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3) The election petitioner has filed the election petition, inter alia, on the grounds that the respondent was the candidate of Bhartiya Janta Party at the time of election, which was the ruling party in the Center. It is contended that Electronic Voting Machine (EVM) with Voter Verified Paper Audit Trail (VVPAT) machines were not installed in the election pursuant to the directions issued by Hon'ble Apex Court in its judgment rendered in the case of Dr. Subramanian Swami Vs Election Commission of India, (2013) 10 SCC 500. After the election, several reports were published in regard to the malfunctioning of the EVMs throughout the country. Taking advantage of the situation to introduce the EVM with VVPAT, the respondent committed corrupt practices in collusion and connivance with their associates, whereby the respondent took help of experts under a planned modus operandi, for tampering / hacking / manipulating the EVMs deployed at various polling booths and, as such, hampered with the free, fair, genuine recording of votes through EVMs, which amounts to "Booth Capturing", and is an offence under Section 135A of the Representation of People Act,1951.

4) It is alleged that having knowledge of the fact that the EVMs were found to be tempered because of the non-use of EVMs with VVPAT, respondent with the help of persons who are specialized in manipulating and hacking computers and such other machine which need programming for the purpose of working, computing, calculating and classifying, tampered / hacked, the EVMs at different stages of the process of the said election and as such the respondent adopted corrupt practice and succeeded in winning the election. It is further alleged that the respondent in a pre-planned manner with specific strategy got different EVMs tempered through technology skilled professionals to get false votes in his favour. It is stated that some integrated parts of the EVMs are manufactured in U.S.A. or Japan and are imported and the assembling is done in the country itself giving every chance of hacking the EVMs. The respondent has adopted corrupt practice by misusing of technology and managed to hack the EVM in such a manner that votes casted in favour of other different candidates were added to the account of respondent.

16) Compliance of Section 81, 82 and 83 of Rule of 1961 and the rules made thereunder have not been made by the petitioner. Learned counsel for the returned candidate further submitted that the election petitioner did not raise any of the grounds raised in the election petition before the Returning Officer at the time of election or at the time of counting of votes. What has been done is that the Congress Committee of Uttarakhand on 12.03.2017 has submitted a memorandum to the Chief Election Officer, Uttarakhand, which cannot be considered as an objection filed by the election petitioner. He has submitted that so far as tampering / hacking of EVMs is concerned, the Hon'ble Supreme Court has affirmed that EVMs cannot be tempered, hacked or manipulated. Manipulation in the EVM has been challenged before the Hon'ble Apex Court, but the Hon'ble Apex Court has declined to interfere in the matter to conduct the elections through EVMs. He further submitted that as no cause of action arose to the election petitioner, the election petition is liable to be dismissed on this ground alone. Lastly it is contended that since the procedure prescribed in filing the election petition has not been complied with, thus the election petition is liable to be dismissed at the threshold.

54) Having considered the judgments (supra) and the pleadings in the election petition what has been stated in the written statement is not to be considered by this Court. This Court only has to consider the averments made in the election petition. A perusal of the averments made in the election petition would reveal that the election petition has been filed precisely on the grounds, inter alia, that the EVMs used in the said election in 19-Raipur constituency were tampered / hacked and manipulated, but the petitioner did not raise such objection just after declaration of result. Thus, this ground of challenge is not available to the election petitioner subsequent to the finalization of the electoral roll. The ground of corrupt practice, as alleged in the election petition, that the EVM is not proper mode of conducting elections, as an EVM can be manipulated, hacked to transfer the vote to credit in the account of others and the returned candidate has succeeded to manipulate the EVM. The question of manipulating the EVM has finally been decided holding that despite the opportunity those who are questioning the reliability of the EVMs never came forward and utterly failed to challenge the reliability of the election through EVMs and finally it has been settled that the EVM is the correct mode of conducting election, however, with the observation that the VVPAT should be annexed to the limit prescribed by the Hon'ble Apex Court. The next ground of challenge in the election petition is that the election petitioner did not raise any of the grounds raised in the election petition before the Returning Officer at the time of election or at the time of counting of votes. What has been done is that the Congress Committee of Uttarakhand on 12.03.2017 has submitted a memorandum to the Chief Election Officer, Uttarakhand with a request to keep all the EVMs used in the State in 2017 Assembly Elections under safe custody. Mere filing of a memorandum cannot be construed to be an objection filed on behalf of the election petitioner. Non-filing of objection in this regard before the Returning Officer at the relevant point of time amounts to waiver of the rights of the election petitioner.