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2019 DIGILAW 165 (GAU)

DILIP BISWAS v. UNION OF INDIA

2019-02-05

ACHINTYA MALLA BUJOR BARUA, AJIT BORTHAKUR

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JUDGMENT : 1. Heard Ms. D. Ghosh, learned counsel for the petitioner, Mr. J. Payeng, learned counsel for the State of Assam, appearing for the Foreigners' Tribunal and Border Affairs, Ms. V. Verma, learned Standing Counsel for the authorities under the NRC, Ms. G. Sarma, learned counsel for the authorities under the Union of India. 2. On being referred by the Superintendent of Police, Border, Morigaon, the FT(C) Case No. 151/2007 was registered against the petitioner in the Foreigners' Tribunal No. 1, Morigaon. Before the Tribunal, the petitioner filed the written statement taking a stand that the petitioner is the son of Banabashi Biswas, who had his land holdings bearing Miadi Patta No. 19 at No. 2 Barunguri Village. A stand has also been taken that the name of Banabashi Biswas finds place in the voter list of 1966 and 1970 of village Barunguri under Bokoni Mouza of the undivided Nagaon District. 3. In course of the argument, the petitioner exhibited the voter list of 1966 and 1970 of village Baruanguri, Mouza Bokani of undivided Nagaon District wherein the name of Banabashi Biswas, son of Kartik finds place corresponding to House No. 47 and his age was shown 48 years in 1966 and 52 years in 1970. 4. The petitioner also exhibits the voter list of 1997 pertaining to village Hiloi Khunda under Mouza Rangamari East in Darrang District wherein his name appears corresponding to House No. 44 and his age is shown as 37 years by showing the name of his father to be Banabashi Biswas. 5. The petitioner takes stand that due to erosion their family had to shift from Barunguri Village in the erstwhile Nagaon District to Hiloi Khunda under Mouza Rangamari East in Darrang District. In order to establish the link between Banabashi Biswas in the voter list of 1966 and 1970, the petitioner produced a certified copy of the Jamabandi of surveyed village of No. 2 Barunguri wherein the name of the petitioner was included in place of Banabashi Biswas, amongst others. 6. The Jamabandi copy reflects an order of the Circle Officer dated 11-12-1989 by which the name of the petitioner was mutated. The remark as regards the order of the Circle Officer is entered into the Jamabondi was included in the Jamabandi on 11-12-2009. An endorsement is also noticed which says that the village is erosion affected. 7. Mr. 6. The Jamabandi copy reflects an order of the Circle Officer dated 11-12-1989 by which the name of the petitioner was mutated. The remark as regards the order of the Circle Officer is entered into the Jamabondi was included in the Jamabandi on 11-12-2009. An endorsement is also noticed which says that the village is erosion affected. 7. Mr. J. Payeng, learned counsel for the State of Assam, appearing for the Foreigners' Tribunal and Border Affairs raises a question that the mutation order of the Circle Officer dated 11-12-1989 whereas it was entered in the Jamabandi by the concerned official on 11-12-2009 and the similarity in the day and the month of the two dates raises some concern. But when we examine the order of the Tribunal dated 08.02.2010 by which the petitioner was declared to be a foreigner, who entered India after 25-03-1971, we find that the certified copy of the Jamabandi submitted by the petitioner was rejected on two grounds firstly, the Jamabandi is undated and secondly it was not proved. 8. The certified copy of a Jamabandi issued reflects the contents of the revenue record and therefore a given Jamabandi copy was not contain any date. Secondly, we have taken note of that the copy of the Jamabondi submitted by the petitioner is a certified copy within the meaning of Section 76 of the Evidence Act, 1872 and therefore under Section 77 of the said Act, there is no requirement of it for being proved. 9. Considering the two aforesaid aspects we are in disagreement with the Tribunal as regards the two reasons given for rejecting the certified copy of the Jamabandi submitted by the petitioner. Accordingly, the order dated 08-02-2010 of the Foreigners' Tribunal No. 1 in FT(C) Case No. 151/2007 is set aside. 10. Upon the opinion of the Tribunal being set aside, the matter now stands remanded back to the Tribunal for a fresh consideration by taking into account the evidentiary value and implication of the Jamabandi submitted by the petitioner as regards the issue of establishing as the link of the petitioner with Banabashi Biswas of 1966 and 1970 voter lists. 11. In order to remove the concerned objection raised by Mr. 11. In order to remove the concerned objection raised by Mr. Payeng, the Tribunal may call for the order of the Circle Officer dated 11-12-1989, in order to verify its existence and correctness and also take the same into account while re-adjudicating the matter. The petitioner shall appear before the Foreigners' Tribunal No. 1, Morigaon on 25-02-2019. 12. As the petitioner has been in detention since the year 2010 and his family members had in the meantime been already released and thirdly considering the prima facie materials that has been produced as regards the linkage with Banabashi Biswas, we are of the view that the petitioner be released from detention forthwith, but however, petitioner shall submit a security bond before the Superintendent of Police (Border), Morigaon from two permanent citizens or any Government official from his own village to ensure the presence of the petitioner all along. 13. It is clarified that the Tribunal shall arrive at its own conclusion as regards the link to be established on the basis of the aforementioned Jamabandi and shall not be influenced by any of the observations made in this order. 14. Send down the LCR immediately. 15. This writ petition is allowed to the extent indicated above.