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2018 DIGILAW 663 (GAU)

Bijoy Das v. Union of India

2018-04-18

AJIT BORTHAKUR, UJJAL BHUYAN

body2018
ORDER : Ujjal Bhuyan, J. 1. Heard Mr. A.K. Baruah, learned amicus curiae and Mr. A. Kalita, learned Special Counsel, Foreigners Tribunal (FT). In this case, initially, Mr. N.H. Mazarbhuiyari and his team had represented the petitioner but subsequently on 22.5.2017, Mr. N. Islam, learned counsel who had represented the petitioner, stated that relatives of the petitioner had taken back the brief from his chamber. In such circumstances, the following order was passed on 22.05.2017:- "Office note dated 11.03.2016 indicates that LCR has been received. Mr. N. Islam, learned counsel for the petitioner, submits that relatives of the petitioner had taken back the brief from their chamber. Two weeks time granted for the petitioner to make alternative arrangement failing which Court may proceed with the matter. Case be listed in the admission column after two weeks." 2. On the next date, i.e. on 10.01.2018, since there was no representation on behalf of the petitioner, this Court took the view that it would be in the interest of justice to engage an advocate of the Court as amicus curiae to represent the petitioner. Accordingly, Mr. A.K. Baruah, learned counsel, who was present in the Court, was appointed as amicus curiae. 3. Case was heard on 27.03.2018 and today is fixed for delivery of order. 4. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 31.05.2011 passed by the Foreigners Tribunal, Diphu in Case No. FT (C) 667/2006, State vs. Bijoy Das declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from the specified territory, i.e. Bangladesh on or after 25.03.1971. 5. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record, including the record requisitioned from the Tribunal. 6. Record discloses that initially the reference was made by the Superintendent of Police (Border), Karbi Anglong under Section 8(1) of the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) before the Illegal Migrants (Determination) Tribunal, Diphu suspecting the petitioner to be an illegal migrant. Be it stated that under Section 3(1)(C) of the IMDT Act, an illegal migrant was defined as a foreigner who had unauthorisedly entered into India after 25.03.1971. The reference was registered as IMDT Case No. D. 842/1998. 7. Be it stated that under Section 3(1)(C) of the IMDT Act, an illegal migrant was defined as a foreigner who had unauthorisedly entered into India after 25.03.1971. The reference was registered as IMDT Case No. D. 842/1998. 7. It appears from the record that from 1998 till 03.05.2006 only orders pertaining to issuance of notice and re-issuance of notice to the petitioner was passed without any endeavour for affecting service of notice. Almost 8 years were spent in this way. 8. IMDT Act was declared unconstitutional by the Supreme Court in Sarbananda Sonowal vs. Union of India, (2005) 5 SCC 665 , with the further direction that the references which were pending before the Tribunals constituted under the IMDT Act should be transferred to the Tribunals constituted under the Foreigners Act, 1946 read with the Foreigners (Tribunals) Order, 1964. As a result, the related reference was transferred to the Foreigners Tribunal, Diphu whereafter it was re-registered as FT(C) Case No. 667/2006. 9. In his written statement filed before the Tribunal on 19.06.2010, petitioner stated that he was born and brought up at Namdoboka Block under Doboka Police Station in the then district of Nagaon. In search of livelihood, he had migrated to Dengaon village about 25 years back and since then he had been residing there. His father was Bipul Krishna Das and he was a voter of Hojai constituency in 1966. Petitioner became a voter of Hojai constituency in 1997. 10. This was all that the petitioner stated in his written statement which by any account was wholly inadequate to establish his identity as a citizen of India having regard to the mandate of Section 9 of the Foreigners Act, 1946 as explained by the Supreme Court in paragraph 26 of Sarbananda Sonowal (supra). There was no disclosure of petitioner's date or year of birth and consequently his age at the time of filing the written statement. He also did not mention the names of his mother and paternal grandparents, not to speak of his brothers and sisters, if any. Petitioner had put his signature to the written statement which indicated a certain level of literacy on his part but he did not disclose anything regarding his schooling. 11. He also did not mention the names of his mother and paternal grandparents, not to speak of his brothers and sisters, if any. Petitioner had put his signature to the written statement which indicated a certain level of literacy on his part but he did not disclose anything regarding his schooling. 11. Thus, from the above, what is discernible is that according to the petitioner, his father Bipul Krishna Das was a citizen of India and, therefore, being his son, he was also a citizen of India. 12. In his deposition before the Tribunal recorded on 26.04.2011, petitioner disclosed his age as 43 years which would mean that he was born sometime in the year 1968. He stated that his father was Bipul Das and mother was Dipti Rani Das. Both of them were alive. He further stated that he had studied in Hindi Block M.E. School till Class-IV. Father and himself had come to Dengaon to do business. It was almost 15/20 years since he had come to Dengaon. 13. One Lawrence Ingti deposed as witness No. 2 on behalf of the petitioner. He identified himself as the Government Gaonburah of Dengaon village. He stated that he knew the petitioner as a businessman who resided in the market outside his jurisdictional area. 14. We find from the record that petitioner did not exhibit any document. Only two documents, that too photocopies, were filed with the written statement. Therefore, in addition to the inadequate pleadings in the written statement, whatever were pleaded therein were not proved by the petitioner. If the parents of the petitioner were alive as per the testimony of the petitioner, it is not understood as to why they did not turn up before the Tribunal to depose in favour of the petitioner. Absenting themselves from the Tribunal when the citizenship status of their son was being questioned by the State runs counter to normal human conduct. On the other hand, testimony of witness No. 2 also cannot be of any assistance to the petitioner as according to him, petitioner used to reside in an area outside his jurisdiction. That apart, he had seen the petitioner from about 20/25 years ago, that means since about 1985. 15. Even though inadmissible in evidence, even then we have looked into the two documents filed by the petitioner. That apart, he had seen the petitioner from about 20/25 years ago, that means since about 1985. 15. Even though inadmissible in evidence, even then we have looked into the two documents filed by the petitioner. One document is a photostat copy of voters list extract of 1966 in respect of Hojai constituency. Here, out of the 6 voters, one voter was Bipul Krishna and he was shown as son of Bipin. Another voter was Dipti Rani, wife of Bipin. They were residents of Namdoboka village under Hojai Police Station. They were 31 and 23 years of age in 1966. The second document is a photocopy of the voters list of 1997 in respect of Hojai constituency. Here the sole voter was Bijoy, son of Bipul, aged 29 years. He was shown as resident of village Pub Dhaniram Pathar. According to the deposition of the petitioner, his parents were still alive. Therefore, absence of the parents from the 1997 voters list was conspicuous and would cast serious doubts about the veracity of the narrative presented by the petitioner. That apart, according to the petitioner and witness No. 2, petitioner had shifted to Dengaon village in Karbi Anglong in and around 1985 from Namdoboka village. If that be so, it is not understood as to how he could be a voter from village Pub Dhaniram Pathar in 1997. That apart, Bipul Krishna was a resident of Namdoboka village in 1966 whereas Bijay, son of Bipul, was a resident of Pub Dhaniram Pathar village in 1997. Therefore, it cannot be said that Bipul Krishna of 1966 voters list was the same person as Bipul of the 1997 voters list whom the petitioner claimed to be his father. 16. It is trite that mere filing of written statement and oral testimony in a proceeding under the Foreigners Act, 1946 would not be enough. The fact-in-issue would have to be proved by the procedee by adducing documentary evidence which are admissible and relevant. The two documents filed by the petitioner were not proved in any manner whatsoever and therefore the assertion of the petitioner that he being the son of Bipul Das, who was a citizen of India, was therefore a citizen of India was not proved. 17. The two documents filed by the petitioner were not proved in any manner whatsoever and therefore the assertion of the petitioner that he being the son of Bipul Das, who was a citizen of India, was therefore a citizen of India was not proved. 17. Consequently, we are constrained to hold that petitioner had failed to discharge his burden under Section 9 of the Foreigners Act, 1946 to prove that he was not a foreigner but a citizen of India. 18. Resultantly, we do not find any merit in the writ petition which is accordingly dismissed. 19. Before parting with the record, we place on record our appreciation for the assistance rendered by Mr. A.K. Baruah, learned amicus curiae, who would be paid his dues by the Assam State Legal Services Authority as per the schedule of fees. 20. Registry to send down the LCR forthwith and also inform the concerned Foreigners Tribunal, Superintendent of Police (B) and Deputy Commissioner for taking immediate follow up steps. Copies of this order may also be forwarded to learned Standing counsel, Election Commission of India and State Coordinator, NRC.