JUDGMENT :

Subrata Talukdar, J.

1. This appeal has been directed against the Judgment and Order dated 20th May, 2022 dismissing Election Petition 2 of 2021 (EP/2/2021) and also deciding the application being GA 4 of 2022 filed in connection with EP 2 of 2021.

2. The only issue to be decided by this Court is whether this intra-court appeal being APOT 95 of 2022 is maintainable in the light of The Representation of People Act, 1951 (for short the 1951 Act) under which the said Election Petition being EP 2 of 2021 came to be filed before the designated Court of this Hon’ble Court.

3. In the event this Court finds this appeal to be maintainable, only then the next question would arise of hearing the parties on the merits of the electoral dispute. In the event this Court decides against the maintainability of this appeal, the parties shall be at liberty to approach the appropriate Court which, in the statutory scheme of the 1951 Act, is the Hon’ble Supreme Court of India.

4. Before adverting to the legal discussion on the maintainability of the appeal a brief reference to the background facts is necessary.

5. The present Appellant, Smt. Alo Rani Sarkar, was the Petitioner in EP 2 of 2021. The Appellant contested the Legislative Assembly Elections of the State of West Bengal held in April, 2021 from Bongaon Dakshin (SC) Assembly Constituency of District North 24 Parganas as the candidate of a particular political party.

6. The Respondent in EP 2 of 2021, Mr. Swapan Majumdar, who is also the Respondent in this appeal, contested as a candidate of a rival political party from the same Constituency.

7. Upon declaration of the result the Respondent was declared the winner and hence stood Elected. The Appellant/Petitioner challenged the election of the Respondent before the Court of the Hon’ble Single Bench being the designated Court in terms of Section 80A of the 1951 Act. The Appellant/Petitioner alleged that the Respondent had indulged in corrupt electoral practices. Hence, the election of the Respondent be declared void and be set aside and an interim order of injunction be also passed restraining the Respondent from functioning and/or acting as a Member of the West Bengal Legislative Assembly till disposal of the Election Petition.

8. The Respondent thereafter filed two applications under Order 7 Rule 11 of the Code of Civil Procedure (CPC) before the Hon’ble Single Bench seeking rejection of the Election Petition. One of the two applications was simplicitor under Order 7 Rule 11 CPC and the other was under Order 7 Rule 11(d) of the CPC. In his application filed under Order 7 Rule 11(d), the Respondent alleged that the Election Petition filed by the Appellant was not maintainable since at the time of contesting the said Election the Appellant was a Bangladeshi national and not an Indian citizen. The Respondent relied on several factual data before the Hon’ble Single Bench to demonstrate that as on the date of the Assembly Election for Bangaon Dakshin (SC) Constituency, the Appellant/Petitioner was the wife of a Bangladeshi national and her name had appeared in the Voters List of Bangladesh as well as the further fact that the Appellant/Petitioner was the holder of a Bangladeshi National Identity Card. The Respondent therefore sought dismissal of EP 2 of 2021 by the Hon’ble Single Bench on the ground that the Election Petition was not maintainable at the behest of the Appellant/Petitioner.

9. By the Judgment and Order impugned dated 20th of May, 2022, the Hon’ble Single Bench was pleased to find that the Appellant/Petitioner had practically admitted to the fact she was a Bangladeshi national at the time the said Assembly Election was held. The Hon’ble Single Bench further found that the Appellant/Petitioner had only denied the charge of being a Bangladeshi national on the ground that she had applied to the concerned Bangladeshi authorities for deletion of her name from the Electoral Roll of Bangladesh.

10. The Hon’ble Single Bench also held that