( 1 ) THE challenge in this appeal by special leave is to the decision of the Guwhati 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.

( 2 ) ON 12-1-1993, elections to the Nagaland legislative Assembly were notified. The appellant and the respondent, along with three other candidates, contested the said elections from Dinapur Constituency No I. The result of the election for the said constituency, which was declared, was as follows:

( 3 ) ON the counting of the votes, as the appellant had secured the highest number of votes, he was declared the returned candidate.

( 4 ) THE respondent then filed an Election Petition under Section 81 read with Section 100 (1) (d) (iii) (iv) of the Representation of the People Act. 1951 (hereinafter referred to as the Act) before the Guwahati High Court. The only ground on which the selection 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 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 :

( 5 ) INASMUCH as the difference of votes between the returned and losing 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 and pattern of voting that the election result has been materially affected by reception of void votes. "

( 6 ) COUNSEL 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 S. 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 S. 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 been done by identifying and then excluding the void votes and recounting 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.

( 7 ) 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 prayed therein that the record should be scrutinised in order to ascertain as to how many void votes had been accepted. This application was not allowed by the learned Judge, who also was not allow by the learned Judge, who also did not accept the request of the respondents 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 avoi