Gauhati High Court
WP(C)/6098/2017 on 25 March, 2022
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh
Page No.# 1/9
GAHC010143172017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6098/2017
CHANMOHAN BARMAN
S/O. LT. RUKMINI BARMAN,
R/O. VILL. LAMGAON,
P.S. BOKO, DIST. KAMRUP (RURAL), ASSAM.
......Petitioner
-Versus-
THE UNION OF INDIA AND 4 ORS
REP. BY THE SECRETARY TO THE MINISTRY OF HOME AFFAIRS,
GOVT. OF INDIA, NEW DELHI.
2:THE STATE OF ASSAM
REP. BY THE COMM. and SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR, GUWAHATI-06.
3:THE DEPUTY COMMISSIONER
KAMRUP R
AMINGAON
DIST. KAMRUP (R), ASSAM.
4:THE SUPERINTENDENT OF POLICE B
KAMRUP (R)
AMINGAON
DIST. KAMRUP (R)
ASSAM.
5:THE ELECTORAL REGISTRATION OFFICER
49 CHAYGAON LAC
P.S. CHAYGAON
DIST. KAMRUP(R)
ASSAM
...... Respondents
Page No.# 2/9
BEFORE
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MR. JUSTICE NANI TAGIA
For the Petitioner : Mr. S. Islam, Advocate.
For the Respondents : Mr. G. Sarma, SC, FT,
: Mr. A.I. Ali, SC, FT,
: Ms. U. Das,
Addl. Sr. Govt. Advocate, Assam.
: Ms. L. Devi, SC, NRC.
...... Advocates
Dates of Hearing & Judgment : 25.03.2022
JUDGMENT AND ORDER (ORAL)
[N. Kotiswar Singh, J.] Heard Mr. S. Islam, learned counsel for the petitioner. Also heard Ms. L. Devi, learned counsel appearing on behalf of Mr. R.K.D. Choudhury, learned ASGI for respondent No.1; Mr. G. Sarma, learned Standing Counsel, Foreigners Tribunal appearing for respondent Nos.2 & 4; Ms. U. Das, learned Additional Senior Govt. Advocate, Assam for respondent No.3 and Mr. A.I. Ali, learned Standing Counsel, ECI for respondent No.5.
2. In this petition, the petitioner has challenged the opinion dated 25.08.2017 passed by the learned Foreigners Tribunal No.2, Kamrup(R), Boko, Assam in BFT Case No.358/2015 by which the petitioner, Chanmohan Barman, son of Late Rukmini Barman, permanent resident of Village-Lamgaon, P.S.- Boko, District- Kamrup, Assam had been declared to be a foreigner .
3. The petitioner had stated before the learned Tribunal that he was born and brought up Page No.# 3/9 at village- Lamgaon under Boko P.S. of Kamrup district. The petitioner had stated that he was born to Late Rukmini Barman who was born in East Pakistan (Bangaldesh), who migrated to India in 1964, in connection with which, the Ministry of Rehabilitation had issued a Migrant Family Card in the name of his father Rukmini Barman in the year 1967. It has been also submitted that in the certificate issued by Headmaster of Bamunigaon Refugee L.P. School, the date of birth of the proceedee has been mentioned as 02.04.1981. It has been further stated that the name of his father also was enrolled in the voters list of 2005.
4. Though the learned Tribunal noted the aforesaid documents, referring to the evidence of DW2, the Gaonburah of Lamgaon, the learned Tribunal observed that in the cross examination, the Gaonburah had stated that he knew the opposite party since his birth, but he did not know since when his father had been casting vote at Lamgaon. Further, it was also noted by the learned Tribunal that there is no voters list in the name of the father of the opposite party/proceedee prior to 1971. There is only a voters list in the name of the proceedee and his father in the year 2005 which is not a sufficient to prove that the father had entered India before 1971. It was also observed by the learned Tribunal that the opposite party was not able to produce the certified copy of the voters list of 2005.
5. Accordingly, the learned Tribunal wondered that if the father of the opposite party had entered in the year 1964, why his name was not registered in the voter list of 1966. The learned Tribunal also observed that no reason has been assigned why his father had not cast vote till 2005 and as such, the learned Tribunal held that the petitioner had failed to prove his case that he is an Indian and not a foreigner.
6. On the other hand, Mr. Islam, learned counsel for the petitioner submits that Page No.# 4/9 petitioner's brother, namely, Rupmohan Barman was also similarly declared to be a foreigner by the same Tribunal vide impugned opinion dated 28.08.2017 passed in B.F.T. Case No.465/2016 by giving similar reasons. However, when challenged before this Court by filing WP(C) No.23/2018, this Court set aside the opinion of the learned Tribunal and allowed the petition vide judgment and order dated 24.11.2021 by declaring the petitioner, Rupmohan Barman to be an Indian, by primarily considering the Migrant Family Card (Relief Eligibility Certificate) issued on 18.04.1967 in favour of the petitioner's father, Rukmini Barman. This Court took also into consideration the evidence of the Gaonburah and did not agree with the reasoning of the learned Tribunal in rejecting the case of his brother, Rupmohan Barman.
The order passed by this Court in WP(C) No.23/2018 on 24.11.2021 declaring his brother Rupmohan Barman is reproduced hereinbelow.
"Heard Mr. S. Islam, learned counsel for the petitioner. Also heard Mr. P.S. Lahakar, learned CGC appearing for respondent no.1 & 6; Mr. J Payeng, learned Special Counsel, F.T. appearing for respondent nos. 2 & 4; Mr. A.I. Ali, learned Standing Counsel, ECI appearing for respondent nos.5 and Ms. U. Das, learned State Counsel, Assam, appearing for the respondent no.3.
2. In this petition the petitioner has challenged the impugned opinion dated 28.08.2017 passed by the Foreigners Tribunal No.2, Kamrup(R), Boko, Assam, in B F.T Case No.465/2016, by holding that the petitioner is an illegal immigrant, who entered India without valid documents after 25.03.1971.
The petitioner was proceeded before the aforesaid Tribunal after the reference was made as his citizenship was found doubtful.
3. We have perused the LCR and minutely examined the opinion dated 28.08.2017 passed by the Foreigners Tribunal No.2, Kamrup(R), Boko, Assam, in B F.T Case No.465/2016.
4. The case of the petitioner is that the petitioner was born and brought up in Lamgaon village under Boko Police Station Kamrup district. He stated that his father, namely, Rukmini Barman was born in East Pakistan (Bangladesh) and he had migrated to India on 11.05.1964 and the Government of India also issued a Migrant Family Card (Relief Eligibility Certificate) on 18.04.1967 in favour of the petitioner' father. The petitioner also stated that the name of his father was enrolled in the voters list of 2005, in which the name of Rukminin Barman as well as Rupmohan Barman appeared. He had also relied on the voter Identity card issued by the Election Commission of India. Apart from him, he also examined one Gaonburah of Lamgaon as D.W.2 who submitted an affidavit in support of the claim of the petitioner. Accordingly, it has Page No.# 5/9 been submitted that the petitioner is an Indian and not an illegal immigrant. It has been submitted that the petitioner's father arrived in India in the year 1964 and being the son of the aforesaid migrant, his case is covered under Section 6A(2) of the Citizenship Act, 1955 which provides that subject to the provisions of sub-sections (6) & (7), all persons of Indian origin who came before the 1st day of January, 1966 to Assam from the specified territory and who have been ordinarily resident in Assam since the dates of their entry in Assam shall be deemed to the citizens of India as from the 1st day of January, 1966.
However, the Tribunal rejected the said plea.
5. The reasons for not accepting the plea of the petitioner by the Tribunal is to be found in the following paragraph, which is reproduced herein below:
"In the instant case, it seems that there is no voter list in the name of the father of the opposite party prior to 1971. There is only one voter list in the name of the proceedee and his father in the year 2005 which is not sufficient to prove that the father of the opposite party has entered India before 1971. There is not even a single land document in the name of the father of D.W.1 and if the father of the opposite party has entered India in the year 1964 then why has his name not registered in the voter list of 1966. The proceedee has not given any reason as to why his father has not casted vote till 2005. When the nationality of the father is in doubt, the nationality of his son could not be ascertained. Thus, due to insufficient document naturally a doubt arises in mind regarding the Citizenship of the Opposite Party. It seems that after 2005, no voter lists are found either in the name of the opposite party or his father. After going through all the documents found in record it appears to me that the opposite party and his ancestors were not citizen of India and have entered India after 25th March, 1971."
Accordingly, the Tribunal gave the following opinion:
"In view of above discussion, observation and after going through the documentary and oral evidences in my opinion, I come to the conclusion that the opposite party Rupmohan Barman does not belong to Indian National and he is found as foreigner."
6. We do not agree with the aforesaid reasons and conclusion arrived at by the Tribunal. There is clinching evidence in the form of Exhibit-A which is the Migrant Family Card (Relief Eligibility Certificate) issued on 18.04.1967 by the competent authority of this country which clearly records the name of Rukmini Barman as the head of the family, who is stated to be the father of the petitioner. In the said card the name of other persons i.e. brother and sisters who had come along with Rukminin Barman are also recorded. In the said card, it has been mentioned that they were sheltered in the Bamunigaon Refugee Camp in Kamrup District, Assam. In the said card the date of arrival in India has been recorded as 11.05.1964 and that they had arrived from East Pakistan. The genuineness of the said document has never been questioned. Thus, in our opinion if the said document which is more than 30 years old unless doubted, the same would have presumptive value as provided under Section 90 of the Indian Evidence Act, 1872. That apart, we have also noted the deposition of the D.W.2, Gaonburah who had not been cross-examined by the State by questioning his credential or casting any doubt on the deposition made by him, who had clearly stated that D.W.1 is the son of Rukmini Barman and that his father had entered India from Bangladesh and was living in Lamgaon and the Ministry of Rehabilitation, Govt. of India had issued the Migrant Family Card (Relief Eligibility Certificate) to him. We have also noted that the name of the petitioner and his father, namely, Rukmini Barman are recorded in the voters list of 2005. Thus, it is clearly seen that the Page No.# 6/9 local official had also testified about the parentage of the petitioner clearly linking and declaring Rukmini Barman as the father of the petitioner and there is credible documentary evidence that the said Rukmini Barman entered India from East Pakistan on 1964.
7. Under such circumstances, we are of the view that there are sufficient credible evidences to show that the petitioner's father is one Rukmini Barman who had entered India in 1964 and as such, the petitioner is entitled to get the benefit as provided under Section 6A(2) of the Citizenship Act, 1955 through his father. As regards the opinion of the Tribunal that the name of the petitioner's father did not appear in any of the voters list prior to 2005, in our view it cannot be a ground to discredit/disbelieve a clear evidence on record i.e. the Migrant Family Card which is Exhibit-A to show that the petitioner's family had entered into Assam in the year 1964. Thus, merely because the name of a person does not appear in the voter list, in our view the same cannot be a ground to disbelieve the clear evidence on record in the form of Exhibit-A. Accordingly, we are of the opinion that the petitioner has been able to prove that he being the son of aforesaid Rukmini Barman, who had entered Assam in 1964, would be entitled to get the benefit of Indian citizenship as provided under Section 6A(2) of the Citizenship Act, 1955.
8. Accordingly, we set aside the impugned opinion dated 28.08.2017 passed by the Foreigners Tribunal No.2, Kamrup(R), Boko, Assam, in B F.T Case No.465/2016 and declare the petitioner as an Indian and not a foreigner.
9. With the above observations, the present petition stands disposed of.
10. Let the LCR of the Foreigners Tribunal, Kamrup(R), Boko be remitted immediately."
7. We have compared the documents filed by the present petitioner, Sri Chanmohan Barman before the Tribunal as well as the documents filed by Rupmohan Barman in the Tribunal.
The original records in respect of Chanmohan Barman is also before us. We have noted that it is the same Migrant Family Card (Relief Eligibility Certificate) issued on 18.04.1967 in the name of Rukmini Barman, who was born in East Pakistan and migrated on 11.05.1964, on which basis we had declared Rupmohan Barman to be an Indian.
We also have examined both the records and observed that it is the same voters list of 2005, which had been relied on in both the cases. We have also noted that it was the same Gaonburah of Lamgaon who had deposed for both the brothers in the aforesaid two separate proceedings.
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8. Under the circumstances, we are inclined to take a similar view as taken in case of the petitioner Rupmohan Barman in WP(C) No. 23/2018.
9. It may be noted that the standard proof required to be discharged in the proceedings before the learned Foreigners Tribunal is preponderance of probability.
In other words, if two versions are available and if the one version is more worthy to believe which are based on documents, such view ought to be ordinarily accepted.
10. In the present case, what we have noted is that the stand taken by the petitioner that their father, though a East Pakistani, had migrated to India sometime in the year 1964, is clearly corroborated by the said Migrant Family Card (Relief Eligibility Certificate) issued on 18.04.1967. This Court accepted it to be a valid proof in the case of the petitioner Rupmohan Barman in WP(C) No. 23/2018.
11. Similarly, in the said case, this Court took the view that in the said Card the name of the other persons i.e. brothers and sisters who had come alongwith Rukmini Barman have also recorded. In the said card it has been mentioned that they were sheltered in Bamunigaon Refugee Camp Kamrup District, Assam and the date of arrival has been recorded 11.05.1964 and the genuineness of the said document was never questioned and since the said document is more than 30 years old, unless its genuineness is questioned, the same would have presumptive value as provided under Section 90 of the Evidence Act.
12. We have also noted in the present case, as in the case of Rupmohan Barman, that the of DW2 ,Gaonburah had not been cross-examined by the State questioning his credentials. Thus, the State had not been able to shake his evidence who had clearly stated that the present proceedee is the son of Rukmini Barman who after entering India from the then East Page No.# 8/9 Pakistan was living in Lamgaon, and the Ministry of Rehabilitation, Govt. of India had issued the Migrant Family Card (Relief Eligibility Certificate) to Rukmini Barman.
13. We have also noted that though no voters list or earlier voters list except the voters list of 2005 has been relied upon by the petitioner, in the said voters list, the name of the father of the petitioner Rukmini Barman is also clearly recorded.
Thus, since a local official had testified about the parentage of the petitioner, clearly linking and declaring Rukmini Barman to be the father of the petitioner and as there is credible evidence that Rukmini Barman had entered India from East Pakistan in the year 1964, in which event, the petitioner who is the son of said Rukmini Barman cannot a foreigner.
14. Thus, we held that the petitioner has able to discharge the burden of proof upon him as required under Section 9 of the Citizenship Act, 1955.
15. Accordingly, we are hold that in the present case also, as in the case of Rupmohan Barman, there are sufficient credible evidences to show that the petitioner's father, Rukmini Barman had entered in the year 1964 and as such the petitioner is entitled the benefit under Section 6A(2) of the Citizenship Act , 1955 through his father.
16. As regards the opinion of the learned Tribunal in this case also that the name of the petitioner's father did not appear in any of the voters list prior to 2005, in our view it cannot be a ground to discard and disbelieve the clear evidence on record i.e. Migrant Family Card (Relief Eligibility Certificate) which was exhibit as Ext. A which shows that the petitioner's father had entered Assam in the year 1964.
17. We are of the view that merely because the name of a person does not appear in all Page No.# 9/9 voters list, it cannot be a ground to disbelieve the presence in India when there are other clear evidence as in the present case e.g., in the form of Ext.A and oral testimony of the Gaonburah.
18. Accordingly, we hold that the petitioner has been able to prove that he, being the son of Rukmini Barman, who entered Assam in the year 1964, would be entitled to get the benefit of Indian citizenship as provided under Section 6(A)(2) of the Citizenship Act, 1955.
19. Accordingly, we set aside the impugned order dated 25.08.2017 passed by the learned Foreigners Tribunal No.2, Kamrup(R), Boko, Assam and declare the petitioner to be an Indian and not a foreigner.
20. With the above observation and direction, the present petition stands allowed.
21. Let the records be remitted to the concerned Foreigners Tribunal forthwith.
22. Petitioner will be permitted to withdraw the original documents filed before the learned Tribunal.
JUDGE JUDGE Comparing Assistant