Gauhati High Court
WP(C)/6419/2019 on 22 June, 2022
Author: Malasri Nandi
Bench: Malasri Nandi
Page No.# 1/26
GAHC010209362019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6419/2019
Smt. Barnali Roy Dev,
Wife of Sri Sajal Kanti Dev,
Resident of Village- Garowanpatty,
Police Station- Tezpur, District- Sonitpur,
Assam.
......Petitioner.
-Versus-
1. The Union of India,
Represented by the Secretary to the Government of India,
Ministry of Home Affairs, Jaisalmer House, 26,
Mansingh Road, New Delhi-01.
2. The State of Assam,
Represented by its Secretary,
Department of Home Affairs,
Dispur, Guwahati-6.
3. The Superintendent of Police (Border), Sonitpur,
District- Sonitpur,
Assam, PIN-782435.
4. The Election Officer,
No.73 Tezpur LAC, District- Sonitpur,
Assam, PIN-782435.
......Respondents.
Page No.# 2/26 BEFORE HON'BLE THE CHIEF JUSTICE (ACTING) MR. N. KOTISWAR SINGH HON'BLE MRS. JUSTICE MALASRI NANDI For the Petitioner: Mr. B.C. Das, Sr. Advocate, Mr. U. Dutta, Adv.
Mr. S.K. Singh, Adv., Mr. B. Pushilal, Adv.
......Advocates.
For the Respondents : Mr. S.K. Medhi, CGC.
Mr. G. Sarma, SC, FT.
Mr. A.I. Ali, SC, ECI.
......Advocates.
Date of Hearing : 02.02.2021
Date of Judgment : 22.06.20229.04.020
JUDGMENT AND ORDER
[N. Kotiswar Singh, Chief Justice (Acting)]
Heard Mr. U. Dutta, learned counsel for the petitioner. Also heard Mr. S.K. Medhi, learned Central Government Counsel appearing for respondent No.1; Mr. G. Sarma, learned Standing Counsel, Foreigners Tribunal appearing for respondent Nos.2 & 3 and Mr. A.I. Ali, learned Standing Counsel, ECI for respondent No.4.
2. In this petition, the petitioner has challenged the opinion dated 03.07.2019 passed by the learned Foreigners Tribunal, Tezpur (1 st), Sonitpur, Assam in F.T.(D) Case No.2258/2012 [Police Enquiry No.1695/1998] by which the petitioner who was alleged Page No.# 3/26 to be a 'D' Voter was declared a foreigner who entered India on or after 25 th March, 1971 without any valid document.
3. The petitioner, on receipt of the notice from the Tribunal, filed her written statement stating that she is an Indian by birth. She also adduced evidences in support of her claim that she is an Indian citizen.
4. It is the case of the petitioner that she is the daughter of Late Phani Bhusan Roy and was born on 25.12.1974 at Amarpur Hospital, South Tripura and a permanent resident of Bhati Abhoy Nagar, Mouja Agartala, Sub Division Sadar, Dist. West Tripura.
5. In the written statement, the petitioner stated that she had pursued her studies at Banividyapith Girls' H.S. School, Tripura and appeared in the Madhyamik Pariksha (Secondary Examination) in the year 1990. She also stated that she was registered as an Indian citizen by the office of the Sub-Divisional Officer Sadar, West Tripura on 19.05.1990. She claimed that her father Late Phani Bhushan Roy had served in the Food and Civil Supplies Directorate under the Government of Tripura since 12.12.1967 and was issued Electoral Identity Card bearing No.TP/01/004/057033 and her father had pursued his studies at Calcutta University and had passed the Pre- University Examination in the year 1956. The petitioner also stated that her father was enrolled as a citizen of India in the year 1964. The petitioner also stated that she got married to Sri Sajal Kanti Deb on 22.04.1996 who is an inhabitant of Garowanpatty, Tezpur and since after her marriage she had been living with her husband and accordingly, she adopted the surname "Deb" in her documents after marriage, thus, writing as Barnali Deb instead of Barnali Roy.
Page No.# 4/26
6. In support of her claim, the petitioner produced a number of documents, which were examined and considered by the learned Tribunal to arrive at its conclusion.
7. Ext.1 was the certificate of birth shown to be issued by the Registrar, Amarpur Hospital, in the name of Barnali Roy, wherein her father's name is shown as Phani Bhusan Roy. Place of birth is shown as Amarpur Hospital and the date of birth is shown as 25.12.1974.
As regards the aforesaid certificate, the learned Tribunal held that though in the said Exhibit 1, the date of birth of Barnali Roy is shown as 25.12.1974, the date of registration is not shown. Neither the date of issue of the certificate is also mentioned.
It has been also observed that in the said certificate, the name of mother is also not mentioned. The learned Tribunal also observed that there is a space for signature of the Chief Registrar, however, the same is absent.
8. Under the circumstances, it was observed that in absence of the evidence of the author of the said certificate and without comparing with the original birth register, the said certificate, Ext.-1 cannot be acted upon.
9. Coming to the Admit Card issued by the Secretary of the Tripura Board of Secondary Education, which was exhibited as Ext.2 in the name of Barnali Roy, daughter of Phani Bhusan Roy, bearing Registration No.61818 of 1998 with Roll- AGR F, No.-18159 of Madhyamik Pariksha (Secondary Examination 1990) wherein the date of birth of the petitioner is shown to be 25.12.1974, the learned Tribunal observed that, in para No.2 of the written statement it is stated that since the said Admit Card was Page No.# 5/26 issued by a statutory authority, and a "State" as defined under Article 12 of the Constitution of India and accordingly same cannot be compared with a certificate issued by a Govt. Gaonburah or a Municipal Commissioner or by a School, which requires proof.
It was also observed that since in the said Admit Card, there is a space for affixing a passport photograph of the candidate and since there was no such photograph affixed, the genuineness of the said document is doubtful.
Learned Tribunal also observed that the name of the school has been recorded as Banividyapith Girls H.S. School but the petitioner could not produce any authorized witness of the said school along with the admission register etc. to prove its genuineness.
10. The petitioner also filed a Memorandum issued by the Sub-Divisional Officer, Sadar, West Tripura on 19.05.1990 which was exhibited as Ext.3. In the said Memorandum, it is mentioned that with reference to her application dated 19.12.1989, Smt. Barnali Roy, daughter of Phani Bhusan Roy of village Bhati Abhoy Nagar, P.S. West Agartala, West Tripura district, prima-facie qualifies for recognition as a citizen of India by birth. However, learned Tribunal held that the said document is not proved by examining any official of the said office before the Tribunal.
11. There is also a certificate relied on by the petitioner which was exhibited as Ext.4. The said certificate is stated to have been issued by the Director, Food and Civil Supply, Tripura wherein it was certified that Sri Phani Bhusan Roy, father of Smt. Barnali Roy who had been serving in the Food and Civil Supply Directorate under the Page No.# 6/26 Govt. of Tripura since 12.12.1967.
Learned Tribunal held that the petitioner could have filed other more authentic documents, like service book, pension papers etc. of the employee and as such, the certificate Ext.(4) issued in the plain paper cannot be relied upon. It was also observed that neither the author of the certificate has been examined before the Tribunal.
12. Petitioner also has relied on a document which was exhibited as Ext.5, i.e. identity card issued in the name of Phani Bhusan Roy, son of Ambika by the Election Commission of India.
Learned Tribunal did not place any reliance on that document in absence of any electoral roll showing the name of said Phani Bhusan Roy.
13. Learned Tribunal had referred to the Certificate of Registration issued in the name of one Phani Bhusan Roy, son of Sri Ambika Charan Roy, resident of Mekhipara T.E., Kotwali, Tripura which was exhibited as Ext.7.
In the said certificate of registration, the signature of the said Phani Bhusan Roy and other authorities appear. The date is shown to be put on 01.05.1964 and in the said document the age of Phani Bhusan Roy is shown as 33 years, place of birth as Sultanpur, Madhabpur, Syhlet and occupation is mentioned as private sector. Learned Tribunal observed that if the age of Phani Bhusan Roy was 33 years in 1964 then his age in 1995 would be 64 years whereas as per Ext.5 which is the voters list issued by the Election Commission of India his age has been shown to be 51 years as on 01.01.1995.
14. Learned Tribunal held that since the proceedee had projected her father to be Page No.# 7/26 a Government employee but as per Ext.7 (Certificate of Registration), the occupation of petitioner's father can be shown to be private service. Further, it was held that the Ext. 5 (voter identity card), Ext.7 (certificate of registration) and Ext.4 (certificate issued by the Directorate of Food and Civil Supply, Tripura) are not proved as the documents of one and the same person.
15. Learned Tribunal, thereafter, referred to a certificate of eligibility issued by the District Magistrate & Collector, Tripura dated 04.01.1965, exhibited as Ext.8, which according to the learned Tribunal, is not proved due to non-examination of any of the officials.
16. Learned Tribunal also referred to the death certificate (Ext.9) issued in the name of Late Phani Bhusan Roy in which the date of death has been mentioned as 27.05.2010 and the place of death as Bhati Abhoy Nagar, Agartala and the address of the deceased at the time of death has been shown as Bhati Abhoy Nagar, Agartala. However, it has been held that the document is not proved by examining any of the issuing authority.
17. As regards the documents relating to the petitioner's father, which pertains to Pre-University Examination, 1966, admit card for examination of the Degree of Bachelor of Arts Part (II) 1974, admit card of examination for the Degree of Bachelor of Arts Part (II) 1972 and pass certificate of pre-university examination in Arts 1966 respectively which were exhibited as Exts.6, 6(1), 6(2) and 6(3), learned Tribunal held that the genuineness of said documents could not be proved in absence of any examination of the concerned officials before the Tribunal.
Page No.# 8/26
18. As regards the contention of the petitioner that exhibits which are more than 30 years old and as such, would be entitled to be considered, the learned Tribunal held that though the documents are more than 30 years old, the same could not be considered for the reason that the proceedee is not the proper custodian of the said documents. Learned Tribunal also observed that while in Ext.4, the proceedee has shown her projected father as an employee of Food and Civil Supply, Directorate under Government of Tripura, in Ext.7, it has been shown as private service and in Ext.7 the age of the projected father of the petitioner has been shown as 33 years in the year 1964 and in Ext.5 it has been shown as 51 years in the year 1995 and as such, because of the aforesaid discrepancies, the learned Tribunal did not believe the claim of the petitioner.
19. Learned Tribunal further observed that the proceedee has not described anything regarding the family members of either herself or her father and in the present case, except the name of her projected father and nothing has been mentioned by the proceedee in respect of family status in the written statement.
20. Referring to the decision of this Court in Ayesha Khatun Vs. Union of India and Ors., [(2017) 3 GLR 820], the learned Tribunal held that since the petitioner has not mentioned the name of her mother in the written statement which is very much essential to ascertain the citizenship even in the birth certificate (Ext.1) and also about her grandparents and how many brothers and sister she has, it is not possible for the Tribunal to ascertain that the petitioner is the daughter of Phani Bhusan Roy, son of Ambika as shown in the Ext.5 or Phani Bhusan Roy, son of Ambika Page No.# 9/26 Charan Roy as shown in Ext.7 and the Tribunal held that all these documents are contrary to each other.
Further, the learned Tribunal also observed that the reference was forwarded in the name of Barnali Dev, wife of Sajal Kanti Dev, resident of Garowanpatty, Tezpur, District- Sonitpur, Assam whereas, the petitioner has produced documents in respect of citizenship of Barnali Roy, daughter of Phani Bhusan Roy, resident of Bhati Abhoy Nagar, Agartala, District- South Tripura, Tripura.
21. Learned Tribunal also observed that though the proceedee has stated in her written statement and written evidence that on 22.04.1996 she got married to Sri Sajal Kanti Dev who is a resident of Garowanpatty, Tezpur, she failed to produce her marriage certificate to establish the fact that Barnali Roy of Bhati Abhyoy Nagar of Agartala and Barnali Dev of Garowanpatty is one and the same person.
22. Learned Tribunal also observed that the petitioner has not mentioned the name of the family members in her written statement, yet, in cross-examination, she deposed that the name of her mother is Rita Roy who was ill at that time, but she has not taken any such pleading of her illness in the written statement.
23. Learned Tribunal also observed that the petitioner had submitted an application on 15.03.2019 praying for returning some of the documents which were exhibited before the Tribunal on the plea that these are necessary for obtaining permanent residence certificate in the name of her younger brother, namely, Abhijit Roy, from which it is evident Barnali Roy had one brother, namely, Abhijit Roy but she failed to mention the name of her brother in the written statement. The learned Tribunal also Page No.# 10/26 held that the petitioner failed to produce any of her relatives before the Tribunal to prove that Barnali Roy, daughter of Phani Bhusan Roy of Bhati Abhoy Nagar of Tripura and Barnali Dev, wife of Sajal Kanti Dev of Garowanpatty, Tezpur, Sonitpur, Assam refer to one and the same person. Accordingly, the learned Tribunal held that there is nothing to believe that Barnali Roy, daughter of Phani Bhusan Roy of Bhati Abhoy Nagar of Tripura and Barnali Dev, wife of Sajal Kanti Dev of Garowanpatty, Tezpur, Sonitpur are one and the same person.
24. Accordingly, the leaned Tribunal held that the petitioner has failed to discharge her burden as envisaged under Section 9 of the Foreigners Act, 1946 and accordingly, declared that the proceedee, namely, Barnali Dev, wife of Sajal Kanti Deb, village Garowanpatty, P.S. Tezpur, District Sonitpur, Assam is a foreigner who entered India from the specified territory of Bangladesh on or after 25.03.1971 without any valid document.
25. We have heard the learned counsel for the parties.
We have given our anxious consideration to the documents exhibited and available on record and also perused the original record.
Unfortunately, we are unable to agree with the reasons and conclusions arrived at by the learned Tribunal.
26. We are satisfied that the petitioner has been able to prove that she is not a foreigner as declared by the learned Tribunal. We hold so for the following reasons.
27. The first claim of the petitioner was that she was born on 25.12.1974 at Amarpur Hospital, South Tripura and the name of her father is Late Phani Bhusan Roy.
Page No.# 11/26 In support of this, the petitioner produced the certificate of birth issued by the Government of Tripura.
28. We have noted that the certificate was produced in original as the original record also shows wherein the learned Tribunal made the remark on the copy of the record retained in file with the following words, "Proved in original Exbt. No.1 Sd/-
F.T.(D) Case No.2258/12"
30. After giving the aforesaid remarks, the Presiding Officer of the Tribunal signed on the certificate. However, the said certificate which was exhibited as Ext.1 was not believed by the Tribunal on the ground that it does not mention the name of mother and by holding that it is mandatory that the names of both the parents are to be mentioned to ascertain the parentage of the child. Further, there is a space of signature of Chief Registrar (fascimile signature). However, the same is blank without any signature.
Learned Tribunal also did not believe the said certificate of birth on the ground that the date of registration is shown but the date of issue of the said certificate is not mentioned.
31. We are unable to agree with the aforesaid reasoning adopted by the learned Tribunal for the reason that in the said certificate there is provision of mentioning the name of either 'Father or Mother' in which the name of father has been recorded by striking out the word 'Mother'.
Page No.# 12/26 The said document was issued as per the format issued by the Government of Tripura. Further, in the said certificate, the signature of the issuing authority i.e. Registrar, Amarpur Civil Hospital where the petitioner was given birth is clearly mentioned.
32. Under the circumstances, we do not find any reason to doubt the authenticity of the said certificate. In fact, no question was raised doubting the said certificate.
Moreover, the said document is more than 30 years old when it was exhibited, the petitioner herself would be the proper custodian of the said certificate. In fact there cannot be another person who will be more appropriate than the petitioner to have custody of the said document. Accordingly, it can be presumed in terms of Section 90 of the Evidence Act, 1872 that it was duly executed and issued by the authority mentioned therein.
33. As regards the observation of the learned Tribunal that mentioning of the names of the both the parents are mandatory, the same would depend from State to State as it is the concerned State which prescribes the format required for the purpose of the Registration of Births and Deaths Act, 1969 and if the Government of Tripura has not made it mandatory for such certificate, no fault can be found therewith, by insisting that names of both the parents have to be mentioned in the birth certificate.
34. Under the circumstances, in our opinion, the said document, Ext.1 could not have been rejected on the ground that author of the certificate was not examined nor was compared with the original birth register.
35. For similar reasons, we are also unable to agree with the learned Tribunal in Page No.# 13/26 rejecting the original Admit Card in the name of the petitioner as the daughter Phani Bhushan Roy, issued by the Tripura Board of Secondary Examination for appearing in the Madhyamik Pariksha (Secondary Examination), 1990. The said document was also produced in the original, in which it was noted by the Presiding Officer of the Tribunal as follows, "Proved in original.
Exbt. No.2 Sd/-
F.T.(D) Case No.2258/2012"
36. The learned Tribunal found fault with the said Admit Card on the ground that though there is a space for affixing photograph of the candidate in which it is written as "passport size photograph of the continuing candidate duly attested to be affixed here. Signature of the attesting authority and seal should partially cover the photograph" but no photograph of the candidate was affixed and as such, the genuineness of that document is doubtful.
Further, the learned Tribunal held that the petitioner should have produced any authorized witness of the said school along with the admission register etc. to prove its genuineness and the truthfulness of the contents of the same.
37. We are unable to agree with the said reasoning of the learned Tribunal for rejecting the genuineness of the said Admit Card.
It has been mentioned and as can be clearly seen from the Admit Card itself that the space for affixing passport size photograph only in respect of the "continuing candidate". On the left top of the Admit Card, there are three words "Regular/ Page No.# 14/26 Continuing Candidate", written in which the word "Continuing" has been struck off.
This indicates that the petitioner Barnali Roy was not appearing as a "Continuing Candidate", in which event, affixing of passport size photograph would not necessary. The requirement is only to those candidates who are appearing as "Continuing" candidates, which we have been informed are those candidates, who re-appear in the examination for variety of reasons. She was, however, appearing as a Regular Candidate for which there is no such requirement and as such, the Tribunal could not have rejected the Admit Card (Ext.2) on the aforesaid ground.
When the petitioner herself produced the original Admit Card and no doubt was raised about the authenticity of the same, we fail to understand how the learned Tribunal could have ignored the same. Could she have obtained an original Admit Card which belongs to somebody else?
As mentioned above, this document (Ext.2) is also more than 30 years old when it was produced and exhibited before the Tribunal and she would be the most appropriate custodian of the said Admit Card and as such, there will be a presumption as to the authenticity of the said document as provided under Section 90 of the Evidence Act, 1872.
38. Coming Ext.3 which is a Memorandum issued by the Sub-Divisional Officer, Sadar, West Tripura dated 19.05.1990 certifying that Barnali Roy, daughter of Phani Bhusan Roy of village Bhati Abhoynagar, P.S. West Agartala, West Tripura District prima facie qualifies for recognition as a Citizen of India by birth, that document was produced by the petitioner in the original. It is seen that in the said Memorandum, the Page No.# 15/26 photograph of the person is affixed and stamped. Even if the said document (Ext.3) is not treated to be a public document but a private document issued in favour of the petitioner, unless the genuineness of the said document is questioned, the learned Tribunal ought not to have ignored the same.
39. As regards the certificate which was exhibited as Ext.4 issued by the Director, Food and Civil Supply, Tripura certifying that Shri Phani Bhusan Roy, father of Smti Barnali Roy has been serving in the Food and Civil Supplies Directorate under Government of Tripura since 12.12.1967, it would be required to be proved by calling the concerned authority which issued the certificate. Nevertheless, the genuineness of the same had not been questioned by the authorities.
Even if the said document, Ext.4 is to be ignored, in our opinion, there are other documents which corroborate the plea of the petitioner.
40. The learned Tribunal also ignored Ext.5, the Photo Identity Card issued by the Election Commission of India in the name of Phanibhushan Roy on the ground that the petitioner had not filed any electoral roll showing the name of the projected father.
41. We are unable to agree with the said observation of the learned Tribunal. If the petitioner had been able to furnish the voters list, that will greatly enhance the credibility of the petitioner. However, merely because the electoral roll had not been filed, it will not necessarily render the Identity Card to be of no value. It can certainly corroborate the plea of the petitioner that she is the daughter of said Phani Bhusan Roy. The said exhibit was proved in original as recorded by the learned Tribunal. If that is so, we do not see any reason why the said Identity Card could have been ignored Page No.# 16/26 when no question was asked about the authenticity or otherwise of the said document.
42. The petitioner also has annexed a set of documents pertaining to her father, Phani Bhusan Roy which were exhibited as Exts.6, 6(1), 6(2) and 6(3) i.e., Admit card issued by the University of Calcutta for appearing in the Pre-University Examination in Arts, 1966, Admit Card issued for appearing to the Examination for the Degree of Bachelor of Arts Part II 1974, Admit Card issued for appearing to the Examination of Degree of Bachelor of Arts Part II, 1972 and the certificate issued by the University of Calcutta for passing the Pre-University Examination in Arts held in the month of May, 1966.
As noted by the Tribunal, these were produced in Original. Except the certificate issued for passing the Pre-University Examination in Arts held in the month of May, 1966, in all the Admit Cards, the photographs of the candidate are affixed which have been duly signed by the concerned authority and these photographs have close resemblance with the photo in the Identity Card issued in the name of the father of the petitioner, Phani Bhusan Roy. Apart from this, these documents were also produced in original by the petitioner and the authority of these documents have not questioned by the State.
43. Learned Tribunal, however, ignored these Admit Cards/certificate on the ground that none of the authorities who have issued these Admit Cards/certificate were examined.
44. We are unable to agree with the said reasoning inasmuch as these documents were also more than 30 years old and there is nothing to indicate that these Page No.# 17/26 documents are fabricated or fraudulent and as such, when no doubt was expressed while exhibiting the said documents and while examining the petitioner by the State, the learned Tribunal could not have taken such a view to ignore these documents. The petitioner, being the daughter of the said Phani Bhusan Roy after his death, can be natural/appropriate custodian of these documents.
45. We have also seen the Certificate of Registration issued in the name of Sri Phani Bhusan Roy which was exhibited as Ext.7 and was proved in original, which means the said original document was also produced by the petitioner. The said Certificate of Registration was issued in the name of Sri Phani Bhusan Roy as the son of Sri Ambika Charan Roy, with the place of birth showing as Sultanpur, Madhabpur, Sylhet, the then East Pakistan (now Bangladesh) and the said certificate was issued on 01.05.1964 which also contains the photograph of said Phani Bhusan Roy. There is close resemblance of the said photo with the photographs affixed on the Admit Cards referred to above.
45.(A) The learned Tribunal also noted that thought the petitioner had stated that her projected father was Government employee, the said Ext.7 i.e. the Certificate of Registration shows the occupation as "private service". Thus, according to the learned Tribunal, the said document does not corroborate her evidence.
We are unable to accept the said finding of the learned Tribunal for the reason that if no question was asked to the petitioner as to the alleged discrepancy, no adverse inference could have been drawn. Further, the observation of the learned Tribunal is not based on record.
Page No.# 18/26 In the certificate issued by the Director of Food and Civil Supply, Government of Tripura, it is clearly mentioned that Phani Bhusan Roy, father of the petitioner was serving in the Food and Civil Supply Directorate under the Government of Tripura since 12.12.1967, whereas the said Certificate of Registration is dated 01.05.1964 i.e. prior to entry in service in the Food and Civil Supply Directorate and as such, there is no contradiction at all in the aforesaid two documents. He could have been working with a private employer before he got the employment in the State Government of Tripura.
Therefore, this observation of the learned Tribunal is not only against the evidence but wholly untenable.
46. The said document, Ext.7, Registration Certificate was also not doubted. The said document indicates that the father of the petitioner was initially a resident of the then East Pakistan, now Bangladesh who migrated to India because of religious persecution as submitted by the learned counsel for the petitioner before this Court, and we have no reason to doubt such a submission. The said certificate was issued in favour of the father of the petitioner by the competent authority. As mentioned above, this certificate is also more than 30 years old and the petitioner being the daughter of said Phani Bhusan Roy can be said to be the legitimate custodian of the aforesaid certificate as well as the Admit Cards issued in the name of her father Phani Bhusan Roy, more so, after the death of the father on 27.05.2010 as per the death certificate, which was exhibited as Ext.9 and accordingly, we are of the view that the learned Tribunal ought not to have rejected the said certificates.
47. The observation of the learned Tribunal that the petitioner cannot be said to be Page No.# 19/26 the proper custodian of the said documents does not appear to be correct as being the daughter of the aforesaid Phani Bhusan Roy who has now expired, she would be the natural custodian of these documents.
48. Further, we fail to understand how the petitioner could get hold of certain original documents belonging to somebody else if the said Phani Bhusan Roy is not her own father. It will be too presumptuous to draw such an inference especially when we have examined her statement, evidence-in-chief as well as the cross-examination where she has very consistently mentioned about the various facts of herself and her father.
49. Learned Tribunal also observed that the petitioner has not described anything regarding the family members of either herself or her father.
50. It has been observed by the learned Tribunal that the petitioner has not mentioned about her mother and also her brothers in the written statement though she mentioned these facts in deposition.
51. In our view, as held by this Court in Haidar Ali Vs. Union of India and Ors., [WP(C) No.1818/2019, disposed of 30.03.2021] merely because of the fact that certain facts were not mentioned in the written statement but mentioned in the course of deposition will not render such facts unreliable.
52. In this regard, one may refer to para No.29 of Haidar Ali (supra), which is quoted hereinbelow, "29. From the above, what is important to note is that the Foreigners Tribunal constituted under the Foreigners (Tribunals) Order, 1964 merely provides a proceedee a Page No.# 20/26 reasonable opportunity for making a representation and producing evidence in support of his case before the Tribunal and as such, normally, the rules of pleadings including that of "written statement" as provided under the CPC are not applicable.
As a corollary, the principles contained in the CPC relating to the scope of written statement and limitations placed thereon cannot be strictly applied in the proceedings before the Tribunal though the principles may generally be applied. In fact, all opportunities should be given to a proceedee to enable him to produce all such documents which come to his possession even at a later stage also, to substantiate his claim that he is an Indian. No pedantic view should be taken, if there has been some delay or if the same is not mentioned in the written statement. Even under the scheme of the CPC, the right to file any document at a later stage, even if at the appellate stage, is always there, subject to leave of the court and if such documents are relevant and highly necessary and could not be produced earlier after exercise of due diligence (vide Order XLI Rule 27 CPC).
Thus, if the proceedee is able to make out a case for filing a document at a later stage, the same cannot be denied and no adverse inference can be drawn. Similarly, if any fact is introduced at the time of adducing evidence, though the same is not mentioned in the written statement, no exception can be made. It cannot be said to be improvement and adverse inference accordingly taken thereof.
Non-mentioning of any person or fact or document in the written statement, if mentioned later, cannot be said to cause any surprise or prejudice to the State so as to ignore such new fact or document. In any event, liberty is always with the State to rebut any evidence after the proceedee has completed adducing evidence.
Page No.# 21/26 We have also noted that the witnesses who adduced evidence are cross-examined by the State and as such, if such deposition cannot be shaken during the cross- examination, no adverse inference can be drawn against the petitioner."
53. Learned Tribunal referring to the reference forwarded by the Superintendent of Police (B), Sonitpur District observed that the reference was made against Barnali Dev, wife of Sajal Kanti Dev, resident of Garowanpatty, P.S. Tezpur, District Sonitpur whereas, the petitioner has been producing the documents in respect of citizenship of Barnali Roy, daughter of Phani Bhusan Roy, resident of Bhati Abhoy Nagar, Agartala, District South Tripura. Learned Tribunal also observed that the petitioner has stated in her written statement and evidence as well that on 22.04.1966 she got married to Sri Sajal Kanti Dev who is an inhabitant of Garwanpatty and since her marriage, she has been living with her husband and children in Garwanpatty. The learned Tribunal also observed that the proceedee has failed to produce the marriage certificate to establish that Barnali Roy of Bhati Abhoy Nagar of Agartala and Barnali Dev of Garwanpatty is the one and the same person. The learned Tribunal also held that the petitioner has failed to produce any cogent and reliable witness before the Tribunal in support of the said fact.
Thus, the learned Tribunal came to the conclusion that the petitioner has failed to prove that she is an Indian national.
54. We are unable to agree with the aforesaid conclusion arrived by the learned Tribunal. The petitioner has very categorically stated in her written statement and in her evidence before the Tribunal and also reiterated in the cross-examination that she Page No.# 22/26 was born to Phani Bhusan Roy who was a resident of Agartala and on her marriage with Sajal Kanti Dev of Garowanpatty, she has been staying in Garwanpatty.
The aforesaid evidence and testimony of the petitioner was never challenged by the authority. In the cross-examination, she reiterated that she was born on 25 th May, 1976 at Amarpur Civil Hospital, South Tripura and her father was working in the Food and Civil Supply Directorate.
55. In the cross-examination, she also stated that she did not mention the name of her mother and that she was not well. She also stated that she also did not mention the names of relatives of her parents.
However, in our opinion the said cross-examination was of no use as it is only repeating the obvious i.e., about non-mentioning of the names of other relatives in the written statement. Therefore, no purpose is served by asking that she did not mention these facts. Rather, in our view it would have been more appropriate if the witness was asked, why she did not mention in the written statement, which, however, was not asked. All these names were not recorded in the written statement.
She thereafter, narrated about her being a student of Banividyapith Girls H.S. School in Agartala and of her father's passing the Pre-University Examination under Calcutta University etc. She also mentioned about the death of her father in Agartala. She mentioned about her marriage of Sri Sajal Kanti Dev. She admitted that she did not mention the name of her siblings of grandparents. She also admitted that she had not filed any electoral roll. However, as discussed above, at any point of time, she was not asked why she did not mention these facts in the written statement.
Page No.# 23/26
56. From the records, it is quite evident that the petitioner was shown to be daughter of one Phani Bhusan Roy who was an Indian having migrated from the then East Pakistan before 1964.
In our opinion, the failure of the petitioner to file any document relating to her marriage or marriage certificate or electoral roll of herself, will not be fatal. In our opinion, when the person specially a woman appears before the Tribunal stating that she is the daughter of a person who was a resident of Tripura and when there are sufficient evidences to show that her father was staying in Tripura, merely because she could not produce any electoral roll or marriage certificate, may not be a ground to reject her claim.
That she got married to Sri Sajal Kanti Dev is also not disputed. In fact, the authorities during their enquiry had recorded that the name of her husband is Shri Sajal Kanti Dev. Therefore, in our opinion, to insist to prove a fact which the authorities themselves recorded when making the enquiry will be a future exercise.
57. It appears from the documents that the petitioner belongs to a lower middle class family and no woman would make such stories to claim to be the daughter of somebody with whom she is not related, yet, would be in a position to produce the original documents of that particular person who she claims to be her father. If the Tribunal disbelieves these documents and the contention of the petitioner, the inference will be that she is not in any way related to Phani Bhusan Roy but somehow she managed to get all the original documents of said Phani Bhusan Roy which are very personal in nature which is very difficult to contemplate or imagine. But that is Page No.# 24/26 what the Tribunal would like to portray the case of the petitioner as someone who is trying to show that she is an Indian by relying on the original documents belonging to some stranger.
Further, no woman of such statute would claim to be married to a person without staying with him. It is on record that the petitioner has been staying in Garowanpatty, P.S.Tezpur, District Sonitpur along with Sri Sajal Kanti Dev as her husband as also recorded in the enquiry report.
57(A) It has been submitted by the learned counsel for the State as observed by the Hon'ble Supreme Court in Sarbananda Sonowal Vs. Union of India and Anr., (2005) 5 SCC 665 that the State of Assam is facing external aggression and internal disturbances on account of large scale of illegal migrant of Bangladeshi nationals, of which there can be no two opinions.
However, it is also a significant historical fact that many Hindus who were living in the then East Pakistan (now Bangadesh) had been compelled to leave that country because of religious persecution and took shelter in this country after independence, the Government of India had accepted them by issuing Certificate of Registration to such persons.
From the records, it appears that the father of the petitioner was one such person who left the then East Pakistan and came to India as can be seen from the Certificate of Registration issued in 1964. We are of the view that the State owes an obligation to see that such persons and their descendants who had fled from the then East Pakistan because of religious persecution are not treated as the foreigners for Page No.# 25/26 technical and unreasonable grounds which we have found to be so in the present case, and this country has a duty to honour its commitment to keep them safe in this country and certainly, the State has certain obligation to rebut the evidence of the petitioner if the State had doubted the plea of the petitioner, which, unfortunately, has not been done in the present case.
Be that as it may, in the present case, as we have already held that there are sufficient materials and documents to show the petitioner is the daughter of Phani Bhusan Roy who had migrated from Bangladesh to India before 1964 and settled at Agartala and the petitioner has been residing in the State of Assam after getting married to one person, namely, Sajal Kanti Dev, a resident of Assam as reflected in the enquiry report, we uphold the plea of the petitioner that she is an Indian and not a foreigner.
58. We are, accordingly, of the view that the petitioner is indeed the daughter of Phani Bhusan Roy who was a resident of India and citizen of India having come from the then East Pakistan, now Bangladesh before 1964 and settled in India.
In the original enquiry report prepared by the Local Verification Officer which is on the record, it has been clearly mentioned that the petitioner had migrated from Agartala to Assam. There is no observation by the Enquiring authority that she was suspected to have come from the then East Pakistan. In the verification report, it has been mentioned that the place of birth of the petitioner is Agartala and if she was born on 22.12.1974 in Agartala as also recorded in the verification officer's report and since there is no finding by the Enquiry Officer that she had come from a specified territory, Page No.# 26/26 we would hold that the enquiry report corroborates the plea of the petitioner that she was born in Agartala to a person who was staying in Agartala as mentioned above and she came to Garowanpatty, Tezpur, in Sonitpur District only after she got married to Sri Sajal Kanti Dev.
59. Accordingly, for the reasons discussed above, we are satisfied that the petitioner has been able to prove her case on the basis of preponderance of probability based on the aforesaid evidences adduced that she is an Indian and not a foreigner. We reiterate, the exhaustive narration by the petitioner and the unimpeached documents exhibited before the Tribunal, clearly show that the petitioner is an Indian and not a foreigner as alleged.
60. Accordingly, for the reasons discussed above, we allow this petition by setting aside the impugned order dated 03.07.2019 passed by the learned Foreigners Tribunal, Tezpur (1st), Sonitpur, Assam in F.T.(D) Case No.2258/2012 [Police Enquiry No.1695/1998] and declare the petitioner, Barnali Dev, wife of Sajal Kanti Dev, resident of village Garowanpatty, P.S. Tezpur, District Sonitpur, Assam to be a citizen of India.
61. With the above observations and directions, the present petition stands disposed of.
62. LCR be remitted forthwith to the concerned Foreigners Tribunal.
JUDGE CHIEF JUSTICE (ACTING) Comparing Assistant