The BJP candidate in Gujarat who lost the Rajya Sabha election against Congress bigwig Ahmed Patel will move court against the Election Commission’s (EC) decision to invalidate two votes in his favour. This will mainly be on the grounds that the EC ignored the missives of its Returning Officer (RO) and observer and relied only on a “flimsy” video footage.

Patel’s victory is seen as an embarrassment for the BJP, especially its president Amit Shah, who collaborated with Shankersinh Vaghela and engineered the defection of seven Congress MLAs to trounce Patel, political secretary of Congress president Sonia Gandhi.

But the party is not about to swallow defeat so easily. BJP sources said it is the only instance where the EC did not take into account the averment of its own observer and the RO, who apparently maintained that the vote was not displayed. This was the main ground for invalidating the votes of Congress rebels Raghavji Patel and Bhholabhai Gohel. Both Raghavji Patel and Gohel, incidentally, formally resigned from the Congress on Friday.

Besides, while the voting took place between 9.15 am and 5 pm, there was no report from the observer or the RO about the two Congress rebels displaying their vote, said the BJP sources. The Congress also accepted the Form 6, which means that it conceded that all votes cast were valid.

“So the only ground for invalidating the two votes against the Congress was a video footage. This will be challenged by our candidate before the appellate court,” said a top BJP leader.

For the three Rajya Sabha seats in the 182-member Gujarat Assembly, each candidate needed 46 votes to be elected. The BJP had 122 MLAs on its side, including an independent and another rebel, Nalin Kothadia. The Congress had a strength of 61 MLAs, but seven turned rebels. Subsequently, there was cross-voting. The Congress managed to scrape through when the votes of two of its MLAs who cross-voted were declared invalid and, by all accounts, one NCP and one JD(U) MLA voted for Patel.