WP(C) No. 4171 of 2008 · Gauhati High Court

We have heard Mr D Mazumdar, learned counsel for the appellant a The factual backdrop being indispensable, the pleadings of the p 4. arties in bare essentials have to be recited. The appellant, as alluded hereinab ove, had approached this Court with the aforementioned writ proceeding claiming himself to be a citizen of India by birth and a permanent resident of Dakhin Bid yanagar, P.S. Hojai in the district of Nagaon. According to him, his father late Upendra Kundu along with other members of the family had shifted from Village-K ailanbag under P.S. Sarojdiga within Dhaka district of Bangladesh to Chakirtoop, Nagaon Town under Nagaon P.S. in the year 1959, whereafter, he (appellant’s fat her) had shifted his residence to Dakhin Bidyanagar under Hojai P.S. in the same district.

The appellant has asserted that his father had been registered a s a citizen of India under the provisions of the Citizenship Act, 1955 by the th en Election Officer, Nagaon and that he (appellant) was born to him thereafter i n India. He has claimed that he has been residing with his family consisting of his wife, aged mother and a host of dependents at Dakhin Bidyanagar, Hojai, Naga on. He has averred that in order to sustain himself and his family he has been doing some business and for that purpose he has been temporarily residing at Sat gaon Bazar Basti under Baithalangso P.S., District- Karbi Anglong, Assam. While denying that he is a foreigner and had allegedly migrated from Bangladesh to Ass am after 25.3.1971 as declared by the Foreigners’ Tribunal, Diphu (for short, he reinafter referred to as ’the Tribunal’) in the above case, the appellant has ma intained that he is a citizen of India by birth, he having been born to his fath er Late Upendra Kundu who had registered himself under the Citizenship Act, 1955 for which he had been granted a certificate dated 7.11.59 to the said effect by the competent authority.

In his counter, the respondent No.4, Superintendent of Police (B ), Karbi Anglong, Diphu asserted that the appellant after having been declared t o be a foreigner by the learned Tribunal, he was served with a Quit India Notice dated 16.6.2007 whereafter he was deported to Bangladesh on 10.8.2008. While su pporting the conclusions of the learned Tribunal, the answering respondent itera ted that the appellant had himself confessed to be not a citizen of India with n o valid document to confirm his citizenship of this country. According to this r espondent, he after having been deported to Bangladesh on 10.8.2008, had surrept itiously reentered the Indian limits whereafter he approached this Court. That t he appellant was thereafter taken into custody has been mentioned as well. During the pendency of the writ proceeding, an official enquiry 10. was conducted to verify the authenticity of the documents filed by the appellant along with the writ petition on the conclusion whereof the Deputy Commissioner, Nagaon by his communication No. NMM 45/2009/41 dated 13.8.2009 submitted a repo rt with the Principal Secretary, Govt. of Assam, Political (B) Department, Dispu r, The latter authority thereafter by his affidavit brought this document along with others on record for the scrutiny of this Court. Additional pleadings were filed on behalf of the appellant by his wife Smt. Dipali Kundu wherein she vouc hed on solemn affirmation the validity of the Certificate of Registration dated 7.11.59 reiterating that the same had been issued by the competent authority. Sh e averred that at the relevant point of time the Election Officer, Nagaon was em powered to issue such certificate and that the verification report dated 13.8.20 09 to the extent it was contrary to this assertion was clearly untenable and of no consequence. She thereby brought on record, amongst others, a photocopy of th e certified copy of the voters’ list of 21, Baithalangshu Legislative Assembly C onstituency of the year 1970 containing the name of Upendra Ch. Kundu, the fathe r of the appellant. In the present appeal as well the above document as well as a photocopy of the certified copy of the voters’ list of 1993 for 91, Hojai Legi slative Assembly Constituency has been brought on record by the appellant.

Mr Mazumdar has strenuously argued that the learned Single Judge having omitted from consideration the Certificate of Registration granted in fa vour of the appellant’s father under the Citizenship Act, 1955 as well as the re levant voters’ list and other documents on record in support of his claim of cit izenship of India, the impugned judgment and order is manifestly illegal and is, thus, liable to be interfered with. While contending that the learned Tribunal had fallen in same error in failing to take note of the Certificate of Registrat ion in adjudging the appellant to be a foreigner by exclusively relying on the r eport of the jurisdictional Sub Inspector of Police as well as his statement, th e learned counsel has urged that the findings of the learned Single Judge based on the contents of the report dated 13.8.2009 are also obviously incorrect warra nting an immediate intervention of this Bench in the interest of justice. Mr. Ma zumdar submitted that the original of the Certificate of Registration had been s eized by the territorial Superintendent of Police as would be evident from the p leadings and, therefore, the appellant’s case based on the photocopy thereof bro ught on record ought not to have been disbelieved.

The learned Single Judge had wrongly rejected the case of the ap pellant by disregarding the factual aspect of shifting of the place of residence of the appellant’s father as well as the voters’ list of 1970 reflecting his na me, he insisted. While contending that any person facing an accusation of being a foreigner under the Act is even otherwise entitled in law to defend himself/ h erself by adducing all evidence at his/ her disposal to prove his/ her citizens hip of India, Mr Mazumdar argued that even assuming without admitting that even if the only reservation against the Certificate of Registration i.e. want of com petence of the Election Officer, Nagaon is accorded any weightage, the said docu ment even then by all means establishes unassailably the physical presence of th e appellant’s father in India in the year 1950 and, thus, his enlistment in the voters’ list of 1970 brings him within the stream of persons entering the State of Assam during 1.1.1966 to 25.3.1971. The learned counsel maintained that in su ch an eventuality as well, the appellant cannot be branded as a foreigner and, t hus, the impugned judgment and order as well as the decision of the learned Trib unal ought to be interfered with and the matter be remanded to the learned Tribu nal with a direction to it to decide the issue afresh after affording a reasonab le opportunity to him to adduce evidence-oral and documentary in support of his claim of citizenship of India.

Mr Deka, in reply, has argued that the learned Single Judge havi ng duly examined all relevant aspects, both factual and legal bearing on the iss ue, no interference as sought for ought to be made. The learned State counsel ar gued that the report dated 13.8.2009 following a detailed enquiry into the relev ant facts revealed that the Certificate of Registration dated 7.11.59 was unreli able. As the name of the appellant’s father did not appear in the voters’ list d uring the relevant period thereafter, the photocopy of the voters’ list of 1970 obtained in the year 2009 only casts a serious doubt on the authenticity thereof , he pleaded. Mr Deka has, thus, urged that having regard to the scope of scrut iny in the instant appeal, no interference in the face of the materials on recor d is called for.

We have lent our anxious consideration to the pleadings as well as the documents on record. The arguments advanced have also been taken note of. Evidently, the appellant’s case is founded on the Certificate of Registration d ated 7.11.59 issued by the Election Officer, Nagaon under Rule 10 of the Citizen ship Rules, 2009 evidencing the registration of his father Sri Upendra Kundu to be a citizen of India under the provisions of Section 5(1)(a)/(d) of the Citizen ship Act, 1955. The name of the appellant’s grandfather is recorded therein to b e Late Hara Nath Kundu. The appellant’s father is shown to be aged 55 years on t he date of issue of the certificate with his then address at Village- Chakirtoop under P.S. Nagaon. His place of birth is reflected as Village-Kailanbag, P.S. S arojdiga in district of Dhaca, Bangladesh. The certificate bears the signature o f the appellant’s father as well.

Section 5 of the Citizenship Act, 1955 along with Rule 14 of the Citizenship Rules, 2009 being relevant, are extracted below:- (cid:28)5. Citizenship by registration-(1) Subject to the provisions of this section an d such other conditions and restrictions as may be prescribed, the Central Gover nment may, on an application made in this behalf, register as a citizen of India any person not being an illegal migrant who is not already such citizen by virt ue of the Constitution or of any other provision of this Act if he belongs to an y of the following categories, namely- (a) a person of Indian origin who is ordinarily resident in India for seven years before making an application for registration; a person of Indian origin who is ordinarily resident in any country or a person who is married to a citizen of India and is ordinarily residen (b) place outside undivided India; (c) t in India for seven years before making an application for registration; minor children of persons who are citizens of India; (d) (e) a person of full age and capacity whose parents are registered as citize ns of India under clause (a) or this sub-section or sub-section (1) of section 6 ; (f) a person of full age and capacity who, or either of his parents, was ear lier citizen of independent India, and has been residing in India for one year i mmediately before making an application for registration; (g) a person of full age and capacity who has been registered as an overseas citizen of India for five years, and who has been residing in India for one yea r before making an application for registration. (cid:29) Rule-14 of the Citizenship Rules, 2009- (cid:28)14. Grant of certificate of registration-(1) Every person who is registered as a citizen of India under clause (a), (c), (d), (e) or (f) of sub-section (1) of section 5 shall be issued a certificate of registration in Form X signed by an o fficer not below the rank of Under Secretary to the Government of India. (2) Every person who is registered as a citizen of India under clause (g) of su b-section (1) of section 5 shall be issued a certificate of registration in Form XI signed by an officer not below the rank of Under Secretary to the Government of India. (3) A copy of the certificate of registration issued under this rule, shall be p reserved for the purposes of record by the issuing authority. (cid:29).

Having regard to the fact that the appellant’s assertion of his birth in India after the issuance of the Certificate of Registration has not bee n categorically denied by the respondents, this document, if proved to be valid, would be of decisive significance vis-à-vis the issue of his citizenship of the country. This is more so in the face of other documents on record including the photocopy of the voters’ list of the different Assam Legislative Assembly Const ituencies reflecting the name of his father as well as his name therein as voter s. A bare reading of the decision rendered by the learned Tribunal 17. would reveal that the appellant on receiving the notice of the proceeding before it had submitted his written statement along with photocopies of two documents claiming himself to be a citizen of India by birth. He, however, failed to exami ne himself on oath in support of his pleadings and also prove the said documents . For his absence in the later part of the proceedings the same was held ex part e and the learned Tribunal eventually by acting upon the report of the Enquiry O fficer and his evidence returned a finding that the appellant was a foreigner wh o had come to Assam from the ’specified territory’ within the meaning of the Cit izenship Act, 1955 i.e. Bangladesh after 25.3.1971 without any permit or travel document. Though the respondents have claimed that after this determination the appellant was served with the Quit India Notice and finally deported from the In dian shores whereafter he surfaced again to approach this Court, no plea having been taken in the instant appeal questioning the maintainability of the writ pro ceeding on this ground, we do not intend to dilate thereon. Suffice it to state that this contention on behalf of the respondents notwithstanding the learned Si ngle Judge noticeably had decided the lis on merits. It is, thus, obvious that the learned Tribunal had not scrutiniz 18. ed the probative worth of the documents, more particularly of the photocopy of t he Certificate of Registration laid before it by the appellant. Significantly, t he appellant at the first instance projected his claim of citizenship of India b y birth relying on this Certificate. He, however, admittedly omitted to prove th e same contending that the learned Advocate entrusted with the brief had failed him.

The letter dated 13.8.2009 of the Deputy Commissioner, Nagaon co nveying the findings in the official enquiry into the Certificate of Registratio n dated 7.11.59 and other incidental factual aspects demonstrates the following: - i) There is nothing on record to confirm as to whether the Election Officer , Nagaon was a competent authority to issue the certificate at the relevant poin t of time. ii) The records containing the counterfoils of the Certificate of Registrati on as available in the office revealed that the Deputy Commissioner and Addition al Deputy Commissioner of the District and the Sub Deputy Collector of Revenue Circles had been issuing such Certificate of Registration at various times in 19 56, 1962-63, 1967, 1969 etc. iii) iv) ctoral rolls of Chakirtup Village for 1966 and 71 as a voter. In the relevant part of NRC 1951, as available, his name is not found. v) vi) As per the voters’ list of 1993 for Hojai Legislative Assembly Constitue ncy in which the appellant is enrolled, his age is shown as 29 years signifying that the year of his birth was sometime around 1963-64 when his father in terms of the Certificate of Registration would be aged 63/64 years. The genuineness of the Certificate could not be properly ascertained. The name of Upendra Kundu or his family members do not appear in the ele

ion observing as hereinbelow:- The learned Single Judge jettisoned the Certificate of Registrat There are handwritten figures including the date thereof on the document Though the document bears the signature of the Election Officer, Nagaon The document is in the name of Upendra Kundu and not in that of the app i) . ii) as well as his seal, it does not inspire confidence. iii) ellant. As disclosed by the report dated 13.8.2009, the counterfoils of such cer iv) tificates of registration are available in the office of the Deputy Commissioner indicating that those were being issued by the Deputy Commissioner, Addl. Deput y Commissioner and Sub Deputy Collectors of the Revenue Circles pertaining to th e period in question and not by any other officer. v) Having regard to the age recorded in the Certificate of Registration, if the document is authentic, the name of the appellant and his family members oug ht to have appeared in the relevant electoral rolls prepared thereafter but veri fication of the electoral rolls from the period 1966 to 1971 reveal that the nam e of Upendra Kundu or his family members were not included therein. vi) RC 1951. The name of Upendra Kundu is not available in the relevant part of the N

Apart from the above, the learned Single Judge observed that as disclosed by the writ petition if the appellant’s age was 43 years in the year 2 008 he could have produced a number of voters’ list containing his name but he i nstead did so only for the year 1993. This voters’ list as well reflects the na me of the village as Hojai Nagar J Ward No.01 and not Dakhin Bidyanagar. The lea rned Single Judge was critical of the declaration form appended to the writ peti tion containing the names of the appellant’s father and other family members inc luding him observing that if he (appellant’s father) was already registered as a n Indian citizen it was incomprehensible as to why further declaration was to be made to include the names of his family members as voters. It was concluded as well that even if the Certificate of Registration was accepted to be a genuine d ocument, the same being only in the name of the father of the appellant without indicating his family members, it was of no avail to him (appellant).

A plain perusal of the report dated 13.8.2009 demonstrates absen ce of any categorical finding of the authority concerned against the validity of the Certificate of Registration dated 7.11.59. Though absence of the relevant r ecords has been cited for such inability, the fact remains that the concerned re spondent authorities did abstain from unreservedly repudiating this document to be illegal and without any authority of law. The report further discloses that t he Certificate of Registration issued by the Deputy Commissioner, Addl. Deputy C ommissioner and Sub Deputy Collector of the Revenue Circles referred to therein were not for the year in which the Certificate of Registration as claimed by the appellant had been issued to his father i.e. 1959. Noticeably, the counterfoils of these certificates of registration are in the same form as that of the one d ated 7.11.59 stated to have been issued in favour of the appellant’s father. Han dwritten figures do appear as well on these counterfoils.

In the face of the pleaded averment of the appellant that his fa ther after 1959 had shifted his residence to Dakhin Bidyanagar under Hojai P.S., Nagaon, Assam and that for the purpose of his business the appellant used to te mporarily reside at Satgaon Bazar Basti, Karbi Anglong, the disclosure in the re port dated 13.8.2009 that his (appellant’s father) name do not appear in the ele ctoral rolls for Chakirtoop Village for the year 1966 and 1971 does not per se, in our view, demolish the case of the appellant based on the Certificate of Regi stration dated 7.11.59. The statement in the report that even in the relevant pa rt of the NRC of 1959 the name of the appellant’s father was not found apart fro m being cagey also per se may not annihilate the Certificate of Registration, th e responsibility of entering the name of the certificate holder in the NRC being that of the concerned authority. Not only the enquiring authority, as it is app arent, did leave out of consideration, amongst others, the voters’ list of 1970 which shows the name of the appellant’s father as a voter of 21, Baithalangshu L egislative Assembly Constituency, the observation that at the time of the claime d birth of the appellant he (appellant’s father) was aged 63/64 years is not of any definitive significance. The declaration form (Annexure-D series to the writ petition) reflects the age of the appellant as on 1.4.89 to be 24 years indicat ing thereby that his year of birth is 1965. The photocopy of the voters’ list of 1993 and 2005 disclose his age to be 29 and 40 years respectively. These voters ’ lists are successively for No. 91 Hojai Constituency. The age of the appellant as reflected in the aforementioned document, thus, prima facie accord with the year of his birth i.e. 1965 (approximately). This is consequently compatible wit h his pleaded stand that he was born to Upendra Kundu in India after the Certifi cate of Registration dated 7.11.59 was issued to the latter.

That at the time of disposal of the writ petition the photocopy of the Certificate of Registration aforementioned as well as the voters’ list of 1970 containing the name of the appellant’s father as a voter were available on record is not disputed. The impugned judgment and order does not refer to the v oters list of 1970. Instead, the finding contained in the report dated 13.8.2009 that the name of the appellant’s father does not appear in any of the voters’ l ist between 1966 and 1971 of Village Chakirtup was taken note of to negate the c hallenge to the determination made by the learned Tribunal. It cannot be gain sa id that the Certificate of Registration dated 7.11.59 and the voters’ list on re cord did have a vital bearing on the debate subject to the proof as well as vali dity/ authenticity thereof.

On a scrutiny of the various aspects recited hereinabove and the import of the documents relied upon by the appellant, we are of the unhesitant opinion that a more indepth judicial scrutiny thereof is an imperative necessity so as to obviate the possibility of injustice on either side. Having regard to the disastrous consequences that would befall the appellant, though we do not ap prove his failure to fully contest the proceedings before the learned Tribunal, we are inclined in the facts and circumstances to offer him one opportunity of a dducing evidence-oral and documentary in support of his defence to the allegatio n of being a foreigner under the Act as well as the Rules and Orders framed ther eunder.

Though his abstention from the proceedings before the learned Tr ibunal is otherwise an inexcusable act of indiscretion, on a consideration of t he practical realities of contemporary existence and individual comprehensions c ontingent on one’s academic accomplishment and family background, we consider it expedient to accord this indulgence to the appellant in the greater interest of a balanced justice.

As a corollary, the impugned judgment and order as well as the d ecision of the learned Foreigners’ Tribunal, Diphu, Karbi Anglong in F.T. Case N o. 66/2006 (corresponding to IMDT Case No. 88/2005) are interfered with. The mat ter stands remanded to the learned Tribunal to decide the issue afresh by granti ng due opportunity to both the parties to adduce evidence-oral and documentary. The appellant, needless to say, would cooperate with the proceedings.

Though resultantly all orders consequent upon the decisions inte rfered with would otherwise be rendered non-est, having regard to the limited pu rpose of remand, we are not inclined to order the release of the appellant from jail pending the determination entrusted to it. It would, however, be open to th e learned Tribunal to consider any prayer for his release either on bail or oth erwise, if made before it, in accordance with law, if it considers it appropriat e to do so in order to facilitate an effective and meaningful defence in the pro ceeding and subject to such conditions as it may consider fit and proper.

The learned Tribunal is requested to complete the adjudication w ithin a period of three months herefrom. The Registry would forthwith dispatch a copy of this judgment and order to the learned Tribunal at Diphu so as to enabl e it to take immediate steps.

hereinabove. We leave the parties to bear their own costs. The appeal, thus, stands partly allowed to the extent indicated