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2009 DIGILAW 566 (GAU)

Munindra Ch. Roy v. Union of India

2009-08-13

BIPLAB KUMAR SHARMA

body2009
JUDGMENT B.K. Sharma, J. 1. The petitioner, who has been declared as foreigner by the Foreigners Tribunal, has filed this writ petition making a challenge to the said order. 2. Upon a reference made by the State police, the case against the petitioner as FT Case No. 85/G/2006 was registered and the petitioner was served with notice. The Tribunal after hearing the parties and on perusal of the materials on record, has come to the finding that the petitioner failed to establish his Indian citizenship and accordingly, declared him as foreigner (illegal Bangladeshi migrant) entering Assam after 25.3.1971. 3. I have heard Mr. D. Nandi, learned Counsel for the petitioner as well as Ms. R. Chakraborty, learned Addl. Sr. Govt. Advocate, Assam. I have also carefully examined the records of the Tribunal. 4. The records of the Tribunal have revealed that initially, the case against the petitioner was registered under the Illegal Migrants (Determination) Tribunal Act as IMDT Case No. 2911/G/2003. After scrapping of the IMDT Act by the Apex Court, the case was registered as FT Case No. 85/G/2006. From the records of the Tribunal, it appears that in both the proceedings, the petitioner filed his written statement and supporting documents. He also adduced evidence by filing affidavit enclosing therewith certain documents. Such evidence was adduced by the petitioner himself as DW 1 and through one Sri Purnachandra Dey as PW 2. 5. On a total reading of the written statement, the evidence adduced in the form of affidavits and the documents produced in support of the case of the petitioner, what has transpired is that the basic contention of the petitioner before the Tribunal was that his father Late Banga Bashi Roy had migrated to India from the then East Pakistan on 27.12.1955 along with his wife Smt. Sujata Sundari and daughter Smt. Arati Sundari. Initially, the family of Banga Bashi Roy settled down at Cooch Bihar in the State of West Bengal and thereafter, migrated to Dhubri district in Assam in the year 1967. The petitioner was born in the year 1960. In support of such claim, the petitioner produced before the Tribunal the sale deed of 29.12.1957, the application dated 8.2.1957, by which the father of the petitioner had applied for Refugee Rehabilitation Loan. Other documents produced before the Tribunal are the land revenue receipts, loan bond executed by his father etc. The petitioner was born in the year 1960. In support of such claim, the petitioner produced before the Tribunal the sale deed of 29.12.1957, the application dated 8.2.1957, by which the father of the petitioner had applied for Refugee Rehabilitation Loan. Other documents produced before the Tribunal are the land revenue receipts, loan bond executed by his father etc. All the documents produced before the Tribunal are prior to the cut off date i.e., 25.3.1971. 6. In the writ petition also, the petitioner has annexed the aforesaid documents to establish his Indian citizenship. The petitioner has also produced the documents pertaining to the Loan Case No. AG 81/56-57, which is in the name of his father. The petitioner has also produced the sale deed in the name of his father, which is dated 27.12.1957. He has produced another sale deed dated 24.2.1967, which was also executed by his father. 7. Apart from the above, the petitioner has also produced the documents pertaining to 1985 voter list in which his name was included. He has also enclosed copy of the application dated 11.8.1986, by which he sought for permission from the district administration to perform "Monosha Puja" at his place. The petitioner has also produced the birth certificate of his children. He has also produced the voter list of 1997 and 2005 in which his name was included. 8. On the basis of the aforesaid evidence, the petitioner pleaded that he being an Indian citizen by birth, the proceeding against him was uncalled for. It will be pertinent to mention here that the evidence adduced by the petitioner was not controverted by the State. 9. Annexure-18 certificate dated 7.12.1993 issued by the Block Development Officer, Mathabhanga-II in the district of Cooch Bihar, West Bengal is to the effect that the petitioner with his parents had been living in the particular village for the period from 1962 to 1967 and thereafter, left the place. The certificate also mentions about the aforesaid loan obtained by the father of the petitioner. 10. The Tribunal although has recognized and aforesaid evidence, but in absence of any mention of the name of the father of the petitioner in the written statement, found fault with the petitioner. The certificate also mentions about the aforesaid loan obtained by the father of the petitioner. 10. The Tribunal although has recognized and aforesaid evidence, but in absence of any mention of the name of the father of the petitioner in the written statement, found fault with the petitioner. Since in the written statement, the petitioner had mentioned about the migration of his father to India from the then East Pakistan in the year 1967 and also enclosed the relevant documents mentioning his father as Banga Bashi Roy. Mere non-mentioning of the name in the written statement, in my considered opinion, was not fatal. Further, in the statement-in-chief on oath, DW 1 and DW 2 clearly mentioned the name of the father of the petitioner. However, the Tribunal found fault with the petitioner as in the evidence on affidavits of DW 1 and DW 2, the name of the father of the petitioner was named as Banko Bashi instead of Banga Bashi. It was primarily on this ground the Tribunal has disbelieved the case of the petitioner in arriving at the finding that Banko Bashi and Bango Bashi cannot be one and the same person. However, while arriving at such a finding, the Tribunal did not consider the fact that in the same very affidavits as well as in the written statements, the petitioner clearly named his father as Bango Bashi and not Banko Bashi. The Tribunal while relying on the name Banko Bashi in the statement on oath, failed to notice that in the verification of the written statement as well as the affidavits, the petitioner and the DW 2 clearly described the father of the petitioner as Bango Bashi. The documents produced before the Tribunal to establish the linkage pertaining to the period prior to the cut off date i.e., 25.3.1971 could not be dislodged by the State in the proceeding before the Tribunal. 11. For all the aforesaid reasons, I am of the considered opinion that the finding arrived at by the Tribunal in its impugned order dated 5.12.2008 passed in FT Case No. 85/G/2006 is not sustainable in law and accordingly, same is interfered with. Writ petition is allowed by setting aside and quashing the said order and declaring the petitioner to be Indian citizen. There shall be no order as to costs. 12. Writ petition is allowed by setting aside and quashing the said order and declaring the petitioner to be Indian citizen. There shall be no order as to costs. 12. Registry shall send down the LCR along with a copy of this judgment and order.