IMPORTANT POINT
An order passed under Section 86 (1) of Representation of People s Act is final order and appeal lies against final order.

ORDER

The question as to interpretation of Section 116A 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. 28/01 in Election Petition No. 17/2001 whereby and whereunder the election petition filed by the appellant herein was dismissed.

2. 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 constituency. On the date of scrutiny of nominations, an objection was made that the respondent was not a member of the Scheduled Caste and, therefore, his nomination was liable to be rejected. However, the Returning Officer overruled 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 herein who was an elector of the aforesaid Assembly filed Election Petition No. 17 of 2001 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 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 31st July 2002 dismissed the election petition. Aggrieved, the 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.

3. When this matter was taken up for hearing, a preliminary objection we raised on behalf of the respondent that this appeal by way of special leave petition is not maintainable, inter alia, on the ground that as a regular appeal as contemplated under Section 116A 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 condonation of delay; the same became barred by time having not been filed within 30 days of the order of the High Court.

4. 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 116A of the Act were not attracted. According to the learned counsel, an appeal would lie to this Court under the said provision 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.

5. Chapter III occurring in Part VI of the Act deals with trial of election petitions. Sections 86, 98 and 116A of the Act which are material for our purposes read as under:

"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 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 the trial of election petitions under sub-section (2) of section 80A.

(3) Where more election petitions than one are presented to the High Court in respect of the same election, all of them shal