Holding

An order under Section 86(1) is deemed to be an order under clause (a) of Section 98, making it a final order appealable under Section 116A; a Special Leave Petition filed beyond the 30‑day period without condonation is not maintainable and must be dismissed.

Summary

The appellant, Dipak Chandra Ruhidas, challenged the election of Chandan Kumar Sarkar to the Assam Legislative Assembly on the ground that Sarkar's nomination was improperly accepted despite not being a Scheduled Caste member. The Gauhati High Court dismissed the election petition under Section 86(1) of the Representation of the People Act, 1951, holding that the petition was vague and lacked material particulars, and, by virtue of the Explanation to Section 86(1), treated the dismissal as an order under clause (a) of Section 98. The appellant filed a Special Leave Petition under Article 136 after the 30‑day period for filing an appeal under Section 116A, without seeking condonation of delay. The Supreme Court held that an order under Section 86(1) is a final order deemed to be an order under Section 98(a), making an appeal under Section 116A the proper remedy, and that the Special Leave Petition filed out of time was not maintainable. Consequently, the Court revoked the leave and dismissed the petition, upholding the High Court's dismissal of the election petition.

Issues considered

What is the legal effect of an order passed by a High Court under Section 86(1) of the Representation of the People Act, 1951 – does it constitute an order under clause (a) of Section 98 and thus a final order?
Whether a Special Leave Petition under Article 136 can be entertained when the statutory appeal under Section 116A is barred by the 30‑day limitation and no condonation is sought?
How should the term 'trial' be interpreted for the purposes of Sections 86 and 98 of the Act?

Legislation cited

Representation of the People Act, 1951s. 116A, s. 86(1), s. 98(a)

Subjects

election petitionRepresentation of the People ActSection 86Section 98Section 116Aspecial leave petitionArticle 136legal fictionlimitation periodfinal orderappeal

Judgment

A DIPAK CHANDRA RUHIDAS
v.
CHANDAN KUMAR SARKAR

JULY 3 I, 2003

B [V.N. KHARE, CJ., K.G. BALAKRISHNAN AND S.B. SINHA, JJ.]

Representation of the People Act,1951: S.86(1), Explanation; and ss.
98(a) and 116A-Order passed u/s. 86(1) dismissing an Election Petition -
C Allegations contained in the Election Petition found vague and lacked material
particulars-Held, by reason of the Explanation, a legal fiction has been
created in terms whereof an order passed under sub-section (1) ofS.86 would
be an order under clause(a) of S. 98-An appeal u/s. 116A lies against a final
order-An order passed under sub-section(J) of S.86 is also final-Special
D leave petition filed against the said order is not maintainable-Since the special
leave petition has been filed beyond the period of 30 days of the order, i.e.
beyond the period of limitation for filing an appeal, and no application for
conodonation of delay has been filed, the special leave petition cannot be
treated as an appeal-The leave granted is revoked and the special leave
petition is dismissed as not maintainable-Interpretation of Statutes-Legal
E fiction-Limitation for filing appeal.
Hari Shanker Jain v. Sonia Gandhi, (2001] 8 SCC 233; S. Sundaram
v. V.R. Pattabhiraman; AIR (1985) SC 582 and Bhavnagar University , ..
Palitana Sugar Mill (P) Ltd and Ors., (2003) 2 SCC 111, relied on.

F M Venugopal v. Divisional Manager, Life Insurance Corporation of
India, Machilipatnam, A.P. and Anr.;(1994) 2 SCC 323; Indian Oil
Corporation Limitedv. Chief Inspector of Factories & Ors. Etc., (1998) 5 SCC
738; Voltas Limited, Bombay v. Union of India and Ors., (1995) Supp. 2 SCC
498; Harish Tandon v. Addi. District Magistrate, Allahabad, U.P. & Ors.,
G (1995) 1 SCC 537 and G. Viswanathan etc. v. Hon'ble Speaker, Tamil Nadu
Legislative Assembly, Madras and Anr., (199612SCC353, referred to.

Constitution of India, 1950: Article 136-0rder passed uls.86(1) of
Representation ofthe People Act-Special leave petition against-Held, against
the said order an appeal lies u/s.l 16A-The special leave petition is not
H maintainable.
72
D.C. RUHIDAS v. C.K. SARKAR 73
Words and Phrases: A
'Trial'-Meaning of-Held, it is not necessary that the trial must be a
full dressed or a jury trial which concludes only after taking evidence of the
parties in support of their respective cases.

Black's Law Dictionary (p.1248), referred to. B
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8448 of2002.

From the Judgment and Order dated 31.7.2002 of the Gauhati High
Court at Assam in Misc. Case No. 28/200 l in E.P. No. 17 of 200 I.
c
Shakil Ahmed Syed and Syed Ahmed Kashif for the Appellant

Vijay Hansaria, P.I. Jose and Jayesh K.U., for the Respondent

The following Order of the Court was delivered:
D
The question as to interpretation of Section l l 6A of the Representation
of the People Act, (hereinafter referred to as "the Act") falls for consideration
in this appeal which arises out of a judgment and order dated 31.07.2002 '·
passed in Misc. Case No. 28/0 l in Election Petition N_o. 17/200 l whereby
and whereunder the Election Petition filed by the appellant herein was1 E
dismissed.

The last general election for Assam Assembly was held in May 2001.
Abhayapuri South Legislative Assembly Constituency is a reserved
constituency. The respondent herein filed his nomination for contesting election
from the said con:;tituency. On the date of scrutiny of nominations, an objection F
was made that th,~ respondent was not a member of the Scheduled Caste and,!
therefore, his nomination was liable to be rejected. However, the Returning
Officer overrulec: this objection. The respondent having received majority of
valid votes in the election was declared a member of the Legislative Assembly
from Abhayapuri South (35) Legislative assembly Constituency. The appellant G
herein who was .m elector of the aforesaid Assembly filed Election Petition
No. 17 of 200 l before the Gauhati High Court challenging the election of the
respondent on the~ ground that his nomination was improperly accepted. After
the notices were served upon the respondents in the Election Petition, the
returned candidate filed an application for dismissal of the Election Petition,
inter alia, on the ground that the allegations contained in the Election Petition H
74 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A are vague and lacked material particulars and the Election Petition need not
to go on trial. The Tribunal (High Court) after considering the matter found
that the allegations contained in the Election Petition were vague and general
and lacked material particulars. In that view of the matter, the Tribunal (High
Court) on 3 lst July, 2002 dismisse·d the Election Petition. Aggrieved, the
•••
B appellant challenged the aforesaid order and judgment of the High Court by
means of a special leave petition on 30th October, 2002. Subsequently, leave
has also been granted.

When this matter was taken up for hearing a preliminary objection was
raised on behalf of the r.espondent that this appeal by way of special leave
C petition is not maintainable, inter alia on the ground that as a regular appeal
as contemplated under Section l l 6A of the Act, could have been filed, this
special leave petition under Article 136 of the Constitution was not
maintainable. In any event as no application along with affidavit has been
filed for conodonation of delay; the same became barred by time having not
D been filed within 30 days of the order of the High Court.

Learned counsel appearing on behalf of the appellant, on the other
hand, would urge that having regard to the fact that no trial had taken place,
the provisions of Section l l 6A of the Act were not attracted. According to
the learned counsel, an appeal would lie to this Court under the said provision
E only when an order is passed by the High Court at the conclusion of the trial
as is provided for in Section 98 of the Act.

Chapter III occurring in part VI of the Act deals with trial of Election
Petitions. Sections 86, 98, and l 16A of the Act which are material for our
purposes read as under :
F
"86. Trial of election petitions. - ( 1) The High Court shall dismiss an
election petition which does not comply with the provisions of Section
81 or Section 82 or Section 117.

Explanation. - An order of the High Court dismissing an election
G petition under this sub-section shall be deemed to be an order made
under clause (a) of Section 98.

(2) As soon as may be after an election petition has been presented
to the High Court, it shall be referred to the Judge or one of the
Judges who has or have been assigned by the Chief Justice for
H the trial of election petitions under sub-section (2) of Section
D.C. RUHIDAS v.C.K. SARKAR 75

80A. A
(3) Where more election petitions than one are presented to the High
Court in respect of the same election, all of them shall be referred
for trial to the same Judge who may, in his discretion, try them
separately or in one or more groups.
(4) Any candidate not already a respondent shall, upon application B
made by him to the High Court within fourteen days from the
date of commencement of the trial and subject to any order as to
security for costs which may be made by the High Court, be
entitled to be joined as a respondent.
Explanation. - For the purposes of this sub-section and of section C
97, the trial of a petition shall be deemed to commence on the
date fixed for the respondents to appear before the High Court '
and answer the claim or claims made in the petition.
(5) The High Court may, upon such terms as to costs and otherwise
as it may deem fit, allow the particulars of any corrupt practice D
alleged in the petition to be amended or amplified in such manner
as may in its opinion be necessary for ensuring a fair and effective
trial of the petition, but shall not allow any amendment of the
petition which will have the effect of introducing particulars of
a corrupt practice not previously alleged in the petition. E
(6) The trial of an election petition shall, so far as is practicable
consistently with the interests of justice in respect of the trial, be ,
continued from day to day until its conclusion, unless the High
Court finds the adjournment of the trial beyond the following
day to be necessary for reasons to be recorded. F
(7) Every election petition shall be tried as expeditiously as possible
and endeavour shall be made to conclude the trial within six
months from the date on which the election petition is presented
to the High Court for trial."

"98. Decision of the High Court. - At the conclusion of the trial of
G
an election petition the High Court shall make an order -

(a) dismissing the election petition; or

(b) declaring the election of all or any of the returned candidates to
be void; or H
76 SUPREME COURT REPORTS (2003) SUPP. 2 S.C.R.

A (c) declaring the election of all or any of the returned candidates to
be void and the petitioner or any other candidate to have been duly
elected."

"l 16A. Appeals to Supreme Court. - (I) Notwithstanding anything
contained in any other law for the time being in force, an appeal shall
B lie to the Supreme Court on any question (whether of law or fact)
from every order made by a High Court under Section 98 or Section
99

(2) Every appeal under this Chapter shall be preferred within a period
of thirty days from the date of the order of the High Court under
c Section 98 or Section 99.

Provided that the Supreme Court may entertain appeal after the
expiry of the said period of thirty days if it is satisfied that the
appellant had sufficient clause for not preferring the appeal within
such period."
D
The question which requires consideration, as noticed herein is as to
whether what would ·be the true meaning and purport of the expression 'trial'.
Heading of Chapter III is 'Trial of Election Petitions'. Sub-section (I) of
Section 86 empowers the High Court to dismiss an Election Petition if the
E same does not co~form to the requirements of Sections 81, 82 and 117. It
may be true that other sub-sections of Section 86 provide as to the different
stages of trial. Would it mean that an order passed under sub-section (I) of
Section 86 would not be one passed at the trial.

The Explanation appended to sub-section (I) of Section 86 makes the
F position absolutely clear and implicit.

Explanation as is well-known has various functions. This Court in S.
Sundaram v. V.R. Pattabhiraman, AIR (1985) SC 582 stated:

"We have now to consider as to what is the impact of the Explanation
G on the proviso which deals with the question of willful default. Before,
however, we embark on an enquiry into this difficult and delicate
question, we must appreciate the intent purpose and legal effect of an
Explanation. It is now well settled that an Explanation added to a
statutory provision is not a substantive provision in any sense of the
term but as the plain meaning to explain or clarify certain ambiguities
H
D.C. RUHIDAS v.C.K. SARKAR 77
which may have crept in the statutory provision." A
Referring to various case laws and treatises on Interpretation of Statutes,
it was held:

"Thus, from a conspectus of the authorities referred to above, it is
manifest that the object of an Explanation to a statutory provision is- B
(a) to explain the meaning and intendment of the Act itself,

(b) where there is any obscurity or vagueness in the main enactment,
to clarify the same so as to make it consistent with the dominant
object which it seems to subserve.
(c) To provide an additional support to the dominant object of the
c
Act in order to make it meaningful and purposeful.
(d) an Explanation cannot in any way interfere with or change the
enactment or any part thereof but where some gap is left which
is relevant for the purpose of the Explanation, in order .to suppress D
the. mischief and advance the object of the Act it can help or
assist the Court in interpreting the true purport and intendment
of the enactment, and
(e) it cannot, however, take away a statutory right with which any
person under a statute has been clothed or set at naught the E
working of an Act by becoming an hindrance in the interpretation
of the same."

Explanation to Section 86( I) of the Act has been inserted for clarifying
vagueness which might have otherwise occurred in sub-section (1) of Section
86 of the Act. By reason of the said provision, thus, a legal fiction has been F
created in terms whereof an order passed under sub-section (I) of Section 86
,, would be an order under clause (a) of Section 98.
..
'
The legal fiction created by reason of the said Explanation must be
given its full effect.
G
In Bhavnagar University v. Palitana Sugar Mill (P) Ltd and Ors.,
[2003] 2 SCC 111, this Court stated:

"The purpose and object of creating a legal fiction in the statute is
well-known. When a legal fiction is created, it must be given its full
effect. In East End Dwellings Co. Ltd v. Finsbury Borough Council, G '
78 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A [1951] 2 All.E.R. 587, Lord Asquith, J. stated the law in the following
terms:-

"If you are bidden to treat an imaginary state of affairs as real,
you must surely, unless prohibited from doing so, also imagine
as real the consequences and incidents which, if the putative
B state of affairs had in fact existed, must inevitably have flowed
from or accompanied it. One of these in this case is emancipation
from the 1939 leave of rents. The statute says that you must
imagine a certain state of affairs; it does not say that having done
so, you must cause or permit your imagination to boggle when
it comes to the inevitable corollaries of that state of affairs."
c
The said principle has been reiterated by this Court in M Venugopa[v.
Divisional Manager, Life Insurance Corporation of India, Machilipatnam,
A.P. and Anr., [1994] 2 SCC 323. See also Indian Oil Corporation Limited
v. Chief Inspector of Factories and Ors. etc., [1998] 5 SCC 738, Valtas
D Limited, Bombay v. Union of India and Ors., [1995] Supp. 2 SCC 498,
Harish Tandon v. Addi. District Magistrate, Allahabad, U.P. and Ors., [l 995]
l SCC 537, G. Viswanathan etc. v. Hon 'ble Speaker and Tamil Nadu
Legislative Assembly, Madras and Anr., [1996] 2 SCC 353."

Furthermore, Section 86 deals with .trial of Election Petitions, sub-
E section (I) whereof is a part of it. Trial has not been defined. In Black's Law
Dictionary atpage 1348 it is stated:

"A judicial examination and determination of issue between parties
to action Gulf, C. & S.F. Ry. Co. v. Smit, Oki., 270 F.2d 629, 633;
whether they be issues of law or of fact, Pulaski v. State, 23 Wis. 2d
F 138, 126 N.W. 2d 625, 628. A judicial examination, in accordance
with law of the land, of a cause, either civil or criminal, of the issues
between the parties whether of law or fact, before a court that has
proper jurisdiction."

It is, therefore, not necessary that the trial must be a full dressed or a
G jury trial or a trial which concludes only after taking evidence of the parties
in support of their respective cases.

Section I l 6A provides for an appeal. The said provision must be given
a liberal and purposive construction. The scope of an appeal should be held
to be wider than an application for judicial review or a petition under Article
H 136 of the Constitution of India.
D.C. RUHIDAS v.C.K. SARKAR 79
Furthennore, the Representation of the People Act provides for a A
complete machinery. The right of appeal conferred upon a suitor must be
considered from that angle. When an order is passed under Section 98 of the
Act, the same may be in tenns of either sub-section (1) of Section 86 or
otherwise. An appeal lies against a final order. An order passed under sub-
section ( 1) of Section 86 is also final. It may be that in the event an appeal B
therefrom is allowed, the matter may be required to be sent back but that
would not render an order passed thereunder as an interlocutory one. It does
not take away the concept of the finality attached therewith.

Although, there is no direct decision on the point but it appears that this
Court in Hari Shankar Jain v. Sonia Gandhi, [2001] 8 SCC 233 entertained C
an appeal under Section l l 6A from an order rejecting the Election Petition.

Learned counsel then urg~d that this special leave petition may be
treated as an appeal under Section 116-A of the Act. An appeal is required
to be filed within 30 days of the order and judgment of the Tribunal (High
Court) and the power has been given to the Supreme Court to condone the D
delay in case of the appeal having been filed after 30 days. In the present
case no application for conodonation of delay has been filed in tenns of the
proviso appended to sub-section (2) of Section ll6A of the Act. As the
appeal would have otherwise been barred by limitation, we are not in a
position to treat this appeal as an appeal under Section I l 6A of the Act. We
are, therefore, of the opinion that the said special leave petition was not E
maintainable and leave under Article 136 of the Constitution of India was
wrongly granted. It· is, accordingly, revoked. The special leave petition is
dismissed.

There shall be no order as to costs.

R.P. Petition dismissed.