High Court · 2012

2. Heard Mr GN Sahewalla, learned senior counsel for the appellant as well as Mrs B Goyal, learned state counsel appearing for the respondent 1 to 3 and Mr M Bhagabati, learned CGC appearing for the respondent 4.

3. By the impugned judgment of the learned Tribunal, the Member, Foreigners Tribunal-I, opined that the appellant is a foreigner under Section 2(a) of the Foreigners Act, 1946, who illegally came to Assam after 25.3.1971. It appears th at FT(D) 679/2006 was registered as (cid:28)State vs. Smti Jayanti Devi (cid:29) and a notice w as issued accordingly by the learned Tribunal to Smti Jayanti Devi.

4. In response to the said notice, the appellant had submitted a written st atement stating that she is an Indian citizen by birth and during the lifetime o f late Harilal Sarma, her father, she was married to Kanak Sarma and that she wa s born at village Ulubam in the district of Kamrup . It was also pleaded that he r father had cast his vote as Indian citizen in the year 1966 under No 58, East Guwahati Legislative Assembly Constituency of the Assam Legislative Assembly. 5. During the course of the proceedings before the learned Tribunal, one Ra jib Kumar Bhuyan was examined as PW1. He was the local verification officer, who had gone for verification of nationality of the appellant. The appellant had ex amined three witnesses and she herself examined as OPW-1. Her husband was examin ed as OPW-2 and one Dharmeswar Medhi, the Gaonburah of village Ulubam was examin ed as OPW-3. The OPW-1 had proved the voter list of 1966 with the name of her fa ther as Ext-Ka. In the written statement, though, the appellant had not pleaded that she was also known as Jani Bala Devi, she had filed an affidavit stating t hat she was also known by the said name and had produced certified copies of vot ers lists of 1985, 1989 and 1994. There being discrepancies with regard to age r ecorded in the voter lists of 1989 and 1994, the learned Tribunal refused to acc ept the said voter lists and accordingly, rendered the opinion as noted above.

6. The learned Single Judge held that in absence of unequivocal and persuas ive evidence to establish the relationship of the petitioner with Hari Lal Sarma as her father, the findings recorded by the learned Tribunal cannot be faulted with and accordingly, dismissed the writ petition.

7. Mr GN Sahewalla, learned senior counsel for the appellant, submits that both the learned Tribunal and the learned Single Judge did not disbelieve Ext-Ka . The claim of the appellant, according to learned senior counsel, was not consi dered in the correct perspective. The learned senior counsel submits that in the facts and circumstances of the case, ends of justice demands remanding of the m atter to the learned Tribunal to allow the appellant to adduce evidence that the appellant is the daughter of Hari Lal Sarma. He has also submitted that in the writ petition, a plea was taken that the appellant is a member of Nepali communi ty and that as per Treaty of Peace and Friendship between the Government of Nepa l and the Government of India, a Nepali person may not be deported from India an d is entitled to reside in India. He is fair enough to concede that the two-fold plea that the appellant belongs to Nepali community and that there is in existe nce a Treaty of Peace and Friendship were not pleaded in the written statement a nd he submits that for a just decision, the same are required to be considered.

8. f the learned Single Judge and submits that no interference is called for. Learned state counsel as well as the learned CGC supports the judgment o

9. When the appeal was moved, on 24.6.2011, a submission was advanced on be half of the appellant that in terms of Section 13(3) of the Registration of Birt hs and Deaths Act, 1969 the Chief Judicial Magistrate, Guwahati had issued an or der directing issuance of a birth certificate showing the date of birth of the a ppellant as on 7.1.1959. This court required the appellant to produce the order of the learned Chief Judicial Magistrate, Kamrup. Subsequently, the order dated 1.11.2010 passed by the learned Chief Judicial Magistrate, Kamrup, Guwahati, was produced and this court, on perusal of the same, in the order dated 5.8.2011, r ecorded that the order dated 1.11.2010 was passed without virtually conducting a ny enquiry and therefore, required the Chief Judicial Magistrate, Kamrp to hold appropriate enquiry and to furnish a report to the registry indicating the corre ct date of birth of the appellant. Subsequently, on 2.11.2011, the Chief Judicia l Magistrate, Kamrup submitted a report to the Deputy Registrar(Judicial-III) st ating that though witnesses were examined, it was not possible to ascertain the date of birth of Smti Jani Devi alias Jayanti Devi.

10. In the affidavit filed by the respondent No 2, Superintendent of Police, Morigaon, it is stated that initially DN Case No 1331/97 dated 5.12.1997 was re gistered against Smti Jani Devi alias Jayanti Devi and forwarded to the Chairman , IM(D) Tribunal, Nagaon for determination of her nationality and accordingly, I M(D) T Case No 1929/2003 was registered. Subsequently, in view of the judgment o f the Apex Court in Sarbananda Sonowal vs. Union of India & Ors, reported in (20 05) 5 SCC 665, the case was transferred to the Foreigners Tribunal-I, Morigaon f or adjudication, where the same was registered as FT(D) Case No 679/2006. From t he aforesaid, it would appear that Jayanti Devi is also known, at least, as Smti Jani Devi. In view of the finding recorded by the learned Chief Judicial Magistrate 11. , Kamrup that it is not possible to determine the age of the appellant, the atte mpt of the appellant to establish her credentials as a person having been born i n India on 1.7.1959 fails. However, a perusal of the judgment of the learned Tri bunal and the learned Single Judge would go to show that Ext-ka has not been dis carded. The appellant’s case is that she is the daughter of Hari Lal Sarma. We h ave seen that during the enquiry directed to be conducted by the Chief Judicial Magistrate, Guwahati, the mother of the appellant, namely, Smti Gangamaya Devi h ad also been examined on oath.

12. In the facts and circumstances of this case, we are inclined to accept t he submission of Mr Sahewalla that one opportunity be granted to the appellant t o establish that she is the daughter of Hari Lal Sarma. The appellant is also pe rmitted to submit additional written statement regarding her plea of being a mem ber of the Nepali community and the right, if any, flowing from of the Treaty of Peace and Friendship, on which much reliance has been placed by Mr Sahewalla. In view of the above, we set aside the impugned judgments, without, howe 13. ver, disturbing the other findings recorded therein, and remand the matter to th e learned Foreigners Tribunal for disposal in accordance with law. The learned t ribunal will limit the scope of enquiry to the two issues as indicated in paragr aph 12 above. 14. The appellant will appear before the learned Foreigners Tribunal-I, Mori gaon on 3.12.2012. The Tribunal is directed to conclude the proceedings within a period of 4 months there-from.

15. The appeal is allowed as indicated above. No costs.