Gauhati High Court
Sudhir Roy @ Sudhir Ch. Roy @ Sudhir Ch. ... vs The Union Of India And 5 Ors on 18 March, 2021
Equivalent citations: AIRONLINE 2021 GAU 331
Bench: N. Kotiswar Singh, Manish Choudhury
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GAHC010245892019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7904/2019
SUDHIR ROY @ SUDHIR CH. ROY @ SUDHIR CH. NAMASUDRA
S/O- LATE JOGESH CH NAMASUDRA @ JOGESH NAMASUDRA @ JOGESH
CH ROY, VILL- KURKURI PART- IV, P.O- KALAIN, PIN- 788815, P.S-
KATIGORAH, DIST- CACHAR, ASSAM
VERSUS
THE UNION OF INDIA AND 5 ORS
REP. BY THE SECRETARY, GOVT OF INDIA, MIN OF HOME AFFAIRS, NEW
DELHI- 110001
2:THE ELECTION COMMISSION OF INDIA
NIRVACHAN SADAN
ASHOKA ROAD
NEW DELHI
PIN- 110001
3:THE STATE OF ASSAM
REP. BY THE SECRETARY GOVT OF ASSAM
DEPTT OF HOME
DISPUR
GUWAHATI- 781006
4:THE STATE COORDINATOR
NRC
ASSAM
ACHYUT PLAZA (1ST FLOOR)
BHARALUPAR
BHANGAGARH
GUWAHATI- 781005
5:THE DEPUTY COMMISSIONER
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DIST- CACHAR
PIN- 788001
ASSAM
6:THE SUPERINTENDENT OF POLICE
DIST- CACHAR
PIN- 788001
ASSA
Advocate for the Petitioner : MR. S D PURKAYASTHA
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE HON'BLE MR. JUSTICE N. KOTISWAR SINGH HON'BLE MR. JUSTICE MANISH CHOUDHURY order 18-03 -2021 [N. Kotiswar Singh, J] Heard Mr. S. Choudhury , learned counsel for the petitioner. Also heard Mr. S.S. Roy, learned CGC appearing for respondent No.1; Mr. J. Payeng, learned Special Counsel, F.T. for respondent Nos.3, 5 & 6; Ms. B. Das, learned standing counsel, ECI, appearing for respondent No.2 and Ms. L. Devi, learned Standing Counsel, NRC appearing for respondent No.4.
2. The petitioner has already been declared a foreigner by the learned Foreigners' Tribunal-4th, Cachar, Silchar in Case No. F.T. 4 th/1/2015 on 27.02.2019, having illegally entered to India (Assam) during the period of 01.01.1966 to 25.03.1971 and as such, he would be entitled to get himself registered before the competent authority and after 10 years can be deemed to be a citizen of this country. However, learned counsel for the petitioner Page No.# 3/7 submits that he has sufficient materials to prove that he is an entrant to the State of Assam before 01.01.1966, in which event he does not need any registration but will be deemed to be a citizen of this country in terms of Section 6A of the Citizenship Act, 1955.
3. The present petition has been accordingly filed being aggrieved by the order dated 27.02.2019 passed by the learned Foreigners' Tribunal, Cachar at Silchar in Case No. F.T. 4th/1/2015 (F/Case No.120/2012), directing the petitioner to register his name before the Foreigner Registration Officer, Cachar, Silchar under Section 19 of the Citizenship Rules 2009 within the stipulated period, failing which the petitioner will be deported, and subsequent order dated 16.08.2019 passed in Misc. Case 16/2019 by which the application for reviewing the earlier order was rejected on the ground that the there was no apparent error on the face of the record.
4. The petitioner claims that he was an entrant to Assam, prior to 01.01.1966 from Bangladesh. However, the learned Tribunal, without considering properly the evidences and also the prayer of the petitioner to call for a report from the Deputy Commissioner, Cachar, Silchar to establish the authenticity of the identity card issued by the Welfare Officer Rehabilitation Centre, Silchar on 12.06.1964 showing him and other relatives of being refugees prior to 01.01.1966 held the petitioner to be an illegal entrant during the period of 01.01.1966, before 25.03.1971. The petitioner claims that in the aforesaid identity card, which was issued by the Silchar Welfare Office, Relief Rehabilitation, Silchar on 12.06.1964, the name of the petitioner appears at serial No.3 as the son of Jogesh Ram Namasudra but the learned Tribunal did not consider the same as the same was not verified by the authority Page No.# 4/7 at the time of proceeding, though the petitioner had sought for report from the Deputy Commissioner, Cachar for its verification. Accordingly, it has been submitted that the aforesaid document, which is a clinching evidence to prove that the petitioner is an entrant to (Assam) India before 01.01.1964, was not considered by the learned Tribunal, which would have proved that the petitioner is a citizen of this country, having entered India before 01.01.1966.
5. We have perused the records.
6. The Foreigners' Tribunal, Cachar in the aforesaid Case No.F.T.4 th/1/2015 has held on appreciation of evidences that the petitioner is not an Indian but a foreigner in the stream of 01.01.1966 and before 25.03.1971. However, in the said opinion, the aforesaid crucial document, namely, the identity card, which was issued in favour of the petitioner's father on 12.06.1964 by the Welfare Office, Relief Rehabilitation, Silchar and which includes the names of the petitioner and his other siblings, was not considered by the learned Tribunal, as clearly evident from the review petition filed by the petitioner in Misc. Case No.16/2019. In para-2 of the Misc. Case No.16 of 2019 it has been categorically pleaded that during cross-examination, the learned Additional Government pleader objected to one identity card issued by the Welfare Office, Relief Rehabilitation, Siclhar on 12.06.1964, copy of which was enclosed and accordingly, the learned Tribunal issued summons on 06.11.2017 to the Deputy Commissioner, Cachar, Silchar for verification of the genuineness of the said identity card vide Memo No. FT4th/01/2015/156 dated 06.11.2017, which was received by the Office of the Deputy Commissioner, Cachar on 07.11.2017. However, the Deputy Commissioner did not send any report till the opinion was passed by the learned Foreigners' Tribunal, Cachar, resulting in declaring the petitioner as a foreigner who had entered India within the aforesaid period. Accordingly, the petitioner sought review of the impugned opinion dated 27.02.2019 Page No.# 5/7 passed by the learned Foreigners' Tribunal by examining the said document. However, the said application, Misc. Case No. 16/2017 was rejected by the learned Tribunal vide order dated 16.08.2019 by holding that the Tribunal did not find any error apparent on the face of the record.
7. We are of the opinion that the learned Tribunal ought to have sought the opinion from the Deputy Commissioner, Cachar, as regards the genuineness of the said identity card during the course of proceeding as the said identity card, which was issued on 12.06.1964, does show that the same was issued to the father of the petitioner, Jogesh Ram Namasudra, in which the name of the petitioner also appeared at Serial No.3 as a migrant to India on 22.05.1964. If the genuineness of the said document is proved, it would be a clinching evidence to prove that though the petitioner and his family entered India from Bangladesh, they entered before 01.01.1966, in which event the petitioner would get the benefit of Indian citizenship as provided under Section 6A of the Citizenship Act, 1955.
Accordingly, we are of the view that rejection of Misc. Case No.16/2019 by the learned Foreigners' Tribunal-4th, Cachar, Silchar on 16.08.2019 cannot be legally sustained, as failure to examine the said piece of evidence vitiates the proceeding.
8. Accordingly, we allow this application to the extent that the learned Foreigners' Tribunal-4th, Cachar, Silchar will re-examine the claim of the petitioner on the strength of the identity card issued by the Welfare Office, Relief Rehabilitation, Silchar on 12.06.1964 by obtaining the opinion from the Office of the Deputy Commissioner, Silchar as regards the genuineness of the said document.
If upon consideration of the said identity card, the learned Tribunal finds that the said Page No.# 6/7 identity card is genuine, we are of the view that the petitioner would have a clinching evidence to prove that he is an entrant to India prior to 01.01.1966 and before 25.03.1971, in which event he shall be entitled to get the benefit as provided under Section 6A of the Citizenship Act, 1955.
9. Accordingly, the present petition is allowed by remitting the matter to the learned Foreigners' Tribunal-4th, Cachar, Silchar to re-examine the claim of the petitioner on the strength of the aforesaid Identity Card issued on 12.06.1964 as per law. The learned Tribunal after considering the said document on receipt of such report from the Deputy Commissioner, Cahchar, shall pass a fresh order in accordance with law, which will supersede the order dated 27.02.2019 passed by the learned Tribunal in F.T. Case No.4 th/1/2015. It is also made clear that this matter is remanded only to consider the claim of the petitioner that he is an entrant to the State of Assam before 01.01.1966. Consequently, in the event, the petitioner is not able to substantiate his claim on the basis of the aforesaid document, that he is an entrant prior to 01.01.1966, the earlier opinion need not be changed. On the other hand, if the genuineness of the identity card is established, he shall be treated as an entrant before 01.01.1966 and will be given benefit as provided under Section 6A of the Citizenship Act, 1955.
10. Consequently, order dated 27.02.2019 passed by the learned Foreigners' Tribunal-4 th, Cachar, Silchar is set aside to enable the learned Tribunal to give a fresh opinion as observed and directed above. For that purpose, the petitioner shall appear before the learned Foreigners' Tribunal-4th, Cachar, Silchar within a period of 3 (three) weeks' and thereafter, the learned Tribunal will proceed with the matter in accordance with law.
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11. It is made clear that if the petitioner fails to appear before the learned Tribunal within a period of 3 (three) weeks, the earlier order passed by the learned Foreigners' Tribuna-4 th, Cachar, on 27.02.2019 will stand revived.
12. Copy of this order be furnished to the Superintendent of Police (B), Cachar, Silchar.
Office to return the LCR to the learned Foreigners' Tribuna-4 th, Cachar, Silchar, immediately.
JUDGE JUDGE Comparing Assistant