Gauhati High Court
WP(C)/7280/2021 on 28 September, 2022
Bench: N. Kotiswar Singh, Nani Tagia
GAHC010224612021
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
WRIT PETITION (C) NO.7280 OF 2021
Petitioner:
Smti. Anjana Biswas @ Anjana Sarkar,
W/o. Ratan Sarkar,
Resident of village Khandajan,
PO. Manipur,
PS. Morigaon, District-Morigaon, Assam,
PIN-782127.
By Advocate:
Ms. D. Ghosh, Advocate.
Respondents:
1. Union of India, Represented by the Secretary to the Government of India, Ministry of Home Affairs, Government of India, Shastri Bhawan, New Delhi-110001.
2. The State of Assam, Represented by the Secretary to the Govt. of Assam, Home Department, Dispur, Guwahati-781006.
3. The Election Commission of India, Represented by Chief Election Commissioner, Nirvachan Sadan, Ashoka Road, New Delhi-11001.
4. The State Coordinator, National Registration of Citizens, Assam, 1st Floor, Achyut Plaza, GS Road, Bhangagarh, Guwahati, Assam-781005.
5. The Deputy Commissioner, Morigaon, P.O. & PS. Morigaon, Dist. Morigaon, Assam, PIN-782105.
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6. The Foreigners‟ Tribunal No.2nd, Morigaon, Assam.
7. The Superintendent of Police (Border), Morigaon, P.O. & PS. Morigaon, Dist. Morigaon, Assam, PIN-782105.
8. The Officer-in-Charge, Morigaon Police Station, P.O. Morigaon, Assam, PIN-782105 By Advocates:
Ms. L. Devi, learned counsel, on behalf of Mr. RKD Choudhury, ASGI.
Mr. J. Payeng, Special Counsel, FT, Mr. G. Sharma, Special Counsel, FT, Mr. A. Bhuyan, SC, ECI, Ms. L. Devi, SC, NRC, Ms. K. Phukan, Govt. Advocate, Ms. U. Das, Addl. Sr.Govt. Advocate, Assam.
BEFORE HON'BLE MR. JUSTICE N. KOTISWAR SINGH HON'BLE MR. JUSTICE NANI TAGIA Dates of hearing :: 05.04.2022, 20.04.2022 & 21.04.2022 Date of judgment :: 28.09.2022 JUDGEMENT & ORDER Heard Ms. D. Ghosh, learned counsel for the petitioner. Also heard Mr. J. Payeng, learned Special Counsel, FT; Mr. A. Bhuyan, learned WP(C) No. 7280 of 2021 Page 2 of 81 Standing Counsel, ECI; Ms. K. Phukan, learned Govt. Advocate and Ms. L. Devi, learned Standing Counsel, NRC.
2. In this petition, the petitioner has challenged the order dated 15.12.2021 passed in Case No. FT(D)873/2011 by the Foreigners Tribunal-2nd Morigaon by which the petitioner was declared to be a foreigner of post 1971 stream.
3. Learned counsel for the petitioner submits that the aforesaid opinion is rendered without properly appreciating the evidence on record and also without any proper enquiry before she was proceeded before the Tribunal.
4. According to the petitioner, this is the third round of litigation. In the first round, order passed by the Tribunal on 22.08.2013 in Case No. FT(D) 873/2011 was challenged before this Court in WP(C) No.2322/2014 on the ground that the petitioner was not heard. This Court vide order dated 15.11.2017 allowed the said writ petition enabling the petitioner to contest the reference by adducing evidence. The Tribunal again on appreciation of evidence held the petitioner to be a foreigner vide order dated 28.11.2018.
5. The said opinion dated 28.11.2018 was again challenged before this Court in WP(C) No.635/2019. In the said writ petition, in course of the proceeding, this Court desired to know whether the father of the WP(C) No. 7280 of 2021 Page 3 of 81 petitioner was still alive. Considering the deficiencies in the evidence, this Court felt that examination of Anil Biswas, who was projected as the father of the petitioner, was necessary to verify the correctness of the certificates relied upon by the petitioner. This Court vide order dated 18.02.2019, passed in WP(C) No.635/2019, remanded the matter to the Tribunal to examine Anil Biswas, the father of the petitioner and also the person issuing the Gaon Panchayat certificate. Accordingly, the matter was placed before the Tribunal again, and Anil Biswas, the father of the petitioner, appeared before the Tribunal and adduced evidence.
6. The Tribunal, however, did not believe the testimony of the petitioner and her projected father, Anil Biswas on various grounds including that the petitioner was not able to prove that Anil Biswas is her father and also on the ground that the petitioner did not mention the name of her mother in her written statement.
7. The Tribunal held that the petitioner has not produced any reliable document other than the oral evidence to prove that her parents and grandparents existed in Indian soil prior to 25.03.1971 and accordingly, held that the petitioner is a foreigner of post 1971 stream.
8. The plea of the petitioner before the Tribunal, in brief, was that first of all, the Verification Officer did not make a proper investigation and WP(C) No. 7280 of 2021 Page 4 of 81 the referral authority did not properly apply his mind before making the reference to the Tribunal.
Her case is that she is an Indian national by birth, born in village Palda Muragachha, P.O.-Charuitipi, P.S.-Kotwali, in the district of Nodia of West Bengal and she studied there in a Primary School and passed Class- IV examination and though she was promoted to Class-V, she left the school and as per school records, her date of birth was 02.11.1979. The Head Teacher of the said school issued a certificate in that regard.
She also claimed that her father‟s name is Anil Biswas and the grandfather‟s name was Late Khudiram Biswas. Her father was an Indian citizen, born and brought up at aforesaid village Palda Muragachha. It was also stated that her father had purchased a plot of land from one Sudhanya Kumar Biswas of the same village by executing a Registered Sale Deed No.1905 dated 06.02.1967 and had constructed his house there and had been staying there permanently. Her father also purchased another plot of land from one Santosh Kumar Biswas of the same village in 1978. She also stated that her father‟s name was enrolled in the voters list of 1966. However, since the record room of the concerned Election Officer was destroyed due to flood, the same could not be collected. She also stated that her father Anil Biswas is a person belonging to Below Poverty Line (BPL) having Ration Card bearing SL No. 2146028 issued by WP(C) No. 7280 of 2021 Page 5 of 81 the competent authority of West Bengal Government. She also mentioned about the Identity Card issued by the Election Commission of India in favour of her father. She also stated that she is married to one Sri Ratan Sarkar, son of Chitta Ranjan Sarkar, resident of village Khandajan, P.O. Manipur, P.S.-Morigaon and District-Morigaon on 03.04.2001 and since then has been living in the matrimonial house and after marriage she changed her surname from "Biswas" to "Sarkar". She also stated that she has two sons, namely, Ranjit Sarkar and Prasenjit Sarkar. After marriage her name was recorded in the voters list of 2005 under No.80 Morigaon Legislative Assembly Constituency at Serial No.905, House No.283 and Part No.20 along with her husband Ratan Sarkar under the village Oujri (Khandajan) under Police Station and District Morigaon. Similarly, her name was also included in the voters list of 2010 along with her husband. She also stated that the Pradhan of Bhimpur Gram Panchayat, Bhimpur, Kotwali, District Nodia (West Bengal) had issued an Identity Certificate in her name regarding her relationship and address.
Similarly, the Government Gaonburah of Oujari (Khandajan) also issued a certificate in her name.
Accordingly, it was claimed that she is an Indian and not a foreigner.
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9. As mentioned above, she exhibited as many as 10(ten) documents in support of her claim.
She also testified before the Tribunal in the same line by reiterating the aforesaid facts and was duly cross-examined. She examined her father Anil Biswas who also stated in similar lines. She also examined one Sri Kameswar Bordoloi who is a Government Gaonburah of the village Oujari where she was staying with her husband.
10. However, the learned Tribunal, after considering the evidences on record, held that the petitioner has not been able to discharge her burden to prove with reliable and trustworthy documents or by reliable oral evidence that her parents and grandparents were living in Indian soil prior to 25.03.1971. Accordingly, the learned Tribunal held her to be foreigner who had come from Bangladesh on or after 25.03.1971.
The finding of the learned Tribunal reads as follows, "It is held that the proceedee Smt. Anjana, W/O - Sri Ratan of Village- basanaghat, P.S. Morigaon, District- Morigaon, Assam is a Foreigner U/S 2(a) of the Foreigners Act, 1946 who illegally entered into India (Assam) from the Specified Territory i.e. Bangladesh on or after 25.03.1971 and is accordingly, declared a Foreigner of post 25.03.1971."
11. For coming to the aforesaid conclusion, the learned Tribunal relied on the Full Bench decision of the Apex Court in State of Bihar Vs. Radha Krishna Singh & Ors., 1983 (3) SCC 118 wherein it was held WP(C) No. 7280 of 2021 Page 7 of 81 that if a case is based on genealogy consisting of links, the party has to prove every link and even if one link is missing, the genealogy cannot be said to have been fully proved.
12. The learned Tribunal held that in the present case though the petitioner had mentioned about her father and grandfather, she did not mention her mother‟s name. In fact, though her father Anil Biswas had mentioned one Anna Biswas as his wife, the Tribunal held that non- mentioning of the mother‟s name of the proceedee by the proceedee is fatal.
13. The learned Tribunal took the aforesaid decision in view of the observation made by the Hon‟ble Supreme Court in Sarbananda Sonowal Vs. Union of India, 2005 (5) SCC 665 wherein the Hon‟ble Supreme Court in para 26 had held that in order to establish one‟s citizenship, normally, the proceedee may be required to give evidence of
(i) his date of birth, (ii) place of birth, (iii) name of his parents, (iv) their place of birth and citizenship. The Learned Tribunal held that since the petitioner did not mention her mother‟s name and did not examine her and also had not stated the reasons, for it goes to show that had the proceedee named her mother and had her mother been examined, the fact that the proceedee is not the daughter of Anil Biswas would have been divulged. Thus, it was held that the proceedee failed to prove that WP(C) No. 7280 of 2021 Page 8 of 81 she is the daughter of Anil Biswas and held that mere oral testimony of the proceedee is no proof since in absence of disclosure of the name of her mother, the relationship of the proceedee with Anil Biswas who is the father is incomplete.
14. The learned Tribunal also held that the evidence of the father Anil Biswas who was examined as DW3 would show that he could not tell the date of birth of the proceedee which creates reasonable doubt as to whether the proceedee is really his daughter.
The learned Tribunal proceeded to observe that from the evidence of DW3, it transpires that Anil Biswas, DW3 (the father) is an interested witness and had been tutored by the proceedee and accordingly, held that the proceedee used false genealogy and used somebody else‟s legacy to prove her citizenship in India.
15. Coming to other documents, the learned Tribunal observed as follows.
As regards the school certificate, Ext. A, by which the proceedee had tried to show that she is the daughter of Anil Biswas and was born on 02.11.1979, the learned Tribunal found it to be a duplicate copy of the certificate issued by Head Teacher of Andulpota Muragachha Primary School and the proceedee has not examined the Head Teacher who had issued the said certificate and as such, in view of the decision of the WP(C) No. 7280 of 2021 Page 9 of 81 Hon‟ble Supreme Court in Birad Mal Singhvi Vs. Anand Purohit, 1988 (Suppl) SCC 604, it was held that it cannot be said that the said school certificate has been proved.
16. Further, relying on the decision of the Hon‟ble Supreme Court in Narbada Devi Gupta Vs. Birendra Kumar Jaiswal, 2003 (8) SCC 745 and LICI Vs. Ram Pal Singh Bisen, 2010 (4) SCC 491 wherein it has been held that mere marking of document as exhibit does not amount to proof inasmuch as the contents of the document are required to be proved and as such, it cannot be said that the proceedee is the daughter of Anil Biswas.
17. Coming to the copy of the sale deed registered on 06.02.1967 which was exhibited as Ext. B which records the name of one Anil Kumar Biswas, the learned Tribunal held that the proceedee has not been able to prove with reliable link document that she is the daughter of Anil Kumar Biswas who was the purchaser and as such, the said document could not be relied upon.
18. Coming to Exhibit C, which is the sale deed registered on 25.01.1978, the learned Tribunal took similar view. It was also held that as the said sale deed was registered in the year 1978 which is post 1971, no reliance could be placed in the said document.
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19. As regards the Ration Card issued in the name of Anil Biswas which was exhibited as Ext. D, the learned Tribunal held that the said Ration Card does not prove Indian citizenship and moreover, the proceedee has not been able to prove that she is the daughter of Anil Biswas.
Similarly, the Electoral I.D. Card, which was exhibited as Ext.E, was also discarded by the learned Tribunal.
20. Coming to Exhibit H, i.e. the certificate issued by the Pradhan of Bhimpur Gram Panchayat of West Bengal, the learned Tribunal held that since the proceedee has not examined the issuing authority, it would be of no consequence in the light of the decision of the Hon‟ble Supreme Court in Rupajan Begum Vs. Union of India, 2018 (1) SCC 579.
Further, relying on the decision in Birendra Kumar Jaiswal (supra) and Ram Pal Singh Bisen (supra), it was held that merely marking of these documents as exhibits, does not amount to proof and the contents of the documents are required to be proved which the proceedee failed to do.
21. Coming to the other documents, i.e. Ext. I and J, the certificates issued by the Gaonburah of Oujari Gaon Panchayat, it has been stated that these two certificates were issued on the same date 29.03.2014 which itself makes the documents suspicious.
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22. The learned Tribunal further observed that the said Gaonburah who was examined as DW2 stated that he issued the certificates as per information given by the proceedee and as such, the same cannot be relied upon. Moreover, the said document was issued to establish the link between the proceedee and her husband, and as far as establishing citizenship is concerned, she has to draw lineage from her father, not from her husband. It was also held that the Assam Land and Revenue Regulation, 1886 does not cast any duty on the Gaonburah to maintain records of citizens born in the Lot under his charge or maintain any register containing the names of females in the Lot under his charge who are married to persons outside the Lot under his charge, and hence he does not maintain any such records in his office. Therefore, such certificate not based on public record as required under Section 35 of the Indian Evidence Act, 1872 cannot be acted upon as reliable and trustworthy document.
23. In this regard, the learned Tribunal also referred to the decision of this Court in Safia Khatun Vs. Union of India & Ors., [WP(C) No.3961/2019, decided on 16.09.2019]. Accordingly, the learned Tribunal rejected the certificates issued by the Gaonburah is not reliable and trustworthy.
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24. Coming to the Adhaar Card, Ext.K, issued by the Government of India in the name of Anil Biswas, the learned Tribunal held that it is not a proof of citizenship and it does not establish the link between the proceedee and the daughter.
25. As regards Electoral Roll of 1988, a copy of which was exhibited as Ext. L, the learned Tribunal stated that in the said voters list of 1988, the name found is Biswas Anil Khudiram, aged about 45 years whereas the proceedee had claimed that her father is Anil Biswas and as such, it is doubtful whether the said voters list relates to her father inasmuch as in the said electoral roll the name recorded is Biswas Anil Khudiram. The learned Tribunal took the view that the said Electoral Roll has been picked up with a name which resembles the name of her father and further, as the document is also of post 1971 period, hence, no reliance can be placed.
Coming to the voters list of 1971, which was exhibited as Ext.M, the learned Tribunal also took a similar view.
So is in respect of the voters list of 1995 which was exhibited as Ext.N where the name mentioned is Biswas Anil Khudiram.
The learned Tribunal also ignored the voters list of 2001 which was exhibited as Ext.O on similar ground.
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26. The learned Tribunal noted that in the evidence of Anil Biswas (DW3), he deposed that he has a wife by the name Anna Biswas who is still alive. The learned Tribunal held that if that is so, the proceedee ought to have pointed out the name of her mother in the voters lists of 1971, 1988, 1995 and 2001 but the proceedee has neither named her mother nor pointed out the name of her mother in the voters lists of 1971, 1988, 1995 and 2001 which also raised a reasonable doubt as to whether such voters lists belong to the father of the proceedee at all.
27. As regards the voters list of 2005 and 2010 which were exhibited as Ext.F and Ext.G, the learned Tribunal held that merely because of entry of her name in the voters list, the proceedee cannot claim citizenship relying on the decision of the Hon‟ble Supreme Court in Bhanwaroo Kha Vs. Union of India, 2002 (4) SCC 346 wherein it was held that mere enrolment in the voters list and long stay in the country does not automatically per se confer citizenship right.
28. Accordingly, the learned Tribunal came to the conclusion that the petitioner had failed to discharge her burden to prove with reliable and trustworthy documents and oral evidences and declared her to be a foreigner of post 25.03.1971 stream.
29. The aforesaid decision of the learned Tribunal has been supported by Mr. Payeng, learned Special Counsel, Foreigners Tribunal. WP(C) No. 7280 of 2021 Page 14 of 81
Mr. Payeng, learned Special Counsel, FT submits that perusal of the opinion of the Tribunal would indicate that what has been sought to be proved is the identity of the petitioner‟s father Anil Biswas in connection with which a number of documents were exhibited like his purchasing of land, ration card in his name, his entry in the voters lists, Aadhar Card, etc. Mr. Payeng submits that however, what is important to show is, if there is any document to link her with her projected father, which is not forthcoming, and whatever documents she has produced, i.e., certificate issued by the Pradhan, the School certificate, these had not been proved in accordance with law. He submits that had the said two school certificates which shows her name along with her father been proved, the matter would have been otherwise.
30. Mr. Payeng submits that it is surprising that the petitioner has not mentioned her mother‟s name anywhere, even in the written statement, nor in her evidence and it has been correctly pointed out by the Tribunal that non-mentioning of the mother‟s name would render her evidence unreliable and untrustworthy. He submits that it is not expected of any person not to remember one‟s own mother‟s name. In fact, in the written statement as well as in the deposition, the petitioner has mentioned the name of only Anil Biswas and names of other siblings have not been WP(C) No. 7280 of 2021 Page 15 of 81 mentioned, thus, as also observed by the Tribunal, failure to give detail of the genealogy would make the case of the petitioner doubtful.
31. Mr. Payeng further submits that it is the admitted claim of the petitioner that she got married in 2001 to Ratan Sarkar, and in 2005, she was about 30 years old as mentioned in the voters list of 2005. If that is so, her name ordinarily should have been recorded in the voters lists in West Bengal prior to her marriage. However, she has not produced any such document, and it cannot be believed that a person‟s name would not be included in voters list as a voter when a person became eligible to vote on reaching the age of 18 years.
32. According to Mr. Payeng, in the absence of any documentary evidence to show her linkage with her projected father, Anil Biswas, the Tribunal committed no error in coming to the conclusion that it is the most crucial part in establishing citizenship that she must establish her linkage with her projected father, who is stated to be an Indian. Therefore, in the present case, even if all the documents exhibited in the name of Anil Biswas are treated to be genuine, it does not serve the purpose of the petitioner inasmuch as in none of the documents, the name of the petitioner appears along with her father to show her linkage with her father.
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33. Ms. Ghosh, learned counsel for the petitioner, on the other hand, submits that the reason why the name of the petitioner did not appear in the voters lists along with her parents is that no assembly elections were held in the State of West Bengal during the period from 1997 to 2001 and, as such, there was no revision of the voters lists. Thus, non- availability of any voters list showing her name with her parents cannot be said to be an unusual situation and on that ground only the evidence of the petitioner could not be doubted.
34. As regards the submission advanced by the State and also the observation made by the Tribunal that the petitioner had not mentioned her mother‟s name, Ms. Ghosh has submitted that it is not the case that the petitioner does not know the name of her mother. In fact, the mother‟s name has been shown all along with her father in the voters lists, which were exhibited. She did not mention her mother‟s name as it was felt not necessary as she was relying on the legacy with reference to her father. Moreover, no question was asked from her as to the name of her mother and, as such, non-mentioning of her mother‟s name cannot be said to be fatal. It has been submitted further that law does not require that a person has to disclose the names of all the relatives in the written statement. In this connection, Ms. Ghosh has relied upon a WP(C) No. 7280 of 2021 Page 17 of 81 decision of this Court in Haider Ali Vs. Union of India & others, 2021 (3) GLT 85.
35. Ms. Ghosh submits that in any event, there is a specific mention in the enquiry report that her father resides in Calcutta and that the petitioner was born and brought up in West Bengal and also there is no indication in the enquiry report that she had come from the "Specified Territory", which is necessary for initiating any proceeding under the Foreigners (Tribunals) Order, 1964 in the State of Assam.
36. In this regard, Ms. Ghosh has referred to the decision of this Court in Indira Newar and others Vs. Union of India and others, 2020 (1) GLT 413, 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. It has been submitted that in the present case, there is no such mention in the enquiry report that the petitioner had come from the specified territory. On the contrary, it is clearly mentioned in the enquiry report that she had come from West Bengal.
37. Ms. Ghosh further submits that the petitioner‟s father, Anil Biswas, had deposed before the Tribunal stating that the proceedee is his daughter and born to him in West Bengal. It is submitted that even if the school certificate and the Panchayat certificates have not been proved in WP(C) No. 7280 of 2021 Page 18 of 81 accordance with law, the evidence of the father could not have been ignored as the direct testimony of the father was not questioned by the State in the course of the proceedings.
38. Ms. Ghosh submits that even if there is any doubt about her parentage, which the proceedee seeks to trace through Anil Biswas, the petitioner is ready to undertake necessary medical test including DNA test. In this regard, the learned counsel for the petitioner has placed reliance on the decisions of the Apex Court in Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik and another, (2014) 2 SCC 576 and Bhabani Prasad Jena Vs. Convenor Secretary, Orissa State Commission for Women and another, (2010) 8 SCC 633 .
39. Ms. Ghosh has also placed reliance on the following decisions in support of her plea,
1. Sirajul Hoque Vs. State of Assam and others (2019) 5 SCC 534;
2. Sona Kha @ Sona Khan vs. Union of India & ors, 2021 (3) GLT 12;
3. Motior Rahman Vs. Union of India, 2020 (1) GLT 330.
40. In response, Mr. Payeng submits that the decision of Sirajul Hoque (supra) is not applicable in the present case as it was never the pleaded WP(C) No. 7280 of 2021 Page 19 of 81 case of the petitioner that there was certain discrepancy in her mother‟s name, which could have been ignored if it was a minor discrepancy.
41. Mr. Payeng submits that the submission of Ms. Ghosh that no election has held during the period of 1997 to 2001, and as such there was no revision of voters lists in West Bengal are questions of facts which were never pleaded and brought to the notice of the Tribunal.
42. Mr. Payeng submits that as far as the contents of the enquiry report on which much reliance has been placed by Ms. Ghosh, the report is prepared on the basis of the statements made by the proceedee herself and it will not be possible for the Enquiry Officer to ascertain the correctness of the same. Therefore, if the proceedee claims that she has come from West Bengal, it was not that the authorities had accepted the plea as true, but it is only a reflection of the statement of the proceedee.
43. In response to that submission, Mr. Ghosh has submitted relying on the decision of Sona Khan (supra) that if no proper reference was made, the proceedee cannot be faulted and if there was no proper enquiry, no reference could have been made. In any event, if the proceedee had made certain statement before the Enquiry Officer, it was the duty and responsibility of the Enquiry Officer to make necessary verification in that regard. If there was no proper verification, the proceedee cannot be put to a disadvantageous position and the authority WP(C) No. 7280 of 2021 Page 20 of 81 ought to have accepted the stand of the proceedee that she hails from West Bengal, being born there. Moreover, it has been observed by the Full Bench in State of Assam and others Vs. Moslem Mondal and others, 2013 (1) GLT 809, that the reference made by the referral authority cannot be mechanical.
44. To the aforesaid contention, Mr. Payeng submits that the enquiry report was based initially on the report submitted by the ERO requiring the LVO to make necessary enquiry as to whether the name of the proceedee can be continued to be included in the voters list or not. If the LVO does not submit sufficient materials warranting inclusion of the name of the person in the voters list, in such a situation, ERO writes to the Superintendent of Police (Border) to make a reference to the Tribunal. In the present case, it is the ERO, who doubted the bona fide of the petitioner that she is a genuine voter and considered her to be an illegal migrant from the specified territory.
45. In view of the submissions advanced and the finding of the learned Tribunal we would like to make the following observations.
The issue raised by the petitioner that there was no proper enquiry/investigation before the case of the proceedee/petitioner was referred to the learned Tribunal questioning her citizenship, in our view, WP(C) No. 7280 of 2021 Page 21 of 81 is a very important aspect which would require a detail consideration by this Court.
46. Ms. Ghosh, learned counsel for the petitioner has vehemently argued before this Court that there was no proper investigation by the Enquiry authority and no proper application of mind by the referral authority. She submits that there is a recording in the enquiry report that the petitioner‟s father resides in Calcutta and petitioner was born and brought up in West Bengal. She submits that there is no indication in the enquiry report that the petitioner had come from the Specified Territory which is necessary for initiating the proceeding under the Foreigners (Tribunals) Order, 1964.
47. We are of the view that the aforesaid submission has to be first addressed inasmuch as if there was no proper enquiry, the subsequent acts including the reference made, and proceeding before the Tribunal may be vitiated and the opinion of the Tribunal may not be sustained. If the foundation goes, the superstructure would collapse. Therefore, if there has been no proper enquiry nor any allegation nor tentative finding by the enquiry authority that the petitioner had come from the Specified Territory within the meaning of Section 6A of the Citizenship Act, 1955, it is doubtful whether the subsequent proceeding before the Tribunal would be sustained or not.
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48. The importance of fair and proper enquiry has been highlighted not only by the Full Bench of this Court in Moslem Mondal (supra) but also by the Hon‟ble Supreme Court in Sarbananda Sonowal (II) Vs. Union of India, (2007) 1 SCC 174, which is also commonly referred as Sarbananda Sonowal (II).
In Sarbananda Sonowal (II), the Hon‟ble Supreme Court reiterated that the burden of proof is upon the proceedee, yet, the primary onus in relation to setting out the main grounds would be on the State.
In para No.60 of the decision in Sarbananda Sonowal (II), the Hon‟ble Supreme Court observed as follows.
"60. Having regard to the fact that the Tribunal in the notice to be sent to the proceedee is required to set out the main grounds; evidently the primary onus in relation thereto would be on the State. However, once the Tribunal satisfied itself about the existence of grounds, the burden of proof would be upon the proceedee."
This is for the reason that the citizenship is an important right and the State has to take utmost care so that no genuine citizen of India is thrown out of the country and any person who claims himself to be a citizen of India is entitled to all the safeguards both substantive and procedural to show that he is an Indian as observed in para 55 of Sarbananda Sonowal (II) which is reproduced hereinbelow. WP(C) No. 7280 of 2021 Page 23 of 81
"55. There cannot, however, be any doubt whatsoever that adequate care should be taken to see that no genuine citizen of India is thrown out of the country. A person who claims himself to be a citizen of India in terms of the Constitution of India or the Citizenship Act is entitled to all safeguards both substantive and procedural provided for therein to show that he is a citizen."
In view of the importance of initial enquiry before initiation of the proceeding before the Tribunal, the Full Bench of this Court in Moslem Mondal (supra) had emphasized the need for making proper and fair investigation before the Referral Authority makes the reference.
49. One of the submissions made before the Full Bench of this Court in Moslem Mondal (supra) was that the Referral Authority is required to make the reference to the Tribunal after making a fair investigation.
It was contended before the Full Bench that no proper and fair investigation is conducted, and the police at their own whims and caprice gives a report, in some cases even without visiting the place where such proceedee resides and also without giving any opportunity to produce the relevant documents to prove that the proceedee is not a foreigner.
In view of the aforesaid contention made, the Full Bench dwelt upon the importance of fair investigation and fair trial, as a basic fundamental/human right of a person and a facet of the Fundamental Right guaranteed under Article 21 of the Constitution of India. WP(C) No. 7280 of 2021 Page 24 of 81
50. In that context, the Full Bench held that before any reference is made, there must be a proper investigation, though such investigation need not be detail and exhaustive one. Further, the Full Bench observed that the reference by the Referral Authority also cannot be mechanical and the Referral Authority has to apply his mind on the materials collected by the investigating officer during the investigation and make the reference if satisfied that there are grounds for making such a reference.
51. In this regard, we may profitably refer to para Nos.96, 97, 98 and 99 of the decision of the Full Bench in Moslem Mondal (supra) which read as follows.
"(96) One of the contentions of the proceedees is that thought he referral authority is required to make the reference to the Tribunal after making a fair investigation, no such proper an fair investigation is conducted and the police at their whims and caprice gives a report, in some cases even without visiting the place where such proceedee resides and also without giving any opportunity to produce the relevant documents to substantiate that the proceedee is not a foreigner, and such report is accepted by the referral authority and accordingly the reference is made to the Tribunal, on the basis of which the reference is registered against such person.
(97) Fair investigation and fair trial being the basic fundamental/human right of a person, which are concomitant to preservation of the fundamental right of a person under Article 21 of the Constitution, there has to be a fair and proper investigation by the investigating agency before making a reference to the Tribunal. In such investigation the attempt has to be made to find out the person WP(C) No. 7280 of 2021 Page 25 of 81 against whom the investigation is made, so that the person concerned is given the opportunity to demonstrate at that stage itself that he is not a foreigner. In case the person concerned could not be found out in the village where he is reported to reside or in the place where he ordinarily resides or works for gain, the investigating agency has to record the same in presence of the village elder of the village headman or any respectable person of the locality, which in turn would ensure visit of the investigating officer to the place where such person ordinarily resides or reported to reside or works for gain and making of an effort to find him out for the purpose of giving him the opportunity to produce the documents etc., if any, to demonstrate that he is not a foreigner. The investigating officer, as far as practicable, shall also obtain the signature or thumb impression of the person against whom such investigation is initiated, after recording his statement, if any, provided he makes himself available for that purpose. There are also instances where the person against whom such investigation is initiated, changes his place of residence, may be in search of livelihood or may be to avoid detection. To ensure proper investigation and also having regard to integrity and sovereignty of the nation, once investigation relating to the nationality status of a person starts he must from the investigating agency in writing about the change of residence, if any, thereafter. In case such person has failed to intimate the investigating agency in writing the subsequent change of his place of residence, the investigating agency has to mention the same in his report with his opinion relating to the status of such person on the basis of materials collected at the place where he earlier resided. That will ensure a fair investigation and submission of a proper report on such investigation to the authority. Needless to say, such investigation need not be a detailed or an exhaustive one keeping in view the nature of the proceeding before the Tribunal and the object sought to be achieved. Hence it need not be equalled with an investigation conducted in criminal cases.
(98) The reference by the referral authority also cannot be mechanical. The referral authority has to apply his mind on the materials collected by the investigating officer during investigation and make the reference on being satisfied that there are grounds for making such reference. The referral authority, WP(C) No. 7280 of 2021 Page 26 of 81 however, need not pass a detailed order recording his satisfaction. An order agreeing with the investigation would suffice. The referral authority also, while making the reference, shall produce all the materials collected during investigation before the Tribunal, as the Tribunal is required prima facie to satisfy itself about the existence of the main grounds before issuing the notice to the proceedee.
(99) Fair trial and reasonable opportunity required to afforded to a proceedee also includes supply of the certified copy of any public document, including the copy of the relevant electoral rolls which has also been recognized by the sub-
section (2) of section 6a of the 1955 Act as relevant document for the purpose of establishment of the citizenship, to the proceedee, whenever asked for, which may be necessary for the purpose of demonstrating by the proceedee that he is not a foreigner. Certified copies of such documents, if applied for, must be supplied promptly, otherwise, it may result in delay in disposal of the reference proceeding, as the proceedee in that case may ask for time, till such documents are made available to him. The same may also amount to denial of reasonable opportunity to the proceedee, as he may not be able to discharge his burden of proof that he is an Indian national, in the absence of such documents. Such delay in disposal of the proceeding would also be against national interest. The interest of justice, therefore, requires supply of the certified copies of such documents, that too promptly, whenever asked for. Question (e): What would be the appropriate procedure relating to the service of notice on the person against whom the reference proceeding has been initiated."
52. From the above, it is clearly evident that there must be a proper and fair investigation by the competent enquiring authority. Secondly, the Referral Authority must apply its mind on the materials collected by the Investigating Officer during the investigation and only on being satisfied that there are grounds for making such reference, the reference must be made to the Tribunal. Therefore, a proper enquiry as regards the WP(C) No. 7280 of 2021 Page 27 of 81 doubtful status of the citizenship of a person and proper application of mind by the Referral Authority on the materials so gathered during the investigation are postulated before a person is proceeded before the Tribunal. As a corollary, it would follow that if there had been no proper enquiry by the enquiring authority nor proper application of mind or improper application of mind by the Referral Authority or rather a mechanical one, such a reference to the Tribunal cannot be considered to be valid in the eyes of law. The natural consequence which will follow is that if the reference had not been validly made, the proceeding before the Tribunal would be vitiated.
53. Keeping the aforesaid principles in mind, we will proceed to examine the relevant facts as emerged in the proceeding before the Tribunal as to whether the plea of the proceedee/petitioner that there was no proper enquiry and there was no proper application of mind by the Referral Authority, has substance or not.
54. As we proceed to examine the issue, we will examine the finding of the competent enquiry authority when the verification was carried out.
55. In the Verification Officer‟s Report as available in the original record, the relevant facts have been mentioned.
WP(C) No. 7280 of 2021 Page 28 of 81
To understand this properly, the scanned copy of the Verification Officer‟s Report is reproduced hereinbelow.
WP(C) No. 7280 of 2021 Page 29 of 81 WP(C) No. 7280 of 2021 Page 30 of 81 WP(C) No. 7280 of 2021 Page 31 of 81
56. Perusal of the aforesaid Verification Officer‟s Report clearly indicates that the Enquiry officer had noted at Serial No.5 of the form that the place of birth of the petitioner is West Bengal. It has been further noted that, at Serial No.13 of the form relating to Inquiry Officers‟ assessment on the dialect spoken, it is specifically mentioned that her father resides at Calcutta. So she was unable to provide documents within sufficient time.
As can be seen, in respect of other entries required to be made, these have been left unfilled.
57. In this regard, one may refer to Serial No.15 which relates to information as to "whether migrated into Assam" with the remark "Yes/No", but nothing is mentioned under that head. Similarly, in the subsequent Serial No.16 as regards the column, "if yes, (i) place from where migrated", it is again kept unfilled. Similarly, in respect of Serial No.16(ii), "whether migrated (a) before 1- 1-1966 (b) between 1-1-1966 and 24-3-1971 and (c) on or after 25-3-1971", the same has been also kept unfilled.
58. However, on the basis of the said Verification Officer‟s report which does not indicate at all that the petitioner is an illegal immigrant but hails from West Bengal, the E.R.O. made the observation that he had reasonable doubt that the proceedee is not a citizen of India and accordingly, forwarded the matter to the Superintendent of Police (Border), Morigaon.
The scanned copy of the said finding of the E.R.O. dated 13.10.1997 is reproduced hereinbelow.
WP(C) No. 7280 of 2021 Page 32 of 81 WP(C) No. 7280 of 2021 Page 33 of 81
59. We, however, fail to understand how the E.R.O. came to such a conclusion when it is specifically mentioned in the Verification Officer‟s Report that the place of birth of the petitioner is West Bengal and her father resides at Calcutta, because of which she was unable to provide documents within sufficient time. The said reference was made based on the verification report of the LVO as mentioned therein.
The said report of the Verification Officer is dated 10.09.97 and the reference was made by the E.R.O. on 13.10.97.
There is nothing on record to show that the petitioner was given time to produce the documents after she sought time as mentioned in the Verification Officer‟s Report. If a proceedee claims that she was born in West Bengal and sought time to produce documents from her father who resides in Calcutta, such a claim cannot be considered to be unreasonable at all. In fact, the authority ought to have given adequate time to the petitioner so that she could produce such documents before the reference is made to the Tribunal.
There is also nothing to indicate that the E.R.O. made the reference on the basis of materials other than the report of the LVO.
60. We have made the said observation for the reason that such an enquiry has grave implications for the person concerned, as also highlighted by the Full Bench of this Court in Moslem Mondal (supra). If a person was indeed born and a resident of any other part of the country as in West Bengal, and even though a large number of Hindu Bengalis may have migrated from the then WP(C) No. 7280 of 2021 Page 34 of 81 East Pakistan, now Bangladesh, the Specified Territory, yet such a claim by the person concerned that she is originally from West Bengal cannot be treated lightly. It must be considered with all seriousness it deserves.
The verification authority, referral authority and the learned Tribunal ought to have taken much more care, as otherwise, a genuine Indian citizen can be put to serious inconvenience and jeopardy as appears to have happened in the present case.
61. What we have noticed from the initial enquiry by the competent authority is that the petitioner had clearly mentioned that she was born in West Bengal and her father is residing in Calcutta because of which she could not submit the documents in short notice. Yet, there is nothing to indicate that the E.R.O. had duly considered the said claim of the proceedee before the E.R.O. made the reference to the Superintendent of Police (Border), Morigaon for determination of citizenship of the petitioner. The Enquiry Officer or the E.R.O. or the Referral authority did not appear to have made any conscious effort to make further verification as regards the claim of the petitioner that she hails from West Bengal or wait for the documents.
62. Further, there is no finding by the Enquiry/Verifying authority that the proceedee had come from Bangladesh. Merely because the proceedee is a Hindu Bengali and speaks Bengali, and also merely because many Hindu Bengalis had migrated from East Pakistan or Bangladesh, a person cannot be suspected to be a foreigner without proper basis, and without undertaking WP(C) No. 7280 of 2021 Page 35 of 81 further enquiry or verification, as otherwise, such mechanical processing may have a devastating effect on a genuine Indian born in this country.
63. Apart from the importance of proper enquiry, the significance of the role of Referral Authority has been highlighted by the Full Bench of this Court in para 98 of the decision in Moslem Mondal (supra) quoted above that the reference by the Referral Authority cannot be mechanical and the Referral Authority has to apply his mind on the materials collected by the Investigating Officer during investigation and make the reference only on being satisfied that there are grounds for making such reference. The matter does not end there. The Referral Authority while making reference to the Tribunal has to produce all the relevant materials collected during the investigation before the Tribunal so that the Tribunal can examine the same and only when the Tribunal is prima facie satisfied about the existence of grounds for issuing notice to the proceedee, the Tribunal will proceed by issuing notice to the proceedee as also mentioned in para 98 of Moslem Mondal (supra) referred to above.
64. The obvious inference that can be drawn from the above observation of the Full Bench is the requirement of law that the Tribunal also cannot act in a mechanical manner and cannot act as a post office merely to accept the reference and issue notice to the proceedee. The Tribunal has to be also prima facie satisfied about the existence of the WP(C) No. 7280 of 2021 Page 36 of 81 grounds that the proceedee is a foreigner before issuing notice to the proceedee.
65. From the above, it appears that the process for identifying and declaring a person as a foreigner consists of three stages involving three authorities, viz., the Inquiring Authority, the Referral Authority and the Tribunal, of which while the first two stages are mainly administrative in nature, the third is endowed with judicial attributes.
Firstly, there must be a proper investigation whenever a suspicion arises about the citizenship of a person. The enquiry authority has to make the necessary enquiry though not in a manner a criminal investigation is carried out, yet it must have certain evidences which gives rise to a reasonable belief that the proceedee is not an Indian, but a foreigner who has migrated or come from the "Specified Territory". Obviously before forming such an opinion, it must be based on certain materials collected during the investigation.
The second stage would come after the enquiry authority takes a prima facie view that the person is not an Indian but a foreigner who had come from the Specified Territory based on the investigation it carried out. The materials would then be handed over along with the enquiry report to the Referral Authority. At this second stage, the Referral Authority is required to apply his mind, and on examination of the WP(C) No. 7280 of 2021 Page 37 of 81 materials collected by the Enquiring Authority, it must come to a conclusion that the matter requires to be referred to the Foreigners Tribunal for determination of citizenship of the suspected proceedee. The Referral Authority accordingly, will make a reference to the Tribunal and while making the reference, obviously, as held by the Full Bench of this Court in Moslem Mondal (supra), the Referral Authority has to submit all the materials collected during the investigation to the Tribunal.
Then comes the third stage when the matter is placed before the Foreigners Tribunal which shall initiate the proceeding by issuing notice to the proceedee.
66. The first two stages of investigation by the Investigating Authority and making reference by the Referral Authority are administrative in nature which does not involve any judicial act on the part of these authorities except for application of mind on the materials so collected. However, from the stage when the matter is referred to the Tribunal, the process involves application of judicial mind by the Tribunal as the Tribunal being a quasi-judicial body has to apply its mind on the materials so collected during the investigation which are forwarded to it by the Referral Authority before proceeding. The Tribunal has to apply its judicial mind as to whether to accept the said reference on the basis of the materials so collected and furnished to him that the person is suspected WP(C) No. 7280 of 2021 Page 38 of 81 to be an illegal immigrant who had come from the Specified Territory before the proceeding against the proceedee by issuing notice, as also mentioned in para 98 of Moslem Mondal referred to above.
67. Application of judicial mind by the Tribunal at this stage, however, cannot be equated with that of civil court or criminal court before initiating any proceeding, though it may partake certain attributes of a judicial function.
68. It has been provided under Section 27 of the Code of Civil Procedure (CPC), 1908 that where a suit has been duly instituted, summons may be issued to the defendant to appear and answer the claim and may be served in the manner prescribed. Section 26 of CPC states that every suit shall be instituted by presentation of the plaint or in such other manner. Therefore, unless a suit is properly instituted, summons cannot be issued and it has been further provided under Order IV Rule 1(2) of CPC that every plaint shall comply with the rules contained under Orders VI and VII of CPC, so far as they are applicable. Order IV Rule 2(3) of CPC also provides that the plaint shall not be deemed to be duly instituted unless it complies with requirements specified in sub-rule (1) and (2) thereof.
69. A plaint is liable to be rejected under Order VII Rule 11 of CPC where the plaint does not discloses any cause of action or where the relief WP(C) No. 7280 of 2021 Page 39 of 81 claimed is undervalued, or where the suit appears to be barred by law etc. This verification process is required to be undertaken by the civil court to ensure that no frivolous plaint is filed before the court and as such, unless the plaint satisfies the requirements as mentioned under Order VII Rule 11 of the CPC, such a plaint may be liable to be rejected and notice may not be issued to the defendant.
70. Thus, a civil court has to be prima facie satisfied that the suit has been properly instituted which conforms to the requirement of Orders VI and VII of CPC. For undertaking such exercise some element of judicial application of mind by the civil court is involved so that no frivolous plaint is filed. It does not, however, require a detail scrutiny of the plaint but to ensure that the plaint fulfills the required conditions.
Similarly, in the case of criminal trial/proceeding at the time of taking cognizance and proceeding with the trial, the court must be satisfied that there is sufficient ground for proceeding against an accused and only after the court is satisfied, it will proceed to frame the charge.
Thus, there is some element of application of judicial mind before the civil suit or the criminal trial is initiated by the court. WP(C) No. 7280 of 2021 Page 40 of 81
Similarly, though not akin to the said judicial acts of the civil courts and criminal courts, the Tribunal has to apply its mind on the materials so furnished before it by the Referral Authority and be satisfied that the grounds stated in the report/referral request are good enough to initiate the proceeding against the proceedee.
71. In other words, from the stage the matter is placed before the Tribunal, the process involves judicial application of mind. Though the proceeding before the Tribunal is not a trial in the sense understood under Code of Civil Procedure or Code of Criminal Procedure, yet, there is requirement of application of judicial mind by the Tribunal, as from thereon the process gets transformed to a quasi-judicial one. Unless the Tribunal is satisfied, it cannot proceed as otherwise, it can lead to serious inconvenience and hardships to the proceedees.
72. In the present case, what we have observed from the records is that all the three stages, begining with the enquiry, reference and the proceeding against the proceedee in the Tribunal, culminating in the final opinion by the Tribunal, suffer from fatal defects.
73. Firstly, there was no proper investigation by the Enquiry Officer. Secondly, there was no proper application of mind by the Referral Authority before making the reference to the Tribunal. Thirdly, there is nothing on record to show that the Tribunal had applied its mind on WP(C) No. 7280 of 2021 Page 41 of 81 materials so collected by the authorities before accepting the reference and issuing summons to the proceedee.
74. In view of the above, as we are of the opinion that there was no proper enquiry, and the reference was not made validly, and the Tribunal also did not apply its mind before issuing notice to the proceedee, the opinion rendered by the Tribunal suffers from serious fatal defects rendering its opinion otiose.
75. Though we could have closed the petition at this stage by setting aside the impugned opinion of the learned Tribunal, since the matter is of great importance involving the interest of the State and as we are dealing with the serious issue of large scale influx of illegal immigrants from the Specified Territory/Bangladesh in the State of Assam, we have proceeded to examine the matter on merit also, at the same time being equally mindful of the need to protect the interest of genuine Indian citizens, as also cautioned by the Hon‟ble Supreme Court in Sarbananda Sonowal (supra) that adequate care should be taken to see that no genuine citizen of India is thrown out of the country.
76. Accordingly, for our own satisfaction and to ensure that such important issue relating to citizenship is not decided by way of default, we have proceeded to examine the merit of the case as well. We, accordingly, will proceed to examine whether the Tribunal had been WP(C) No. 7280 of 2021 Page 42 of 81 correct in holding that the petitioner had failed to produce relevant oral and documentary evidences to prove her claim that she is an Indian and not a foreigner.
77. The petitioner has taken a specific plea that she is the daughter of one Anil Biswas who hails from West Bengal. If the petitioner is able to show on the basis of preponderance of probabilities, not on the basis of proof beyond reasonable doubt, that she is indeed the daughter of said Anil Biswas who hails from West Bengal, perhaps, it may not be necessary to examine the other evidences on record though these may be also taken into consideration if these corroborate the plea of the petitioner.
78. In this regard, before we examine the evidence of the petitioner herself, we will examine the evidence of Anil Biswas the projected father of the petitioner who was examined as DW-3.
As per the original records of the Tribunal, which are before us, Anil Biswas was aged about 74 years when he appeared before the Tribunal. He gave his particulars as the son of Lt. Khudi Ram Biswas, a Hindu, residing in village Palda Marugachha, Police Station Kotwali, District Nadia, West Bengal. He, accordingly, stated in his examination-in- chief that the name of his father is Lt. Khudi Ram Biswas and he was born and brought up in village Palda Muragachha and presently residing WP(C) No. 7280 of 2021 Page 43 of 81 there. He also stated that he got married in Palsa Muragachha village and the name of his wife is Anna Biswas and she is still alive. He stated that he has three children, namely, Tapan Biswas, Taposh Biswas and Anjana Biswas (the petitioner). He categorically stated before the Tribunal that the lady standing on the dock is Anjana Biswas, his daughter (the proceedee). He stated that Anjana Biswas was born and brought up in village Palda Muragachha of West Bengal and she passed from Primary School in Palda Muragachha. He stated that he purchased lands prior to 1974 and the land documents have been submitted by his daughter before the Tribunal. He stated that he cast his first vote in the year 1970- 71 and his daughter submitted a certified copy of the voters list. He also stated that his daughter was married 18 years ago to one Ratan Sarkar of village called Khandajan of Morigaon district and his daughter has two children. He stated that Anjana Biswas is not a foreigner. He stated that he being born in village Palda Muragachha, is an Indian.
The said Anil Biswas, DW3 was questioned by the Tribunal under Section 165 of Indian Evidence Act, 1872. It may be noted the State which doubted the citizenship of the proceedee did not put any question to him about his claim of being the father of the proceedee. The answers given by said Anil Biswas to the questions put by the Tribunal are reproduced hereinbelow.
WP(C) No. 7280 of 2021 Page 44 of 81
"(1) I cannot tell my date of birth.
(2) I cannot tell the date of birth of Anjana Biswas. She is 40 years of age. (3) I purchased land at price Rs.200/- land measuring 12 Lessa. (4) I purchased land at village- Palda, Muragachha."
79. We have noted that, apart from enquiring about the date of birth of the said Anil Biswas and the proceedee, no question was asked to doubt the claim of the said Anil Biswas that he is the father of the petitioner. In fact, no other question was asked to Anil Biswas.
80. From the records, it appears that the said Anil Biswas is an illiterate person as he put his Left Thumb Impression on the affidavit and on his recorded statement.
81. From the evidence of Anil Biswas, examined as DW3, it comes out very clearly that DW3 Anil Biswas had come all the way from West Bengal to Morigaon in Assam to testify in favour of the proceedee/petitioner. The learned Tribunal has, however, cast serious doubt on the credibility and genuineness of the said Anil Biswas by making a very acrid comment that Anil Biswas is an interested witness and had been tutored by the proceedee and the proceedee had used a false genealogy and used somebody else‟s legacy to prove her citizenship of India. We utterly fail to understand how the learned Tribunal came to such an adverse finding without any evidence that Anil Biswas is an interested witness and had been tutored by the proceedee and that the proceedee had used the WP(C) No. 7280 of 2021 Page 45 of 81 false genealogy. For arriving at such a conclusion, the Tribunal appears to have been swayed by the fact that the proceedee did not mention the name of her mother in the written statement. The learned Tribunal also appears to have been influenced by the inability of the said Anil Biswas to state his own date of birth as well as of the proceedee, Anjana Biswas, which according to the Tribunal casts a serious doubt that he is the father of the proceedee.
82. The learned Tribunal even ventured to observe that though the proceedee‟s mother was alive as per the testimony of Anil Biswas, DW3, her mother was not examined without giving any reasons which would show that, had the proceedee named her mother and had the mother been examined, the fact that the proceedee is not the daughter of Anil Biswas would have been divulged. We utterly fail to understand the soundness of logic for making such an observation by the Tribunal.
83. First of all, as regards non-mentioning the name of the mother of the proceedee, though it was desirable to mention her name, the petitioner was claiming her legacy through her father and accordingly, was trying to prove that her father Anil Biswas, and in turn, her grandfather were Indians which, if proved, would be sufficient to establish that she is an Indian. Therefore, she did not mention her mother‟s name. Hence, non-mentioning the name of the mother in the WP(C) No. 7280 of 2021 Page 46 of 81 written statement or in the evidence by the proceedee cannot be said to be fatal to her claim. To that extent, such an adverse inference cannot be drawn.
84. Further, it has been submitted by Ms. Ghosh, learned counsel for the petitioner that it is not the case that the name of the mother was not in the record at all. In fact, DW3, Anil Biswas had mentioned the name of his wife, who obviously is the mother of the proceedee. We have gone through the evidence of DW3. DW3 had mentioned the name of his wife during cross-examination on being asked. Thus, when the name of the mother of the petitioner was on record which has not been doubted, merely because the petitioner did not mention her mother‟s name in her written statement or evidence cannot be a reason to doubt the assertion of Anil Biswas that the petitioner is his daughter and the claim of the petitioner that Anil Biswas is her father.
85. We have also noted that certain questions were put by the learned Tribunal to the said Anil Biswas by invoking Section 165 of the Indian Evidence Act, 1872. If the Tribunal had invoked Section 165 of the Indian Evidence Act, 1872, to ensure just determination of the issues, we fail to understand why the Tribunal did not ask question to the proceedee about her mother‟s name.
WP(C) No. 7280 of 2021 Page 47 of 81
86. The fact remains that even if the proceedee did not mention the name of her mother, her father had mentioned her name as Anna Biswas during his deposition and her name is also recorded along with the proceedee‟s father, Anil Biswas in the voters list of 1995, exhibited by the proceedee as Ext.N. Below the name of Biswas Anil Khudiram, the name of Anna Biswas Anil is found in the voters lists. Similarly, in the voters list of 2001, exhibited as Ext.O, the name of Anna Biswas is found below the name of Anil Biswas.
In the voters list of 1971, it has been shown as Biswas Anna Anil. Of course, in the voters list of 1988, below the name of Biswas Anil Khudiram, it has been shown as Biswas Annadabala Anil.
Therefore, though there are some minor variations in the name of Anna Biswas as Anna Biswas, Annadabala Biswas, she has been shown as wife of Anil Biswas in all these voters lists.
87. The Foreigners Tribunals are regularly dealing with voters lists which are the most important evidences relied on by the proceedees and as such, they are well acquainted with the entries in the voters lists. The name of wives generally are shown below the husbands. WP(C) No. 7280 of 2021 Page 48 of 81
The Tribunal appeared to have totally ignored the names entered below the name Anil Biswas. In the present case, the name of Biswas Anna is found along with Biswas Anil.
In any event, we fail to understand how the Tribunal could have drawn such an adverse inference merely because the proceedee did not mention her mother‟s name in the written statement or in her evidence. The matter would have been otherwise, if the proceedee failed to remember the name of her mother when asked by the State or the Tribunal. From the cross-examination of the proceedee what we see is that no such question was asked from the proceedee about her mother‟s name. Since her mother‟s name was not asked, she did not mention it. The Tribunal, however, asked the name of the father of the proceedee which she correctly answered. According to the petitioner, it was more important to mention the name of the father rather than the mother, as the petitioner was relying on the legacy through her father.
The cross-examination of the proceedee is accordingly reproduced hereinbelow.
"My name is Anjana Sarkar. My present age is 38 years. My father‟s name is Sri Anil Biswas. My grandfather‟s name is Late Khudi Ram Biswas. My birth took place at village Palda Muragachha under P.S.Kotuali of Nodia District of West Bengal. It is true that after having brought up there, I am presently residing at village Khandajan under Morigaon Police Station of Morigaon WP(C) No. 7280 of 2021 Page 49 of 81 District, Assam after being married to Sri Ratan Sarkar, son of Late Chitta Ranjan Sarkar. There is landed property in the name of my father at Nodia. Since 2005 I have been casting vote at Morigaon."
88. Thus, while the Tribunal asked many queries which have been already stated by the proceedee in her evidence-in-chief, neither the Tribunal nor the State bothered to ask the proceedee of the name of her mother. Was there a conscious act on the part of the State or the Tribunal not to ask the proceedee of her mother‟s name, merely make a charge subsequently that the proceedee had deliberately withheld the name of the mother? We do not wish to make any speculation in this regard. Suffice to say that her father Anil Biswas who was examined as DW3 had categorically mentioned in his evidence-in-chief, the name of his wife as Anna Biswas. He also stated that she is alive. Obviously, Anna Biswas being the wife of Anil Biswas would be the mother of the proceedee. There cannot be any doubt about it and in fact, during the proceeding, when Anil Biswas was examined by the Tribunal, he had categorically mentioned pointing out to the petitioner that she is his daughter. There was no challenge to the said evidence of Anil Biswas by the State.
89. The learned Tribunal appeared to have seriously doubted the evidence of Anil Biswas, DW3 on his failure to mention his date of birth and of his daughter, by imputing that since he did not know his own date WP(C) No. 7280 of 2021 Page 50 of 81 of birth and that of his daughter, he cannot be considered to be a genuine father. We have, however, noted that Anil Biswas is not a literate person. He was putting his Left Thumb Impression (LTI) on the deposition form which clearly indicates that he is not a literate person. The proceedee also clearly stated in her evidence that her father is a person belonging to the Below Poverty Line (BPL) category. Therefore, merely because a poor and illiterate person cannot remember his own date of birth, it cannot be a reason to doubt his relationship with his own daughter. Illiterate rural folks in this country normally do not register their dates of birth with the competent authority. It is a fact that many of the illiterate rural folk do not know their own dates of birth as per the Gregorian calendar format though they may remember with reference to the Hindu Calendar or with reference to the lunar months, etc., or with reference to certain important incident of life.
90. Therefore, merely because an illiterate person could not tell his date of birth as per Gregorian Calendar, his evidence could not be disbelieved.
91. As regards reliance on the decision of the Hon‟ble Supreme Court in Radha Krishna Singh (supra) by the learned counsel for the State, we are of the view that the same may not be applicable in the present case. In the said case, the claim related to title of certain land amongst WP(C) No. 7280 of 2021 Page 51 of 81 very seriously disputed claimants, claiming to be legal heirs of a certain Raja whose existence could be traced back to 17th century. Obviously, when it relates to title of land based on genealogy, and the person through whom they claim their title is no more existing, such claimants would be required to prove the genealogy in the face of stiff opposition from the rival claimants. In the present case, though the proceedee is also claiming her right through genealogy, the person through whom she was claiming, appeared before the learned Tribunal asserting that the proceedee is his daughter and the said assertion was never challenged by the State. The matter perhaps would have been otherwise, if the father had not appeared and the proceedee merely made the claim orally. In the present case, the claim of the proceedee is not based merely on oral evidence that she is the daughter of Anil Biswas but the said Anil Biswas himself testified before the Tribunal with documentary evidences, who was subjected to cross-examination by the State/Tribunal, and his paternity was never questioned.
92. Under the circumstances, we are of the view that picking up a decision of the Hon‟ble Supreme Court decided in a different context may not be proper while dealing with the issues in a proceeding before the Foreigners Tribunal where the father or mother appears and identifies the progeny.
WP(C) No. 7280 of 2021 Page 52 of 81
93. In a proceeding before the learned Foreigners Tribunal, generally there is no rival claimant who asserts with equally plausible evidences as in a suit when there is a dispute between rival claimants who make their own claims relying on certain evidences. The issue in a civil suit is decided on the basis of preponderance of probabilities. In a proceeding before the Foreigners Tribunal, what we have noted is that the State generally does not adduce any evidence, and sometimes even does not cross examine the witnesses nor challenge their evidence, as in the present case much less lead any rebuttal evidence. If the State does not adduce any rebuttal evidence, and if the oral and documentary evidences adduced by the proceedee are not challenged or shaken, normally, such evidences of the proceedee cannot be rejected, unless these are ex facie inadmissible, untenable and not believable.
94. In the present case, the proceedee had examined herself and relied on many documents of which we will be making reference to. Further, her own father Anil Biswas had appeared before the learned Tribunal. Not a single question was asked by the learned Tribunal doubting that Anil Biswas is the father of the proceedee or that the proceedee is the daughter of the said Anil Biswas. The fact that the said witness Anil Biswas had come all the way from West Bengal to adduce evidence in favour of the proceedee/petitioner along with relevant and WP(C) No. 7280 of 2021 Page 53 of 81 supporting documents, itself is a testimony to the genuineness and truthfulness of his evidence. The observation made by the learned Tribunal that he is an interested witness and tutored by the proceedee is not only incorrect but also improper without there being any iota of evidence to suggest so. Making such slanderous observations without any evidence by the Tribunal, in our view, is not warranted.
95. We feel that the proceedee could not have arranged to bring an elderly person from West Bengal as suggested by the Tribunal with all the relevant original documents, more particularly, the original certified copies of the registered sale deeds of lands which were purchased by the said Anil Biswas, which were deposited before the Tribunal. How could one bring the certified copy of a sale deed, unless he himself is either the vendee or the vendor?
96. We feel that it would be far-fetched to conclude as has been done by the Tribunal that an elderly person can be persuaded to come in person from a faraway place to depose before the Tribunal to make a false claim that he is the father of the proceedee and that too, by bringing the original certified copies of the registered sale deeds executed between the witness and vendors which are on record. These are not even photo copies but original certified copies of the registered sale deeds.
WP(C) No. 7280 of 2021 Page 54 of 81
97. Unfortunately, the Tribunal ignored the original certified copies of the registered sale deeds for the simple reason that the proceedee had not been able to prove with reliable link that she is the daughter of Anil Biswas.
98. The Tribunal also ignored all the documents produced in the name of Anil Biswas. Not only the registered sale deeds, but also the Ration Card, Electoral Identity Card and the Electoral Rolls were ignored by holding that these do not prove the link between the proceedee and her father. The Tribunal also made the observation that such documents are no proof of citizenship, without stating as to which document proves citizenship of a person. In fact, there is not a single document which can prove the citizenship of a person. All documents including the passport, ration card, Elector‟s Identity Card and other personal documents are to be considered as supporting documents of citizenship. Citizenship is a status which has to be proved on the basis of oral and documentary evidences and there cannot be any single documentary evidence for establishing citizenship, at least as per the law as it stands as on date. No statute has been enacted which provides that possession of a particular document would be the singular proof of citizenship of a person. Therefore, in absence of any such specific document which has been statutorily recognized to be the proof of citizenship, all the documents WP(C) No. 7280 of 2021 Page 55 of 81 which indicate citizenship have to be taken together in the light of the oral evidences so adduced for coming to a conclusion about the citizenship of a person.
99. Therefore, it will be incorrect to ignore any document merely on the ground that such a document does not prove citizenship. Citizenship has to be inferred on the basis of various documentary evidences that may be produced and relied upon in the context of oral evidences that may be adduced.
100. We are of the view that the presence of Anil Biswas, DW3 himself in person before the Tribunal and testifying that he is the father of the proceedee is not only significant, but his evidence is of high probative value and clinching evidence that the proceedee is an Indian.
101. Perusal of the evidence of DW3 including his cross-examination does not at all indicate that his evidence, wherein he had made uncontested and categorical statement that he is a resident of West Bengal and the proceedee is his daughter, who was born and brought up at West Bengal and subsequently got married to a person residing in Morigaon, Assam, is doubtful. Being not assailed or questioned or shaken, thus not uncontroverted, it will be an evidence of high probative value in favour of the petitioner.
WP(C) No. 7280 of 2021 Page 56 of 81
102. We have no reason to doubt the genuineness of the evidence of Anil Biswas and we are of the opinion that his testimony would conclusively prove that the proceedee is an Indian citizen being the daughter of an Indian citizen.
103. We will now refer to the finding of the learned Tribunal in respect of other evidences.
Ext. A is the School certificate issued by the Head Teacher of Andulpota Muragachha Primary School, Nodia. However, nobody was examined on behalf of the said School and as such, though the said School certificate was exhibited, since is not proved as per law, the observation of the learned Tribunal that it cannot be relied upon cannot faulted. However, we would also like to observe that the State/Tribunal has not questioned the genuineness of the said document. Though the requirement of law is that a document can be said to be have been proved only when the author of the document is examined, yet, in the present case, what we have noted is that the said document was never questioned nor doubted by the State, because of which the said document cannot be totally ignored.
104. Coming to the Ext.B and Ext.C which are original certified copies of the registered sale deeds recorded on 06.02.1967 and 25.01.1978 in the WP(C) No. 7280 of 2021 Page 57 of 81 name of Anil Biswas, the same have to be given due consideration inasmuch as the said documents clearly show that Anil Biswas was a resident of West Bengal prior to 1967 and hence an Indian.
105. As regards the Ration Card and Electoral Identity Card, Ext.D and Ext.E, though these are not proof of citizenship, these are corroborating evidences to prove the citizenship of a person. These have to be taken into account and examined in the light of all other evidences on record and as such, their evidentiary value cannot be totally ignored.
106. Coming to the certificate issued by the Pradhan of the Bhimpur Gram Panchayat, West Bengal, Ext.H, we have also noted that the author of the said Pradhan or any official of the said Gram Panchayat of West Bengal was not examined. Therefore, we also do not place much reliance on the said certificate.
However, we would also like to mention that the said document was never questioned or doubted by the authorities.
107. The other documents which were exhibited as Ext.I and Ext.J were the certificates issued by the Gaonburah of Oujari Gaon. The learned Tribunal also ignored these on the ground that the Gaonburah who had issued the certificates had no authority to issue such certificates inasmuch as he does not maintain records of citizens. While such an WP(C) No. 7280 of 2021 Page 58 of 81 observation cannot be said to be incorrect, the fact remains that the Gaonburah is not an ordinary citizen. He has a special knowledge of the people in his village and enjoys certain status in the society and is responsible for the affairs of the village and even though his evidence may not be a conclusive proof of status of a person in his village, nevertheless, it carries much weight and as such, his evidence that he knew the proceedee and that the proceedee was born in West Bengal and was married to Sri Ratan Sarka, son of Chitta Ranjan Sarkar, a resident of Khandjan village has to be considered seriously and cannot be totally ignored.
108. This evidence of the Gaonburah corroborates the plea of the petitioner as well as her father that the proceedee was born in West Bengal and she got married to Ratan Sarkar in Khandajan village in Morigaon, Assam. Certainly, his evidence that the proceedee was born in West Bengal is not a direct evidence of the said fact and can be said to be hearsay evidence, yet, it is reflective of the knowledge of the social background of the general populace in the village which corroborates the claim of the proceedee that she originally hails from West Bengal. To that extent, even if the said certificate of the Gaonburah may not have legal sanctity, yet, his evidence that he knew the proceedee as a person who had come from West Bengal and married in that village cannot be WP(C) No. 7280 of 2021 Page 59 of 81 brushed aside as a figment of imagination or fictitious statement. No question had been asked in the cross-examination as to the correctness of the statement made by the said Gaonburah. The Gaonburah had categorically stated in the cross-examination that the proceedee had told him that she was born in West Bengal and those certificates were issued by him as per the information provided by the proceedee. Thus, the evidence of the Gaonburah cannot be treated to have no evidentiary value at all. Though the learned Tribunal has made a conclusion that the Goanburah does not have any authority to issue the said certificates, no question was put to him during the cross-examination as to the correctness of his knowledge about the identity of the proceedee. Therefore, the reason given by the learned Tribunal in totally ignoring the evidence of the Gaonburah cannot be said to be correct.
109. Coming to the electoral rolls relied upon by the petitioner and exhibited as Ext.L, Ext.M, Ext.N, Ext.O, i.e., the voters lists of 1988, 1971, 1995 and 2001, the learned Tribunal, literally, without proper application of mind has held that the name of the projected father is recorded as "Anil Biswas Khudiram", which is different from the name of the petitioner's projected father "Anil Biswas". But a careful perusal of the aforesaid voters lists would show that the last name appearing in the name of the voters list refers to the father or mother of the voter WP(C) No. 7280 of 2021 Page 60 of 81 concerned. So, when the name "Biswas Anil Khudiram" is recorded, it means that the name of the voter is "Biswas Anil", who is the son of "Khudiram". "Anil Biswas" is not written separately because in the list, the Election officials appear to have mentioned the surname first and thereafter, the name, followed by the parent‟s name or the wife or husband‟s name as the case may be. Accordingly, the name of the petitioner‟s father appears as "Biswas Anil Khudiram", thereby meaning that the name of the person in the electoral roll is "Anil Biswas" and father of Anil Biswas is "Khudiram". The name of the wife of Anil Biswas appears immediately after his name. For example, in the voters list of 1995, the name of his wife, the mother of the proceedee appears as "Biswas Anna Anil" thereby indicating that name of the said lady is "Anna Biswas" who is the wife of "Anil" which is preceded by the name "Biswas Anil Khudiram".
However, the learned Tribunal by ignoring the said format, holds that while the proceedee claims her father to be "Anil Biwas", it is recorded in the voters lists as "Biswas Anil Khudiram" and, hence, not reliable. The learned Tribunal without any basis, accordingly, proceeded to record that the documents are found to have been picked up by the proceedee as the name of the father of the proceedee resembles the named person in the voters list.
WP(C) No. 7280 of 2021 Page 61 of 81
We are afraid, such an observation made by the learned Tribunal is not borne by records but based on conjectures. In fact, it is contrary to the entries in the electoral rolls.
110. The learned Tribunal also observed that the proceedee ought to have pointed out the name of the mother in the voters lists of 1971, 1988, 2001, but she neither named her mother nor pointed out her name in the voters lists, which raises a reasonable doubt as to whether the aforesaid voters lists belong to the father of the proceedee. As we have mentioned earlier, even if the name of the mother of the petitioner was not mentioned by the proceedee in her written statement or in the evidence, her mother‟s name is very much present in the voters lists, and nothing prevented the State or the Tribunal from asking as to whether the name of the mother was included in the voters lists. Failure to mention the name of her mother in the written statement or in her statement before the Tribunal cannot be said to be fatal to the claim of the petitioner.
111. Under the circumstances, we are of the view that though we have held that the proceeding before the Tribunal cannot be sustained in view of the fatal defects in the enquiry, reference made by the Referral Authority and failure of the Tribunal to satisfy of the existence of prima facie case, we have also examined the matter on merit and found that WP(C) No. 7280 of 2021 Page 62 of 81 there are sufficient reliable oral and documentary evidences available on record which would substantiate the claim of the proceedee/petitioner that she is an Indian and not a foreigner.
112. In this regard, we would like to make another observation that while the onus is upon the proceedee to prove that she is an Indian and not a foreigner, yet, it does not discharge the State of any obligation to verify such facts and if necessary, lead rebuttal evidence. This is what the Hon‟ble Supreme Court had held in para 26 of Sarbananda Sonowal (I) which was reiterated in Sarbananda Sonowal (II).
In para 26 of Sarbananda Sonowal (I) it was held by the Hon‟ble Supreme Court that after a proceedee has given evidence on various points on (i) date of birth, (ii) place of birth, (iii) name of parents
(iv) place of birth and citizenship, the State authorities can verify such facts and lead rebuttal evidence, if necessary, if the State authorities dispute citizenship of a person.
The Hon‟ble Supreme Court observed that once information on the aforesaid aspects are disclosed by the proceedee, it will not be difficult for the State to verify or lead rebuttal evidence on the aforesaid points.
113. In the present case, the proceedee had led sufficient evidences in support of her claim that she is an Indian and not a foreigner. Yet, the WP(C) No. 7280 of 2021 Page 63 of 81 State has opted not to question the evidences nor challenge the evidence, but also failed to verify these facts brought on record and also did not adduce any evidence on rebuttal.
Under the circumstances, the State cannot be expected to question or challenge the claim of the proceedee.
114. We would like to mention that the Full Bench of this Court in Moslem Mondal (supra) dealt with similar issues, while deciding a number of appeals arising out of opinions of the Tribunal.
In para 116 of the said decision in Moslem Mondal (supra) while dealing with the matter in Writ Appeal No.258/2008, the Full Bench of this Court observed that the cogent and reliable evidences adduced by the appellant could not be dislodged by the State by adducing any rebuttal evidence.
In the said case, the Local Verification Officer was examined as witness by the State but did not say anything except that he has submitted the report to the effect that the appellant is doubted to be an illegal immigrant.
In the said case, the Full Bench having regard to the evidence which had been adduced by the appellant as well as the State before the Tribunal, held that the appellant could discharge the burden of proof that WP(C) No. 7280 of 2021 Page 64 of 81 she is an Indian and not a foreigner and accordingly, set aside the opinion of the Tribunal.
115. In this regard, we would like to reproduce the relevant paragraphs of the decision of the Full Bench of this Court in Moslem Mondal (supra), which dealt with similar cases where the State did not challenge the correctness of the claim of the proceedee nor led any rebuttal evidence.
"(116) WA No.258/2008
116.1 As discussed above, pursuant to the order dated 19.09.2008 passed by the Writ Appellate Court in this appeal the parties have adduced evidence before the Tribunal. A report has also been submitted by the Tribunal as directed. The evidence adduced by the appellant as well as the report submitted by the Tribunal reveal that the appellant could prove that her grand-father and grand- mother‟s names appeared in the electoral rolls of 1966 and 1970, which were exhibited as Exts.-B and C, respectively. The appellant could also prove that her father and mother‟s names appeared in the electoral rolls of 1971 and 1997 (Exts.-D and E). The birth of the appellant in village Dighirpar could also be proved by examining Shri Ajmat Ali (witness No.2). Shri Usman Gani Akand (witness No.3), the village Headman, also proved the certificate issued by him certifying that the appellant is a resident of the village. There is no cross- examination by the State on the lineage proved by the appellant. The Tribunal though initially passed the ex-parte order declaring the appellant to be a foreigner coming to India from the specified territory after 25.03.1971, in the further chance given to the appellant by the aforesaid order passed in the writ appeal, the appellant could prove that she is an Indian citizen and not a foreigner as alleged. Such cogent and reliable evidence as adduced by the appellant could not be dislodged by the State by adducing any rebuttal evidence. The Local WP(C) No. 7280 of 2021 Page 65 of 81 Verification Officer, who was examined as witness by the State did not say anything except that he has submitted the report (Ext.-1) to the effect that the appellant is doubted to be an illegal migrant.
116.2 Having regard to the evidence which have been adduced by the appellant as well as by the State before the Tribunal, it is, therefore, evident that the appellant could discharge the burden of proof that she is an Indian citizen and not a foreigner. The subsequent order passed by the Tribunal on 02.03.2009 opining the appellant to be an Indian citizen, has to be accepted even though the Tribunal in its earlier ex-parte order dated 03.10.2007 opined the appellant to be a foreigner, the same being an ex-parte order, where the appellant could not adduce any evidence.
116.3 In view of the above, the earlier order passed by the Tribunal dated 03.10.2007 passed in F.T. Case No.243/2006 as well as the common judgment and order dated 25.07.2008 in so far as it relates to WP(C) No.6560/2007, are set aside. If the appellant is in custody, she is directed to be released forthwith. The writ appeal stands allowed.
(117) WA No.264/2008117.1 The learned Member, Foreigners Tribunal, pursuant to the interim order passed in the writ appeal submitted the report dated 18.10.2010, with the finding that the appellants have failed to prove that they are Indian citizens. The relevant portion of the said report (paragraph 18), is quoted below:-"18. considering the entire facts and circumstances and in view of the above discussion, I am of the opinion that both the opposite party/appellant Nos.1 and 2 have failed to prove that their family have been living in Assam since before 25.03.1971. Therefore, both of them cannot be declared as Indian citizens. Other opposite parties/appellants being the children of opposite party/appellant Nos.1 and 2 will follow the nationality of their parents."
117.2 The learned Member while recording his opinion has discussed the oral as well as the documentary evidence adduced by the parties. The appellants have examined four witnesses, namely, Dr. Babulal Pathak (witness No.1), Sri Golam Rabbani (witness No.2), Sri Mobbesh Ali @ Md. Nabesh Ali (witness No.3, who is appellant No.1) and Smt. Jarina Begum (witness No.4, who is appellant WP(C) No. 7280 of 2021 Page 66 of 81 No.2). The appellants have also exhibited 19 documents which were marked as Ext.A to Ext.S. The evidence of Dr. Babulal Pathak (witness No.1) is not relevant in the matter of recording the opinion as to whether the appellant Nos.1 and 2 are foreigners within the meaning of the 1946 Act, as this witness has proved the birth certificate issued to appellant Nos.3 and 4 (Ext.A and B), who are children of the appellant Nos.1 and 2. It is, however, evident from the evidence adduced by the parties that the factum of the birth of appellant Nos.3 and 4 in Indian soil is not in dispute. Sri Golam Rabbani (witness No.2) is the Kazi, who proved the performance of marriage between the appellant No.1 and 2 on execution of the Kabilnama on 05.02.1998 (Ext.-C). There is also no dispute relating to the marriage between the appellant Nos.1 and 2. 117.3. For the purpose of recording the opinion as to whether the appellant No.1 is a foreigner within the meaning of the 1946 Act, the evidence of the appellant No.1 himself (witness No.3) and of his wife, namely, appellant No.2 (witness No.4) is relevant. The appellant in his deposition has stated on oath that in the relevant electoral roll of 1966 his father‟s name appeared at serial No.16 against holding No.6 Part No.15 of village Kumulipara under No.50 Barpeta LAC. The said electoral roll has been proved and marked as Ext.S. The appellant has also deposed that his mother‟s name also appeared in the said electoral roll (Ext.S). That apart the appellant No.1 has also proved the copy of the National Registration Certificate (NRC) 1951 as Ext.E, containing the name of his father Sukur Mahmud, whose name appeared in Ext.F electoral roll of 1966 and Ext.G electoral roll of 1970. The NRC of 1951 reflects the name of the appellant No.2‟s father Abdul Gaffur issued by the competent authority and marked as Ext.N. The relevant electoral rolls of 1970 containing the name of Abdul Gaffur who according to the appellants is the father of the appellant No.2 has also been proved and marked as Ext.O. The State did not challenge the aforesaid version of the appellant Nos.1 and 2, during their cross examination. The said version of the appellants, therefore, remains unrebutted.
117.4. From the aforesaid discussions of the evidence on record, as adduced by the appellants, it is, therefore, evident that the appellant Nos.1 and 2s‟ fathers names appeared in the NRC of 1951 and their names also appeared in the WP(C) No. 7280 of 2021 Page 67 of 81 relevant electoral rolls of 1966 and 1970. As discussed above, the appellants also could prove that the appellant Nos.3 and 4 are the children of appellant Nos.1 and 2 and born in India, which in fact has not been challenged by the State at all. The appellants by adducing evidence could prove that the appellant No.1 is also known as Mobbesh Ali. The said positive statement of the appellants has not been challenged by the State during cross examination and as such remains unrebutted.
117.5. The learned Member vide its order dated 10.8.2008, by rejecting the evidence adduced by them mainly on the ground that the appellant No.1‟s name is Nabesh Ali and not Mobbesh Ali, has opined that the appellant Nos.1 and 2 came to India after 25.03.1971 and as such are foreigners, ignoring the unrebutted statement of the appellant No.1 that the appellant No.1 is also known as Mobbesh Ali. The learned Tribunal did not appreciate the evidence on record in its proper perspective, thereby refusing to take into consideration the relevant piece of evidence. The learned Member has also failed to notice that the reference was made by the Superintendent of Police alleging only the appellant No.1 as a foreigner. There was no reference against the other appellants, namely, the appellant Nos.2, 3 and 4 and despite that the Tribunal in its initial order as well as the subsequent order dated 29.12.2007 and 18.10.2010, respectively, has opined that all the appellants are foreigners.
117.6. In view of what has been discussed above, we are of the considered opinion that both the aforesaid orders dated 29.12.2007 and 18.10.2010 passed by the learned Member, Foreigner Tribunal (I) at Barpeta cannot be sustained in law and hence are set aside. Consequently the common judgment and order passed by the learned Single Judge on 25.07.2008 in so far as it relates to WP(C) No.546/2008 is also set aside. The writ appeal stands allowed. (118) WA No.265/2008 118.1 It appears from the order dated 20.10.2008 passed by the Tribunal that the opinion is based on documentary evidence i.e. the electoral rolls since the year 1965 which are proved as Exts.„C‟, „D‟, „F‟ and „G‟ apart from the title deed in respect of the land purchased by the father of the appellant on 06.12.1960 which has been marked as Ext.„H‟. That apart the appellant could WP(C) No. 7280 of 2021 Page 68 of 81 also prove three other sale deeds executed in favour of her father, being Exts.„J‟, „K‟ and „L‟, which are registered instruments of sale executed prior to 25.03.1971. The report of the Tribunal reveals that the appellant could discharge her burden to prove that she is an Indian national and not a foreigner coming to India from the specified territory after 05.03.1971 as alleged in the reference. Such finding of fact based on the oral and documentary evidence, as discussed above, cannot be interfered with by the Writ Court in exercise of its certiorari jurisdiction. Hence the judgment passed by the learned Single Judge, in view of the subsequent report submitted by the Member, Foreigners Tribunal III dated 20.10.2008 on the basis of the interim order dated 08.09.2008 passed in writ appeal, is set aside by upholding the opinion of the Tribunal dated 20.10.2008. The writ appeal stands allowed.
(119) WA No.266/2008119.1 It appears from the evidence adduced by the appellant, which are discussed in detail by the learned Member of the Tribunal that the appellant could prove that she was born and brought up at village Bhakhuradia and her father‟s name appeared in the electoral roll of 1966 in respect of No.55 Boko LAC, apart from the electoral roll of 1970. Those electoral rolls were proved as Exts.-A and B. The appellant also could prove the certificate issued by the Secretary of the Gaon Panchayat (Ext.-D). The Gaon Bura of the village, who was examined as witness No.2, has deposed that the appellant is the daughter of Hatem Ali, whose name appears in the voters lists of 1966 and 1970. The said witness has also proved the certificate of residence issued to the appellant i.e. Ext.-F. Though the Local Verification Officer was examined as witness by the State, apart from proving Ext.-1 report submitted by him, the State could not demolish the evidence of the appellant that Hatem Ali is the appellant‟s father, whose name appeared in the voters lists of 1966 and 1970 and the appellant born and brought up in the village Bhakhuradia.
119.2 That being the position, the Tribunal has rightly passed the order dated 18.02.2009, which has the effect of setting aside its earlier ex-parte order dated 03.10.2007 declaring the appellant as a foreigner coming to India from the specified territory after 25.03.1971.
WP(C) No. 7280 of 2021 Page 69 of 81 119.3 In view of the above, the earlier order passed by the Tribunal on 03.10.2007 as well as the common judgment and order passed by the learned Single Judge on 25.07.2008, in so far as it relates to WP(C) No.6564/2007, are set aside. The appellant, if in custody, is directed to be released forthwith. The writ appeal is accordingly allowed.
(120) WA No.268/2008121.1 The record of the Tribunal reveals that on the basis of the opportunity given by the writ appellate court vide the aforesaid order passed, the appellant examined three witnesses including herself and proved 6(six) documents, which are marked as Exts.-A to F. The Local Verification Officer was also examined by the State for the purpose of demonstrating that the appellant is a foreigner. The witnesses were cross-examined by the respective parties. The appellant in order to discharge her burden of proof that she is not a foreigner but an Indian citizen has produced the electoral roll of 1966 of Abhayapuri LAC (Ext.-A), wherein the name of one Jalil Mandal, stated to be the appellant‟s grand-father, appears. The appellant has also proved the electoral roll of 1985 in respect of Abhayapuri North LAC in order to prove that her father‟s name appeared in the electoral roll of 1985. The said document is marked as Ext.-B. That apart, the appellant also proved the electoral roll of 1997 of the same LAC in order to prove that her parents‟ name appeared in the electoral roll of 1997. A sale deed dated 13.01.1962 executed in favour of her grand-father along with one Mukshed Ali Sheikh was also proved and marked as Ext.-D. The certificate issued by the Secretary of the Gaon Panchayat in respect of the appellant‟s residence has been proved and marked as Ext.-E. Ext.-F is an affidavit sworn by one Abdul Latif, declaring that his father is Jalil Box (Mandal), who died before 1970 and his name appeared in the electoral roll of 1966 in respect of Abhayapuri LAC and that the appellant is the daughter of Abdul Latif. It appears from the Exts.-A, B and C i.e. the electoral rolls that the name of one Jalil Mandal, S/O Abed Mandal appears in the electoral roll of 1966, the name of Abdul Latif appears in the electoral rolls of 1985 and 1997. The appellant in her deposition has stated that his grand-father‟s name is Jalil Mandal and in some documents his name is also shown as Jalil Box Sheikh, who along with Mukshed WP(C) No. 7280 of 2021 Page 70 of 81 Ali Sheikh purchased a plot of land by a registered instrument dated 13.01.1962 (Ext.-D). Such positive statement of the appellant has not been controverted by the State during cross-examination. The witness No.2 Abdul Latif, father of the appellant has also in clear terms stated that his father‟s actual name is Jalil Box Mandal and in some documents his name is also reflected as Jalil Box Sheikh. An affidavit sworn by him in that regard has also been proved as Ext.-F. The sale deed (Ext.-D) which has been proved by the appellant in original reflects the purchase of a plot of land by Jalil Box Sheikh and another by a registered instrument dated 13.01.1962. As discussed above, the appellant could prove that Jalil Box Sheikh and Jalil Mandal is one and the same person, who is the grand- father of the appellant. The Tribunal, however, has rejected the evidence of the appellant on the ground that the appellant could not prove that Jalil Box Sheikh, Jalil Mandal and Jalil Box Mandal are one and the same person, which finding is in our considered opinion contrary to the evidence on record as discussed above. The Tribunal, therefore, has misread the evidence and did not take into consideration the evidence in its proper perspective. The order of the Tribunal dated 18.02.2009 needs interference in exercise of the certiorari jurisdiction by the writ court. As noticed above, in the ex-parte order passed by the Tribunal on 29.11.2007 it was also opined that the appellant was a foreigner. The said ex- parte order, however, has merged with the subsequent order passed by the Tribunal on 18.02.2009, after giving opportunity to the parties to adduce evidence. The learned Single Judge had passed the common judgment and order dated 25.07.2008 in so far as it relates to WP(C) No.1039/2008, based on the aforesaid ex-parte order passed by the Tribunal on 29.11.2007. 120.2 In view of the aforesaid discussion, we are of the view that the appellant could prove that she is an Indian citizen and not a foreigner within the meaning of 1946 Act. Hence the orders dated 29.11.2007 and 18.02.2009 passed by the Tribunal in F.T. Case No.215/2006 are set aside. The common judgment and order dated 25.07.2008 passed by the learned Single Judge in so far as it relates to WP(C) No.1039/2008 is also set aside. The appellant is directed to be set at liberty if she is in custody. The writ appeal is accordingly allowed." WP(C) No. 7280 of 2021 Page 71 of 81
116. Perusal of the aforesaid decisions of the Full Bench in the Moslem Mondal (supra) would clearly indicate that the positive statements made by the proceedees were not controverted by the State during the cross- examination. In some cases, no rebuttal evidence were led and accordingly, the Full Bench of this Court in Moslem Mondal (supra) set aside the opinions of the Tribunals.
In the present case also what we have noted is that none of the specific assertions made by the proceedee and her father were questioned nor challenged nor any rebuttal evidence led.
117. Under the circumstances, we are of the view that on merit also, the petitioner has been able to prove that she is an Indian and not a foreigner.
118. There is yet another important issue raised by the petitioner challenging the jurisdiction and competency of the Foreigners Tribunal in the proceeding against the petitioner.
119. The main thrust of the submission of the learned counsel for the petitioner has been that the petitioner is an Indian, born to a Bengali Hindu, namely, Sri Anil Biswas, a resident of village-Palda Muragachha, P.O. Charuitipi, P.S. Kotuali in the District of Nadia, of West Bengal, who subsequently got married to one Ratan Sarkar, son of Lt. Chitra Ranjan WP(C) No. 7280 of 2021 Page 72 of 81 Sarkar, a resident of village-Khandajan, P.O. Manipur, P.S. and District- Morigaon, Assam in the year 2001 and accordingly, settled in Morigaon, Assam after her marriage in the matrimonial home, and as such she can, in no way, be treated to be a foreigner, in support of which she produced a number of documents.
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.
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. WP(C) No. 7280 of 2021 Page 73 of 81
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 also observed in 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 Writ petitions, the matter related to the members of the Gorkha community who originally hailed from Nepal.
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 WP(C) No. 7280 of 2021 Page 74 of 81 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.
124. In this regard we would like to reproduce the relevant paragraphs of the aforesaid decision in Indira Newar (supra):
"We have undertaken the rigorous exercise to look into the facts appearing in each individual writ petition to find out whether in any way any of the writ petitioners are shown to have any connection or origin or traceable to any territories included in Bangladesh, within the meaning of „specified territory‟ under Section 6-A (1) (c) of the Citizenship Act, 1955. In the case of each of the writ petitioners they are shown to belong to places within the State of Assam, as variously recorded in the Reports of the Local Verification Officer. The mother tongue of the writ petitioners is „Nepali‟, which is the language spoken by the citizens of the neighbouring country Nepal, and which language is also specified in the Eighth Schedule to the Constitution of India. This is not to say that a Nepali speaking individual can only have his/her origin at Nepal and not at Bangladesh. However, for the purpose of initiating proceeding against a Nepali speaking person, for examination as to whether he/she is a foreigner or not, in respect of references made under sub-section (3) of Section 6-A of the Citizenship Act, 1955 to 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 the Citizenship Rules, 2009, the primary and necessary ingredient or the condition precedent is that 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 WP(C) No. 7280 of 2021 Page 75 of 81 commencement of the Citizenship (Amendment) Act, 1985, and also having regard to the cut-off date of migration into Assam as prescribed under the aforesaid Section 6-A of the Citizenship Act, 1955.
Law being clear, as above, there are neither any suspicion expressed by the Referral Authority nor any findings recorded by the concerned Tribunals that any of the writ petitioners are persons who have come into Assam from the „specified territory‟. In Section 6-A, particularly at sub-sections (2) and (3), the expression „specified territory‟ is predominant.
It would be apposite to make reference to the Notification dated 23.08.1988 of the Government of India in the Ministry of Home Affairs, whereby the misconception noticed by the Central Government about the citizenship at the commencement of the Constitution of India, of certain classes of persons commonly known as Gorkhas, who had settled in India at such commencement, was clarified. Clarification made was that as from the commencement of the Constitution i.e. from 26.01.1950, every Gorkha who had his domicile in the territory of India and who was born in the territory of India or either of whose parents was born in the territory of India or who had been ordinarily been a resident in the territory of India for not less than five years before such commencement, shall be a citizen of India as provided in Article 5 of the Constitution of India. There is yet another Notification dated 24.09.2018 of the Government of India in the Ministry of Home Affairs (Foreigners Division), perhaps as a guidance while making future references in respect of individuals claiming to belong to the Gorkha community of Nepali origin, on the subject of a Memorandum dated 30.07.2018 submitted by the All Assam Gorkha Students‟ Union to the Hon‟ble Home Minister. It is seen that the issues raised in the Memorandum had been examined by the Ministry of Home Affairs and decision thereof was also taken, with approval of the competent authority. While reiterating the conditions of citizenship of classes of persons known as Gorkhas, as specified in the earlier Notification dated 23.08.1988, the later Notification dated 24.09.2018 clearly laid down that "Since the members of the 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 WP(C) No. 7280 of 2021 Page 76 of 81 the Citizenship Act, 1955. Only those who have come from Bangladesh and living in the State of Assam can be treated as from the 'specified territory' in accordance with Section 6-A of the Citizenship Act, 1955." Further, "Only cases of members of Gorkha community living in Assam who do not fall in any of the categories mentioned above may be referred to the Foreigners‟ Tribunal for its opinion as to whether the person is or is not a „foreigner‟ within the meaning of the Foreigners Act, 1946." The categories are duly mentioned in the said Notification dated 24.09.2018.
We may also take notice of the provisions of Section 8 of the Foreigners Act, 1946, which relates to determination of nationality. A reading of said Section 8 in the context of the present bunch of cases, it is seen that where for any reason it is uncertain what nationality, if any is to be ascribed to a foreigner, in such cases that foreigner may be treated as the national of the country with which he appears to the prescribed authority to be most closely connected for the time being in interest or sympathy or if he is of uncertain nationality, of the country with which he was last so connected. This provision would be relevant to the extent that even if the most extreme view is taken that the petitioners can never claim to be citizens of India, however, having regard to the status of the petitioners as recorded in the Verification Reports to be persons having their mother tongue and spoken dialect as „Nepali‟, they can only be treated as the national of the country to which they appear to be closely connected i.e. Nepal. Under no circumstances, that too, in the absence of any reports of being persons coming into Assam from the „specified territory‟, the provisions of Section 6-A of the Citizenship Act, 1955 cannot be made applicable to the petitioners.
For all the aforesaid reasons, we have no hesitation but to allow all the 29 writ petitions by setting aside the impugned opinions in all the said 29 writ petitions. As a necessary corollary, reference made against each of the writ petitioners by the respective Referral Authority are also interfered with.
125. In our opinion, the same principle can be applied to other persons who have not come from the "Specified Territory".
WP(C) No. 7280 of 2021 Page 77 of 81
In the present case, the petitioner claims that she came from West Bengal which is not part of the "Specified Territory", which refers to the territories in Bangladesh immediately before the commencement of the Citizenship (Amendment) Act, 1985. Thus, West Bengal being not part of the "Specified Territory" but a part of this country, no proceeding would lie against the petitioner before the Foreigners Tribunal.
126. In view of the decision in Indira Newar (supra), unless a person is alleged to have entered from the "Specified Territory", no such proceeding could have been initiated before the Foreigners Tribunals operating in the State of Assam.
127. Accordingly, for the reasons discussed above, we allow this petition by setting aside the impugned order dated 15.12.2021 passed in Case No. FT(D)873/2011 by the Foreigners Tribunal-2nd Morigaon and declare the petitioner, Smt. Anjana Biswas @ Anjana Sarkar, wife of Ratan Sarkar and daughter of Anil Biswas, a resident of village Khandajan, P.O. Manipur, P.S. Morigaon, District- Morigaon, Assam to be an Indian and not a foreigner.
128. Before we part with this judgment, we would like to deal with another issue raised by Ms. Ghosh, learned counsel for the petitioner that, if the State is so skeptical or doubtful of the claim of the proceedee that she is the daughter of Anil Biswas, the petitioner is even willing to WP(C) No. 7280 of 2021 Page 78 of 81 subject herself to DNA testing to prove that she is indeed the daughter of Anil Biswas and accordingly, has sought for a direction to be issued to the State Government to conduct a DNA test. In this regard, she has relied on the decisions of Hon‟ble Supreme Court in Bhabani Prasad Jena (supra) and Nandalal Wasudeo Badwaik (supra).
129. We have given our anxious consideration on this issue. Normally, in a proceeding before the Foreigners Tribunal, it may not be necessary to issue any direction to the authorities to conduct DNA test to establish the parentage, if there are, otherwise, sufficient evidences, oral and documentary, to prove the same. However, where the Court may deem it fit, certainly, such a direction can be issued.
After all, citizenship is perhaps the most important right of a person, without which a person will not be able to enjoy any other right effectively, whether fundamental rights as guaranteed under the Constitution of India or normal statutory rights which flow from other statutes. By being a citizen, a person can fully enjoy all the rights guaranteed under the Constitution or provided under various statutes. To that extent, we are of the view that citizenship, perhaps, is the most important right which could not be lightly dealt with, and before declaring a person to be not a citizen, utmost care must be taken with sensitivity by all the authorities concerned including the Tribunal. It assumes greater WP(C) No. 7280 of 2021 Page 79 of 81 importance when in a case, where there is no material at all to suspect that the person has come from the Specified Territory or Bangladesh as in the present case.
As discussed above, the petitioner had made specific claim even during the initial stage of enquiry by the Enquiring Authority that she is an Indian and her father is a resident of West Bengal and sought for time to produce relevant documents. But nothing appears to have been done by the State authorities to verify the said claim. In fact, during the proceeding, her father had also personally appeared before the Tribunal with all the relevant documentary evidences. But, the Tribunal did not properly appreciate the evidences as discussed above. We hope and trust that the authorities and the Tribunal will be more careful in future in dealing with such issues as otherwise, it may have a devastating impact on the lives of these genuine citizens who are made to unnecessarily devote their time and scarce financial resources, apart from causing untold mental agony.
130. In the present case, we do not feel it necessary to issue any direction to the authorities for holding DNA test of the petitioner as we are satisfied that the petitioner has been able to discharge her burden that she is an Indian and not a foreigner on the basis of oral and documentary evidences. However, situations may arise in future where WP(C) No. 7280 of 2021 Page 80 of 81 this Court may have to issue directions for DNA testing to ascertain the parentage of a proceedee, but we leave it open to be considered in appropriate cases.
131. With the above observations and directions the present petition stands allowed. Bail bonds and surety furnished earlier by the petitioner stand discharged.
132. LCR be remitted forthwith to the concerned Foreigners Tribunal.
JUDGE JUDGE
Comparing Assistant
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