I. VIKHESHE SEMA versus HOKISHE SEMA

Citation: [1996] SUPP. 2 S.C.R. 157 · Decided: 01-05-1996 · Supreme Court of India · Bench: A.M. AHMADI, B.N. KIRPAL · Disposal: Appeal(s) allowed

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Judgment (excerpt)

I. VIKHESHE SEMA 
A 
v. 
HOKISHE SEMA 
MAY 1, 1996 
[A.M. AHMADI, CJ. AND B.N. KJRPAL JJ.] 
B 
Representation of the People Act, 1951. 
Ss.62, JOO(l)(d)(iii) and (iv)--Legislative Assembly Elec-
tions-Duplication and names of some of voters-Votes cast by such voters 
C 
materially affecting election result-Held, High Court would send to this Court 
all ballot papers in respect of the relevant constituency-Registrar of this Cowt 
would make an inspection after notice to and in presence of the parties of alt 
the said ballot papers, identify the void votes cast in respect of relevant polling 
stations and would exclude the said void votes and then count the number of 
votes received by each candidate. 
D 
Bashir Ahmad Magrey v. Ghulam Quadir Mir & Ors., (1977] 2 SCR 
297 and Vashit Narain Shanna v. Dev Chandra & Ors., [1955] l S.C.R 509, 
relied on. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 13 of E 
1995. 
From the Judgment and Order dated 30.11.94 of the Assam High 
Court in E.P. No. 1 of 1993. 
B.N. Naik, AR. Barthakur, Kailash Vasdev and C.K. Sasi for the 
Appellants. 
R.N. Mittal, Virendra Sood, Ms. Indra Sawhney and Deepak Dewan 
for the Respondents. 
The following Order of the Court was delivered : 
F 
G 
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 
158 
SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R. 
A 
candidates in the said election. 
On 12.1.1993, elections to the Nagaland Legislative Assembly were 
1
notified. The appellant and the respondent, along with three other can-
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 : 
c 
D 
-
"SL 
Name of contesting 
Name of Party 
No. of votes 
No. 
candidates 
secured 
1. 
I. Vikheshe 
Independent 
7,573 
r· 
2. 
H okishe Serna 
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 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 
G 
Electoral 
Paper 
Station 
votes 
polled 
voters, 
No. of 
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 
H 
except 565 
I. V!KHESHE SEMA v. HOKISHE SEMA 
159 
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 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 
A 
B 
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 
pers

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