I. VIKHESHE SEMA v. HOKISHE SEMA

The following Order of the Court was delivered :

The challenge in this appeaJ by special leave is to the decision of the Guwahati High Court whereby the election of the appellant to the Nagaland Legislative Assembly was declared to be void on an Election Petition having been filed by respondent No. 1, who was one of the H 157

p. 158

A candidates in the said election.

On 12.1.1993, elections to the Nagaland Legislative Assembly were notified. The appellant and the respondent, along with three other can- 1 didates, contested the said elections from Dimapur Constituency No. 1. The result of the election for the said Constituency, which was declared, B was as follows : - "SL Name of contesting Name of Party No. of votes No. candidates secured

1Copy pinpoint1. I. Vikheshe Independent 7,573 r·

c 2. H okishe Serna Indian National 7,436 (Congress-I)

3Copy pinpoint3. Atoho N. Chishi Independent 42 4 .. P. Pius Lotha N.P.C. 1,001

5Copy pinpoint5. N.C. Zeliang B.J.P. 1,160 D On the counting of the votes, as the appellant had secured the highest number of votes, he was declared the return candidate.

The respondent then filed an Election Petition under Section 81 read with Section lOO(l)(d)(iii) (iv) of the Representation of People Act, 1951 E (hereinafter referred to as 'the Act') before the Guwahati High Court. The only >,>TOund on which the election was challenged was that there had been improper reception of void votes which had materially affected the result of the returned candidate. Evidence was led to show that in the electoral rolls regarding the Dinapur Constituency No. 1 names of some of the voters F were included in two different polling stations. In other words, there was duplication of names of some of the voters. Analysing the evidence, the High Court found that the position which emerged with regard to the reception of the said duplicate votes was as follows:

Marked Ballot Polling Total Votes Defect in Total Electoral Paper Station votes polled voters, No. of G Roll account No. electoral roll defective with SJ. No. votes. I 2 3 4 5 6 7

Ex. 3(3) 1(8) 5 815 750 298 to 567 269 except 565 H

I. V!KHESHE SEMA v. HOKISHE SEMA 159

Ex.3(4) 1(4)8 6 880 820 151 to 420 269 A Ex.3(5) 1(5)14 28 279 270 127 to 279 153 (Addl. 153) Ex.3(6) 1(6)6 21 606 580 454 to 606 153 2580 2420 844 B Inasmuch as the difference of votes between the returned and loosing candidate was 137 votes, the High Court came to the conclusion that 844 votes were void and that there was "no room for doubt even taking into account the demonstrable trend and pattern of voting that the election result, has been materially affected by reception of void votes." C

Counsels for the parties have not disputed, in this appeal, the facts as enumerated hereinabove though there may be discrepancy regarding the number of defective votes of one or two, but the same is not material at this stage. What is contended on behalf of the appellant is that the High D Court has misconstrued the provisions of Section 62 of the Act and that it wrongly presumed that about 844 votes were void. It was contended that no evidence had been Jed by the respondent to show as to which of the persons had voted twice because on a correct interpretation of Section 62 of the Act, only those votes would be regarded as void where a person has voted more than once. Lastly, it was submitted that before setting aside the election, the High Court ought to have come to a definite conclusion that reception of void votes had materially affected the election. This could only have done by identifying and then excluding the void votes and re-counting the valid votes but because the High Court had not done this, the election of the appellant could not have been set-aside on the presumption that void votes had been received by him which had materially affected the results.

It was submitted by Mr. Mittal, learned counsel for the respondent that looking at the analysis of the votes polled at polling Station Nos. 5, 6, 21 and 28 it was evident that some persons must have voted more than once, as it was not in dispute that there was the aforesaid defect in the voters electoral rolls. He further contended that an application had been filed by the respondent before the High Court for in<pection of the ballot papers and it was prayed therein that the record should be scrutinised in order ascertain as to how many void votes had been accepted. This application was not allowed by the learned Judge, who also did not accept H

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A the request of the respondent's counsel, at the time of arguments, that the ballot papers should be summoned and the Registrar of the Court should be asked to examine them and give a report after excluding the void votes. The High Court did not adopt this course presumably because, it came to the conclusion that having regard to the narrow margin of victory and the B large number of void votes which had been cast, the respondent had been able to establish that the election result was materially affected by the improper reception of void votes.

The only challenge to the election being on the ground that election had been materially affected because of reception of void votes, it is c necessary to construe Section 62 of the Act which states as to which votes will be regarded as void. The said Section 62 is as follows :

"62 Right to vote-(1) No person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of any constituency shall be D entitled to vote in that constituency.

(2) No person shall vole at an election in any constituency if he is subject to any of the disqualifications referred to in Section 16 of the Representation of the People Act, 1950 (43 E of 1950).

(3) No person shall vote at a general electior. in more than one constituency of the same class, and if a person votes in more than one such constituency, his votes in all such constituencies shall be void. F (4) No person shall at any election vote in the same constituen- cy more than once, notwithstanding that his name may have been registered in the electoral roll for that constituency more than once, and if he does so vote, all his votes in that constituency shall be void." G It is not in dispute that once the electoral rolls had become final, the validity of the same cannot be challenged in an Election Petition. If, ~owever, it is found that the name of a person is recorded in more than one constituency or more than once in the same constituency, then section H 62(3) &(4) come into play. If the name of a person is included in more

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than one constituency, then sub-section (3) of Section 62 states \jlat he shall A ·- not vote at a general election in more than one such constituency. If he

' votes at more than one constituency, then his vote in all the constituencies in which he has voted, shall be deemed to be void. Section 62(4) of the Act which is applicable in the present case provides that if the name of a person is included in the electoral roll in more than one places in the same B constituency, then he shall not vote more than once hut if he does so vote, all his votes in the constituency should be regarded as void. It is evident from the plain reading of the language of sub-sections (3) or (4) of Section 62 that mere inclusion of the names of voters at more than one placed would not ipso facto render all those votes as void. If the name of a voter is included at more than one place whether in more thao one constituency c or at more than one place in the same constituency, he has the right to choose as to where he may vote but this right can be exercised by him only once. The reason obviously is that every voter has only one vote and he has a right to vote only once and no more. If he chooses to vote at more than one place, it is only then the vote of that person, wherever he has voted, would be regarded as being void.

The High Court wrongly proceeded on the basis that merely because there was duplication of names in the voters lists then all such votes must be regarded as void votes without deciding whether those persons had even voted. The votes of only those persons would be void, as already observed, who had voted more than once.

While not disputing that there had been duplication of the voter's names in the electoral rolls, as has been indicated hereinabove, it was, however, submitted by the learned counsel for the appellant that the respondent did not identify, by leading evidence, as to which of the voters had voted more than once because it is only thereafter that their votes could be regarded as being void, and eliminated from consideration. It is true that in the present case there is no specific identification of which of the voters have voted more than once. However, the facts speak for themselves, e.g. in booth No. 5, total number of votes as as per the electoral roll were 815 and out of this 750 voters cast their votes. Therefore, 65 of the registered voters did not cast their votes. The total number of defective votes i.e. where names of voters appeared in the electoral lists of both polling station 5 & 6, was 269. Assuming that 65 persons who did not cast their voters were those whose names had been entered more than once or H

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A whose names had been duplicated, and by substracting the said 65 number from the 269 defective votes, it is clear that at least 204 out of these 269 votes must have polled in polling station No. 6. A similar exercised shows that atleast 209 out of 269 defective duplicate voters must have voted. Taking the case of booth Nos. 5 & 6 together, it would be safe to conclude that at least 204 voters must have voted more than once. Therefore, as far B as booth Nos. 5 & 6 are concerned, 408 votes had to be excluded. This is a mathmetical conclusion which the Court can safely arrive at on the basis of evidence available before it. A similar exercise with regard to the duplicate votes regarding polling Station Nos. 21 & 28 also shows that at least 127 persons would have voted twice. Therefore, 354 votes of polling c station Nos. 21 & 28 combined would be void. On this basis, it would appear that about 862 votes would be regarded as void votes. We may here again mention that at the lime of arguments, it was pointed out that perhaps the total number of defective votes mentioned by the High Court was not correct, but the difference was very minor an<l, therefore, we have proceeded for the purpose of deciding this appeal, on the basis of the figure of the defective votes indicated in the impugned judgment.

The mistake which had been committed by the High Court in the present case is in assuming that these 862 votes had materially affected the result of the election. In coming to this conclusion the High Court took into account what it termed as "the demonst;able trend and pattern of voting". The High Court over-looked the fact that apart from the appellant and the respondent, there were three other candidates who polled a total a 2203 votes. Before an election can be set-aside there has to be a definite finding, based on evidence, to the effect that the reception of these 862 F odd votes had materially affected the result of the election. As held by this Court in Vashit Narain Shanna v. Dey Chandra & Ors., [1955] 1 S.C.R. 509, the words "the result of the election had been materially affected" in Section lOO(l)(c) of the Act, 1951 indicates that the result should not be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that the wasted votes, in that case, v.'ould have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidate. Applying the same principle in the present case, once it is ascertained that the number of void votes which have been polled are more than the difference of votes polled by the returned candidate and the defeated candidate, then it has lo be ascertained as to whether those void

I. VIKHESHE SEMA v. HOKISHE SEMA 163

votes, which were polled and had been counted, if excluded from con- A sideration would have materially affected the result of the election.

The respondent, in the present case, had beeu successful in showing at least mathmetically, that a large number of void votes had been polled. It it, ho\vever, not kno\vn as to in whose favour the void votes \Vere cast. Once this stage had been reached where the Court was satisfied that large B number of void votes had been counted, then the High Court ought to have examined the ballot papers and ascertained as to which specific votes were void and should then have excluded them from consideration and re-count- ing should have been done thereafter. The respondent, apparently being conscious of this, had flied a miscellaneous application before the High c Court contending that the ballot papers should be examined and scrutinised in order to find out the void votes which had been accepted and to ascertain as to how those said votes had affected the outcome of the election. The High Court chose not to pass any order on this applica- tion. The High Court has noted in its judgment that the learned counsel for the respondent had submitted on the conclusion of the recording of evidence that record of the ballot papers should be summoned and, in order to preserve the secrecy, the Registrar of the Court should be asked to submit his report on going through the ballot papers with regard to the casting of the void votes. The High Court, unfortunately, neither allowed the said application of the respondent nor accepted the said contention of the respondent's counsel.

Once, the High Court was convinced, and it was evident from the facts on record that a large number of void votes had been received and they could have affected the outcome of the election, then it was under a F duty to have taken the next logical step which would have been to examine the votes which had been cast, exclude the void votes and then re-counted the valid votes in order to come to the conclusion whether the reception of the void votes had materially affected the result of the returned can- didate. Without undertaking this exercise the High Court was wrong in coming to the conclusion that the election of the appellant had been G materially affected and that the same should be set-aside.

It appears to us that the course which was adopted in the case of Bashir Ahmad Magrey v. Glzztlam Quadir, Mir & Ors., [1977] 2 SCR 297 is the one which requires to be followed. In that case, the election of the H

164 SUPREME COURT REPORTS (1996J SUPP. 2 S.C.R.

A returned candidate had been set aside by the High Court after it had counted the votes which had been improperly rejected. When the appeal came up for hearing before this Court, an urder was passed whereby the '1 Registrar (Judicial) of this Court was deputed to inspect, in the presence uf parties and their counsels, the 550 votes \vhich \Vere in question in that ti case and he \Va~ required to subn1it a report thereafter. Aftl'.r this exercise B was undertaken, the Registrar (Judicial) submitted a report after examining ballot papers and it was found that the exce°' of votes validly polled in favour of the returned candidate over those of the respondent therein \Vere

38. Accepting this report, this Court accepted and appeal and upheld that the election of the returned candidate. c In our opinion, an exercise si1nilar to the one \vhicn \Vas carried out in Bushir Alunad's case (supra) .:-hould be undertaken, rather than setting- asi<lc the judgment and remanding the case to the High l'ourt. In matters r~rtaining to elections, it i:-. desirable that the disputes should be resolved as expediously as possibl<.: \Vhilc, ;it the same ti1nc, ensuring the purity of ]) the elections. \Ve accordingly, dircl'.t the High C.~ourt to send to this Court all the ballot papers in respect of the Dimapur Constituency No. 1 the election of which was held to the Nagaland Legislative Assembly on 15.3.1993, within four weeks from the dale of this order. We depute the Registrar (Judicial) of this Court to make an inspection after notice to and in the presence of the parties and their counsels, of all the said ballot papers, identify the void votes which had been cast in respect of polling station Nos. 5.6.21 & 28 and to exclude the said void votes and then count the number of votes received by each of the five candidates. The report should be submitted to this Court by the Deputy Registrar within eight weeks. Appeal to be put up for formal disposal as soon as the report is ready.

R.P. Appeal allowed.