Kerala High Court Rejects Objections Against Maintainability Of Election Petition Against Muslim League MLA

Rejecting Perinthalmanna MLA Najeeb Kanthapuram's objections against an election petition pending against him, the Kerala High Court recently said the case will go for trial for a decision on the rejection of 348 ballot papers in the matter.

Justice A. Badharudeen in the ruling considered the question whether it is necessary to plead all essential facts in detail and if deviation or lack of pleadings would lead to summary rejection of the plaint. The counter argument before the court was that the importance of pleadings and its meticulous evaluation would apply only in such cases where the election is challenged on the ground of any corrupt practice.

The court said when corrupt practice is alleged to set aside the election of a returned candidate, the very minute details of the allegation are required to be specifically pleaded as provided under Section 83(1)(b) of the R.P Act and any sort of omission is a reason to reject the Election Petition.

"However, when the election of a returned candidate is put under challenge specifically for the ground (iv) of S.100(1)(d), for any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, then also the Election Petition shall contain a concise statement of the material facts on which the petitioner relies as mandated under Section 83(1)(a) of the R.P Act with sufficient pleading highlighting the non-compliance with the provisions of the Constitution or of the R.P Act or of any rules or orders under the R.P Act," the court added.

It further said when the election is challenged on the ground of improper rejection, refusal or rejection of any vote, the petition is required to contain a concise statement of the material facts on which the petitioner relies, as provided under Section 83(1)(a) of the R.P Act.

The petition against Kanthapuram's election has been challenged on two grounds - improper rejection of votes and for non-compliance of the provisions of the constitution and R.P Act, read with the Conduct of Election Rules.

Another argument before the court was that violation of guidelines issued by the Election Commission of India cannot be a ground for setting aside an election under Section 100 of the RP Act. Kanthapuram argued that the election can be set aside only for non-compliance with the provisions of the Constitution or the R.P Act or any rules or orders made under the R.P Act.

Rejecting the argument, the court said the `Guidelines for voting through postal ballot by absentee voters in the category of senior citizens, PwDs and Covid-19 suspect or affected persons' shall have to be read as guidelines in the form of Rules issued by the Election Commission of India by invoking powers under Article 324 of the Constitution of India within the ambit of Section 100(1)(d)(iv) of the R.P Act.

"The specific case of the petitioner as pleaded in the petition, especially in para.21 is that if 348 postal ballots were improperly rejected, the said pleading is sufficient to go further in this election petition without setting rest to the entire proceedings before having trial," the court said.

Indian Union Muslim League candidate Kanthapuram had filed an application objecting to the petition challenging his election from Perinthalmanna Assembly Constituency in 2021. The main dispute in the case pertains to the validity of the 348 postal ballots by absentee voters.

Senior Advocate T. Krishnanunni, and Advocates Meena A., Vinod Ravindranath, M.R. Mini, Ashwin Sathyanath, K.C. Kiran, M. Devesh, and Anish Antony Anathazhath represented Kanthapuram.

Senior Advocate S. Sreekumar, and Advocates P. Martin Jose, P. Prijith, Thomas P. Kuruvilla, Manjunath Menon, Ajay Ben Jose, Sachin Jacob Ambat, R. Githesh, Harikrishnan S., and Anna Linda V.J. represented the original petitioners.

Case Title: Najeeb Kanthapuram v. K.P. Mohammed Musthafa @ K.P.M. Musthafa & Ors. 

Citation: 2022 LiveLaw (Ker) 634 

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