Gauhati High Court
Page No.# 1/12 vs Union Of India And 5 Ors on 27 May, 2025
Author: M. Nandi
Bench: Kalyan Rai Surana, Malasri Nandi
Page No.# 1/12
GAHC010250962019
2025:GAU-AS:6793
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7685/2019
MANIK KARMAKAR
REP. BY THE SECRETARY TO THE GOVT OF INDIA, DEPTT OF HOME, NEW
DELHI, PIN- 110011
VERSUS
UNION OF INDIA AND 5 ORS
REP. BY THE SECRETARY TO THE GOVT OF INDIA, DEPTT OF HOME, NEW
DELHI, PIN- 110011
2:THE STATE OF ASSAM
REP. BY THE SECRETARY TO THE GOVT OF ASSAM
HOME DEPTT
DISPUR
GUWAHATI- 06
3:THE DEPUTY COMMISSIONER
DIST- MORIGAON
4:THE SUPERINTENDENT OF POLICE (B)
MORIGAON
DIST- MORIGAON
ASSAM
5:THE ELECTION COMMISSIONER OF INDIA
REP. BY THE SECRETARY OF THE COMMISSION
HQ NEW DELHI
6:THE STATE COORDINATOR
NRC
ACHYUT PLAZA
BHANGAGARH
Page No.# 2/12
DIST- KAMRUP(M)
GUWAHATI-5
ASSA
Advocate for the Petitioner : MR S CHOUDHURY, MR I HOQUE,MR S CHAKRABORTY,MR P
C DEY
Advocate for the Respondent : ASSTT.S.G.I., SC, NRC,SC, F.T,SC, ELECTION COMMISSION.
BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE MALASRI NANDI JUDGMENT & ORDER (CAV) Date : 27-05-2025 (M. Nandi, J) Heard Mr. P.C. Dey, learned counsel for the petitioner. Also heard Mr. D.J. Das, learned CGC; Mr. J. Payeng, learned Standing Counsel, FT matters; Mr. H. Kuli, learned counsel for Mr. A.I. Ali, learned Standing Counsel, ECI; and Mr. P. Sarmah, learned Additional Senior Government Advocate.
2. By filling an application under Article 226 of the Constitution of India, the petitioner has assailed the order dated 16.05.2013, passed by the learned Member, Foreigners Tribunal No.1, Morigaon in F.T (D) Case No.1544 [Police Reference Case D/N Case No. 3612/97], whereby the petitioner was declared to be a foreigner of post 25.03.1971.
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3. The case of the petitioner is that he is the son of late Darpa Narayan Karmakar and late Chinta Rani Karmakar. His grandfather is late Sarga Mohan Karmakar and they are the permanent resident of Gopalpur, P.O - Madargachi, P.S - Karandighi under district - Uttar Dinajpur in the State of West Bengal. The name of the petitioner's parents were recorded in the voter list in the State of West Bengal and as such the Election Commissioner of India issued Elector Photo Identity Cards (EPIC) to them.
4. The further case of the petitioner is that he came to Assam in 1995 and was working temporarily under contractor of Jagiroad Paper Mill and started to reside at Village - Nokhola grant under Jagiroad Police Station in the district of Morigaon, Assam. Though he categorically stated that he is a permanent resident of West Bengal and is a citizen of India before the Foreigners Tribunal, Morigaon, but the Foreigners Tribunal, Morigaon came to a finding that the petitioner failed to prove his linkage with his parents and declared the petitioner to be a foreigner of post 25.03.1971.
5. On receipt of the notice from the Tribunal, the petitioner appeared and submitted his written statement wherein he disclosed that he was born in the village - Gopalpur in district - Uttar Dinajpur in the State of West Bengal, as such, he is an Indian citizen by birth. The competent authority also issued Elector Photo Identity Card (EPIC) in favour of him. The petitioner was reading up to Class V in Madargachi Govt. Aided High School located at West Dinajpur district of West Bengal. The written statement of the petitioner also disclosed that the petitioner has landed property in West Bengal and he is a ration card holder issued by Food & Civil Supply of Govt. of West Bengal.
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6. To substantiate his case regarding citizenship, the petitioner also adduced his evidence as DW-1, wherein he also stated that he was born in village- Uttar Dinajpur in the State of West Bengal. He studied at Madargachi High School up to class - V and Ext.Ka is the school certificate. The petitioner also exhibited voter cards of him and his parents vide Ext.Kha, Ext.Ga and Ext.Gha. Ext.Onga is the ration card, Ext.Cha - is the copy of patta of land in the name of petitioner's father, Ext.Chha - is the certified copy of patta of land in the name of petitioner. Ext.Ja and Ext.Jha are land revenue receipts of 2009 and 2012. Ext.Niya is the panchayat certificate.
7. It is also stated in his evidence that though the petitioner was working in the Paper Mill at Jagiroad under contractor since 1995 for his livelihood but he has been casting vote in his village i.e. Gopalpur. He used to reside in the rented house at Jagiroad.
8. Learned counsel for the petitioner has submitted that the petitioner was born on 01.05.1972 and brought up in the village - Gopalpur in West Dinajpur district of West Bengal. As per school certificate, the petitioner read up to class V in Madargachi Government Aided High School and he left the school on 31.08.1981. The name of the petitioner was also shown in the Khatian of land in the year 1994, EPIC, ration card and panchayat certificate issued by the Prodhan of Domohana Gaon Panchayat from which it reveals that the petitioner is a citizen of India by birth.
9. It is further submitted that on the basis of a vague and incomplete report of the Local Verification Officer (LVO), the Superintendent of Police (B), Morigaon registered a reference and referred the matter to Foreigners Tribunal Page No.# 5/12 suspecting the petitioner as an illegal migrant.
10. By referring the judgment of this Court vide (2023) 2 GLT 1102 [Anjana Biswas @ Anjana Sarkar Vs. Union of India and Ors.] , learned counsel for the petitioner has submitted that non-mentioning the name of the mother in the written statement as well as in the evidence by the petitioner cannot be said to be fatal to his claim. There are sufficient evidences on record to show that the petitioner is originally hailing from West Bengal. He started to reside temporarily in Jagiroad in the district of Morigaon, Assam to earn his livelihood and as such, he cannot be treated to be a foreigner.
11. Learned counsel for the petitioner also has pointed out the observation made by this Court in the case of Anjana Biswas (supra), which is reproduced as follows -
"120. In our opinion, when such a plea is taken that a person hails from another part of this country and not from Bangladesh, such a plea must be considered with utmost seriousness inasmuch as the Tribunal will not have any jurisdiction to consider the claim of any person who does not hail from the "Specified Territory" within the meaning of Section 6A of the Citizenship Act, 1955.
121. In this regard, we may refer to the decision of this Court in Indira Newar (supra) and a batch of writ petitions wherein a number of proceedings against persons belonging to Nepali community, who were declared to be foreigners by the Foreigners Tribunals were challenged before this Court.
Page No.# 6/12 In that batch of petitions, this Court took the view that if the proceedees are found not to have come from the "Specified Territory" as mentioned in Section 6-A(1)(c) of the Citizenship Act, 1955, proceedings against them would not lie before the Foreigners Tribunal.
It was observed in Indira Newar(supra) that in respect of a proceeding before a Tribunal constituted under the Foreigners (Tribunals) Order,1964 having jurisdiction over a district or part thereof in the State of Assam, in terms of Rule 21 of Citizenship Rules, 2009, the primary and necessary ingredient or the condition precedent is that the reference can only be in respect of persons who have come to Assam from the "Specified Territory", meaning, the territories included in Bangladesh immediately before the commencement of the Citizenship (Amendment) Act,1985 and also having regard to the cut-off date of migration into Assam as prescribed under the Section 6-A of the Citizenship Act, 1955.
122. It was observed in the Indira Newar (supra) that if no suspicion is expressed by the Referral Authority or in absence of any finding recorded by the concerned authority that any of the proceedees are persons who had come into Assam from the "Specified Territory", such a proceeding will not lie, though in the said batch of writ petitions, the matter related to the members of the Gorkha community who originally hailed from Nepal.
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123. We may also add that in the said writ petitions, this Court considered the notifications issued by the Government of India about the status of Gorkhas who had domiciled in the territory of India, vide Notifications 23.08.1988 and 24.09.2018 which laid down that since members of Gorkha community originally hail from Nepal, it may not be appropriate to declare all of them as from the "Specified Territory" as defined under Section 6-A(1)(c) of the Citizenship Act, 1955. It was declared that only those who had come from Bangladesh and living in the State of Assam can be treated as from the "Specified Territory" in accordance with law..."
12. Further submission of learned counsel for the petitioner is that though the Referral Authority is required to make the reference to the Tribunal after making a fair investigation but in the instant case, no such proper and fair investigation was conducted by the Local Verification Officer (LVO) and he submitted the said report in his whims and caprice even without visiting the place of the petitioner and without giving opportunity to produce relevant documents which clearly violates the basic fundamental rights of the petitioner and as such the entire proceeding conducted against the petitioner is vitiated. Accordingly, learned counsel for the petitioner has prayed to set aside the order of the Tribunal dated 16.05.2013.
13. Per contra, learned Standing Counsel, F.T matters, Mr. J. Payeng has submitted that the documents submitted by the petitioner are not relevant to prove the lineage of the petitioner along with his parents that they are the Page No.# 8/12 citizen of India by birth.
14. It is also pointed out by Mr. Payeng that in Ext.Cha and Ext.Chha, it is not mentioned in which year the documents were issued. In Ext.Cha, the name of the father of the petitioner is reflected as Darpalal Das, S/o Kharga Mohan Das and in Ext.Chha, it is written as Manik Karmakar, S/o Darpa Narayan. In Ext.Onga, the ration card, the name of the petitioner's father appears as Darkha Karmakar. In Ext.Kha, the name of the petitioner's father is shown as Karmakar Darpa Narayan, S/o Swarga Mohan.
15. Mr. Payeng also stated that the mother of the petitioner has not been introduced either in the written statement or in the evidence of the petitioner. Hence, the subsequent statement of the petitioner that Chinta Rani Karmakar is the mother of the petitioner cannot be taken into consideration in proving the citizenship of the petitioner. According to Mr. Payeng, as the petitioner has failed to discharge his burden under Section 9 of Foreigners Act, 1946, the writ petition is liable to be dismissed.
16. On perusal of the trial court record including the documents submitted by the petitioner, it appears that the father's name of the petitioner is not similar in various documents. Though the petitioner stated that the name of his father is Darpa Narayan Karmakar, but he is also known as Draksha Lal Karmakar, Darkha Karmakar, Darpalal Das, Darpa Narayan but the name of grandfather of the petitioner is also not matching with all the documents.
17. Coming to transfer certificate vide Ext.Ka which was issued by Headmaster of Madargachi X Class Govt. Aided High School of West Dinajpur on 04.11.1992 to one Manik Chandra Karmakar, S/o Draksha Lal Karmakar, Village - Gopalpur, Page No.# 9/12 P.O - Madargachi, District - West Dinajpur and his date of birth as recorded in the admission register was 01.05.1972. He left the school on 31.12.1981. He was reading in Class V and promoted to class VI. But the headmaster of the school was not examined to prove the content of the document.
18. In support of his citizenship, the petitioner exhibited voter identity card of him and his father. However, the petitioner did not produce any voter list of his parents or grandfather. According to learned counsel for the petitioner, though the voter list of the petitioner and his parents are available with him but due to ignorance, those documents were not exhibited before the Tribunal.
19. Regarding landed property, the petitioner though exhibited some documents vide Ext.Cha, Ext.Chha, Ext.Ja and Ext.Jha, but we are unable to identify the owner of the land and his relationship along with the petitioner. The learned counsel for the petitioner has submitted that by that time, the petitioner got the ownership right over the said land and the petitioner has sufficient documents to prove the same before the Tribunal if the matter is remanded back for fresh adjudication.
20. Perusal of the judgment of the Tribunal, it reflects that as there was discrepancy in the name of the father of the petitioner in different documents, the petitioner was declared to be a foreigner who had entered into India (Assam) after 25.03.1971.
21. Learned counsel for the petitioner submits that there is a specific mention in the enquiry report that the petitioner was born in the year 1968 in the State of West Bengal and also there is no indication in the enquiry report that the Page No.# 10/12 petitioner has come from the specified territory i.e. Bangladesh, which is necessary for initiating any proceeding under the Foreigners (Tribunals) Order, 1964 in the State of Assam.
22. It is reflected in the judgment of Indira Newar (supra), wherein it has been held that unless there is a finding that the person has come from the specified territory, the proceedings under the Foreigners Tribunal will not be maintainable. Admittedly, in the present case, there was no such mention in the enquiry report that the petitioner has come from the specified territory. On the contrary, it is clearly mentioned in the enquiry report that he was born in the State of West Bengal.
23. Under such backdrop, we are of the view that the matter will be required to be reconsidered by the learned Tribunal which can happen only, if the matter is remanded.
24. Accordingly, for the reasons discussed above, the writ petition is allowed by setting aside the impugned opinion passed by Foreigners Tribunal No.1, Morigaon in F.T (D) Case No.1544 [Police Reference Case D/N Case No. 3612/97] and remand the matter to the Tribunal so that the tribunal can reconsider the matter by re-assessing the admissibility, reliability and credibility of the evidences which have been adduced by the petitioner as discussed above and thereafter pass a fresh opinion as regards the citizenship status of the petitioner.
25. Resultantly, the petitioner will appear before the learned Foreigners Tribunal, Morigaon within a period of one month from the date of receipt of Page No.# 11/12 certified copy of this order and thereafter, the learned Tribunal will proceed with the matter in accordance with law. However, the petitioner is at liberty to produce any other relevant documents like voter lists of him, his parents, grandparents etc and to examine any witness, if any in support of his case. The Tribunal is directed to proceed with the trial from the stage of further evidence of the petitioner with the documents to be exhibited.
26. Since the citizenship of the petitioner has come under cloud, the petitioner will appear before the Superintendent of Police (B), Morigaon and furnish a bail bond of Rs.5000/- (Rupees Five Thousand only) with one local surety of like amount to the satisfaction of the said authority whereafter the petitioner shall be allowed to remain on bail.
27. The concerned Superintendent of Police (B) may obtain necessary information and documentation as required under the rules from the petitioner for securing his presence and also take steps for capturing the fingerprints and biometrics of the iris of the petitioner, if so advised.
28. It is made clear that we are not expressing any opinion regarding merits of the case.
29. With the above observations and directions, the present writ petition stands disposed of.
30. Transmit the case records to the Tribunal.
31. Registry is directed to do the needful within the stipulated time so that the petitioner can approach before the Tribunal as early as possible as it is a Page No.# 12/12 reference for the year 1997.
JUDGE JUDGE Comparing Assistant