D.N. Prasad, J.

1. An application under Order VII, Rule 11, CPC read with Sections 81 and 86 of the Representation of People Act, 1951 (hereafter referred to as the Act) has been filed on behalf of the respondent praying therein to reject the Election Petition on the ground that it does not disclose any cause of action and the election petitioner lacks locus standi to file such petition under Section 81 of the Act.

2. It is stated that the petitioner has neither been duly nominated nor even claims to have been duly nominated as a candidate at any election. There is only a bald allegation in the election petition that the election petitioner was a candidate. The power under Article 324 of the Constitution is plenary and the election commission is competent to issue such orders as are considered by it to be expedient for the superintendence, directions and control of the preparation of the electoral rolls for, and the conduct of, all elections of Parliament, and the Election Commission has issued of direction on 6.1.1998 (Annexure A) which requires the filing of an affidavit and non-filing of the said affidavit by the election petitioner itself disqualifies for being nominated and her nomination paper has rightly been rejected by the Returning Officer. Merely filing a nomination paper does not make a person candidate as there are many other requirements which have to be fulfilled including the filing of an affidavit and the directions issued by the Election Commission was mandatory and as such the Election petition is liable to be rejected.

3. Another petition has also been filed on behalf of the respondent stating therein that the Election petitioner is not a duly nominated candidate within the meaning of Section 79(b) of the act and thus lacks locus standi to file an election petition under Section 81 of the Act. Therefore, additional issue may be framed in order to adjudicate the contentions raised by the parties i.e. "Whether the election petition is entertainable as the petitioner not being a duly nominated candidate lacks locus standi."

4. Heard the learned counsel for both sides.

Mr. K.K. Sahay, the learned counsel appearing on behalf of the respondent submitted, at the very outset, that in view of power under Article 324 of the Constitution the Election commission of India is competent to issue such orders as are considered by it to be expedient for the Superintendence, directions and control of the preparation of the electoral rolls and Election Commission of India has already issued a letter dated 6.1.1998 for furnishing the requisites information in the form of affidavit to the Returning Officer as regards to the criminal activity but the election petitioner admittedly had not furnished the said requisite affidavit with the nomination paper and due to which her nomination petition was rejected rightly by the Returning Officer. He further, argued that the Election Petition has neither been duly nominated nor even claims to have been duly nominated as a candidate at any election and merely filing a nomination paper does not make her a candidate and, therefore, the election petitioner lacks locus standi to maintain the election petition. The counsel for the respondent also relied upon the cases of Election Commission of India through Secretary v. Ashok Kumar and Ors., 2000 (8) SCC 216. Mathura Prasad v. (Sic) Khan. AIR 1990 SC. 2274.

5. Mr. H.K. Lal, the counsel for the petitioner, on the other hand, contended before me that it is true that Election Commission has got the power of Superintendence, direction and control of the preparation of electoral rolls, but the said direction of the Election Commission cannot over-ride the provisions of Representation of People Act. 1951, nor the law passed by the Parliament is subject to the direction issued by the Election Commission. It is further submitted that the election petition in the High Court is an original proceeding and it is not an appeal against the order of the Return