DIPAK CHANDRA RUHIADAS Vs. CHANDAN KUMAR SARKAR

JUDGEMENT

(1.) The question as to interpretation of Section 116-A 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 31-7-2002 passed in Misc. Case No. 28/01 in Election Petition No. 17/2001 whereby and whereunder the election 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 was 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 116-A 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.