have received 34 votes each.
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Under Rule 75(1), every valid ballot paper has
value of 1. Quota required to secure the election
is determined by adding values credited to all
.
candidates under Rule 74(c), dividing the total
by 2 and adding 1 to the quotient. In the instant
case, there were two candidates and one seat,
therefore, quota calculation would be
(34+34)/2+1=35.
Neither the petitioner nor the respondent had
reached the quota of 35 votes required for
election under Rule 75(2), therefore, the RO
proceeded to the next step as per Rule 75(3).
Under Rule 75(3)(a), the RO would exclude from
the poll the candidate, who upto that stage is
credited with the lowest value. In the instant
case, since both the candidates had same
number of votes (34), the RO decided to proceed
to the next step.
Rule 75(3)(b) could not be resorted to as no
second preferences had been indicated.
Rule 75(4) stipulates that if after exclusion, both
candidates still have an equal number of votes,
the candidate with lowest number of original
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2024:HHC:8582votes recorded would be excluded. In the given
facts of the case, there were only two candidates
and both had received same number of original
.
votes, therefore, even this step envisaged in first
part of Rule 75(4) was not applicable.
In the event of both candidates having identical
votes even after considering original votes, as was the
situation in the instant case, Rule 75(4) allowed the RO to
decide by lot which candidate should be excluded. This step
ensured a fair resolution of the tie situation for determining
the final outcome of the election. The RO’s decision to
resolve the tie by draw of lot as prescribed in Rule 75(4) was
lawful and in compliance to the procedure. The RO had
correctly applied the second part of Rule 75(4).
4(iv)(d). The petition harps on Section 65 of the R.P. Act
1951, which has no applicability to the facts of the case.
The petition does not plead any legal and valid cause of
action, therefore, it is liable to be rejected under Order 7
Rule 11(a) CPC.
4(iv)(e). Learned Senior Counsel for the respondent/
applicant also reiterated the following submissions for
rejection of petition under Order 7 Rule 11(a) CPC, which
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2024:HHC:8582had also been pressed for rejection of the petition on the
ground of non-disclosure of material facts:-
Upon both candidates getting equal number of
.
votes, the RO had explained the procedure he intended to
apply, i.e. by draw of lots as per Rule 75(4) of the Rules;
That the person in whose name lot is drawn, shall be
excluded and the other candidate shall be declared as
elected; That Proceedings of Counting of Votes bear
signatures of the petitioner. The petitioner had accepted
and consented to this procedure as explained by the RO
before actually giving effect to it.
Name of the petitioner emerged on the chit in
the draw of lots. In terms of the procedure/method agreed
upon with the consent of the candidates, name of the
petitioner was excluded and the respondent was declared
as elected. The petitioner accepted the result without any
demur or protest and appended his signatures to such
declaration of result.
Having given his consent, having agreed to the
procedure at both stages of the election, the petitioner now
cannot claim to be aggrieved by such decision, hence, there
is no cause of action in his favour.
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2024:HHC:8582
Learned Senior Counsel for the respondent/
applicant submitted that it is settled principle of law that a
party, who specifically consents/accepts/agrees to a
.
particular action/decision, has no cause of action to
challenge the said action/decision before the Court.
4(iv)(f). Reliance in support of the above submissions
was placed upon Janak Singh versus Ram Das Rai and
others7; K. Kamaraja Nadar Versus Kunju Thevar and
others8; T. Arivandandam Versus T.V. Satyapal and
another9; Azhar
r Hussain Versus Rajiv Gandhi10;
Liverpool & London S.P. & I Association Ltd. Versus
M.V. Sea Success I and another11; Dahiben Versus
Arvindbhai Kalyanji Bhanusali (Gajra) Dead through
Legal Representatives and others12; R.K. Roja Versus
U.S. Rayudu and another13; Smt. Hema Purohit v. Sri
Trivendra Singh Rawat and others14; Ranveer Singh
Versus State of Uttar Pradesh Through Secretary and
others15; P. Chidambaram Vs. The Returning Officer
7
(2005) 2 SCC 1
8
AIR 1958 SC 687
9
(1977) 4 SCC 467
10
1986 (Supp) SCC 315
11
(2004) 9 SCC 512
12
(2020) 7 SCC 366
13
(2016) 14 SCC 275
14
2018 SCC OnLine Utt 649
15
(2016) 14 SCC 191::: Downloaded on – 16/09/2024 20:30:57 :::CIS
28
2024:HHC:8582and others16; and Dr. Rameshkumar Bapuraoji Gajbe
vs. Election Commission of India, New Delhi and
others17.
.
4(v). Learned Senior Counsel for the petitioner/
non-applicant refuted the contentions of the respondent/
applicant and submitted that:-
4(v)(a). All material facts have been stated in the
petition. They are sufficient to constitute cause of action for
filing election petition on ground of non-compliance of
statutory provisions by the RO [Section 100(1)(d)(iv)].
Petitioner has impugned the procedure applied by the RO
that was legally flawed.
4(v)(b). It was Section 65 of the Act and not Rules 75
and 81 of the Rules that were required to be followed. The
RO was under an obligation to conduct draw of lots as per
Section 65 of the Act in order to decide the elected
candidate. The RO not only erroneously invoked Rules
75(3), 75(4) and 81(3) of the Rules, but even these were
applied incorrectly.
By incorrectly applying the Rules, by illegally
overlooking the statutory provisions, the petitioner was
16
Manu/TN/0700/1978
17
2019 SCC OnLine Bom 4950::: Downloaded on – 16/09/2024 20:30:57 :::CIS
29
2024:HHC:8582wrongly excluded pursuant to his name appearing in the
chit in the draw of lots instead of declaring him as elected
under Section 65 of the Act. Cause of action is, therefore,
.
available to the petitioner and has been properly pleaded.
4(v)(c). The flawed application of Rules 75(4) and 81(3)
of the Rules and non-application of statutory provisions by
the RO has materially affected the result of election to the
Council of States and in turn benefitted the respondent.
The requirements of Section 83(1)(a) of the Act stands fully
satisfied. All material facts have been pleaded. They
constitute and give cause of action to the petitioner for filing
the election petition.
4(v)(d). Inquiry under Order 7 Rule 11 CPC is limited
only to the extent whether the facts pleaded in the petition
disclose a cause of action and not complete cause of action.
4(v)(e). The submissions of the respondent are actually
the grounds taken in defense to oppose the election petition
on merits. These submissions/grounds cannot be gone into
at this stage.
4(v)(f). Reliance in support of the above submissions
was placed upon Dahiben Versus Arvindbhai Kalyanji
Bhanusali (Gajra) Dead through Legal Representatives
and others11; Srihari Hanumandas Totala Versus
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2024:HHC:8582Hemant Vithal Kamat and others18; Eldeco Housing
and Industries Limited Versus Ashok Vidyarthi and
others19, Ashraf Kokkur Versus K.V. Abdul Khader and
.
others20; Bhim Rao Baswanth Rao Patil Versus K.
Madan Mohan Rao and others21; Shivaji Laxman
Sahane Versus Jaywantrao Pundalikrao Jadhav22;
Krishnaswami Reddiar v. Nedukalayan and another23;
A.C. Jose Versus Sivan Pillai and others24; and Harbans
Singh versus State of Punjab & others25.
4(vi). Consideration (Cause of action):-
Respondent’s contention is that election petition
be rejected as it does not give out any cause of action,
which is required to be disclosed in terms of following
provision of Order 7 Rule 11(a) CPC:-
“11. Rejection of plaint.- The plaint shall be rejected in the
following cases:-
(a) where it does not disclose a cause of action;…”
4(vi)(a). Authoritative judicial pronouncements on the
subject as cited by learned counsel on both sides have by
now well settled the law that:-
18
(2021) 9 SCC 99
19
2023 SCC OnLine SC 1612
20
(2015) 1 SCC 129
21
2023 SCC OnLine SC 871
22
2015 SCC OnLine Bom 155
23
(1962) 75 LW 409 Madras
24
(1984) 2 SCC 656
25
1982 SCC OnLine P&H 67::: Downloaded on – 16/09/2024 20:30:57 :::CIS
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2024:HHC:8582 Conferment of power under Order 7 Rule 11(a)
CPC is to ensure that a meaning plaint or a litigation, which
does not disclose any cause of action, is shown the door at
.
the threshold. Having regard to the sanctity of the election
process, any vexatious challenge to an election is to be
rejected at the outset. An election petition can be
summarily dismissed if it does not furnish cause of action.
Therefore, a duty is cast upon the Court to
determine whether the plaint/petition discloses a cause of
action in relation to the subject matter relied upon by the
petitioner. So long as the claim discloses some cause of
action or raises questions fit to be decided, the mere fact
that the case is weak and not likely to succeed is no ground
to strike it out.
Cause of action would mean facts to be proved,
if traversed in order to support the right to the judgment of
the Court. It consists of a bundle of material facts, which
taken with the law applicable to them, gives the
plaintiff/petitioner a right to the relief claimed. Function of
a party is to present a full picture of cause of action with
such further information so as to make the opposite party
understand the case he will have to meet.
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Cause of action is determined by scrutinizing
only the averments in the plaint read in conjunction with
the documents relied upon. Pleas taken in the written
.
statement and the application seeking rejection of the plaint
are wholly immaterial for determining the cause of action.
4(vi)(b). In the backdrop of above settled legal position,
the election petition may now be examined to determine the
pleaded cause of action:-
i). Petitioner’s pleaded case is that the RO had
erred in applying Rules 75(3), 75(4) and 81(3) of the Rules
for resolving the situation that had developed due to
equality of votes between the petitioner and respondent.
That these rules had no applicability to the fact situation.
Para 6 of the election petition in this regard reads as
under:-
“6. That at the outset, it is stated that the R.O. has grossly
erred in applying the wrong provision of law in order to
resolve a situation of equality of votes between the
Petitioner and the Respondent, inasmuch as, Rule 75(3),
Rule 75(4) and Rule 81(3) of the Rules had noapplication to the situation dealt by the returning officer
in the subject election.”
ii). Para 8 of the election petition states that draw of
lot was to be conducted as per Section 65 of the R.P. Act
1951 and reads as under:-
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“8. Be that as it may, since there was an Equality of Votes
between the two candidates (Petitioner and the
Respondent) i.e. 34 votes each and an addition of one
vote would have entitled any of the candidates to be
declared elected, the R.O. was under an obligation to
conduct a draw of lots as mandated under Section 65 of.
the Representation of Peoples Act, 1951 in order to
decide the elected/successful candidate. In this context
it is essential to refer to Section.65 of the Representation
of Peoples Act, 1951, which is reproduced hereinunder:
“65. Equality of votes.-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.”
(emphasis added)”
iii). According to the petitioner, the RO had
misapplied Rules 75(4) and 81(3) of the Rules by ignoring
Section 65 of the R.P. Act 1951 for holding that the
candidate upon whom the draw of lot falls would be
excluded or in other words, the candidate other than that
on whom draw of lot falls, shall stand elected. Rule 75(4)
does not prescribe the method of how the RO shall decide
by lot as to which of the candidate having equal number of
votes shall be excluded. Rule 75(4) does not stipulate the
exclusion of the candidate upon whom draw of lot falls. It
does not even lay down that candidate on whom draw of lot
does not fall, is to be excluded. The method of deciding by
draw of lots is prescribed by the parent statute under
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2024:HHC:8582Section 65 of the R.P. Act 1951. The RO was not free to
adopt the procedure, which is ex-facie contrary to the spirit
of Section 65 of the R.P. Act 1951. Since draw of lot fell
.
upon the name of the petitioner, he was to be declared
elected. These submissions as made in paras 9 to 12 of the
petition are as under:-
“9. That whilst Section 65 of the RP Act also contemplates
draw of lots, it pertinently goes on to provide that the
candidate on whom the lot ‘falls’ “shall” receive an
‘additional vote’. However, the RO by misapplying Rule75(4) and 81(3) of the Rules has held that the candidate
other than the one on whom the lot falls shall stand
elected.
10. That Rule 75(4) does not prescribe the method of how
the R.O. shall decide by lot which of the candidates
having equal number of votes shall be excluded. Inother words, Rule 75(4) does not stipulate whether the
candidate on whom the draw of lot falls is to be
excluded; or whether the candidate on whom the draw
of lot does not fall is to be excluded.
11. The method of ‘deciding by lot’ is prescribed by the
parent Statute in Sec. 65 and the R.O. is not free to
adopt a method which is ex facie contrary to the letter
and spirit of Section 65 of the R.P. Act, 1951. In otherwords, when the R.O. must decide by lot, that decision
can only be by following the substantive method
prescribed under Section 65 i.e. the candidate on whomthe lot falls is entitled to an additional vote and
therefore deserves to be declared elected.
12. In the present case, admittedly, when the lot was
picked by the R.O., the name of the Election Petitioner
i.e. Dr. Abhishek Manu Singhvi, came out and as such
he was entitled to be declared elected. However, the
R.O. in a manner completely contrary to Section 65 of
the R.P. Act, 1951, declared the name of the
Respondent on whom admittedly the lot did not fall i.e.
whose name was not picked up.”
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iv). The RO had wrongly resorted to Rules 75 and 81
of the Rules on the ground that where two or more
candidates secure equal number of votes, these rules would
.
have to be applied to break the tie. Since there was an
equality of votes between the petitioner and respondent, the
RO ought to have followed Section 65 of the R.P. Act 1951
and should not have taken recourse to Rules 75(3), 75(4)
and 81(3) of the Rules. These pleadings in paragraphs 13 to
16 of the petition read as under:-
“13. That the returning officer grossly ignored Section 65 of
the R.P. Act, 1951, and resorted to Rule 75 and Rule 81of the Conduct of Election Rules, 1961, and asserted
that in elections to the Council of States (Rajya Sabha) ifthere is a situation where two or more candidates
secure equal number of votes, Rule(s) 75(3), 75(4) and
81(3) would apply to break the tie.
14. Since there was an equality of votes (34 each) between
the Petitioner and the Respondent, the R.O. ought to
have followed Section 65 of the RP Act and should not
have taken recourse to Rule 75(3), 75(4) and 81(3) of the
Election Rules in the first place itself.
15. That a bare perusal of Rule 81 {or Rule 81(3)} of the
Rules as referred to by the R.O. would show that it is a
provision under the chapter/marginal heading –
“Counting of votes when more than one seat is to be
filled” and, therefore, is not applicable in context to the
present election wherein only one seat (of Council ofStates/Rajya Sabha) was to be filled from the State of
Himachal Pradesh. Hence the R.O. grossly erred in
adverting to the aforesaid Rule 81(3) of the Election
Rules in determining the result of draw of lots.
16. That even Rule 75(4) of the Election Rules, as resorted
to by the R.O. has no application in the present election
as, inter alia, the same is applicable only where there
are more than two candidates and also since it is
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2024:HHC:8582candidates, having equal number of first preference
votes and no second preference vote being casted in the
said election. Since in the present case, there were only
two candidates i.e. the Petitioner and the Respondent,
and both of them received 34 first preference votes,
each, there was no question to adverting to the.
procedure of counting meant for proportional
representation/preferential voting and therefore the RO
wrongly excluding the candidate in whose favour the lot
was drawn. Hence the RO’s reliance on Rule 75(4) and
Rule 81(3) was wholly misplaced and, the same hasmaterially affected the result of the above election,
which ought to have been declared in favour of the
Petitioner.”
v). Even if Rule 75 is to be assumed to be
applicable, then also its invocation/application had to be in
keeping with the letter and spirit of Section 65 of the R.P.
Act 1951 and not contrary thereto. Pleadings in this regard
in paragraphs 7, 17 and 18 are as under:-
“7. Even otherwise, it is submitted that even if Rule 75(4) is
held to be applicable, it cannot be invoked in abjectnegation and contravention of the substantive provision
i.e. Section 65 of the RP Act, 1951.
17. Be that as it may, as alternatively submitted, even if
Rule 75(4) is assumed to be applicable, the invocation/
application thereof by an R.O. has to be keeping in line
with the letter and spirit of Section 65 and in no manner
contrary to it.
18. That in case of a tie after counting of all the first
preference votes, which resulted in 34 votes each in
favour of the Petitioner as well as the Respondent, the
only procedure mandated under the RP Act, 1951, was
recourse to Section 65 of the RP Act.”
vi). The grievance of the petitioner as projected in
the election petition in paras 19 to 21 is as follows:-
“19. That in the present case, in order to break the tie of 34
votes each between the Petitioner and the Respondent,
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the R.O. conducted the draw of lots and admittedly chit
containing the name of the Petitioner was drawn by the
R.O. in the presence of the candidates and their agents.
As a natural corollary of the same and as mandated by
Section 65 of the RP Act, the R.O. ought to have credited
an additional vote in favour of the Petitioner and
.
thereby making the Petitioner’s finally tally (post draw
of lots) as 35 (thirty-five) votes making him the elected
candidate. However, the R.O. erroneously invoked Rule
75(4) and 81(3) and accordingly devised his own
procedure contrary to the law, thereby, excluding the
Petitioner from the winning criterion, even though the lot
was drawn in favour of the Petitioner.
20. That even though the Petitioner had won the draw of
lots, as the lot had fallen on him (in other words, chit
containing the name of the Petitioner was taken out),
the R.O. erred in declaring the Respondent as the
successful/elected candidate and thereby violating the
mandatory provision with impunity.
21. That non-compliance of the provisions of the RP Act,
1951, and/or the completely flawed invocation of Rule
75(4) of the 1961 Rules by the R.O. has materially
affected the result of the above election in so far as the
Respondent being wrongly declared as the returned/
successful candidate. Whereas, the Petitioner, in terms
of Section 65 of the Act had received the majority of
valid votes and ought to have been declared elected/
returned by the R.O.”
4(vi)(c). Part V of the R.P. Act 1951 pertains to ‘Conduct
of Elections’ and has 8 chapters. Section 65 of the R.P. Act
1951 falls under Chapter V that goes with the heading
‘Counting of Votes’. The section reads as under:-
“65. Equality of votes.- 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.”
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Contention of the respondent/applicant is that
above extracted Section 65 will not apply in the instant case
as it only deals with the elections through single ballot
.
without transferability of vote. That instant case is covered
by Section 169(2)(f) of the R.P. Act 1951 read with Part VI
and Part VII of the Rules. Section 169(2)(f) reads as under:-
“169. Power to make rules.- (1) The Central Government may
after consulting the Election Commission, by notification
in the Official Gazette, make rules for carrying out the
purposes of this Act.
(2) In particular, and without prejudice to the
generality of the foregoing power, such rules may
provide for all or any of the following matters, namely:-
(f) the procedure as to voting to be followed at
elections held in accordance with the system of
proportional representation by means of the singletransferable vote.”
Rules 75 and 81 of the Rules fall under Part VII
under the head ‘Counting of Votes at Elections by Assembly
Members or in Council Constituencies’ and read as under:-
“75. Counting of votes where only one seat is to be filled.–
(1) At any election where only one seat is to be filled, every
valid ballot paper shall be deemed to be of the value of 1 at
each count, and the quota sufficient to secure the return of a
candidate at the election shall be determined as follows:–
(a) add the values credited to all the candidates under
clause (c) of rule 74;
(b) divide the total by 2; and
(c) add 1 to the quotient ignoring the remainder, if any,
and the resulting number is the quota.
(2) If, at the end of the first or any subsequent count, the
total value of the ballot papers credited to any candidate is
equal to, or greater than, the quota or there is only one
continuing candidate, that candidate shall be declared
elected.
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(3) If, at the end of any count, no candidate can be
declared elected, the returning officer shall–
(a) exclude from the poll the candidate who up to that
stage has been credited with the lowest value;
(b) examine all the ballot papers in his parcels and
sub-parcels, arrange the unexhausted papers in
.
sub-parcels according to the next available
preferences recorded thereon for the continuing
candidates, count the number of papers in each
such sub-parcel and credit it to the candidate for
whom such preference is recorded, transfer the
sub-parcel to that candidate, and make a separate
sub-parcel of all the exhausted papers; and
(c) see whether any of the continuing candidates has,
after such transfer and credit, secured the quota.
(4) If, when a candidate has to be excluded under
clause (a) of sub-rule (3), two or more candidates have
been credited with the same value and stand lowest on
the poll, the candidate for whom the lowest number of
original votes are recorded shall be excluded, and if
this number also is the same in the case of two or more
candidates, the returning officer shall decide by lot
which of them shall be excluded.
81. Filling the last vacancies.–(1) When at the end of any
count the number of continuing candidates is reduced to the
number of vacancies remaining unfilled, the continuing
candidates shall be declared elected.
(2) When at the end of any count only one vacancy remains
unfilled and the value of the papers of some one candidate
exceeds the total value of the papers of all the other
continuing candidates together with any surplus not
transferred, that candidate shall be declared elected.
(3) When at the end of any count only one vacancy
remains unfilled and there are only two continuing
candidates and each of them has the same value of
votes and no surplus remains capable of transfer, 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.”
Election petitioner has made out a cause of
action that according to him, in the attending facts, the
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mechanism to proceed further was not provided under Rule
75. Rule 75(4) of the Rules as resorted to by the RO is
applicable only where there are more than two candidates.
.
The system of proportional representation does not apply
where there are only two candidates, having equal number
of first preference votes and no second preference vote
being casted; Therefore, there was no question for adverting
to the procedure of counting meant for proportional
representation. Hence, the RO wrongly excluded the
candidate in whose favour the lot was drawn. The RO’s
reliance on Rules 75(4) and 81(3) was misplaced. It has
materially affected the result of election. The RO ought to
have acted as per mandate of Section 65 of the Act. The RO
had erroneously invoked Rules 75(4) & 81(3) and devised
his own procedure contrary to law, thereby excluding the
petitioner even when the lot was drawn in his favour.
Further, according to the petitioner, Rule 75(4)
only provides when a candidate has to be excluded. Under
Clause (a) of Sub-Rule (3) of Rule 75, when two or more
candidates have been credited with the same value and
stand lowest on the poll, the candidate for whom the lowest
number of original votes are recorded shall be excluded and
if this number also is the same in the case of two or more
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candidates, the returning officer shall decide by lot which of
them shall be excluded. Rule 81(3) of the Rules states that
when at the end of any count only one vacancy remains
.
unfilled and there are only two continuing candidates and
each of them has the same value of votes and no surplus
remains capable of transfer, 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.
It has also been submitted for the petitioner that
even if Rule 75(4) is assumed to be applicable, then also its
application has to be keeping in line with letter & spirit of
Section 65 of the Act and not contrary to it. The exclusion
of the name of the person on whom draw of lot falls, was in
teeth of Section 65. This section contemplates draw of lots
and provides that the candidate on whom the lot falls, shall
receive an additional vote. However, the RO by misapplying
Rules 75(4) and 81(3) of the Rules has held that the
candidate other than the one on whom the lot falls shall
stand elected.
Whether the exclusion should be of the
candidate upon whom the draw of lot fell or other than the
candidate upon whom the draw of lot fell, is the question
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raised and cause of action set up in the instant petition.
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.
Significantly, as noticed above, the respondent/
applicant in his application has undertaken a painstaking
exercise to contend that Section 65 of the R.P. Act 1951 will
not be applicable to the facts of the case and therefore, was
justly not applied by the RO. Further, that it is only Rules
74, 75 and 81 of the Rules that would govern the factual
scenario of the case and thus, were justly invoked by the
RO. That the petitioner, whose name appeared on the chit
in the draw of lots, therefore, was rightly excluded.
The above contentions, however, need not be
gone into at this stage. Merits of the contentions are to be
deliberated at an appropriate stage of the petition. Defenses
of the respondent to the election petition on the merits of
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petitioner’s contentions are not relevant for deciding the
application under Order 7 Rule 11 CPC.
Point is answered accordingly.
.
4C. Barred by Principle of Waiver/Estoppel:-
4(vii)(a). It has been contended for the respondent/
applicant that the procedure intended to be applied, i.e.
application of Rules 75 and 81 of the Rules, had clearly
been explained to the candidates by the RO. It had also
been detailed that the candidate whose name would appear
on the chit during draw of lots would stand excluded. The
petitioner had agreed to the above procedure disclosed by
the RO before conducting the draw of lots and appended his
signatures in acceptance thereof. The procedure as
explained by the RO was followed for drawing the lots. The
petitioner had consented to and accepted the procedure
being fully aware that the procedure was in conformity with
the constitutional scheme as also the provisions of the Act
and the Rules. After drawing of lots, in which the name of
the petitioner figured in the chit and he was consequently
excluded & respondent was declared the returned
candidate, the petitioner accepted the result and appended
his signatures at the second stage of the conduct of
proceedings.
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The contention raised for the respondent/
applicant is that in view of above narration of facts, where
the petitioner had expressly acknowledged and accepted the
.
procedure as being in compliance with the applicable legal
provisions, he is estopped from challenging the procedure
adopted by the RO having expressly consented thereto
before the draw of lots was carried out and even
subsequent thereto. It was further submitted for the
respondent that without prejudice to the foregoing, the
conduct of the petitioner also constitutes waiver and thus,
disentitles him from raising any grievance/contention
against the procedure for draw of lots applied by the RO. In
fact, during hearing of the case, a prayer was also made for
watching a video purported to be the official recording of
the Proceedings of Counting of Votes, contained in a Pen
Drive, in support of the contention that the actions &
conduct of the petitioner during the proceedings cannot be
construed to be anything else, but consent to the procedure
applied by the RO and thus, would debar the petitioner
from challenging such procedure in election petition.
4(vii)(b). Learned Senior Counsel for the petitioner/
non-applicant refuted the above submissions and
submitted that the actions interpreted by the respondent as
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2024:HHC:8582consent of the petitioner do not constitute consent. Even
otherwise, there cannot be any constitutional waiver. There
is no estoppel against the Statute. That a consent wrongly
.
given against the provisions of the Statute is no consent in
law.
4(vii)(c). Consideration (Estoppel/Waiver):-
Petitioner has admitted having appended his
signatures on the Proceedings for Counting of Votes
(Annexure P-5). This, however, according to him, does not
amount to consent to the procedure applied by the RO.
Whether in the given facts, signatures of the petitioner on
the Proceedings for Counting of Votes would amount to
consent on part of the petitioner or not, is to be considered
during trial/at an appropriate stage of the petition. The
next question that even if it is held to be consent on part of
the petitioner, what would be the effect thereof on
petitioner’s case- can only be considered at an appropriate
stage. At this juncture, suffice to note that the petitioner
has projected a case that there is no estoppel against the
Statute; It is not for the parties to agree out of the Statute;
The RO also cannot act contrary to the Statute. What was
the legal provision that should have been applied by the
RO, whether the RO applied correct provision or not and
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2024:HHC:8582other related questions, can only be deliberated upon at an
appropriate stage of the election petition. It cannot be said
at this stage that petitioner’s actions and their
.
interpretation as consent by the respondent would debar
the petitioner from laying challenge to the procedure
applied by the RO during counting of votes.
It is also worth noticing here that the petitioner
having allegedly consented to the application of procedure
as per Rules 75 and 81 of the Rules, is a fact pleaded by the
respondent. It is not the case set up by the petitioner. It will
be for the respondent to prove that the petitioner had
consented for applying the procedure in terms of Rules 75
and 81 of the Rules and for the Court to deliberate
thereupon and consider its consequential effects. The video
recording being sought to be played by the respondent,
cannot be permitted at this stage. It is a matter of evidence
to be considered at an appropriate stage.
Point is answered accordingly.
4D. No material effect upon result of the
election:-
4(viii)(a). Respondent contends 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
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2024:HHC:8582election unless it also materially affects the election result.
The issue of – on whom the lot falls and whether the
candidate upon whom the lot falls should be excluded is
.
inherently a matter of interpretation and procedural
formality. The interpretation does not undermine the
integrity or outcome of the election as statutory
requirement was fulfilled by the RO by conducting the draw
of lots in a transparent and fair manner. Provisions of
Section 100(1)(d)(iv) of the R.P. Act 1951 do not get
attracted. r
4(viii)(b). The petitioner has contested the abovesubmissions. According to the petitioner, result of election
has been materially affected by non-compliance with
statutory provisions of Section 65 of the Act read with
flawed invocation of Rules 75(3), 75(4) and 81(3) of the
Rules by the RO.
4(viii)(c). Consideration (Material effect on election
result):-
Section 100(1)(d)(iv) of the R.P. Act 1951 reads
as under:-
“100. Grounds for declaring election to be void.- (1) Subject to
the provisions of sub-section (2) if the High Court is of
opinion-
(d) that the result of the election, in so far as it
concerns a returned candidate, has been materially
affected-
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(iv) By any non-compliance with the provisions of the
Constitution or of this Act or of any rules or
orders made under this Act, the High Court shall
declare the election of the returned candidate to
be void.”
.
Petitioner has inter-alia pleaded in the election
petition as under:-
“19. That in the present case, in order to break the tie of 34
votes each between the Petitioner and the Respondent,
the R.O. conducted the draw of lots and admittedly chit
containing the name of the Petitioner was drawn by the
R.O. in the presence of the candidates and their agents.
As a natural corollary of the same and as mandated bySection 65 of the RP Act, the R.O. ought to have credited
an additional vote in favour of the Petitioner and
thereby making the Petitioner’s finally tally (post draw
of lots) as 35 (thirty-five) votes making him the electedcandidate. However, the R.O. erroneously invoked Rule
75(4) and 81(3) and accordingly devised his ownprocedure contrary to the law, thereby, excluding the
Petitioner from the winning criterion, even though the lot
was drawn in favour of the Petitioner.
20. That even though the Petitioner had won the draw of
lots, as the lot had fallen on him (in other words, chit
containing the name of the Petitioner was taken out),
the R.O. erred in declaring the Respondent as the
successful/elected candidate and thereby violating themandatory provision with impunity.
21. That non-compliance of the provisions of the RP Act,
1951, and/or the completely flawed invocation of Rule75(4) of the 1961 Rules by the R.O. has materially
affected the result of the above election in so far as the
Respondent being wrongly declared as the returned/successful candidate. Whereas, the Petitioner, in terms
of Section 65 of the Act had received the majority of
valid votes and ought to have been declared elected/
returned by the R.O.”
The petitioner has specifically pleaded that the
result of election petition has been materially affected due
to flawed invocation of Rules 75 & 81 of the Rules and non-
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compliance of Section 65 of the Act that provides for the
manner in which a candidate is to be declared elected in
case of equality of votes. It is the case of the petitioner that
.
in case 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. In view
of the case set up by the petitioner, it cannot be said at this
stage that the result of the election had not been materially
affected by the alleged non-compliance of the provisions.
Point is answered accordingly.
5. Conclusion:-
The upshot of above discussion is that:-
(i). Election petition discloses all material facts as
are required to be disclosed in law. No materialfact upon which the petitioner/non-applicant
relies, be it positive or negative, has beenconcealed in the petition. Law does not obligate
the petitioner to project respondent’s case in hispetition.
(ii). 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
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a candidate is to be declared elected in the given
case of equality of votes. According to the
petitioner, the Returning Officer had erroneously.
invoked Rules 75(4) and 81(3) of the Conduct of
Election Rules, 1961 during Proceedings for
Counting of Votes and has further pleaded that
even these Rules were also not correctly applied.
A clear cause of action has been pleaded.
(iii). 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.
(iv). The case projected by the petitioner, viz. non-
compliance 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,
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the declaration of respondent as the returned
candidate would become illegal.
In view of above discussion, I find no merit in
.
any of the contentions raised by the respondent/applicant
for rejecting the election petition filed by the petitioner/non-
applicant. Consequently, this application moved by the
respondent/applicant under Order 7 Rule 11 Civil
Procedure Code read with Section 151 CPC and Sections
81, 83, 86 & 87 of the Representation of the People Act,
1951 is dismissed.
Jyotsna Rewal Dua
September 16, 2024 Judge
Mukesh
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