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PETITIONER: I. VIKHESHE SEMA

       Vs.

RESPONDENT: HOKISHE SEMA

DATE OF JUDGMENT:       01/05/1996

BENCH: AHMADI A.M. (CJ) BENCH: AHMADI A.M. (CJ) KIRPAL B.N. (J)

CITATION:  1996 AIR 1842            1996 SCC  (4)  53  JT 1996 (6)   100        1996 SCALE  (4)93

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      The challenge in this appeal 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 candidates in the said election.      On 12.1.1973.  elections to  the  Nagaland  Legislative Assembly were  notified. The  appellant and  the respondent, along  with  three  other  candidates.  contested  the  said elections from Dimapur Constituency No. 1. The result of the election for  the said Constituency, which was declared, was as follows: "Sl.   Name of     Name of Party   No. of votes secured. No.    contesting        candidates --------------------------------------------------------- 1.    I. Vikheshe     Independent        7,573 2.    Hokishe Sema    Indian National    7,436                       (Congress-I) 3.    Atoho N.Chishi  Independent           42 4.    P. Pius Lotha   N.P.C.             1,001 5.    N. C. Zeliang   B.J.P.             1,160 ---------------------------------------------------------      On the  counting of  the votes.  as the  appellant  had secured the  highest number  of votes,  he was  declared the returned candidate.      The respondent  then filed  an Election  Petition under Section 81  read with  Section 100(1)(d)(iii)  (iv)  of  the Representation of Peoples Act, 1951 (hereinafter referred to as ’the  Act’) before  the Guwahati  High  Court.  The  only ground 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

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regarding the  Dinapur Constituency  No. 1, names of some of the voters  we e 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 tee reception of the said duplicate votes was as follows: "----------------------------------------------------------- Marked     Ballot  Polling  Total  Votes   Defect  Total Electoral  paper   Station  votes  polled  in      No. of Roll.      account No.                     voters’ defective                                            elect-  votes                                            oral                                            roll                                            with                                            Sl.No. -----------------------------------------------------------"   1         2        3       4       5        6        7 Ex.3(3)   1(8)       5      815     750   298 to 567  269                                           except 565. Ex.3(4)   1(4)8      6      880     820   151 to 420  269 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 ------------------------------------------------------------      Inasmuch  as   the  difference  of  votes  between  the returned and  loosing candidate was only 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  the  pattern  of  voting  that  the election result,  has been  materially affected by reception of void votes."      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 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 led 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 ones.  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 been  done by  identifying and  then excluding the void votes and  recounting the  valid votes  but because the High Court had not done t 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 inspection of  the ballot  papers and  it was preyed therein that the  record should be scrutinized in order to ascertain as  to   how  many   void  votes  had  been  accepted.  This application was  not allowed  by the learned Judge, who also did not  accept the  request of the respondent’s counsel, at

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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 Count  did not adopt this course presumably because. it came to the conclusion that having regard to the narrow margin  of victory and the 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 necessary to construe Section 62 of  the Act  which states  as  to  which  votes  will  be regarded be  regarded as  void. The  said Section  62 is  as follow:      62 Right  to vote-(1) No person who      is not,  and  accept  as  expressly      provided by  this Act, every person      who is,  for the time being entered      in  the   electoral  roll   of  any      constituency shall  be entitled  to      vote in that constituency.      (2) No  person  shall  vote  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 of 1950).      (3)  No  person  shall  vote  at  a      general election  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.      (4) No person shall at any election      vote in  the same constituency more      than once, notwithstanding that his      name may  have been  registered  in      the   electoral   roll   for   that      constituency more than once, and if      he doss  so vote,  all his votes in      that constituency should be void."      It is  not in dispute that once the electoral rolls and become final,  the validity of the same cannot be challenged in an  Election Petition.  If, however, it is found that the name of  a person  is recorded in move than one constituency or more  than once  in the  sane constituency.  then Section 62(3) &  (4) come  into play.  If the  name of  a person  is included in  more then one constituency, then subsection (3) of Section  62 states  that he  shall 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 was 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 constituency, then he shall not vote more then once but if he does so vote, all votes in the constituency should be regarded an vote. 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 places 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 than  one constituency  or at more than one place in  the same  constituency, he has the right to choose

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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 one and no more. If  he chooses  to vote  at mere 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 that 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 that  once. However,  the facts  speak  for themselves, e.g.  in booth  No. 5,  total number of votes 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 votes were those whose names had been  entered more  than once,  or whose  names had been entered more  than once, or whose names had been duplicated, and by subtracting the said 65 number from the 269 defective notes, it  is clear that at least 204 out of these 269 votes must have  polled  in  polling  station  No.  6.  A  similar exercise  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  as booth  Nos. 5 & 6 are concerned, 408 votes had to be excluded.  This is  a mathematical  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  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 time 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 and. 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 demonstrable  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 of  2203  votes.  Before  an election can be set-side there has to be a definite finding, based on evidence, to the effect that the reception of these 862 odd  votes had  materially affected  the result  of  the

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election . As held by this Court in Vashit Narain Sharma Vs. Dev Chandra  & Ors. 1955 (1) S.C.R. 509, the words, affected in Section  100(1)(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,  would have  bean 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 dafeated  candidate, then  it has  to  be ascertained as  to whether  those  void  votes,  which  were polled and  had been counted, if excluded from consideration would have materially affected the result of the election.      The  respondent,   in  the   present  case,   had  been successful in showing. at least mathematically, that a large number of  void votes  had been  polled. It is, however, not known as  to in  whose favour the void votes were cast. Once this stage  had been  reached where  the Court was satisfied that large  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-counting should have  been done thereafter. The respondent apparently being  conscious   of  this,   had  filed   a  miscellaneous application before the High Court contending that the ballot papers should  be examined  and scrutnised  in order to find cut the  void votes which had been accepted and to ascertain as to  how those  said votes the affected the outcome of the election. The High Court chose not to pass any order on this application. 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 Ragistrar  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 duty to have taken the next logical step which would have been to examine the votes which had  been cast,  exclude the  void votes  ant then re- counted the  void votes  in order  to come to the conclusion whether the  reception of  the  void  votes  had  materially affected the  result of  the  returned  candidates.  Without undertaking this exercise the High Court was wrong in coming to the  conclusion that  the election  of the  appellant had been 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 Magrev Vs. Ghulam Quadir Mir & Ors. 1977 (2)  SCR 297  is the one which requires to be followed. In that  case, the  election of  the 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 order was passed whereby the  Registrar (Judicial)  of this Court was deputed to inspect,  in  the  presence  of  the  parties  and  their counsels, the  550 votes which were in question in that case

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and he  was required  to submit  a report  thereafter. After this  exercise  was  undertaken,  the  Registrar  (Judicial) submitted a  report after examining ballot papers and it was found that  the excess  of votes  validly polled  and it was found that  the excess  of votes validly polled in favour of the returned  candidate over those of the respondent therein were 38.  Accepting this  report, this  Court  accepted  the appeal and upheld the election of the returned candidate.      In our  opinion, an  exercise similar  to the one which was carried  out in  Bashir Ahmad’s  case (supra)  should be undertaken,  rather  than  setting-aside  the  judgment  and remading the  case to  the High court. In matters pertaining to elections,  it is  desirable that  the disputes should be resolved as  expeditiously as  possible while,  at the  same time, ensuring  the purity of the elections. We accordingly, direct the  High Court  to send to this Court all the ballot papers in  respect of  the Dinapur  Constituency No.  1  the election of  which was  held  to  the  Nagaland  Legislative Assembly on  15.3.1993, within  four weeks  from the date of this order. We depute the Registrar (Judicial) of this Court to make  an inspection after notice to and n 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.