BIREN VAISHNAV, J.

1. The applicant of Election Application No. 26 of 2018 (hereinafter referred to as 'the applicant') is the original respondent no. 3 whose election to the 33 Prantij Legislative Assembly Constituency is under challenge in the election petition. This application has been filed by the elected candidate-original respondent no. 3 invoking the provisions of Order 7 Rule 11 of the Code of Civil Procedure, 1908 (for short 'the Code'). According to the applicant, the election petition being Election Petition No. 12 of 2018 filed by present respondent no. 1 ought to be dismissed as (i) it does not disclose any cause of action and (ii) is barred by law.

2. It is the case of the elected candidate that the petition filed by the election petitioner does not comply with the mandatory provisions of The Representation of the People Act, 1951 (hereinafter referred to as 'the Act') more particularly Chapter III of the Act. According to the applicant, the application is clearly barred under the provisions of Order 7 Rule 11 (a) and (d) of the Code.

3. In order to decide the controversy at hand, the case of the election petitioner who has filed such petition under Sections 80 and 81 read with Section 100 of the Act need to be set out. The prayer in the election petition reads as under :

"A. Declare para 5 of the Press Note, bearing No. ECI/PN/80/2017, dated 25.10.2017, issued by the Election Commission of India (Respondent No. 2), providing for the verification of votes of only one EVM with the VVPAT per constituency, as void ab initio and non-est in the eyes of law;

B. Declare the Press Note, bearing No. ECI/PN/90/2017, dated 08.12.2017, issued by the Election Commission of India (Respondent No. 2), providing for the verification of votes of only one EVM with the VVPAT per constituency, as void ab initio and non est in the eyes of law;

C. Set aside the election of Respondent No. 3 (three) to the Gujarat Legislative Assembly at the elections held in December, 2017, results of which were declared on 18.12.2017 (Eighteenth December Two Thousand Seventeen);

D. Allow the petitioner to apply to Respondent No. 1 for counting of votes polled through Voter Verifiable Paper Audit Trail (VVPAT) for all or any EVM as per Rule 56D of the Conduct of Election Rules, 1961, and further direct Respondent No. 1 to take further action on the application as per Rule 56D of the Conduct of Elections Rules, 1961, including the declaration of the returning candidate by considering the votes counted through the VVPATs;

4. It is the case of the election petitioner that he is aggrieved by the procedure adopted for counting of votes which is in contravention of The Conduct of Election Rules, 1961 as amended by the Conduct of Election (Amendment) Rules, 2013. He has prayed for appropriate directions to the respondent no. 1 i.e. Election Officer/Returning Officer, 33 Prantij Legislative Assembly Constituency. It is the case of the petitioner that the Election Commissioner of India by a press note dated 25.10.2017 notified elections to the Gujarat Legislative Assembly. In the press note dated 25.10.2017, para 5 states as under:

"... On a pilot basis, VVPAT from One (1) Polling Station in each Assembly Constituency will be randomly selected to count VVPAT paper slips for verification of the result obtained from the Control Unit. Thus paper slip for 182 polling stations will be counted in Gujarat. ..."

4.1 Even the press note dated 08.12.2017 stated as under:

"For the ensuing elections in Gujarat and Himachal Pradesh, the Commission has decided to undertake a mandatory verification of VVPAT paper slips of randomly selected 01 (one) polling station per Assembly Constituency on a pilot basis for greater transparency and credibility of the election process. Hence, a mandatory verification of at least 182 polling stations in Gujarat and 68 polling stations in Himachal Pradesh through the recount of VVPATs paper slips would be done during the Counting Process in t