Point of Law:Election - writ petitions instituted seeking re-poll including a challenge to the decision of the 1st respondent -Election Commission refusing such prayer are not maintainable in view of the constitutional bar under Article 329(b) of the Constitution of India.

ORDER :

Joymalya Bagchi, J.

1. Both the writ petitions involve similar questions of fact and law and therefore were heard analogously and are being disposed of by a common order.

2. In W.P.No.8866 of 2021 Smt K. Ratna Prabha has prayed for countermanding the polling conducted on 17.04.2021 in the Tirupati by election on the ground of large scale incidents of fraudulent polling and booth capturing and a direction upon 1st respondent -Election Commission to consider her representation dated 17.04.2021 in that regard.

3. During the pendency of the writ petition, the representation had been considered by the 1st respondent -Election Commission vide order dated 22.04.2021 and the prayer for re-poll was turned down.

4. Therefore, IA.No.4 of 2021 has been filed praying for amendment of the aforesaid prayer and seeking a direction to quash the said order passed by the 1st respondent.

5. Gist of the allegations in the writ petition is that a large number of people had been transported into the parliamentary constituency and were stationed in lodges and Kalyana Mandapams. They were utilized to indulge in large scale fake voting which is akin to booth capturing. It is further contended these proxy voters had been supplied with fake voter identity cards and when they were confronted by officers of the 1st respondent and election agents of the petitioner, they became afraid and hurriedly left the spot without casting their votes. The administrative machinery of the State acted in a partisan manner and inspite of FIRs lodged against members of the ruling party, instead of arresting the fake voters they allowed them to escape from the spot. There is ample evidence that the ruling party had forged identity proofs and transported thousands of people to cast fake votes in 322 polling booths. Representation was made to the 1st respondent -Election Commission to countermand the election under Section 58A(2) (b) of the Representation of People Act, 1951 [for short, ‘the Act of 1951’] but the same was turned down without considering the relevant materials.

6. In W.P.No.9250 of 2021, writ petitioner -Smt Panabaka Lakshmi, who is another contesting candidate has raised similar allegations of fake voting in the course of the by election. In her representation to the 1st respondent made on 17.04.2021, it is contended more than fifteen thousand men and women were brought in private buses on the day prior to the election for the purpose of casting proxy votes. Thousands of fake voter identity cards and slips were printed with a view to get additional thirty thousand votes in favour of the ruling political party. Inspite of complaints made to police, no action was taken and none of the miscreants were arrested. Hence, prayer was made to hold re-poll in the said parliamentary constituency. However, such prayer was turned down in a cryptic and non speaking manner by the 1st respondent -Election Commission.

7. Sri Adinarayana Rao, learned senior counsel, appearing for the writ petitioner in W.P.No.8866 of 2021 submits free and fair election is a basic structure of the Constitution. 1st respondent Election Commission is the authority under the Constitution who is assigned the solemn duty to ensure holding of free and fair elections in the Country. Although overwhelming evidence with regard to rampant fake voting which is akin to booth capturing was placed on record before the 1st respondent -Election Commission, it failed to discharge its constitutional duty and declare re-poll in terms of Section 58 A (2) (b) of the Act of 1951. It is argued such decision of the Election Commission being wholly contrary to law and affecting the smooth progress of the election process the writ petition may be admitted and the Election Commission be directed to reconsider its decision in the light of the materials placed before the Court.

8. Mr. Kamat, learned senior counsel appearing for the writ petitioner in W.P.No.9250 of 2021 took us through various complaints lodged by the writ p