Calcutta High Court
Alo Rani Sarkar vs Swapan Majumdar on 26 May, 2022
ODSL-1 IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
APOT/95/2022
EP/2/2021
IA No. GA/1/2022
ALO RANI SARKAR
VERSUS
SWAPAN MAJUMDAR
BEFORE:
The Hon'ble JUSTICE ARIJIT BANERJEE
AND
The Hon'ble JUSTICE ANANYA BANDYOPADHYAY
Date : 26th May, 2022.
(Vacation Bench)
Appearance:
Mr. Anirban Ray, Adv.
Mr. Jayanta Sengupta, Adv.
Mr. Piyush Agarwal, Adv.
Mr.Piyush Kumar Rai, Adv.
Mr. Agnish Basu, Adv.
Mr. Kush Agarwal, Adv.
Mr. Raghav Beriwal, Adv.
... for the appellant.
The Court: The appellant filed an election petition before the
learned Single Judge, being EP/2/2021, challenging the General Election
to the Legislative Assembly for the State of West Bengal, 2021, pertaining
to Assembly Constituency 96-Bangaon Dakshin (SC), held on April 22,
2021.
An application was filed by the respondent under Order VII Rule
11(d) of the Code of Civil Procedure for rejection of the election petition.
By the judgment and order impugned, dated May 20, 2022, the
learned Judge dismissed the election petition on the basis of certain
statements which, according to the learned Judge, amounted to
admission on the part of the petitioner that she is a citizen of Bangladesh
and hence could not maintain the election petition. Having dismissed
the election petition, the learned Judge went on to observe as follows:
"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."
After delivery of the judgment, learned Advocates for the petitioner
prayed for stay of the direction passed by the learned Judge for sending a
copy of the order to the Election Commission of India for sanction and
taking necessary action in respect of the petitioner's status in this
country. The learned Judge rejected such prayer for stay.
It appears from the affidavit-of-service filed in Court today that
service has been effected on the respondent through e-mail. We are also
told that the respondent's learned Advocate has received notice of this
appeal. Nobody appears for the respondent.
We have heard learned Advocate for the appellant who has
vociferously argued that the direction given by the learned single Judge
for ascertaining the status of the appellant in this country and for taking
necessary steps against her was beyond the scope of the election petition
and is without jurisdiction. The petitioner has averred in her election
petition that she is an Indian national. Nationality is a question of fact to
be determined on consideration of appropriate evidence. The learned
Judge ought not to have passed such a direction on an election petition.
We are of the prima facie view that the appellant has an arguable
case insofar as she objects to the direction of the learned Single Judge
for ascertainment of her nationality and taking action against her. That
portion of the impugned order shall remain stayed till the end of June,
2022 or until further orders, whichever is earlier.
It will be open to the appellant to seek further interim orders before
the Regular Bench.
Let this matter be listed before the Regular Bench immediately
after reopening of the Court.
(ARIJIT BANERJEE, J.)
(ANANYA BANDYOPADHYAY, J.)
mg
