IN THE GAUHATI HIGH COURT

Transcription

1 1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM, AND ARUNACHAL PRADESH) WP(C) No. 357 of 2016 Lakhi Rani Das, Wife of Late Subhash Das, R/o village- Salpara, Molandubi, P.S.- Krishnai, District- Goalpara (Assam), Pin No Versus-..Petitioner 1. State of Assam represented by the Commissioner and Secretary, Govt. of Assam, Home Department, Dispur, Guwahati Deputy Commissioner, Goalpara, P.O. & P.S.- Goalpara, Assam, Pin Superintendent of Police (B), Golapara, District- Goalpara, Assam, Pin Union of India, represented by the Secretary to the Govt. of India, Ministry of Home Affairs, New Delhi Respondents BEFORE HON BLE MR. JUSTICE UJJAL BHUYAN HON BLE MR. JUSTICE PARAN KUMAR PHUKAN Advocate for the Petitioner Advocate for the Respondent No. 1 to 3 Advocate for the Respondent No. 4 : Mr. U.Das, Adv. : Mr. T. C. Chutia, GA, Assam. : None appeared. Date of Hearing : Date of Judgment :

2 2 (U. Bhuyan,J) JUDGMENT AND ORDER (ORAL) Heard Mr. U. Das, learned counsel appearing for the petitioner and Mr. T. C. Chutia, learned Government Advocate, Assam. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated , passed by the Foreigners Tribunal, Goalpara in F.T. Case No.2904/G/2010 declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from the specified territory i.e., Bangladesh after It is seen that following enquiry, Superintendent of Police (B), Goalpara made a reference under the Illegal Migrants (Determination by Tribunals) Act, 1983 to the Tribunal constituted under the said Act with the allegation that petitioner was an illegal migrant as defined under the said Act. 4. After the aforesaid Act was declared unconstitutional by the Supreme Court in Sarbananda Sonowal vs. Union of India, (2005) 5 SCC 665, the reference was re-registered under the Foreigners Act, 1946 as F.T. Case No.2904/G/2010 and assigned to the Foreigners Tribunal, Goalpara (Tribunal) for opinion. 5. Notice issued by the Tribunal was served upon the petitioner, whereafter she entered appearance before the Tribunal and submitted written statement denying the allegation made by claiming to be a citizen of India. Thereafter, petitioner examined herself as her witness and also exhibited documents. After hearing the matter, Tribunal passed the order dated answering the reference in favour of the State in the above manner. 6. Aggrieved, present writ petition has been filed. 7. This Court by order dated had issued notice while requisitioning the case record and passed an interim order to the effect that petitioner should not be deported from India subject to her appearance before the Superintendent of Police (B), Goalpara.

3 3 8. Learned counsel for the petitioner strenuously argues that petitioner had adduced sufficient evidence to prove her case that she had entered into India from the then East Pakistan along with her parents when she was 4 years old before Therefore, Tribunal committed manifest error in answering the reference in favour of the State causing prejudice to the petitioner. 9. On the other hand, Mr. Chutia, learned Government Advocate, supports the order passed by the Tribunal and submits that Tribunal had recorded a finding of fact based on appreciation of evidence. Writ Court may not enter into an examination of such finding of fact. No case for interference is made out, he submits. 10. Submissions made by learned counsel for the parties have been considered. Also perused the record. 11. From a perusal of the record, it is seen that having regard to the magnitude of the foreigners problem in the State of Assam, Election Commission of India had ordered intensive revision of electoral rolls pursuant to which electoral roll for the Dudhnoi Assembly Constituency was taken up for intensive revision with reference to as the qualifying date. House to house enumeration was carried out from to It was noticed that name of the petitioner was included in the draft electoral roll of Electoral Registration Officer having doubt about the citizenship of the petitioner got the matter verified by an on the spot local verification. On consideration of such report of local verification, the Electoral Registration Officer recorded that he had doubt that the petitioner was not a citizen of India. He therefore, forwarded the matter to the competent authority under the Illegal Migrants (Determination by Tribunals) Act, 1983 to decide the question as to whether the petitioner was a citizen of India or not. 12. Thereafter, Superintendent of Police (B) got the matter enquired through Local Verification Officer and on being satisfied and following the procedure prescribed under the said Act, made the reference to the Tribunal which was constituted under the said Act at Goalpara on

4 4 13. We have already noticed as to how the reference was re-registered under the Foreigners Act, 1946 following declaration of the aforesaid Act as unconstitutional by the Supreme Court and assigned to the Tribunal for opinion. 14. In her written statement petitioner stated that her family migrated from East Pakistan to India in March, 1969 and at that time she was 4 years old. She was registered as a citizen of India vide certificate dated In the voters list of 1970 name of her grandfather Mohim Das was recorded; her fathers name appeared in the voters list of 1979 and her name was recorded in the voters list of 1989 and thereafter in 1997 and In the affidavit sworn in support of the written statement filed on petitioner disclosed her age as 51 years which would mean that she was born sometime in the year Petitioner repeated the same thing in her evidence-in-chief which she filed by way of affidavit. But it was her cross examination which turned out to be her undoing. She stated in her cross examination that she had married one Subhash Das, son of Nanda Das, of Salpara, Molandubi and at the time of marriage she had not attained puberty. After about 1½ years i.e., in 1985 she attained puberty. It was stated that on she was about 10 years of age. Though her name was entered in the voters list of 1985 showing her age to be 23 years, she was actually 10 years of age then going by her evidence. She admitted that she had not furnished voters list of her parents for the years 1966, 1967 and She also stated that her grandfather and grandmother had expired in East Pakistan. 16. From this cross-examination, it is clear that petitioner s grandfather and grandmother had expired in East Pakistan. Therefore, the question of grandfather s name appearing in the voters list of 1970, as claimed by the petitioner, did not arise. Secondly, as per the statement of the petitioner herself she was around 10 years of age in 1985 which would go to show that she was born sometime in the year 1975 which renders her version that she had entered into India prior to 1970 when she was 4 years of age to be incorrect. 17. The documents which were filed before the Tribunal on behalf of the petitioner no way supported her version that she had entered into India prior to 1970 when she was 4 years of age.

5 5 18. In such circumstances, it cannot be said that petitioner had discharged her burden under Section 9 of the Foreigners Act, 1946 to dislodge the accusation made against her by the State. 19. View taken by the Tribunal is a plausible view based on appreciation of the materials on record. In such circumstances, we are not inclined to interfere with the order passed by the Tribunal. 20. Writ petition is devoid of merit and is accordingly dismissed. Interim order stands vacated. 21. Registry to send down the LCR forthwith and inform the concerned Foreigners Tribunal, Superintendent of Police (B) and Deputy Commissioner for doing the needful. JUDGE JUDGE Rupam