JUDGMENT :

Rohit B. Deo, J.

The petitioner, who contested the election to the 17th Lok Sabha from the Gadchiroli-Chimur Constituency as the candidate of the Vanchit Bahujan Aghadi, and lost the electoral battle, is seeking a declaration that the election of respondent 3 is null and void for "noncompliance with the laws".

2. Respondent 3, who is declared elected, is seeking rejection of the election petition on the premise that the petition, even if the averments therein are taken at face value, fails to disclose cause of action and entails rejection in view of the provisions of Sections 83(1), 86(1) and 100(1)(d)(iv) of the Representation of the People Act, 1951 ("Act" for short) and Order VII Rule 11(a) of the Civil Procedure Code ("Code" for short).

3. It would not be necessary to consider the plethora of decisions which enunciates the scope of Order VII Rule 11(a) of the Code since the learned Counsel representing the combatants are in unison in the submission that the Court is obligated to reject the plaint if on a meaningful and holistic consideration of the plaint averments, and assuming the averments to be true, a clear right to sue or cause of action is not discernible. It would be apropos to have a bird's-eye view of the averments in the petition to ascertain whether a cause of action is disclosed.

4. Paragraph 5 of the petition avers that of the 15,80,070 registered voters 11,42,636 cast votes. The petitioner secured 1,11,468 votes and the Bhartiya Janta Party sponsored candidate-respondent 3 secured 5,19,968 votes. Paragraph 5 of the petition reads thus :

"In the loksabha constituency of the Gadchiroli-Chimur Loksabha there were 15,80,070 registered voters. Of which 11,42,636 polled their votes. Petitioner according to the Respondent No.2 fared 1,11,468 votes, whereas the Respondent No.3 sponsored by Bhartiya Janta Party fared 5,19,968 votes. However the final tally of the votes does not match and there is serious discrepancy in the grand total. There is difference of 62 votes less than the votes polled."

4.1] Paragraph 6 of the petition reads thus :

"In such circumstances, it was mandatory for the Respondent No.2 to match the tally between the votes recorded in accordance with form 17C and votes counted. Only after such tally matches without any error, could the Respondent No.2 have proceeded further. However without following the specific orders for the Respondent No.1, Respondent No.2 issued certificate to the Respondent No.3, leaving behind serious lacunae which makes the whole election redundant and vitiated.

[4.2] In paragraph 7 of the petition, the averment is that respondent 2-Returning Officer (RO) is responsible for the safe custody of the Electronic Voting Machine (EVM) and the fact that there is serious difference in the number of polled votes and counted votes would suggest that respondent 1-The Election Commission of India (ECI) and respondent 2-RO have committed corrupt practice.

[4.3] In paragraph 8 of the petition, the averment is that the certificate is issued in contravention of the provisions and is liable to be declared illegal and void.

[4.4] In paragraph 9, the averment is that in the teeth of the unexplained discrepancy in the votes polled and the votes counted EVM cannot be trusted and fresh poll be conducted with the aid of ballot papers.

[4.5] Paragraph 10 of the petition avers that in view of the directions of the ECI, it was mandatory for the RO to refrain from proceeding further and to refer the issue to the ECI.

[4.6] In paragraph 11, the petitioner has reproduced instruction 15.30(d) of the Handbook for Returning Officer issued by the ECI to substantiate the contention that the issue of the discrepancy in the polled votes and counted votes ought to have been referred by the RO to the ECI. Paragraph 11 reads thus :

"It would be necessary to quote here the extant provision under which, Responde