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2014 DIGILAW 71 (GAU)

KALACHAND BARMAN v. STATE OF ASSAM

2014-01-21

B.K.SHARMA

body2014
ORDER 1. This writ petition is directed against the common judgment and order dated 04.12.2012, passed by the learned Member, Foreigners Tribunal, Goalpara, in F.T. Case No.2583/G/10 (GLP Dist. Case No.455/2003)[(Union of India –vs- (i) Krishna Kanta Barman, (ii) Arati Barman and (iii) Kapasi Barman] and in F.T. Case No.2581/G/2010 (Glp Dist. Case No.453/2003)[Union of India –vs- (i) Kalachand Barman and (ii) Sahadev Barman]. By the said order, they have been declared to be foreigners of post 1971 stream, requiring their expulsion from Indian Territory and also deletion of their names from the voter list. 2. On receipt of the notice from the Tribunal, the petitioners had entered appearance by filing written statements denying the plea of the State that they are illegal migrants. In the notice, they were indicated as illegal migrants from the then East Pakistan during the period from 01.01.1966 to 25.03.1971. In the written statement, the petitioners took the plea that they are not illegal migrants of 1966 and 1971 stream. According to them they had migrated to India in 1964 due to internal disturbance in the then East Pakistan. Further statement made in the writ petition is that they had taken shelter in the Dudhnoi Refugee camp. In the evidence in chief filed in the format of affidavit also the said stand was taken along with the stand that the name of the father of the petitioners No. 1 and 2 appeared in the voter list of 1970 and 1979 and also thereafter. 3. In support of the stand of the petitioners, they had produced certain documents as mentioned in the impugned judgment of the learned Tribunal. One such document is the Annexure-1 Relief Eligibility Certificate incorporating the name of the father of the petitioners No. 1 and 2 Sri Ganga Ram Barman, showing him as son of Chand Mohan Barman. Other documents produced by the petitioners are the voter lists of 1970 and 1979 incorporating the name of Ganga Ram Barman. They also produced the Border Entree Slip of 1964 and voter lists of 1989, 1997, 2010 and also one school certificate. 4. In the voter list of 1970 and 1979, name of one Ganga Ram Barman appears. While in the 1970 voter list, he is shown as the son of Late Bholo Ram Barman, but in the voter list of 1979, he is shown as the son of Chanmohan. 5. Mr. 4. In the voter list of 1970 and 1979, name of one Ganga Ram Barman appears. While in the 1970 voter list, he is shown as the son of Late Bholo Ram Barman, but in the voter list of 1979, he is shown as the son of Chanmohan. 5. Mr. B. Singha, learned counsel for the petitioners submits that because of the mistake committed by the authority responsible for enrolment of names, the petitioners cannot be made to suffer. According to him, Ganga Ram Barman reflected in 1970 and 1979 voter lists is one and the same person. However, due to the mistake committed by the enumerator, his father’s name was reflected as Bholo Ram Barman in the voter list of 1970 instead of Chanmohan. Referring to the Relief Eligibility Certificate, original of which was produced before the Tribunal, in which the name of Ganga Ram’s father is shown as Chand Mohan Barman, he submits that even if the voter list of 1970 is left aside, these two documents i.e. the Relief Eligibility Certificate and the 1979 voter list would clearly indicate that Ganga Ram had come to India in 1964 along with the petitioners No.1 and 2. 6. In the Relief Eligibility Certificate, Ganga Ram Barman is shown as the head of the family amongst other members including the petitioners No.1 and 2. Be it stated here that the petitioner No.3 is the son of the petitioner No.1 and the petitioner No.4 is the daughter of petitioner No.2. 7. The learned Tribunal has disbelieved the aforesaid facts with the following analogy:- “Thus to determine above noted issue for both brother respondents I have discussed entire evidence on record. In their written statement both the respondent failed to state whether they were born in East Pakistan or they were born in India. In a substance manner they stated that their father Gangaram Barman came from East Pakistan in year 1964 and his name was enrolled in 1970 voter list as well as 1979 voter list. But there is no iota of evidence to show the fact that parents of respondent entered into India in 1964. Along with documents a Relief Eligibility Certificate page no. 1, 2 and 3 is nothing but format of application to be filled up head of the family. In column no. 5 date of arrival in India is shown to be 2-5-64. Along with documents a Relief Eligibility Certificate page no. 1, 2 and 3 is nothing but format of application to be filled up head of the family. In column no. 5 date of arrival in India is shown to be 2-5-64. But at the bottom of page no.3 there is particular space for signature and thumb impression of the head of the family. Just above the signature and thumb impression of the head of the family a thumb impression is seen but there is nothing to show it is whose thumb impression nor there is any endorsement. To its left corner there is a space for date. This date is given to be 9-8-65. On reverse page there is a space to be “Certificate “and there is also space for the authority concern to state the materials that he found during course of his personal enquiry. There is nothing about his personal enquiry, only there is an illegible signature without any date with its seal to be “Camp Commandant” No. 11, Matia.” So, question arises on which date it was signed. If at all respondent entered into India on 2-5-64 why they had to apply after 1 ½ years there is no any explanation. On the 4th page there is space for official use which is consisted of R.E. C no., date on which vaccinated and there are other columns to show the relief granted but this 8. From the above, what is seen is that although it is the pleaded case of the petitioners that Ganga Ram i.e. the father of the petitioners No.1 and 2 had come from the then East Pakistan in 1964 and his name was also enrolled in the 1970 and 1979 voter list, the Tribunal disbelieved the same on the ground of variation of the name of the grandfather of the petitioners No. 1 and 2 in the voter list of 1970 and 1979. However, the fact remains that in the 1979 voter list, the name of their grandfather was correctly reflected. The same is also the case with the Relief Eligibility Certificate, in which his name is reflected as Chan Mohan Barman. 9. However, the fact remains that in the 1979 voter list, the name of their grandfather was correctly reflected. The same is also the case with the Relief Eligibility Certificate, in which his name is reflected as Chan Mohan Barman. 9. The Tribunal has also disbelieved the Relief Eligibility Certificate on the ground that in the column for signature and thumb impression of the head of the family, there is only one thumb impression without any indication about the author of the same. However, in the left side of the said thumb impression, there is clear indication of the same being the LTI of Ganga Ram Barman. The Tribunal has also disbelieved the said Relief Eligibility Certificate on the ground that in the certificate column although there is signature of the Camp Commandant Camp No.11, Matia, but there is no date and that the portion relating official use is blank. If no date was given by the authority issuing the certificate, the same cannot be attributed to the petitioners. That apart, against the thumb impression of the head of the family, the date is clearly indicated as 09.08.1965. As regards the ‘official use’ portion of the format, the same relates to future entrees relating to date of vaccination etc. Mr. Singha, learned counsel for the petitioners submits that nothing adverse having been proved by the prosecution against the said certificate, the learned Tribunal could not have disbelieved the same and that in case of any doubt the same ought to have been verified from the authority. 10. Mr. M. Bhagabati, learned counsel representing the respondents, on the other hand submits that in view of the aforesaid variation in the entries, the same cannot be said to be the cleansing evidence to prove that the petitioners No.1 and 2 along with their father Ganga Ram had come to Assam in 1964. Apart from the fact that in the notice, the petitioners were identified as illegal Bangladeshi migrants of the stream of 1966-1971, it is also difficult to disbelieve the aforesaid Relief Eligibility Certificate. In the evidence of petitioner No.1, it was stated that he came to Assam at the age of 6/7 years along with his father Ganga Ram. He categorically stated that they had come to India in 1964. In the evidence of petitioner No.1, it was stated that he came to Assam at the age of 6/7 years along with his father Ganga Ram. He categorically stated that they had come to India in 1964. As regards the variation in the name of his mother, he in his deposition stated that his father had married twice, firstly, Binodini and thereafter, Nimeswari. Similarly, the petitioner No.2 also in his deposition stated about coming to India from the then East Pakistan in 1964. He also referred to the fact that his father had married twice, who are Binodini and Nimeswari. It is this variation, which the learned Tribunal has referred to, to hold that there being variation in the name of the mother of the petitioners No.1 and 2, their plea is not believable. However, the petitioners No.1 and 2, in their deposition categorically stated that their father had married twice. 11. For all the aforesaid reasons and in absence of any cleansing evidence adduced by the prosecution to sustain the reference by which the petitioners were branded as illegal Bangladeshi migrants of the stream of 1966-1971, this writ petition is allowed by setting aside and quashing the impugned judgment and order dated 04.12.2012 passed by the learned Member, Foreigners Tribunal, Goalpara in F.T. Case No.2583/G/2010. Accordingly, the petitioners shall be deemed to be Indian Citizens. 12. Registry shall send down the LCR along with a copy of this Judgment and order to the Foreigners Tribunal, Goalpara, immediately.