D.N. Prasad, J.

1. This is an application under Order VII, Rule 11 read with Section 151 of the Code of Civil Procedure for rejecting the election petition on the ground that the election-petition does not disclose any cause of action nor any fact has been stated for giving any right to the petitioner for filing this election- petition.

2. Nirbhay Kumar Sahabadi is not the person whose name is appearing in the list of candidate as mentioned in paragraph 5 of the election-petition, whereas the name of only Nirbhay Kumar is appearing in the list. Nirbhay Kumar was very much qualified under Section 5(c) of the Representations of People Act, 1951 and this fact also finds support from the true copy of the electrol roll from Giridih Constituency issued on 5.7.2000 by the competent-authority. The petitioner has proceeded only assumption. The acceptance of the nomination paper of Nirbhay Kumar by the returning officer has not at all affected the result of the election. Therefore, the election-petition is fit to be rejected.

3. No counter-affidavit has been filed on behalf of the election-petitioner.

4. Mr. Anil Kumar Sinha, senior counsel for the respondent submitted that Nirbhay Kumar was the real person who contested the election and the name of Nirbhay Kumar also finds mentioned in the voter list at serial No, 219 and there was no any objection raised against acceptance of nomination paper as well as no cause of action has been disclosed in the election-petition. It is further submitted that there is no voter list containing the name of Shri Nirbhay Kumar Sahabadi and, therefore, question of inclusion or withdrawal of the said name does not arise. The learned counsel also relied upon a case of Samar Singh v. Kedar Nath and Ors. reported in AIR 1987 SC 1926 and case of Tak Chand v. Dile Ram, reported in 2001 SOL Case No. 057.

5. On the other hand, Mr. V.R Singh, the learned counsel for the election- petitioner submitted that one Nirbhay Kumar Son of Bishwanath Prasad Sahabadi filed his nomination paper in the election claiming himself to be an electoral from 275 Giridih Assembly Constituency vide Serial No. 219 of the electoral roll and he accordingly presented his nomination paper but in fact, Shri Nirbhay Kumar was not an electrol on the relevant date of election or on the date of poll and his name was deleted from the said electrol roll which is apparent from the list of correction in which there is a name mentioned as Nirbhay Kumar Sahabadi. It is also argued that the returning officer should have rejected the nomination paper of Shri Nirbhay Kumar and if it was rejected, the vote acquired by Nirbhay Kumar would have gone in favour of Jyotlndra Prasad congress candidate as Nirbhay Kumar has got 23697 votes, whereas elected candidate Shri Chandra Mohan Prasad obtained 24722 vote and Nirbhay Kumar was not an voter from 275 Giridih Assembly Constituency and therefore he was not qualified under Section 5(2) of Representations of Peoples Act, 1951 as well as he was not entitled to present the nomination before the returning officer for the said election and the returning officer improperly accepted the nomination of Shri Nirbhay Kumar which has affected the result of the election.

6. At this stage, it may be mentioned that Annexure-1 attached with the election-petition is the correction list of voter for the year. 1996 in which name has been described as Nirbhay Kumar Sahabadi, whereas the voter list of the same serial number i.e. 219 (Annexure-A) is indicating as Nirbhay Kumar Son of Bishwanath Prasad Sahabadi for the same 275 Giridih Assembly Constituency. The election-petition has been filed on the ground that the Returning Officer improperly accepted the nomination paper of Shri Nirbhay Kumar, though Shri Nirbhay Kumar Son of Bishwanath Prasad Sahabadi was not an elector from 275 Giridih Assembly Constituency on the day of election. But, from Annexure-A, it is obvious that Nirbhay Kumar son of Bishwanath Prasad Sahabadi is the