Gauhati High Court
Usha Devi @ Usha Rani Devi vs The Union Of India And 6 Ors on 17 June, 2022
Author: Nani Tagia
Bench: Nani Tagia
Page No.# 1/18
GAHC010052112018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2854/2018
USHA DEVI @ USHA RANI DEVI
W/O SRI SURENDRA DEVNATH, R/O VILLAGE GELPEJHAR, PO MERKUCHI,
PS BARAMA, DIST. NALBARI, ASSAM
VERSUS
THE UNION OF INDIA AND 6 ORS.
REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, GOVT.
OF INDIA, SHASTRI BHASWAN, NEW DELHI
2:THE ELECTION COMMISSION OF INDIA
REPRESENTED BY CHIEF ELECTION COMMISSIONER
NIRVACHAN SADAN
ASHOKA ROAD
NEW DELHI-110001
3:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-6
4:THE STATE COORDINATOR
NATIONAL REGISTRATION OF CERTIFCIATE
OFFICE ADDRESS AT ACHYUT PLAZA
G.S ROAD
BHANGAGARH
GUWAHATI-5
KAMRUP (M)
ASSAM
Page No.# 2/18
5:THE SUPERINTENDENT OF POLICE (B)
DIST. NALBARI
ASSAM
6:THE OFFICE IN CHARGE
BARAMA POLICE STATION
BAKSA
ASSAM
7:THE DEPUTY COMMISSIONER
NALBARI
ASSA
Advocate for the Petitioner : MR. L MOHAN
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE HON'BLE THE CHIEF JUSTICE (ACTING) MR. N. KOTISWAR SINGH HON'BLE MR. JUSTICE NANI TAGIA Date of hearing :: 23.03.2022 Date of judgment :: 17.06.2022 JUDGEMENT & ORDER [N. Kotiswar Singh, CJ (Acting.)] Heard Mr. L. Mohan, learned counsel for the petitioner. Also heard Mr. H. Gupta, learned Central Government Counsel; Mr. J. Payeng, learned Special Counsel, FT; Mr. A. I. Ali, learned Standing Counsel, ECI; Ms. L. Devi, learned Standing Counsel, NRC and Ms. U. Das, learned Government Advocate, Assam.
2. In this writ petition, the petitioner, wife of one Surendra Debnath has challenged the opinion dated 29.11.2017 passed by the Foreigners Tribunal-1, Nalbari in FT (Nal) Case No. (B)3572/2007 by which the Tribunal held the aforesaid Surendra Debnath, son of late Gurucharan Debnath, resident of village-Gelpejhar, PS. Barama, District-Baksa, Assam to be a foreigner.
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3. Before we examine the various grounds on which the opinion has been challenged, it may be necessary to travel back to a certain period of time to appreciate the submissions advanced by the learned counsel for the petitioner.
4. From the records, it appears that the aforesaid FT (Nal) Case No.(B)3572/2007 was initiated sometime in the year 2007 on the ground that the said Surendra Debnath illegally migrated to India after 25.03.1971 from village Sonari, Police Station-Phulpur, district- Maimansingh of Bangladesh and living in village Gelpejhar, PS. Barama of Baksa district, Assam. The said FT Case was disposed of on 02.08.2011.
5. From a reading of the order dated 02.08.2011, it appears that after receiving notice, the proceedee appeared before the Tribunal and filed his written statement but thereafter remained absent on several dates because of which he was proceeded ex parte. After examining the Investigating Officer of the case, the Tribunal held that the proceedee had failed to discharge his burden cast under Section 9 of the Foreigners Act, 1946, thus, failed to prove that he is not a foreigner and declared the said Surendra Debnath as a foreigner.
6. After the aforesaid order dated 02.08.2011 was passed, the said Surendra Debnath was deported to Bangladesh on 10.08.2011. Thereafter, one Krishna Debnath, son of Surendra Debnath challenged the validity of the said ex parte order before this Court by filing WP(C) No.6268/2011, which was allowed by this Court vide order dated 06.10.2015 by observing that though there is no provision for setting aside the ex parte order by the Tribunal but the Full Bench of this Court in State of Assam and others Vs. Moslem Mondal, 2013 (1) FLT 809 :: 2013 (1) GLT (FB) 809 had held that a Tribunal is empowered to set aside an ex parte order upon showing good and sufficient cause. Accordingly, this Court disposed of the said writ petition, WP(C) 6268/2011 by granting liberty to the petitioner to approach the Tribunal for setting aside the impugned judgment and order on or before 07.11.2015.
7. Learned counsel for the petitioner submits that on such liberty being granted, the petitioner in WP(C) No.6268/2011 approached the Tribunal for setting aside the aforesaid ex parte order passed on 02.08.2011. The Tribunal, however, rejected the said application on 01.04.2016 by holding that the ex parte order was passed by the Tribunal on 02.08.2011 and Page No.# 4/18 the petitioner filed the petition to vacate the said ex parte order on 19.10.2015, but the petitioner did not file any petition under Section 5 of the Limitation Act to condone the delay in filing the said application. Thus, the said application was dismissed by the Tribunal on the ground of delay.
8. Being aggrieved by the said rejection order, dated 01.04.2016 of the Tribunal, the petitioner again approached this Court by filing another writ petition, WP(C) No.4786/2016. This Court, after hearing the parties, took the view that rejection of the application filed by the petitioner for setting aside the ex parte order on the ground of limitation is not justified and, accordingly, set aside the order dated 01.04.2016 passed by the Tribunal requiring fresh consideration by directing the petitioner to appear before the Tribunal on or before 26.09.2016.
In terms of the aforesaid order dated 06.09.2016 passed by this Court in WP(C) No.4786/2016, the petitioner appeared before the Tribunal, filed written statement and all the documents in his possession and adduced evidence.
9. The Tribunal after considering the evidences on record, passed the impugned order dated 29.11.2017 by holding that the OP, i.e., the proceedee, Sri Surendra Debnath has not been able to prove his Indian citizenship and held that he had entered illegally Assam on or after 25.03.1971. The Tribunal also observed that the proceedee Surendra Debnath has been already detained and pushed back to Bangladesh on 10.08.2011.
10. Being aggrieved by the aforesaid order dated 29.11.2017 passed by the Foreigners Tribunal No.1, Nalbari in FT (Nal) Case No. (B) 3572/2007, the present writ petition has been preferred by Smt. Usha Devi @ Usha Rani Devi, wife of Surendra Debnath.
11. Before we consider the submissions advanced by the learned counsel for the petitioner, it may be apposite to refer to the documents adduced by the petitioner before the Tribunal and the observations made by the Tribunal as regards these documents. These documents are as follows:-
1. Admit card issued in the name of Surendra Debnath, son of Gurucharan Debnath by Debiram Pathsala High School, Nalbari on 31.10.1972 [Ext.1];
2. Certified copies of voters list of 1965 showing the name of late Gurucharan Page No.# 5/18 Debnath, son of Bodhram in respect of village-Gelpejhar [Ext.2];
3. Photocopy of registration certificate bearing No.8223 in the name of Gurucharan Debnath, son of late Budh Ram Debnath issued on 15.12.1956 [Ext.3];
4. Certified copy of voters list of 1993 showing the name of Surendra Debnath, son of Gurucharan relating to 62 Merkuchi LAC [Ext.4];
5. Photocopy of NRC legacy data of 1965 showing the name of Gurucharan Debnath, son of Bhodram [Ext.5];
6. Certified copies of sale deeds dated 31.1.1986 and 01.02.1982 [Ext.5(a) and Ext.5(b)];
7. Original certificate issued by the Village Headman, VCDC [Ext.6(a)];
8. Original copy of the certificate issued by the Chairman Merkuchi, VCDC [Ext.6(b)];
9. Original certificate issued by the Circle Officer Ghograpar Dev. Circle [Ext.7];
10. Voter identify card of the petitioner [Ext.8].
12. The Tribunal observed that Ext.3, i.e., the Registration Certificate of 1965 in the name of Gurucharan Das does not contain the name of family members of the Gurucharan Das and it should have included the name of the proceedee, Surendra Debnath, who was stated to have been born either in 1954 or 1955 and such renders it suspect. It was also observed by the Tribunal that there is no proof that the said Surendra Debnath was born prior to the arrival of his family in India.
13. Coming to the voters list of 1965 and the said registration certificate, the Tribunal held that there is no document to show that Gurucharan Debnath, son of Bodhram mentioned in the aforesaid documents is the same Gurucharan Debnath, whom the petitioner claims to be his father.
14. As regards the certificates issued by the Village Headman and Chairman of Merkuchi VCDC, the Tribunal held that these are not proved by the concerned authorities and accordingly, declined to accept these certificates.
15. As regards the school admit card, the Tribunal held that the said document could not Page No.# 6/18 be proved beyond reasonable doubt by the witnesses.
16. Under the circumstances, the Tribunal held that the petitioner has neither been successful to prove his linkage with Gurucharan Debnath nor that he was born in India.
17. As regards Exhibits 2 and 3, it has been held that these documents do not prove the linkage of the proceedee with Gurucharan Debnath.
18. The finding of the learned Tribunal, as contained in paragraph-16 of the opinion, is reproduced below:-
"16. On careful scrutiny of the above, it transpires that the Ext.3 Registration Certificate should have contained the names of the family members of Gurucharan Debnath and if it was issued in 1956 then it should also have included the name of OP Surendra Debnath who was stated to be born either in 1954 or 1955. Also there is no proof that the OP was born prior to arrival of his family in India. There is no any document to show that Gurucharan Debnath son of Budhram Debnath of Ext.2 and 3 and that of father of OP Gurucharan Debnath is the same person. Ext.6(a) and 6(b) are not proved by concerned authorities. So I have declined to accept these exhibits. As a result the petitioner has neither been successful to prove the linkage of the OP with Gurucharan Debnath of Ext.2 and 3 nor been successful to prove that the OP was born in India. The Ext.1 School Admit Card could not be proved beyond reasonable doubt by the OP's witnesses."
19. It is contended by learned counsel for the petitioner that merely because in the registration certificate of 1956 (Ext.3), the name of the proceedee is not mentioned cannot be a ground for disbelieving the same as the original was produced before the Tribunal and that the State has not questioned the genuineness or authenticity of the said document. Similarly, in respect of the Admit Card, it has been stated by learned counsel for the petitioner that the original Admit Card was exhibited and also proved by the author of the said Admit Card through OPW2, Madhab Kalita, who is the existing Principal of the School in question, and OPW5, Nagen Dutta, who was the retired Principal of the concerned School and, as such, their evidence not being shaken by the State, it can be said that the said document has been proved.
20. Coming to the opinion of the Tribunal that there is no document to show that Page No.# 7/18 Gurucharan Debnath of Exhibits 2 and 3 is not the same person is also incorrect as these documents clearly show that the proceedee was the son of Gurucharan Debnath and grandson of Bodhram.
21. Under the circumstances, it has been submitted by learned counsel for the petitioner that it cannot be said that the said documents have not been proved as the original documents have been produced before the Tribunal and proved in accordance with law.
22. On the other hand, Mr. Payeng, learned Special Counsel, FT submits that perusal of the finding of the Tribunal in paragraph-16 would clearly indicate that the proceedee has utterly failed to prove his linkage with Gurucharan Debnath, the projected father of the proceedee.
23. Mr. Payeng also submits that the so-called certified copies of the sale deeds which are annexed in this petition as Annexure-6 were deliberately not exhibited by the proceedee as otherwise it would go against him. The said sale deeds were admittedly executed in the year 1963 and if these are considered to be correct, these would show that the said Surendra Debnath was about 9-10 years old if he was born in the year 1954 or 1955. The said documents would be contrary to his other documents and demolish his own case and, as such, the petitioner has deliberately not exhibited the said documents.
24. Mr. Payeng further submits that no linkage document or common document has been produced by the proceedee before the Tribunal. There is not a single document of the proceedee along with his projected father Gurucharan Debnath. All the documents in which the name of the proceedee is found along with his projected father are post 1971 documents and, as such, these documents cannot be relied upon.
25. Mr. Payeng further submits that the school certificate, which was relied upon by the proceedee is doubtful, for, if the petitioner was really born before 1956, his name ought to have been reflected in the certificate of registration. However, his name does not appear. Further, the seal affixed on the said certificate is not legible, thus, making the said certificate of registration highly suspicious. It has been submitted that in fact, in many cases, the Tribunals have declined to accept such certificates as valid document to prove citizenship as there is no uniformity in such certificates and such certificates are issued by different Page No.# 8/18 authorities.
26. Mr. Payeng further submits that it is an undisputed fact that the proceedee had already been deported as far back as in 2011 and he being already declared as a foreigner, no effective relief can be granted at this stage as he is not before this Court as being no more a citizen of this country. Under the circumstances, Mr. Payeng submits that there is no illegality in the opinion rendered by the Tribunal.
27. Mr. Mohan, learned counsel for the petitioner, on the other hand, submits that the submission advanced by Mr. Payeng that there is no linkage document prior to 1971 is not correct inasmuch as the proceedee's father Gurucharan Debnath unfortunately died prior to 1971 because of which in almost all the documents, his father has been referred to as late Gurucharan Debnath.
28. In order to appreciate the rival contentions and the opinion and conclusion of the learned Tribunal, we will analyze the evidences on record.
29. While doing so, it may be noted that in the present case the real proceedee is Surendra Debnath, who was not before the learned Tribunal in the proceeding when evidence was adduced nor before this Court, but is represented by his wife before us and was represented by his son before the learned Tribunal. After an ex-parte order was passed against Surendra Debnath on 02.08.2011 by the learned Tribunal, soon thereafter, he was pushed back to Bangladesh on 10.08.2011 and thereafter his whereabouts are not known to his relatives and friends in India as can be seen from the deposition of the witnesses.
The documentary evidences relied on in the present case which were produced and proved by his son Krishna Debnath before the Tribunal after the ex-parte order of the Tribunal was set aside by this Court vide order dated 06.08.2019 passed in WP(C) No.4786/2016 filed by his son Krishna Debnath.
30. We will first deal with the Certificate of Registration which the learned Tribunal held should have contained the name of the family members of Gurucharan Debnath as it was issued in the year 1956 and since the proceedee Surendra Debnath was stated to be born sometime in 1954 or 1955 and since the name of Surendra Debnath was not mentioned in the said Certificate, it is doubtful.
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31. Having closely examined the said Certificate, it is seen that there is no provision in the said Certificate for entering the names of the relatives.
The particulars mentioned in the said Certificate are as follows,
1. Name. Gurucharan Deb Nath
2. Name of father/mother or husband. Late Budh Rram Deb Nath.
3. Place of birth. Vill- Harutiza, P.S Kauduya, Dist. Mymansing.
4. Age. 55 yrs.
5. Present address. Vill- Gelfager, P.S. Barma
6. Special peculiarities and identification marks. One mole on the cheek.
7. Occupation. cultivation.
32. Thus, if there is no provision for entering the names of his relatives, non-mentioning of the names of the proceedee who was the son of Gurucharan Deb Nath cannot be a ground to disbelieve or reject the said Certificate of Registration. The certification of registration in original which was produced before the Tribunal has been produced before this Court also for our perusal.
33. On perusal of the said Certificate, we see no reason to doubt the authenticity of the said original Certificate, more so, when the State has not questioned its authenticity during the proceeding. This Certificate of Registration was issued on 15.12.1956. This Certificate clearly shows that Gurucharan Deb Nath was originally not a resident of India but of the then East Pakistan, now Bangladesh but due to religious persecution as submitted by the petitioner, Gurucharan Deb Nath had migrated from the then East Pakistan, now Bangladesh, to India.
This Certificate shows that the said Gurucharan Deb Nath was not initially a citizen of India but subsequently migrated before 1956 to India and whose presence was recognized by the competent authority in India as a migrant. In this regard, it may be also noted that as provided under Section 6A(2) of the Citizenship Act, 1955, any person of Indian origin who had entered India (Assam) prior to 01.01.1966 from the specified territory i.e. present at Bangaldesh and who had been ordinarily resident in Assam since the entry in Assam will be Page No.# 10/18 considered as a citizen, not a foreigner. Thus, the said Gurucharan Debnath having entered Assam in 1956, which is prior to 01.01.1966 and if he had been staying in Assam, will be a citizen of India. It has been stated that he died prior to 1971.
Thus, if the proceedee Surendra Debnath is able to establish his linkage with the said Gurucharan Deb Nath, it can be inferred that Surendra Debnath is also an Indian by virtue of being the son of said Gurucharan Deb Nath.
34. In their endeavor to establish linkage of the proceedee Surendra Debnath with Gurucharan Debnath, an Admit Card issued by Debiram Pathsala High School, Nalbari on 31.10.72 reflecting the name of Surendra Mohan Debnath as the son Late Gurucharan Debnath was exhibited [Ext.1].
35. We have also requisitioned the said original Admit card issued in the name of one Surendra Debnath which relates to certain examination of preliminary Test (for H.S.L.C. Examination, 1973 in Old/New Course with two papers in English). As per the said Admit Card, his age was 19 years.
As in the case of the Registration Certificate, it may be noted that the State has not questioned the authenticity of the said document.
36. However, what is notable is that two witnesses were examined before the learned Tribunal to prove the said document.
One Madhab Kalita, resident of Bidyapur who was the Principal of Debiram Pathsala High School, Nalbari was examined as OPW2.
We would like to reproduce his evidence for proper appreciation of the same, as follows:
"Ext.1 is the Certificate issued from Debiram Pathsala High School. Ext.1 is the Admit card of Test Examination prior to H.S.L.C. Examination. Ext.1 is issued in the name of Surendra Mohan Debnath son of Late Late Guru Charan Debnath. Ext.1 is issued on 31.10.1972. Ext.1(1) is signed by L.D.A. Nagen Dutta and ext.1(2) is the signature of Head master Sashibhusan Choudhury. The documentt of 1972 had been destroyed due to flood of 1984 as such all relevant document till 1984 cannot be found in our Record Book. I verify the Ext.1 as a genuine document issued in the name of Surendra Mohan Debnath in the year 1972 showing his age as 19 years by our School Authority.
X X X X I join as a Principal from 2016 1st October. Formerly Taru Devi was principal. I Page No.# 11/18 cannot say certainly that Ext.1 is a genuine one. I cannot say whether Surendra Mohan Debnath appeared in H.S.L.C. Examination in that year and or any other year. Sashibhusan Choudhury expired."
37. The OPW2, Madhab Kalita, the Principal of the School testified that the said document is a genuine document issued in the name of Surendra Mohan Debnath on 31.10.1972 showing the age as 19 years by the school authorities. In the cross-examination, he, however, says that he cannot say certainly that Ext.1 is a genuine one and he also cannot say whether Surendra Mohan Debnath appeared in H.S.L.C. Examination in that year or any other year.
What comes out from the above evidence of OPW2 is that, there is an evidence of the Principal of the said School which issued the said certificate Ext.1. Though in his cross- examination, he was ambivalent about the genuineness, yet, he did not say in unequivocal terms that it was not a genuine one but or a fraudulent one.
Certainly, he was deposing on 30.03.2017 and the certificate was issued in the year 1972, thus he was deposing after a period of 45 years, and the said witness says that he is not certain as to whether the document which is issued 45 years ago, is genuine or not. But he does not say emphatically that it is not genuine.
Thus, even though the said witness was not sure whether the said certificate was genuine or not, yet he did not say definitively that it was not a genuine document, keeping in mind that he was deposing after a long lapse of time, when memory can fade, his testimony cannot be the basis for rejecting the genuineness of the document.
38. However, what clinches the issue in favour of the proceedee Surendra Debnath is the evidence of O.P.W.5 Sri Nagen Dutta (Retired Principal of Debiram Pathsala Higher Secondary School) who was examined on 11.05.2017.
O.P.W.5 stated that the said certificate Ext.1 was written by him in his own hand writing and he categorically stated that it is a genuine one. He also identified his own signature which is found in the said document and he categorically stated that it was issued in 1972 in the name of Surendra Mohan Debnath. He also stated that the Headmaster whose signature is appended in the said certificate is not alive and at the relevant time, he was working as an L.D. Asstt. in the said school, who later on retired as a Principal of the said school. Thus, this Page No.# 12/18 definitive assertion by this witness certainly proves the genuineness of the said document.
In the cross-examination, nothing has been asked to shake his evidence given in his chief.
Accordingly, we reproduce the evidence of OPW5 in full for better appreciation of his evidence.
"Ext.1 is Certificate written by me. Ext.1 is a hand written Certificate i.e. written by me in the own hand writing. The Certificate is a genuine one. Ext.1(1) is my signature. The Certificate was issued in 1972 in the name of Surendra Mohan Debnath. The candidate appearing for H.S.L.C. Test Examination from the said Debiram Pathsala High School which was presently known as Higher Secondary School. Ext.1(2) is Stamp signature of the Head Master who was presently not alive. During the period I was working as L.D. Asstt. in the said School.
X X X X This Certificate was issued by the school at its own without any concerned of Board of Secondary Education, Assam, Gauhati as a pre requirement to sit in the preliminary test the result of which were the qualifying the area to appear in the H.S.L.C. Examination. I do not know whether Surendra Mohan Debnath appeared in the H.S.L.C. Examination. I also do not know whether Surendra Mohan debnath passed the preliminary test. I do not remember whether any Admit Card was issued by the Board of Secondary Education, Assam, Gauhati in favour of Surendra Mohan Debnath. There was no copy of Counterfoil available of the Ext.1 document. A general statement of all the candidates of all the students of class X were prepared and on the basis of the statement the Admit Card was issued."
As can be seen from above, though OPW5 did not know whether the said Surendra Mohan Debnath only appeared in the said examination or whether he passed the said examination, it is of no relevance. The questions asked to the witness in his cross- examination, in our opinion, do not impeach the genuineness of the certificate. What is relevant is, whether any such Admit Card was issued in the name of Surendra Mohan Debnath who was shown to be son of Gurucharan Debnath.
The fact in issue involved is whether Surendra Mohan Debnath is the son of Gurucharan Debnath and as such, the said Ext.1 is relevant for the purpose of establishing the said fact in Page No.# 13/18 issue. In our opinion, the evidence of OPW5 who himself wrote the said document and who was working in the said school in the capacity of L.D. Asstt. and subsequently retired as a Principal of the said school put a stamp of authenticity on the said document. As such we have no reason to disbelieve the evidence of OPW5 who was a responsible person of the school, who had also functioned at one time as the Principal of Debiram Pathsala Higher Secondary School.
Therefore, we are of the view that the said Ext.1 and the contents have been proved.
39. There are other documents which have been relied to show that said Surendra Debnath along with one Brajendra Debnath who was stated to be son of Gurucharan Debnath had possessed certain land in the village Gelpejhar, Police Station Barama in Nalbari District for which the certified copies of two sale deeds have been exhibited to prove the aforesaid sale deeds.
Again no question was asked about the authenticity of the said sale deeds. The sale deeds clearly mention the name of SurendraDebnath along with one Brajendra Debnath who is stated to be brother of Surendra Debnath. One witness, the Village Headman (OPW4) testified that he knew the proceedee Surendra Debnath and his brother Brajendra Debnath. The sale deeds executed sometime in the year 1982 and 1986 show that the said Surendra Debnath, son of Late Gurucharan Debnath was very much present in the village Gelepjhar as a land owner.
The sale deeds cannot be said to be proof of citizenship of the proceedee Surendra Debnath. However, these are certainly pieces of evidences which can show the relationship of Surendra Debnath with his brother Brajendra Debnath and in turn with their father Gurucharan Debnath and their continued stay in the said village Gelpejhar.
40. There are two certificates of residence issued by Gaonburah of the said village Gelpehar and Chairman, Merkuchi V.D.C. of Tihu-Barama Dev. Block, which were exhibited as Exts.6(a) and 6(b). Both the Gaonburah and Chairman, who issued the said certificates were examined and they had testified before the learned Tribunal that they knew the said Surendra Debnath as an inhabitant of village Gelpejhar .
41. In this regard, we would like to refer to the evidence of one Phanidhar Talukdar, who Page No.# 14/18 was working as Village Headman of Village Barsimaluguri, Gelpehar and Kumarpara, who was examined as O.P.W.4 who issued the certificate [Ext.6(a)]. He stated that Ext.6(a) was issued by him in the name of Surendra Debnath and he identified the signature appended to the said certificate. He testified that the said certificate was issued by him in the name of Surendra Debnath and he knew Surendra Debnath who is a resident of village Gelpehar having landed property in the said village. He also deposed that he knew Surendra Debnath since his childhood. He stated that he knew Surendra Debnath and his brother Brajendra Debnath who is still living in the said village. He also stated that Surendra Debnath has 3(three) children, namely, Krishna Debnath, Basanti and Jayanta Debnath. It may be mentioned here that there is already a sale deed in which the name of Surendra Debnath shown along with Brajendra Debnath. It was the said Krishna Debnath who was pursuing the case before the Tribunal.
He also stated that Surendra Debnath is no more staying in the village since 2011 as due to an ex parte order he had been arrested by police. He stated that he knew Surendra Debnath is an Indian national by birth who was born about 62 years ago in the said village. Though he stated in his cross examination that he did not have the counterfoil of the certificate, nor he maintained any register relating to births and death of villager, he issued the certificate on the request of Krishna Debnath on the basis of voters list submitted in 2011 by Krishna Kanta Debnath, yet these cannot be ground to disbelieve his testimony.
Accordingly, we reproduce the evidence of OPW4 for better appreciation.
"Ext.6(A) is the certificate issued by me in the name of Surendra Debnath. Ext.6(A).1 is my signature. I have been appointed as Village Head-man of Village Barsimaluguri, Gelpejhar and Kumarpara since 2004. Prior to 2004 my father Late BoloramTalukdar was Village Head-man of the said Village. That I know Surendra Debnath who is inhabitant of Village Gelpejhar and he is having landed property in the said Village and I know Surendra Debnath since my childhood. I also know Surendra Debnath brother Brajendra Debnath who is still living in the said Village. I also know Surendra Debnath having three children namely- Krishna Debnath, Basanti and JayantaDebnath. I issued the Ext.6(A) Certificate as O.P. is having landed property and a permanent resident of Village Gelpehar. That the O.P. is not present in the said Village since 2011 as due to an ex-parte order he had been Page No.# 15/18 arrested by the Police. But I know Surendra Debnath is an Indian national by birth who born around 62 years ago in the said Village.
I have no Counterfoil in regard to Certificate. I did not maintain any Register relating to births and death of Villager. I issued the Certificate to substantiate his Permanent Resident. I do not have any Records relating to residence of Surendra Debnath. Krishna Debnath requested to issue the Certificate in favour of Surendra Debnath on the basis of voter list submitted in 2011 by Krisha Kanta Debnath."
42. What the cross examination of OPW4 shows is that he did not maintain properly the official records and he issued the certificate on the basis of voters list. However, this admission OPW4, Phanidhar Talukdar will not distract from the fact that he knew Surendra Debnath since childhood and he knew that he was a resident of village Gelpejhar and he had landed property in the village and the said Surendra Debnath had another brother called Brajandra Debnath and that the said Surendra Debnath had three children including Krishna Debnath had approached the Tribunal to set aside the ex-parte order.
Even if, the said certificate is not proved as held by the Tribunal, yet his testimony is a vital oral evidence which is based on his personal knowledge of having known to the proceedee from his childhood and his evidence is relevant under Section 50 of the Evidence Act and can be acted upon.
Therefore, this evidence of Phanidhar Talukdar, OPW4 proves that the said Surendra Debnath was a resident of the village Gelpejhar and he had landed property in the village and he had a brother called Brajendra Debnath and son Krishna Debnath which all corroborate the other evidences including the voters lists to show that Surendra Debnath is the son of Gurucharan Debnath who was also residing in village Gelpejhar after migrating from the then East Pakistan (Bangladesh).
43. We would now refer to the evidence of one Sri Sukram Boro, Chairman, Village Co- operative Development Committee of Merkuchi Village who was examined as OPW3 who stated that the proceedee Surendra Debnath and he belonged to the same Village Merkuchi and he knew him since childhood. He also stated that he knew Surendra Debnath since his childhood and also his father Gurucharan Debnath. He stated that Surendra Debnath is an Indian national by birth and in 2011 keeping of Counterfoil was not processed. He also stated Page No.# 16/18 that Ext.6(B) is his signature.
Accordingly, we reproduce the evidence of OPW3 for better appreciation which reads as follows, "Ext.6(B) is issued by me for the O.P.. On 2011 I was appointed as Village Co- operative development Committee of Merkuchi Village. The O.P. Surendra Debnath and I belonged to the same Village i.e. Merkuchi. I know the O.P. since childhood. I knew the O.P's father i.e. Guru Charan Debnath. As per my knowledge I know that O.P. was push back to Bangladesh vide an ex-parte Judgment. I know the O.P. is an Indian National by birth. In 2011 the keeping of Counterfile is not processed (Ext.6(B) is my signature.
X X X X Now I am not V.C.D.C. Merkuchi. I have not seen the Surendra Debnath son of Late Guru Charan Debnath since 2011. I never saw Guru Charan Debnath. I have written Guru Charan Debnath as father of Surendra Debnath on the basis of voter list. I have no knowledge when Surendra Debnath and or Guru Charan started living in Village Gelpejhar and where from they came. I have issued the Certificate considering that Surendra Debnath has landed property in Village Gelpehar."
It may be noted that village Gelpejhar falls under the Merkuchi Post Office and as such it has been used interchangeably with village Gelpejhar. The said witness Sukram Boro himself is a resident of village Gelpejhar as shown in the record.
44. In this regard, we have also noted that before the learned Tribunal the NRC voters details of 1965 was exhibited in which the name of Gurucharan Debnath is shown as the son of Budh Ram in respect of village Gelpejhar, Police Station Barama. This entry in NRC voters details of 1965 corresponds to the entry in the Certificate of Registration which was exhibited as Ext.3 where the name of Gurucharan Debnath has been shown as the son of Late Budh Ram Debnath and resident of village Jelpejhar under Barama Police Station.
45. In the voters list of 1965, the name of Gurucharan Debnath is shown as the son of Bhod Ram, a resident of village Gelpejhar under Barama Police Station. This corroborates NRC voters details of 1965 as well as the Certificate of Registration Ext.3.
46. Voters list of 1993 has been also relied on which shows the name of Surendra Debnath, son of Gurucharan Debnath in respect of the same village Gelpehar, Barama Police Station.
47. What is notable is that there is consistency in the names, relationship, village and also Police Station indicating that Gurucharan Debnath, son of Budh Ram was staying in Jelpehar Page No.# 17/18 under Barama Police Station and Surendra Debnath is the son of Gurucharan Debnath.
Thus, the name and village recorded in the voters lists and taking into consideration the other evidences including the oral evidence adduced, as discussed above, would clearly indicate that Surendra Debnath is the son of Late Gurucharan Debnath who in turn was the son of Late Budh Ram, (grandfather of Surendra Debnath) who were all residing in Jelpejhar under Barama Police Station.
48. Thus, we are satisfied that there are sufficient evidences on record to hold that the proceedee Surendra Debnath was the son of Gurucharan Debnath who migrated to India from the then East Pakistan now Bangaldesh, specified territory before 1956 and that the said Surendra Debnath was staying in Gelpejhar as Indian, but was declared to be a foreigner by an ex-parte order and deported in 2011.
49. For the reasons discussed above, we are not able to agree with the opinion rendered by the learned Tribunal as mentioned in para No.16 of the impugned order as quoted above and also not able to agree with the submissions advanced by the State and agree with the submission advanced by the learned counsel for the petitioner, for the reasons discussed above. We hold that there are sufficient oral and documentary evidences to show the proceedee Surendra Debnath is an Indian and not a foreigner.
50. Accordingly, we set aside the impugned order dated 29.11.2017 passed by the learned Foreigners Tribunal No.1, Nalbari in F.T.(Nal) Case No.(B)3572/07 [S.P. Reference No.2161/2004].
51. The question which arises now for consideration is what is to done with the aforesaid Surendra Debnath, the husband of the present petitioner Smti Usha Devi @ Usha Rani Devi and father of Krishna Debnath who has already been pushed back to Bangaldesh in the year 2011 and no more staying in this country.
52. As regards this issue, we can only observe that since said Surendra Debnath is declared not to be a foreigner but an Indian citizen and thus wrongfully pushed back to Bangladesh, he will be entitled to return to India, his country, from Bangaldesh if so wishes, and if he desires to return to India, the State authorities will render all necessary assistance and cooperation to him and the authorities of Bangaldesh, to enable him to return to his own Page No.# 18/18 country.
53. With the above observations and directions the present petition stands disposed of.
54. LCR be remitted forthwith to the concerned Foreigners Tribunal.
JUDGE CHIEF JUSTICE (ACTING) Comparing Assistant