This is an application under Order VII Rule 11(d) of the Code of Civil Procedure (hereafter described as the CPC) filed by the respondent/returned candidate stating, inter alia, that the petitioner Alo Rani Sarkar has no locus standi to file the election petition challenging the general election to the Legislative Assembly for the State of West Bengal 2021 from Assembly Constituency 96 – Bangaon Dakshin (SC) held on 22nd April, 2021. The result of the said election was declared on 2nd May, 2021. The Judgment in Alo Rani Sarkar vs Swapan Majumdar (GA 4 of 2022) was served by The Hon’ble JUSTICE BIBEK CHAUDHURI.
FACTS OF THE CASE:
It is alleged by the returned candidate that the petitioner being a foreigner cannot challenge the said assembly election under Sections 80, 80A, 81 read with Sections 100, 123 and 126 of The Representation of the People Act, 1951. It is stated by the respondent/petitioner that an election petition raising a question as to the fair election may be represented by any candidate at such election or any elector. Section 16 of The Representation of the People Act, 195 disqualifies a person not being a citizen of India from registering his/her name in the electoral role of this country. The Act prohibits a foreigner to be a candidate in the election of legislative assembly of a state as if she is not an elector for any assembly constituency in that State. It is alleged by the respondent that the petitioner has voluntarily surrendered the citizenship of India as per Article 9 of the Constitution on her acquiring citizenship of Bangladesh. Therefore, she was not competent to contest the Assembly Election of 2021. It is further contended by the petitioner that she is a registered voter in Bangladesh and a citizen of Bangladesh. The husband of the petitioner is a Bangladeshi National and a doctor of repute employed as Professor of Medicine in Sher-e-Bangla Medical College, Barisal, Bangladesh. After her marriage with the said Bangladeshi National, the petitioner stayed in Bangladesh for more than five years and led her conjugal life with her husband. The relevant law of Bangladesh permits the spouse of a Bangladeshi National to acquire the citizenship of Bangladesh, if such spouse has been residing in Bangladesh for two or more years. The name of the petitioner was recorded in the electoral roll of Bangladesh. It is provided that every citizen of Bangladesh who is eligible to be a voter in Electoral Roll Act, 2009 of Bangladesh shall have the right to obtain, in the prescribed manner and subject to payment to prescribed fees, a national identity card of the prescribed class issued by the Bangladesh Election Commission. The petitioner is the holder of the National Identity Card of Bangladesh. Therefore, the petitioner cannot claim to be a bona fide citizen of India. In support of his contention the respondent has filed a copy of National Identity Card No.7307645577 issued in the name of the petitioner. In the said National Identity Card, the petitioner is shown as a bonafide voter of Anchal-“Barisal”, Division- Barisal, District-Barisal, Sub-District-Ujirpur, Bangladesh.
The court after going through the facts, Circumstances and arguments held that the continuation of the proceeding in Election Petition 2/2021 will be unnecessary and fruitless exercise of judicial process and time.
The court can under the facts and circumstances held that the election petition is liable to be dismissed under Order XII Rule 6 of the CPC. The instant application is thus disposed of. The order of dismissal of election proceeding be passed in EP2/2021. Further in view of the peculiar facts and circumstances of this case, a copy of this order be sent to the Election Commission of India for information and taking necessary action in respect of the petitioner’s status in this country as on this date, through the learned Registrar General, High Court, Calcutta.
(Bibek Chaudhuri, J.) Later After delivery of the judgment, the learned advocate for the petitioner has prayed for stay of the direction passed by this Court that sending a copy of this order to the Election Commission of India for sanction and taking necessary action in respect of the petitioner’s status in this country as on this date. The court at last finds out that any necessary to stay the operation of the said order. Therefore, the prayer is considered and rejected.
JUDGEMENT REVIEWED BY AKANKSHA