High Court
Case Details
WP(C) 1238/2013 ‘BEFORE HON’BLE MR. JUSTICE N.CHAUDHURY Heard Mr. AR Sikdar, learned counsel for the petitioner and Ms. A. Das, learned Central Govt. Counsel as well as Mrs. B. Dutta, learned State counsel fo r the respondents.
Legal Reasoning
2) By this application under Article 226 of the Constitution of India, the petitioner, namely, Sahera Khatun, has challenged the judgment and order dated 4 .1.13 passed by the learned Foreigners’ Tribunal, Goalpara, in FT Case No. 5103/ G/2012 whereby the petitioner was declared as foreigner of Post’ 1971 stream. 3)
Decision
The facts involved in the writ petition are stated in brief, as follows: The petitioner is the daughter of one Md. Abdul Suttar and Mustt. Basatu n Nessa. She was married to one Md. Suban Ali, but the petitioner being the onl y daughter of his parents, she used to reside in her parents house at village Am bari under Duphdhara police station in the district of Goalpara. 4) A notice from the Foreigners’ Tribunal was served on her in the said add ress i.e. in the house of her father, of course describing her wrongly as wife o f Md. Abdul Suttar. From the report of the process server, it appears that the notice was received by her mother, Mustt. Basatun Nessa. The report of the proc ess server also shows that her father’s name was mentioned in the Voter List as Md. Abdul Suttar. The process server Sri Bairav Daimary in his report dated 8.6 .2012 described the petitioner as daughter of Md. Abdul Suttar and served the no tice to the mother of the petitioner as the petitioner was absent at the relevan t time. 5) Be that as it may, the petitioner accepting the summon appeared before t he learned Tribunal and submitted her written statement stating that she is the daughter of Md. Abdul Suttar, and Smt. Basatun Nessa and Abdul Suttar was son of Sakiruddin, who in turn was son of Karim Boks. It is stated in paragraph-4 of the written statement that the names of the grand father and grand mother of the petitioner appeared in the Voter List of 1966. Even the names of her father an d mother also found place in the Voter List of 1971. The petitioner further ple aded therein that the petitioner is an Indian citizen by birth. The Petitioner e xamined herself as DW.1 while her father was examined as DW.2. In paragraph-4 o f the examination-in-chief, the petitioner described her parentage as stated abo ve and deposed that she is the daughter of Md. Abdul Suttar and Mustt. Basatun N essa. She also stated in paragraph -3 of the deposition that the names of her gr and parents are also there in the Voter List of 1966. The petitioner produced V oter Lists of 1966 and 1971 in original along with extract certified copies of 1 966, 1971, 1985 and 1993-94 Voter Lists to show that in all the Voter lists, the names of her parents appeared. 6) I have gone through the records and it appears that in the Voter List of 1966, the grand parents of the petitioner, namely, Sakiruddin and Bewla appeare d in Serial Nos.356 and 357 of No.52 Baghbar L.A.C. Similarly in the Voter List of 1971 of the same constituency, the names of the parents of the petitioner fo und place at Serial Nos. 1113 and 1114. The certified copies of the same are on record. During cross examination of the said two DWs, it appears that no amount 7) of dispute has been brought on record in regard to parentage of the petitioner. It is not disputed that the names of her father, Md. Abdul Suttar and Mustt. Bas atun Nessa appeared in the Voter list of 1971. The names of grand father of the petitioner, namely, Sakirudin and her father, namely, Abdul Suttar also appeare d in the Voter List of 1966. 8) In this writ petition, the petitioner has annexed a judgment of the said Tribunal in another case conducted against the mother of the petitioner Mustt. Basan Nessa. The same Tribunal vide judgment and order dated 2.5.2012 passed in FT Case No.2466/G/2010 held the mother of the petitioner as an Indian citizen. 9) Learned CGC, Ms. Das has brought my attention to paragraph -12 of the Af fidavit-in-opposition filed by the Respondent No.3, the Supdt. of Police, Goalpa ra. The said paragraph is quoted here-in-below for ready reference: (cid:28)12. That with regard to the statements made in Paragraph No.21 of the writ pet ition, the deponent begs to state that in pursuance of the judgment and order pa ssed by the learned Member, Foreigners’ Tribunal, Goalpara dated 2.5.12, the mot her of the petitioner, namely, Basatun Nessa was not found as an illegal migrant in connection with FT Case No.2466/G/2010 accordingly her name was enrolled in the Electoral Roll of 1971 and at that time her age was about 7/8 years which wa s violated the provision of the Constitution of India. Hence the Hon’ble Member , Foreigners’ Tribunal, Goalpara passed an order that her enrollment in the year of 1971 to 1984 was liable to be cancelled and directing the ERO 36 Dhudhnoi (S T) LAC to delete her name from the Electoral Roll of village Ambari Part.III due her minor age. (cid:29) 10) From the statement of the Respondent No.3 referred to above, it appears that the statement of the petitioner about existence of the names of the petitio ner’s parents in the voter list, is not disputed but what is disputed is that in the year, 1971, the petitioner’s mother was aged about 7/8 years, when the vote r list was published and as such inclusion of her name in the Electoral Roll was illegal. Admittedly, no proceeding whatsoever under the provision of Representa tion of People Act, 1950 and rules framed thereunder was drawn up in connection with the inclusion of the name of said Mustt. Basatun Nessa, mother of the petit ioner, and as such the same attained its finality after expiry of the statutory period under the Act. The said Respondent No.3 (Supdt. of Police, Goalpara) has admitted the fact that the mother of the petitioner, Mustt. Basatun Nessa was d eclared to be Indian citizen in FT Case No.2466/G/2010. 11) Once any of the parents of a person is declared as Indian citizen and th e said person is born even prior to 2003 and after 1987, he/she is considered to be an Indian citizen by virtue of Section 3(1)(a) of the Citizenship Act, 1955 (as amended). There is no dispute at the bar that the petitioner was born much before 1987. In that view of the matter and as per Section 3(1)(a) of the Citiz enship Act, 1955 (as amended), the petitioner is an Indian citizen by birth. 12) It appears that the aforesaid aspects of the matter escaped attention of the learned Tribunal at the time of passing of the final order and as such the said order is vitiated owning to non-consideration of relevant matters. This wri t petition, therefore, is liable to be allowed and it is allowed accordingly. 13) The impugned judgment and order dated 4.1.2013 passed by the learned Mem ber, Foreigners’ Tribunal, Goalpara in FT Case No.5103/G/2012 is hereby set asid e. The records of the case be sent back to the Court of learned Tribunal immedi ately, who in turn shall decide the case afresh on the basis of the materials on record keeping in view the observations made here-in-above as well as relevant matters in the light of the law holding the field. The petitioner shall appear before the learned Tribunal on or before 1.1 14) 1.2013 to get necessary order(s) from the Tribunal. Registry shall transmit the LCR immediately so that the Tribunal receives the records well before the date so fixed above.