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Gauhati High Court

Jyotshna Mandal ( Sen ) vs The Union Of India And Ors on 16 July, 2015

Author: Hrishikesh Roy

Bench: Hrishikesh Roy

                           IN THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)


                           Writ Petition (C) No. 6868/2005

1.      Smt. Jyotshna Mandal (Sen) @ Smt. Joshna Mandal,
        W/O. Sri Prafulla Mandal,
        Village: Kamarpara, P.S. Mangaldoi,
        District: Darrang, Assam.                                    - Petitioner.

                         -Versus-

1.      The Union of Indian,
        Represented by the Ministry of Home, New Delhi.
2.      The State of Assam,
        Represented by the Secretary to the Govt. of Assam,
        Department of Home, Dispur, Guwahati-6.
3.      The Superintendent of Police,
        Darrang, Mangaldoi, P.O. Mangaldoi,
        District: Darrang, Assam.
4.      The Officer-in-charge,
        Mangaldoi P.S., P.O. Mangaldoi, District: Darrang, Assam.
                                                                     -Respondents.


                                      BEFORE
                      HON'BLE MR JUSTICE HRISHIKESH ROY

For the Petitioner:                      Mr. AR Sikdar, Advocate,
                                         Md. A. Matlib, Advocate &
                                         Mr. JA Azad, Advocate.

For the Respondents:                     Mr. S. Sarma, Central Govt. counsel &
                                         Mr. M. Bhagabati, Govt. Advocate.

Date of hearing & judgment:              16.07.2015.

                           JUDGEMENT AND ORDER (ORAL)

Heard Mr. AR Sikdar, the learned counsel appearing for the petitioner. The Central Government is represented by Mr. S. Sarma, the learned Central Govt. counsel. The respondent Nos.2--4 are represented by Mr. M. Bhagabati, the learned Govt. Advocate, Assam.

2. On a reference made under Section 8(1) of the Illegal Migrant (Determination) Tribunal Act, 1983 (hereinafter referred to as the 'the IM(D)T Act'), the petitioner was declared to be an illegal migrant within the meaning of Section Writ Petition (C) No.6868/2005 Page 1 of 3 3(c) of the IM(D)T Act and accordingly the judgment dated 30.12.2002 (Annexure-1) in the IMDT Case No.1268/2001 of the Mangaldoi IM(D) Tribunal is under challenge in this case. The Appellate Tribunal affirmed the adverse declaration through the impugned judgment dated 18.12.2003 (Annexure-3) in the Appeal Case No.42/2003. The petitioner thus challenges the appellate order and the expulsion notice No.9/2003, dated 8.9.2003 (Annexure-2), issued by the S.P. (Border), Mongaldoi.

3. Before the Tribunal the petitioner contended that she is an Indian citizen and her father's name is Sirish Chandra Sen, S/o. Late Girish Chandra Sen and that her father was enrolled as a voter in the 1965 Electoral Roll of the Rangia Legislative Assembly Constituency (LAC). She claimed to have been born in the Bokulguri village within Tamulpur P.S. of Kamrup District and after her marriage to Prafulla Mandal, the petitioner settled down in Mangaldoi in Darrang District. But in the 1965 Voter List (Annexure-4), the surname of the petitioner's predecessors were wrongly reflected as 'Sarkar' instead of 'Sen' and therefore the IM(D) Tribunal refused to accept the 1965 Voter List, where the family surname was wrongly reflected as 'Sarkar'. Primarily on this basis, the reference was answered against the petitioner and she was declared to be an illegal migrant.

4. Assailing the impugned verdicts, Mr. AR Sikdar, learned counsel refers to the 1997 Voter List to project that the family surname was corrected to "Sen" in the later voter list and the name of the petitioner's mother was reflected as Kuhini Sen (not Sarkar) and the surname of her brothers Bhabesh and Dilip were also shown as 'Sen' in the same voter list. Moreover in the Certificate of Registration of 29.11.1956 (Annexure-6) issued by the SDC, Rangia under Section 5(1)(c) of the Citizenship Act, 1955, the name of the petitioner's father Sirish Chandra Sen was correctly reflected. On the basis of these two relevant documents, Mr. Sikdar submits that if a fresh opportunity is granted, the petitioner can certainly establish her claim to be an Indian citizen, through her lineage to Sirish Chandra Sen.

5. Representing the State Authorities, Mr. M. Bhagabati, the learned Govt. Advocate on the other hand submits that although the petitioner claims to be the daughter of Sirish Chandra Sen and grand-daughter of Girish Chandra Sen, the 1965 Voter List produced by her reflects the family's surname as 'Sarkar' and accordingly the Govt. Advocate argues that the IM(D) Tribunal rightly disbelieved the 1965 Voter List, relied upon by the petitioner, to establish her status.

6. Following the adverse declaration made against her, the petitioner was served with the expulsion Notice on 8.9.2003 (Annexure-2) by the S.P. (Boarder), Darrang, Mangaldoi and this naturally will have a far reaching implication for a genuine person. If the petitioner is really the daughter of Sirish Chandra Sen and grand-daughter of Girish Chandra Sen and her predecessor was registered as a citizen of India by the SDC, Rangia on 29.11.1956 (Annexure-6) under the Citizenship Act, 1955, it will only be fair to provide her a fresh opportunity to adduce evidence to prove that she is the daughter of Sirish Chandra Sen and grand-daughter of Girish Chandra Sen and that the family surname was wrongly reflected as 'Sarkar' in the 1965 Voter List. This in my view will serve the cause of justice. Upon weighing the fresh evidence which wasn't adduced earlier, the Tribunal should re-determine the status of the petitioner.

7. However since the IM(D)T Act has been declared to be ultra vires by the Apex Court, the re-determination should now be done under the Foreigners Act, 1946 and consequently this petition is allowed by permitting the petitioner to produce the Certificate of Registration dated 29.11.1956 (Annexure-6) as well as the 1997 Voters List before the Foreigners Tribunal. The impugned decision of the IM(D) Tribunal, Mangaldoi rendered on 30.12.2002 (Annexure-1) in the IMDT Case No.1268/2001, the Appellate Tribunal's decision rendered on 18.12.2003 (Annexure-3) and the Expulsion Notice No.9/2003, dated 8.9.2003 (Annexure-2) will abide by the outcome of the fresh decision of the Foreigners Tribunal, Mangaldoi. To facilitate the de novo exercise, the petitioner should appear before the Foreigners Tribunal, Mangaldoi on 24.8.2015. It is ordered accordingly. With this order, the petition stands allowed to the extent indicated.

8. The Registry should send a copy of this order to the Foreigners Tribunal, Mangaldoi for necessary action.

JUDGE Barman.