ALO RANI SARKAR Vs. SWAPAN MAJUMDAR

JUDGEMENT

(1.) 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 22/4/2021. The result of the said election was declared on 2/5/2021.

(2.) It is alleged by the returned candidate that the petitioner being a foreigner cannot challenge the said assembly election under Ss. 80, 80A, 81 read with Ss. 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. Sec. 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.

(3.) It is also stated by the respondent that the petitioner submitted an application on 5/11/2020 before the Secretary to the Election Commission Secretariat, Dhaka requesting him to cancel her citizenship of Bangladesh on the ground that her marital tie with her husband was severed and she returned to India. It is further contended by the respondent that Bangladeshi Citizenship of the petitioner has not been cancelled yet. Therefore, she cannot claim to be a citizen of India. Naturally, she had no right to contest the Assembly Election held on 2021 in the State of West Bengal. She obtained a false voter card in her name and on the strength of the said voter card, she contested 96 Bangaon Dakshin (SC) Assembly Election. As the petitioner has no locus standi to contest the said election and recording of her name in the electoral role of this country is illegal and void ab initio, she has no right to file the instant election petition challenging the election of the returned candidate/respondent.