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TMI Blog2003 (7) TMI 691X X X X Extracts X X X X X X X X Extracts X X X X ..... lection Petition filed by the appellant herein was 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 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame became barred by time having not 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 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded 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. (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. (7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 (1) of Section 86 would not be one passed at the trial. The Explanation appended to sub-section (1) of Section 86 makes the 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve otherwise occurred in sub-section (1) of Section 86 of the Act. By reason of the said provision, thus, a legal fiction has been created in terms whereof an order passed under sub-section (1) 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. 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, [1951] 2 All.E.R. 587, Lord Asquith, J. stated the law in the following terms:- "If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact, Pulaski v. State, 23 Wis. 2d 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 jury trial or a trial which concludes only after taking evidence of the parties in support of their respective cases. Section 116A 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 136 of the Constitution of India. Furthermore, the Representatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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