High Court · 2009

3. I have heard Mr. P. Upadhayay, learned counsel for the petitioner as wel l as Ms. R. Chakraborty, learned Additional Senior Government Advocate. I have a lso considered the materials on record including the records of the Tribunal.

4. The case against the petitioner was registered on the basis of a report furnished by the Superintendent of Police, Dibrugarh, in which it was stated tha t the petitioner on being asked could not produce any document in support of her Indian nationality. The case of the petitioner was verified by the Verification Officer of the Electoral Registration Office and in the verification report, th e year and place of birth of the petitioner were stated to be 1973 and Makum res pectively. Her mother tongue was stated to be Bengali. In the verification repor t, it was indicated that she could not produce any document in support of her pl ace and date of birth etc.

5. It is on the above basis, the case was forwarded to the Superintendent o f Police and the Superintendent of Police made the reference to the then IMDT, D ibrugarh. Eventually, with the repeal of the IMDT Act, the case of the petitione r was tried by the Foreigners Tribunal, Dibrugarh.

6. The petitioner duly appeared before the Tribunal and participated in the proceeding. She produced certain documents including the Admit Card pertaining to HSLC examination 1994, Land Revenue Receipt of 1966 pertaining to her father. She also produced some other documents, such as, School Certificate of 1972 per taining to her brother Shri Bijoy Purkayastha, voter list of 1975 containing the name of her grand father Late Jogesh Chandra Purkayastha, copy of the order dat ed 30.7.1998 showing mutation in respect of the particular land in the name of h er ancestors, land document of 1975, sale deed of 1953 and an affidavit sworn on

22.5.2008.

7. Before the Tribunal, it was the case of the petitioner that she is an In dian citizen by birth. In the writ petition also, same is the plea. According to the petitioner, her ancestors migrated to India during partition and her grand father obtained the Passport in the year 1959. The petitioner has also mentioned about the aforesaid documents in the writ petition and the copies thereof have also been annexed. 8. Mr. Upadhayay, learned counsel for the petitioner referring to Section-3 of the Citizenship Act, 1955, submitted that the petitioner having born in Indi a in 1972, about which there is no dispute and her father having migrated to Ind ia prior to 1966, she automatically became an Indian citizen by birth. According to him, the reference was made to the tribunal on a wrong notion of the matter. 9. Ms. R. Chakraborty, learned State Counsel on the other hand submitted th at the Tribunal having found the petitioner to be a foreign national within the stream of 1966-71, the petitioner cannot claim to be an Indian national with vot ing right. 10. I have given my anxious consideration to the submissions made by learned counsels for the parties and the materials on record. In the proceeding before the Tribunal, the petitioner examined herself categorically stating that she was born at Makum in the State of Assam in the year 1972. She also stated about her ancestors. She also proved the Land Revenue Receipt of 1955-66. Ironically enou gh, she was not cross examined by the prosecution. Thus her statement along with documents submitted by her had gone unrefuted.

11. The petitioner also examined Smt. Joushna Rani Purkayastha, her mother, as DW-2, she is aged about 80 years. In her deposition, she stated about their m igration from the then East Pakistan (now Bangladesh) during the days of partiti on. She was also not cross examined by the prosecution. Thus, her statement also had gone un-controverted. She also stated about casting of votes for the last a bout 30 years. 12. The Tribunal in its impugned judgment and order without adverting to the fact of the legal position which emerged from the uncontroverted statements mad e by the DWs and the documents produced by the petitioner, has held that the cer tified copy of the voter list of 1972 does not have any evidentiary value. The T ribunal has not addressed itself to the fact that the petitioner was born in 197 2 in Assam, which is an admitted position. It is not the case of the prosecution that her parents are not Indian citizens. It is in this context, learned counse l for the petitioner submitted that as per provisions of Section 3 of the Citize nship Act, 1955, the petitioner by virtue of her birth in India is an Indian Cit izen. 13. The records of the Tribunal have revealed that in the verification repor t itself, the date of birth and place of birth of the petitioner were indicated as 1973 and Makum respectively. Her constituency was also indicated as Makum. Be fore the Tribunal, the petitioner produced the relevant documents in support of her Indian Citizenship, which is admittedly by birth. However, the Tribunal foun d fault with the statement made by the DWs, unmindful of the facts that such sta tements had gone unrefuted in absence of any cross examination. It will be perti nent to mention here that the prosecution did not adduce any evidence. 14. For all the aforesaid reasons, I am of the considered opinion that the p etitioner being an Indian citizen by birth, could not have been declared to be a foreigner as envisaged under the Citizenship Act, 1946 and the Foreigners Act, 1946. Consequently, the impugned judgment and order passed by the Foreigners Tri bunal, Dibrugarh in FT Case No. 62(D)/2006 declaring the petitioner to be a fore igner within the stream of 1966-71 is liable to be set aside and quashed which I accordingly do.

15. The writ petition is allowed without, however, any order as to costs.