Research › Search › Judgment

Gauhati High Court · body

2008 DIGILAW 417 (GAU)

Dinesh Chandra Saha v. State of Assam

2008-06-05

H.BARUAH

body2008
JUDGMENT H. Baruah, J. 1. Petitioner No. 1 and Petitioner No. 2 are both husband and wife while petitioner No. 3 is the daughter and petitioner Nos. 4 and 5 are their sons. They together filed this instant writ petition under Article 226 of the Constitution of India for setting aside the judgment dated 18.9.2000 passed by the learned President, the Illegal Migrants (Determination) Appellate Tribunal, Assam, Guwahati passed in Appeal Case No. 3 of 2000 and also the order dated 28.12.99 passed by the Superintendent of Police, Nagaon, Assam and further to issue direction to the respondent authorities forbearing from giving effect to the impugned judgment dated 18.9.2000 and order dated 28.12.1999. 2. A reference was made under Section 8(1) of the Illegal Migrants (Determination by Tribunal) Act, 1983 to render a decision whether the petitioner Nos. 1 and 2 both husband and wife, resident of Ward No. 2, Hojai town and their family members are illegal migrants within the meaning of Section 3(c) of Illegal Migrants (Determination by Tribunal) Act, 1983. The allegation brought in are that both petitioner Nos. 1 and 2 and their family members are illegal migrants who entered into Indian Territory after 25 March 1971. Having been filed the said reference, writ petitioners appeared and contested the reference by filing written statement wherein they inter alia pleaded that they and their children are all citizens of India and they never entered into Indian Territory illegally after 25.3.1971. Their specific case is that petitioner No. 2 Bandana Rani Saha entered into her marriage in the year 1956 at Udaipur in Tripura with petitioner No. 1 and later they both obtained citizenship certificate from Tripura. Thereafter they shifted to Hojai in the year 1967 and took shelter in the house of a related brother Sri Binod Bihari Saha. Subsequently, they shifted to their house situated at Kalibari road under Hojai P.S. Where two sons, petitioner Nos. 4 and 5 were born to them. In support of their claim they examined three witnesses while the state examined two witnesses including the Investigating Officer. Learned Tribunal at the closure of the reference held that the writ petitioners are illegal migrants and they entered into the Indian Territory long after 1971. The reference was decided against them by the learned Tribunal on the ground of non-production of valid documents to substantiate their claim. Learned Tribunal at the closure of the reference held that the writ petitioners are illegal migrants and they entered into the Indian Territory long after 1971. The reference was decided against them by the learned Tribunal on the ground of non-production of valid documents to substantiate their claim. Against the judgment of the tribunal an appeal was preferred before the Illegal Migrants (Determination) Appellate Tribunal, Assam, Guwahati and the appellate tribunal by its judgment dated 18.9.2000 also dismissed the appeal. 3. Feeling aggrieved, this instant writ petition has been filed by the writ petitioners. 4. Mr. N.C. Das, learned Counsel for the writ petitioners at the very out set of his argument criticized the judgment of the tribunal and the appellate tribunal for rejecting Exhibit-1 and Exhibit-2, the certificate of registration issued under the hand and seal of Sub-Divisional Officer, Udaipur, Tripura. It was argued by Sri N. C. Das that these two certificate of Registration ought not to have been rejected by the tribunals since the same were issued by an appropriate authority appointed for the purpose. It was also argued that these two certificate of registration, Exhibits-1 and 2 also received support from the evidence of DWs and one of the State witness Nirmal Mazumdar, whose evidence evidently go to show that the writ petitioners are living at Kalibari, Hojai continuously for 25/30 years after coming from Tripura. In view of the evidence of the DW-1 to DW-3 and Nirmal Mazumdar and Exhibit -1 and Exhibit-2, the learned tribunal ought not to have branded the writ petitioners as illegal migrants Sri Das argued. 5. Per contra to the submissions advanced by Sri N.C. Das, learned Govt. advocate submitted that at the time of investigation of the case the writ petitioners failed to produce any document to substantiate their claim that they are Indian citizen. Failure on their part to show as such, a reference was, therefore, made before the tribunal and the tribunal after taking into consideration all the facts and evidence on record both oral and documentary held the writ petitioners as illegal migrants. When an appeal filed against the decision of the Illegal Migrants (Determination by Tribunal) Act, the appellate tribunal also held the same view that the writ petitioners are illegal migrants within the meaning of Section 3(c) of Illegal Migrants (Determination by Tribunal) Act, 1983. When an appeal filed against the decision of the Illegal Migrants (Determination by Tribunal) Act, the appellate tribunal also held the same view that the writ petitioners are illegal migrants within the meaning of Section 3(c) of Illegal Migrants (Determination by Tribunal) Act, 1983. The learned appellate tribunal while deciding the appeal gave reasons why this certificate of registration, Exhibits-1 and 2 could not be taken into consideration and acted upon. While deciding this aspect of the matter the learned appellate tribunal also added emphasis to the provisions of Section 5 of the Citizenship Act, 1955 and Section 14 of the said Act. From the reading of the Exhibits-1 and 2, it is noticed that Exhibit-1 was issued in the name of Bandana Rani Saha, petitioner No. 2, while Exhibit-2 was issued in the name of Dinesh Chandra Saha, the petitioner No. 1. These two certificate were issued by the Sub-Divisional Officer, Udaipur, Tripura on 30.5.1956 under the provision of Section 5(1)a / 5(1)d of the Citizenship Act, 1955. Under which of the provisions these two certificates Exhibits-1 and 2 were issued is not specifically mentioned therein. Learned appellate tribunal in view of provisions of Section5 of the Citizenship Act, 1955 was of the view that perhaps these two certificate of registration were issued under the provision of Section 5(1)(a) of the Citizenship Act, 1955. Since Section 5 applies to minor children of persons who are citizen of India. In this context it would be appropriate for this Court to put the provision of Section 5(1)(a) and 5(1)(d) of the Citizenship Act, 1955. Section 5(1)(a)(d) read as follows: 5. Since Section 5 applies to minor children of persons who are citizen of India. In this context it would be appropriate for this Court to put the provision of Section 5(1)(a) and 5(1)(d) of the Citizenship Act, 1955. Section 5(1)(a)(d) read as follows: 5. Citizenship by registration - (1) Subject to the provisions of this section and such other conditions and restrictions as may be prescribed, the Central Government 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 virtue of the Constitution or of any other provision of this Act if he belongs to any of the following categories, namely: (a) a person of Indian origin who are ordinarily resident in India for seven years before making an application for registration: (b) * * * (c) * * * (d) minor children of persons who are citizens of India; (e) * * * (g) * * * So, in order to obtain a certificate under this section he or she must be a resident of India for 7 (seven) years before making an application for registration and according to this section appropriate authority for issue of such certificate is the Central Government. The documents Exhibits-1 and 2 clearly indicate that both petitioner Nos. 1 and 2 were born at Noakhali now in Bangladesh. From these two documents it is also seen that at the time of making such an application they were not ordinarily resident in India. It is the case of the appellants that in the year 1956 they came to Udaipur where the petitioner No. 2 entered marriage with petitioner No. 1, if that is so the certificate of registration Exhibits-1 and 2 could not have been issued in the year 1956 since for issuance of such certificate the person/persons is/are required to be the ordinary resident for seven years continuously in India. The learned tribunal while rendering a decision in the context of acceptance of the two documents Exhibits-1 and 2 held that these two documents were procured by the writ petitioners for the purpose of proving themselves as citizens of India. The learned tribunal while rendering a decision in the context of acceptance of the two documents Exhibits-1 and 2 held that these two documents were procured by the writ petitioners for the purpose of proving themselves as citizens of India. The learned appellate tribunal also in view of the facts situation and evidence on record failed to accept the said documents proved by the writ petitioners and rejected both the documents on the ground that these two documents were not issued as per provisions of Section 5 of the Citizenship Act, 1955. Further, it was held by the learned appellate tribunal that under Section 14 of the Citizenship Act the prescribed authority or the Central Govt. may in its discretion grant or refuse an application under Section 5 or Section 6 of the Act and shall not be required to assign any reason for such grant or refusal. Admittedly these certificates were not issued by the Central Government. There is nothing in the record to show that the certificates were issued by an appropriate authority notified for the purpose. No notification is also produced or proved before the tribunal to substantiate that the Sub-Divisional Officer, Udaipur, Tripura was an authorized officer to issue such certificate. In absence of proof of such a notification authorizing the Sub-Divisional Officer, Udaipur, Exhibit-1 and Exhibit-2 cannot be held to be legally issued per provision of Section 5 of the Citizenship Act, 1955. 6. Except these two documents no other documents was placed before the tribunals by the writ petitioners. The tribunals after a calculated finding held that the certificates Exhibits-1 and 2 cannot be held to be valid and acted upon. 7. It is indicated in the written statement that writ petitioner Bandana Rani Saha's marriage took place in Tripura in the year 1956 and thereafter they obtained certificate of Registration from the Sub-Divisional Officer, Udaipur, Tripura. But petitioner No. 1 Sri Dinesh Chandra Saha who examined himself as DW-1 categorically stated that he migrated to India from Bangladesh 25 years ago and first stayed at Agartala and married Bandana Rani Saha, petitioner No. 2 at Agartala and as a result of cohabitation petitioner No. 3 Sipra was born to them. He deposed his daughter's age at 22 years. So there is no consistency in between the written statement and his evidence on oath. He deposed his daughter's age at 22 years. So there is no consistency in between the written statement and his evidence on oath. The learned tribunal having found such conflict in between the evidence and the written statement, held that the claim of the writ petitioner cannot be taken as correct that they migrated from Bangladesh to Indian territory in the year 1956. Both the tribunals after careful scrutiny of the evidence and the provisions of Section 5 of the Indian Citizenship Act, 195 5 were of the view that the writ petitioners are illegal migrants within the meaning of Section 3(C) of Illegal Migrants (Determination by Tribunal) Act, 1983. 8. This Court after careful scrutiny of the facts and evidence on record and the findings arrived at by both the tribunals does not see any cogent ground to interfere with the judgments of both the tribunals. No question of violation of Fundamental Right under Articles 14 & 21 of the Constitution of India creeps in. 9. Writ petition accordingly stands dismissed. Stay, if any, stands vacated. No order as to cost. Petition dismissed.