Alo Rani Sarkar vs Swapan Majumdar
2022 Latest Caselaw 1642 Cal/2

                       IN THE HIGH COURT AT CALCUTTA
                       ELECTION PETITION JURISDICTION
                                ORIGINAL SIDE

The Hon'ble JUSTICE BIBEK CHAUDHURI


                                    GA 4 of 2022
                                     EP/2/2021

                               ALO RANI SARKAR
                                          -Vs-
                              SWAPAN MAJUMDAR

        For the petitioner:         Mr.   Anirban Ray, Adv.,
                                    Mr.   Rajarshi Datta, Adv.,
                                    Mr.   Piyush Agarwal, Adv.,
                                    Mr.   Piyush Ray, Adv.,
                                    Mr.   Agnish Basu, Adv.,
                                    Mr.   Raghav Beriwal, Adv.
        For the respondent:         Mr. Jagriti Mishra, Adv.,

Mr. Arindam Paul, Adv., Ms. Parna Mukherjee, Adv.

        For the ECI:                Mr. A. Samanta, Adv.,
                                    Ms. Nabanita Chatterjee, Adv.

Hearing Concluded on: 13.05.2022
Judgment on: 20.05.2022.


BIBEK CHAUDHURI, J. : -

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 22nd April, 2021. The result of the said election was declared on

2nd May, 2021.

2. 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.

3. It is also stated by the respondent that the petitioner submitted an

application on 5th November, 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.

4. The petitioner, namely, Alo Rani Sarkar has filed an affidavit-in-

opposition denying the material allegations made out by the respondent in

his application under Order VII Rule 11(d) of the CPC. Beside denial of the

allegation labeled against her in the aforesaid application, it is specifically

stated by the petitioner that the respondent previously challenged the

maintainability of the election petition filed by the petitioner and by an

order dated 13th August, 2021, this Court passed an order holding the

election petition maintainable in law and form. It is further stated by the

petitioner that she was born in Baidyabati, Hooghly on 22nd March, 1969

and she is a citizen of India by birth under the provision Section 3(1)(1) of

the Citizenship Act, 1955. The petitioner is a bona fide holder of a

passport, voter identity card, permanent account number card and

Aadhar Card issued by the competent authorities in India. She also owns

landed property in her name in the State of West Bengal. All these

documents prove her citizenship of this country. She further admits that

in the year 1980 she got married to one Horendranath Sarkar, who is a

citizen of Bangladesh and thereafter resided with him in Bangladesh for

few years. Subsequently, due to irreconcilable differences she has broken

all marital ties with her husband and presently residing at 7 Tustu Babu

Road within Police Station Kanchrapara. In the first week of November,

2020, she found that her name was erroneously enrolled in the voter list

of her husband's native place. Immediately on 5th November, 2020, she

made a representation to the Secretary, Election Commission Secretariat,

Dhaka requesting him to delete/strike off her name from the voter list of

Bangladesh and also for cancellation of her national identity card of

Bangladesh. The concerned authority upon spot inspection and on the

basis of inquiry observed that the petitioner is an Indian Citizen by birth

vide its Memo dated 11th May, 2021 and forwarded the same to the

Election Commission Secretariat, Dhaka and other concerned offices for

necessary action. The concerned authority in Bangladesh also

recommended for deletion of her name from the voter list of Bangladesh

by its letter dated 29th June, 2021. On the basis of the said report and

recommendation, the Election Commission Secretariat, Dhaka vide its

memo dated 9th August, 2021 directed the concerned authorties to

delete/strike off the name of the petitioner from the electroal roll of

Bangladesh. The petitioner has pleaded that her name was erroneously

recorded in the voter list of Bangladesh after her marriage with a

Bangladeshi National and she has already taken necessary steps to get

her name deleted from the voter list and National Identity Card of

Bangladesh. It is also contended by the petitioner that she never gave up

the citizenship of India. She was also not a citizen of Bangladesh when

she filed nomination paper in the election for assembly constituency

No.96-Bongoan Dakshin (SC). In paragraph 8 of the written objection, the

petitioner flatly denied the entry of her name in the National Identity Card

and electoral roll of Bangladesh at any point of time. Therefore, the

petitioner has prayed for rejection of the application under Order VII Rule

11(d) of the CPC filed by the respondent.

5. Mr. Anirban Ray, learned Advocate for the petitioner submits at the

outset that the question as to whether the petitioner is a Bangladeshi

national or not, whether the passport, voters identity card, pan card,

aadhar card in the name of the petitioner are genuine or not are questions

of fact to be determined by the court on the basis of evidence on record.

Even assuming that the petitioner is a Bangladeshi national, the election

petition filed by the petitioner is not bad in law. In order to substantiate

his contention Mr. Ray refers to chapter-II of the Representation of People

Act, 1951. Chapter-II of the said Act deals with Presentation of Election

Petitions to Election Commission. It is contended by the learned Counsel

for the petitioner that in accordance with the provision of Section 80 read

with Section 80A of the Representation of People Act, 1951 the election

petition is filed by the petitioner. On the following grounds, viz,

(i) The returned candidate made wrong statement in the

affidavit filed along with the nomination paper in

respect of his academic qualification.

(ii) The returned candidate went on campaigning in

support of his candidature even within 48 hours before

the date of election.

(iii) The returned candidate with the help of officers and

members of Central Reserve Police Force ransacked a

good office of the opponent party and created an

atmosphere of terror which is detrimental to free and

fair election.

6. The respondent filed an application challenging maintainability of

the election petition. This Court considered the objection of the returned

candidate as to maintainability of the election petition and held that in

view of the provision of Section 100(1)(d)(IV) of The Representation of the

People Act, 1951 the election petition is maintainable in law and form.

Subsequently, the instant application under Order VII Rule 11(d) of the

CPC cannot lie. It is submitted by Mr. Ray that the law on the

applicability of Order VII Rule 11(d) of the CPC has been settled by the

Supreme Court that while considering an application under Order VII

Rule 11 CPC, the court has to examine the averment in the plaint and the

pleas taken by the defendant in the written statement would be irrelevant.

The relevant facts which need to be looked into for deciding an application

under Order VII Rule 11 CPC are the averments in the plaint. For the

purpose of deciding an application under Clauses (a) and (d) of Order VII

Rule 11 CPC, the averments in the plaint are germane. The pleas taken by

the defendant in the written statement would be wholly irrelevant at this

stage. In support of his contention Mr. Ray refers to a decision of the

Hon'ble Supreme Court in Liverpool and England S.P & I Association

vs. M.V Sea I & Anr. In the said decision on the question of rejection of

plaint, the Hon'ble Supreme Court in paragraph 139 of the report held:-

"139.. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in its entirety, a decree would be passed".

Finally in paragraph 151 and 152 of the said judgment, the Hon'ble Supreme Court has laid down the ratio as to whether and under what circumstances, a plaint may be rejected on the ground that it does not disclose any cause of action. The said two paragraphs are replicated below:-

"151. In ascertaining whether the plaint shows a cause of action, the court is not required to make an elaborate enquiry into doubtful or complicated questions of law or fact. By the statute the jurisdiction of the court is restricted to ascertaining whether on the allegations a cause of action is shown. In Vijai Pratap Singh v. Dukh Haran Nath Singh [AIR 1962 SC 941 : 1962 All LJ 634] this Court held : (AIR pp. 943-44, para 9)

"By the express terms of Rule 5 clause (d), the court is concerned to ascertain whether the allegations made in the petition show a cause of action. The court has not to see whether the claim made by the petitioner is likely to succeed: it has merely to satisfy itself that the allegations made in the petition, if accepted as true, would entitle the petitioner to the relief he claims. If accepting those allegations as true no case is made out for granting relief no cause of action would be shown and the petition must be rejected. But in ascertaining whether the petition shows a cause of action the court does not enter upon a trial of the issues affecting the merits of the claim made by the petitioner. It cannot

take into consideration the defences which the defendant may raise upon the merits; nor is the court competent to make an elaborate enquiry into doubtful or complicated questions of law or fact. If the allegations in the petition, prima facie, show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact, or whether the petitioner will succeed in the claims made by him."

152. So long as the claim discloses some cause of action or raises some questions fit to be decided by a judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. The purported failure of the pleadings to disclose a cause of action is distinct from the absence of full particulars. (See Mohan Rawale [(1994) 2 SCC 392]).''

7. Therefore, it is submitted by the learned Advocate for the petitioner

that the issue raised by the respondent in his application under Order VII

Rule 11(d) of the CPC is essentially a question of fact and cannot be

decided without trial. Therefore, the application filed by the respondent is

liable to be rejected.

8. Learned Advocate for the respondent, on the other hand, refers to

Section 16 of The Representation of the People Act, 1950. Section 16 of

the 1950 Act deals with disqualifications for registration in an electoral

roll. Section 16(1)(a) of the 1950 Act says,

"A person shall be disqualified for registration in an electoral

roll if he

(a) Is not a citizen of India...".

9. From the documents annexed with the application filed by the

respondent as well as the documents annexed with the written objection

by the petitioner, it is crystal clear that the petitioner is a Bangladeshi

national on the date of filing of nomination paper and on the dates of

election and declaration of the result. From the face of the petitioner's

own document, it is found that the petitioner had no right to contest the

assembly election of 2021. As she is not a citizen of India, she shall not be

qualified to be chosen to fill a seat in the legislature of a State in terms of

Article 173 of the Constitution read with Section 16 of the Representation

of People Act, 1950.

10. Mr. Mishra, learned Advocte for the respondent/returned candidate

takes me to the averment made by the petitioner in the affidavit in

opposition filed by her against the application under Order VII Rule 11 of

the CPC filed by the respondent. In paragraph 4(II) of the affidavit in

opposition she admits that in the year 1980 she got married to one

Harendra Nath Sarkar, a citizen of Bangladesh and thereafter resided

with her husband in Bangladesh for few years. On 5th November, 2020,

she made an application for cancellation of her name from the national

identity card and the electoral roll of Bangladesh. In her application she

stated that she is an Indian citizen by birth. However, she became the

citizen of Bangladesh after her marriage with Harendra Nath Sarkar. The

principle of "dual citizenship" is not applicable in India. A person having

obtained citizenship of another country, automatically ceases to be the

citizen of India.

11. Mr. Mishra next takes me to the page 32 of the affidavit in

opposition filed by the petitioner which appears to be an inquiry report on

the application filed by the petitioner on 5th November, 2020. It is stated

in the said inquiry report that the petitioner, daughter of one Samar

Halder and their ancestors lived in Necharabad Upojela (sub-divison) of

Pirojpur District, Bangladesh. During inquiry the petitioner admitted over

phone that her mother and brother still reside in Necharabad. The

petitioner used to live in India with her uncle in North 24 Pgs in the State

of West Bengal from her childhood. She used to visit Bangladesh

occasionally. Her marriage was solemnized with Dr. Harendra Nath

Sarkar and after her marriage she stayed in Bangladesh for a long time.

Subsequently, she returned to India. During inquiry she admitted that

she enrolled her name in the voter list of India first subsequently she

came to Bangladesh in 2012 to stay with her husband and recorded her

name in the electoral roll of Bangladesh out of mistake. She also stated

that due to matrimonial discord with her husband she has been staying

in India permanently. During inquiry it was also revealed that before

enrolling her name in the electoral roll, the petitioner produced SSC

Certificate and the certificate of chairman and on the basis of the said

documents her name was recorded in the electoral roll of Bangladesh. The

Senior District Electoral Officer, Barisal obtained the opinion of the

husband of the petitioner, opinion of the chairman of the Union Parisad,

opinion of the member of the ward, opinion of the village police and on

29th June, 2021 the Senior District Election Officer Barisal recommended

that the name of the petitioner may be deleted/struck off from the

electoral roll of Bangladesh.

12. It is submitted by Mr. Mishra that the court can very well rely upon

the aforesaid document filed by the petitioner. From the inquiry report at

page 32 of the written objection, it is clear that the petitioner admitted

during inquiry over phone from India that her parents used to reside at

Pirojpur in the district of Barisal. During his childhood she left

Bangladesh for India and had been staying with her uncle at North 24 Pgs

in West Bengal. Her mother and one brother still reside in village Pirojpur.

Therefore, the averment made by the petitioner that she was born in

Baidyabati, Hooghly is a false statement and it is false to the knowledge of

the petitioner. Therefore, the petitioner's claim that she is an Indian

citizen by birth cannot stand. The petitioner failed to prove that her

parents used to reside in Baidyabati, Hooghly and she was born at

Baidyabati. Therefore, it is submitted by the learned Advocate for the

respondent that the petitioner was a Bangladeshi national on the date of

filing of the nomination in the assembly election of 2021 and on the date

of election and declaration of result. Therefore, she cannot maintain an

election petition against the respondent.

13. In reply, the learned Advocate for the petitioner submits that the

Representation of People Act, 1951 is a self contained enactment so far as

the elections are concerned, which means that whenever the court has to

ascertain the true position in regard to any matter connected with

elections, the court will only look at the Act and Rules made thereunder.

In support of his contention, the learned Advocate for the petitioner refers

to a decision of the Hon'ble Supreme Court in N.P Ponnuswami vs.

Retuning Officer, Namakkal Constituency, Namakkal, Salem Dist.

And Four Ors, reported in AIR 1952 SC 64. He also refers to a recent

decision of the Apex Court in the case of Srihari Hanumandas Totala vs.

Hemant Vithal Kamat & Ors reported in (2021) 9 SCC 99. The fact

involved in the said decision is that the defendant filed an application

under Order VII Rule 11 (d) of the CPC raising the issue that the suit is

barred by res judicata. In paragraph 25.4 of the said judgment, the

Hon'ble Supreme Court held:-

"25.4.Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the 'previous suit', such a plea will be beyond the scope of Order VII Rule 11 (d), where only the statements in the plaint will have to be perused."

14. Finally in paragraph 26 and 27 the Hon'ble Supreme Court decides

as follows:-

"26. In the present case, a meaningful reading of the plaint makes it abundantly clear that when the first respondent instituted the subsequent suit, he had been impleaded as the second defendant to the earlier suit (OS No. 103/2007) that was instituted on 13 March 2007. The first respondent instituted the subsequent suit, OS 138/2008 though he had knowledge of the earlier suit. The plaint in the subsequent suit which was instituted by the first respondent indicates that the he was aware of the mortgage executed in favour of KSFC, that KSFC had executed its charge by selling the

property for the recovery of its dues and that the property had been sold on 8 August 2006 in favour of the predecessor of the appellant. As a matter of fact, the plaint contains an averment that there was every possibility that the first respondent may suffer a decree for possession in OS 103/2007 which "has forced" the first respondent to institute the suit for challenging the legality of the sale deed. Given the fact that an argument was raised in the previous suit regarding no challenge having been made to the auction and the subsequent sale deed executed by the KFSC, it is possible that the first respondent then decided to exercise his rights and filed the subsequent suit.

27. Be that as it may, on a reading of the plaint, it is evident that the first respondent has not made an attempt to conceal the fact that a suit regarding the property was pending before the civil court at the time. It is also relevant to note that at the time of institution of the suit (OS No. 138/2008) by the first respondent, no decree had been passed by the civil court in OS No. 103/2007. Thus, the issues raised in OS No. 103/2007, at the time, had not been adjudicated upon. Therefore, the plaint, on the face of it, does not disclose any fact that may lead us to the conclusion that it deserves to be rejected on the ground that it is barred by principles of res judicata. The High Court and the Trial Court were correct in their approach in holding, that to decide on the arguments raised by the appellant, the court would have to go beyond the averments in the plaint, and peruse the pleadings, and judgment and decree in OS No. 103/2007. An application under Order VII Rule 11 must be decided within the four corners of the plaint. The Trial court and High Court were

correct in rejecting the application under order VII Rule 11(d)."

15. Thus, it is submitted by Mr. Ray, learned Advocate for the petitioner

that the question raised by the respondent in the instant proceeding can

at best be treated as a mixed question of law and fact which cannot be

decided under Order VII Rule 11(d) of the CPC. Mr. Ray submits that

Article 173 of the Constitution cannot be read in isolation but it shall be

read along with the provision of Section 33 of the Representation of People

Act, 1951. The petitioner filed nomination paper as a candidate for

election to fill up a seat. Her nomination paper was scrutinized by the

Election Commission. She was declared qualified to be chosen to fill that

seat. Under the provision of the Constitution and the Representation of

People Act, 1951, therefore, the court cannot held her to be disqualified

under Section 16 of the 1950 Act without trial.

16. Having heard the learned Counsels for the parties and on perusal of

the application and written objection, this Court at the outset records that

an application under Order VII Rule 11 of the CPC can only be disposed of

on the basis of averment made by the petitioner in the plaint. Now, after

filing of the election petition the retuned candidate has filed the instant

application stating, inter alia, that as the petitioner is a foreign national

and not a citizen of India, the election petition filed by her is barred by

law.

17. It is not disputed that the petitioner has claimed herself to be a

citizen of India on the strength of passport issued by the passport

authority in her name, voters card, pan card, aadhar card etc.

18. It is further admitted by the petitioner that after her marriage she

became a Bangladeshi citizen and her name was recorded in national

identity card of Bangladesh. Her name was also enrolled in the electoral

roll. However the petitioner has claimed that she enrolled her name as a

citizen of Bangladesh in the electoral roll of Bangladesh out of mistake

and she has already filed an application before the concerned authority in

Bangladesh for deletion of her name from NID and electoral roll of

Bangladesh. Thus, it is not in dispute that the petitioner was at some

point of time a Bangladeshi citizen. The petitioner has claimed that her

marriage was solemnized with one Dr. Harendra Nath Sarkar in 1980.

Therefore, the name of the petitioner was enrolled in the NID and electoral

roll of Bangladesh at any point of time after 1980. According to the

petitioner her name was mistakenly recorded in the electoral roll of

Bangladesh sometimes in 2012. Surprisingly enough, from the documents

filed by the petitioner it is ascertained that she was enrolled as a voter as

per epic card issued by the Election Commission of India on 1 st March,

2012. Therefore, during 2012 admittedly she possessed voter identity card

of India and at the same time her name was enrolled in the electoral roll

of Bangladesh. It is needless to say that as soon as the petitioner's name

was recorded in the electoral roll of Bangladesh and she was enrolled as a

citizen of Bangladesh, her citizenship of India automatically ceases to

exist.

19. It is needless to say that a passport, voters identity card, pan card,

aadhar card are not documents of citizenship of India. If a person claims

citizenship of this court, he/she must prove her citizenship under Part-II

of the Constitution of India. Article 9 of the Constitution states that no

person shall be a citizen of India by virtue of Article 5 or be deemed to be

a citizen of India by virtue of Article 6 or Article 8, if he has voluntarily

acquired the citizenship of any foreign state. The NID certificate issued by

Bangladesh Election Commission shows that the petitioner is a

Bangladeshi citizen and a bona fide voter of Bangladesh. It is not clear

even on this date as to whether her name has been deleted from the

electoral roll of Bangladesh. The petitioner has not claimed acquisition of

citizenship under Section 3 or 4 of the Citizenship Act, 1955. She has not

acquired citizenship by registration under Section 5 of the Citizenship Act

of 1955. The petitioner also does not fall within the purview of the

Citizenship (Amendment) Act, 2019. Therefore, even if the petitioner has

voter identity card, aadhar card and passport, the said documents do not

prove her citizenship of this country.

20. It is needless to say that the petitioner has claimed to be the citizen

of this country by birth. But from the inquiry report which she relies in

her written objection against the application under Order VII Rule 11(d) of

the CPC it is ascertained that her parents used to live in Bangladesh and

she came to India with her uncle in her childhood, meaning thereby that

the petitioner was born in Bangladesh.

21. Article 5 of the Constitution of India speaks about citizenship at the

commencement of the Constitution. Article 5 runs thus:-

Citizenship at the commencement of the Constitution.-

At the commencement of this Constitution, every person who

has his domicile in the territory of India and-

a) Who was born in the territory of India; or

b) Either of whose parents was born in the territory of India;

or

c) Who has been ordinarily resident in the territory of India

for not less than five years immediately preceding such

commencement, shall be a citizen of India.

22. From the enquiry report dated 29th June, 2021, regarding deletion

of name of petitioner from the Electoral Roll of Bangladesh which the

petitioner has relied upon in her affidavit-in-opposition, it is ascertained

that the parents of the petitioner all along used to reside in Bangladesh.

Admittedly her mother and brother are still residing in Bangladesh.

Therefore, petitioner's claim that she became the citizen of India by birth

by virtue of the provision of Article 5 of the Constitution or Section 3 of

the Citizenship Act is proved to have been false.

23. This Court has already pointed out that in her EPIC Card, Pan Card

and Aadhar Card, the petitioner mentioned her date of birth as on 22nd

March, 1969. However, in NID Certificate issued by Bangladesh Election

Commission in favour of the petitioner, her date of birth was recorded as

on 15th January, 1967. Therefore, there is discrepancy between the said

two documents. The petitioner could not produce any document in

support of her date of birth and place of birth. There is absolutely no

record to prove that the parents of the petitioner came to India from

Bangladesh and acquired citizenship of this Country following the

procedures contained in Section 3(2) to Section 6 of the Citizenship Act,

1955. Therefore, from the documents submitted by the petitioner it is

found that the parents of the petitioner were not the citizens of India . The

petitioner never acquired citizenship of this country following the

provisions of the Citizenship Act, 1955. On the contrary the admitted

position is that the petitioner was a Bangladeshi citizen on the date of

declaration of General Election of West Bengal State Assembly by the

Election Commission, filing of the nomination paper, date of election and

declaration of the result. It is further found from the petitioner's own

documents that though she claimed that she severed all marital relation

with her husband, she herself mentioned her husband's name Harendra

Nath Sarkar in the Voters Identity Card and Aadhar Card. Needless to

mention that Voter Identity Card was issued in the name of petitioner on

1st March, 2012, and Aadhar Card was issued subsequent to the issuance

of Voter Card. Thus, on the date of issuance of Adhar Card marital tie of

the petitioner existed with the said Harendra Nath Sarkar who is a

Bangladeshi national. The petitioner herself admitted that her marriage

with Harendra Nath Sarkar was solemnized in the year 1980 and while

she was living with her husband she applied for citizenship of Bangladesh

and on the basis of her application her name was recorded in the electoral

roll of Bangladesh and National Identification Certificate was issued in her

name. Even assuming that in the mean time the name of the petitioner

was struck off by the concerned authority, on the date of Assembly

Election the petitioner was not a citizen of India.

24. Under such backdrop the question as to whether such admitted

facts can be taken into consideration to hold that the election petition

filed by the petitioner is barred by the provision of Article 173 read with

Section 16 of The Representation of the People Act, 1951 while disposing

of an application under Order VII Rule 11 of the CPC.

25. The law on this point is no longer res integra. In order to dispose of

an application under Order VII Rule 11 CPC, the court can look into the

averments in the plaint and no other document. In other words, only the

pleadings of the petitioner as disclosed in the election petition can be

considered while disposing of an application under Order VII Rule11 CPC.

Even the pleadings made out by the petitioner in her affidavit-in-

opposition cannot be considered.

26. At the same time the court has come to this conclusion that the

petitioner filed the election petition claiming to be a citizen of India. She

filed nomination paper as a citizen of India. She contested the election as

a citizen of India. But from the documents filed and relied on by the

petitioner in her affidavit-in-opposition, it is ascertained that in the month

of June 2021, her application for deletion of her name from the electoral

roll of Bangladesh was under consideration before the appropriate

authority of Election Commission of Bangladesh. Thus, her name was not

deleted till 29th June, 2021 from NID and Electoral Roll of Bangladesh.

The record shows that the petitioner filed nomination to contest the State

Assembly seat of 96-Bangaon Dakshin of SC(Constituency) on 31st March,

2021. Election was conducted on 22nd April 2021 and the result was

published on 2nd May, 2021. The election petition was filed on 11th June,

2021. Therefore, admittedly on all the above dates, the name of the

petitioner appeared on in the Electoral Roll of Bangladesh.

27. Thus, the election petition is barred under the provision of Article

173 of the Constitution of India read with Section 16 of the

Representation of the People Act, 1950. This Court comes to the above

decision not from any pleading filed by the respondent, but from the

pleadings and documents annexed thereto in support of the pleadings of

the petitioner in her plaint and written objection.

28. However, when this Court finds that though the election petition is

barred under the above mentioned provisions of law, the court cannot

reject the plaint under Order VII Rule 11 of the CPC because such

pleadings were not the part of the election petition filed by the petitioner.

At this stage, under the facts and circumstances involved in the instant

case, this court finds that the court can dispose of the election petition

under Order XII Rule 6 of the CPC.

29. Order XII Rule 6 speaks about judgment on admissions. The said

provision runs thus:-

(1) R 6(1). Where admissions of fact have been made either in

the pleading or otherwise, whether orally or in writing, the

court may at any stage of the suit, either on the

application of any party or of its own motion and without

waiting for the determination of any other question

between the parties, make such order or give such

judgment as it may think fit having regard to such

admissions.

(2) Whenever a judgment is pronounced under Rule 1 a

decree shall be drawn up upon in accordance with the

judgment and the decree shall bear the date on which the

judgment was pronounced.

30. From plain reading of the above provisions, it appears that the

power of the court under Order XII Rule 6, is very wide. It is open to the

court to pronounce a judgment on admission on the pleading or

otherwise. The word "otherwise" in the said provision clearly indicates

that it is open to the court to base the judgment on statements made by a

party not only in the pleadings but also de hors the pleadings. Such

admission may be made either expressly or constructively.

31. Thus, in order to pronounce a judgment under Order XII Rule 6

CPC , it is not necessary that the defendant shall have to admit the claim

of the plaintiff in his written statement. He can admit any claim or fact

even otherwise. In the instant case the petitioner admitted that she

acquired citizenship of Bangladesh mistakenly. However, the name of the

petitioner still exists in the Electoral Roll of Bangladesh. I am in

agreement with the learned advocate for the respondent that the principle

of 'Dual Citizenship' is not applicable in India. Therefore, the petitioner

cannot claim to be a citizen of India when her name appeared in the

Electoral Roll of Bangladesh. The relevant date is the date of filing

nomination paper by the petitioner. It is admitted from the documents

filed by the petitioner that on the date of filing of the nomination paper by

her she was a Bangladeshi national.

32. In view of such circumstances, it is open for the court to pronounce

judgment under Order XII Rule 6 of the CPC.

33. For the reasons stated above this Court finds that continuation of

the proceeding in Election Petition 2/2021 will be unnecessary and

fruitless exercise of judicial process and time.

34. The court can under the facts and circumstances dated above pass

a judgment on admission.

35. In view of the above discussion, the election petition is liable to be

dismissed under Order XII Rule 6 of the CPC.

36. The instant application is thus disposed of.

37. The order of dismissal of election proceeding be passed in

EP2/2021.

38. 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.

I do not find any necessary to stay the operation of the said order. Therefore, the prayer is considered and rejected.

(Bibek Chaudhuri, J.)