Legal Correspondent

Umesh Challiyil’s plea against election of K.P. Rajendran

High Court had earlier rejected his petition

New Delhi: The Supreme Court has asked the Kerala High Court to hear afresh an election petition questioning the election of K.P. Rajendran from Kodungalloor in the Assembly election held in April 2006.

The High Court had rejected the petition filed by Umesh Challiyil on a preliminary objection raised by Mr. Rajendran relating to the manner in which an affidavit was filed by Mr. Umesh under the Representation of the People Act. As per Form 25, the person affirming the affidavit must say that the statements and particulars given are true to his/her information. In this case, Mr. Umesh filed an affidavit stating “the averments made are within my personal knowledge, information and belief and no part thereof is false.” Mr. Rajendran raised an objection that the affidavit was not filed in the prescribed manner, viz., instead of saying that the “particulars are true,” it was stated that “no information is false.”

A single judge of the High Court in December 2006 accepted the objection and dismissed the election petition. The present appeal by Mr. Umesh is directed against this judgment.

Setting aside the impugned judgment, a Bench of Justice A.K. Mathur and Justice Altamas Kabir said “this affirmation does not in any way go to the root of the matter so as to render the entire election petition not properly constituted entailing the dismissal of the same. The defects which have been pointed out by the Single Judge were too innocuous to have resulted in dismissal of the election petition on the basis of the preliminary objection.”

Writing the judgment, Justice Mathur said “the Courts have to view it whether the objections go to the root of the matter or they are only cosmetic in nature. It is true that the election petition has to be seriously construed. But that apart the election petition should not be summarily dismissed on such small breaches of procedure.”

The Bench said “in order to maintain the sanctity of the election the Court should not take such a technical attitude and dismiss the election petition at the threshold. In the present case we regret to record that the defects which have been pointed out in this election petition was purely cosmetic and it does not go to the root of the matter and secondly even if the Court found them of serious nature then at least the court should have given an opportunity to the petitioner to rectify such defects.” The Bench remitted the matter back to the High Court for proceeding with the petition of the appellant.