Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Gau) 489

IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
N. KOTISWAR SINGH, MALASRI NANDI, JJ.
Smt. Puspa Rani Dhar W/o Late Mrinal Kanti Dhar – Petitioner
Versus
The Union of India, Rep. by the Secretary, Department of Home Affairs – Respondent
W.P. (C) No. 114 of 2018
Decided On : 10-11-2021

Advocates:
Advocate Appeared:
For the Petitioners: Ms. S. Chakraborty, Mr. B.J. Mukherjee.
For the Respondents: Ms. A. Verma, Mr. A. Bhuyan, Ms. U. Das, Ms. L. Devi.
.

Point of Law : Declaration as a foreign national of post - Registration of a person arises only when he/she is found to be an illegal entrant to this country from the specified territory between the period of 01.01.1966 and 25.03.1971 and who has been the ordinarily a resident in the State of Assam thereafter, and detected to be a foreigner.

Headnote:
Declaration as a foreign national of post – Challenged – Whether the opp is a foreigner ? – Voter I/D in the name of opp – Even if the petitioner is declared to be an Indian, whether she will be required to register herself with the Registering Authority – Registration of a person arises only when he/she is found to be an illegal entrant to this country from the specified territory between the period of 01.01.1966 and 25.03.1971 and who has been the ordinarily a resident in the State of Assam thereafter, and detected to be a foreigner – Question of registration of the petitioner who is otherwise Indian does not arise as she had been an Indian and not a foreigner at any point of time.
Finding of the Court:
Name of the petitioner's husband Mrinal Kanti Dhar, who was earlier serving in the N.F. Railway and as per the said certificate, he was born on 01.02.1943 and he was appointed in the Railways on 16.06.1962 and he retired on 31.01.2003 – Certificate also shows the name of the petitioner as the wife having date of birth on 01.01.1952.
Petitioner who was married to the aforesaid Mrinal Kanti Dhar, was serving in the Indian Railways and as such, there is a remote possibility of the petitioner being a foreigner and this document will show, in absence of any contrary proof, that in probability petitioner would be an Indian as an Indian is most unlikely to marry a foreigner – Secondly, it is to be noted that the learned Tribunal had accepted a certificate issued in Calcutta by the Bengal Medical Union dated 05.04.1966, in which it was certified that one Hirendra Nath Paul whom the petitioner claims to be her father, is a member of the said Union – Hence, document would also indicate that if his father was in Bengal in 1966, a strong corroborative evidence that the petitioner is an Indian.
Learned Tribunal had accepted the voters' lists of 1997, 2005 & 2016 relied upon by the petitioner. In the aforesaid voters' lists, the name of the petitioner is shown along with her husband Mrinal Kanti Dhar – Learned Tribunal discarded one land document of 2008 by stating that it is totally indistinct and not in a readable condition – Though in the original, the same is not clearly legible, yet it can be seen that the name recorded – Question of registration of the petitioner who is otherwise Indian does not arise as she had been an Indian and not a foreigner at any point of time.
Result: Petition allowed

JUDGMENT :

N. KOTISWAR SINGH, J.

1. Heard Mr. B.J. Mukherjee, learned counsel for the petitioner. Also heard Ms. L. Devi, learned counsel appearing on behalf of Mr. R.K. Dev Choudhury, learned Assistant Solicitor General of India for the respondent No. 1; Ms. A. Verma, learned special counsel, FT, appearing for respondent Nos. 2-4 and Ms. U. Das, learned Additional Senior Government Advocate, Assam, appearing for respondent No. 5.

2. The present petition has been filed challenging the impugned order dated 28.11.2017 passed by the learned Member, Foreigners Tribunal No. 1, Bongaigaon, Assam, in BNGN/FT/Case No. 2655/2007 by which the petitioner was declared as a foreign national of post 25.03.1971 stream.

3. We have also perused the original records requisitioned. The aforesaid impugned order dated 28.11.2017 reads as follows:

“FINDINGS & OPINION

As per S.(15) and (16) of S.3(1)F(T) O.1964”

whether the opposite is a foreigner?

(2) The opposite contested the case through a written-representation and claimed that the opposite is an Indian national. She examined in an affidavit and produced a few documents as exhibits in support of the case. I have heard the case from both sides and perused over the documents produced by the opposite After going through each and every documents relied by the opposite, transpired which are as follows.

(3) The opposite first depended and relied upon document is a certified dated 31.01.2003 as Ext-A. It reveals issued by concerned person of railway authority. But it stands rejected being found, irrelevant.

The opposite next depended document is another certificate marked as Ext-B and it reveals issued dated 5th April/1966 claimed that the opposite father Late Hirendra Nath Paul got that certificate as a member of some Bengal Medical Union, accepted.

Then Ext-C, Ext-D, and Ext E are some voter extracts of 1997, 2005 and 2016, found in the name of opposite, accepted.

Ext-F is another land document of 2008. It reveals totally indistinct and not in a readable condition, hence discarded.

Ext-G is a voter I/D in the name of opposite, accepted.

Ext-H is a pan-card, also revealed in the name of opposite.

At end of finding, no link of opposite found established with the claimed father.

The opposite is declared, foreigner and deportable.

OPINION

In the result, I am of the considered opinion is that, the opposite is a foreign national of post 25.3.1971 stream and deportable, as per procedure established by law.

With such opinion the case is disposed of, on contest.

Given under my hand and seal of the Tribunal on this the 28th day of November 2017.”

From the above, it is very clear that the learned Tribunal rejected the claim of the petitioner that she is an Indian on reasons which we find hard to accept. Firstly, the learned Trial Court rejected the certificate dated 31.01.2003 issued by the Railway authorities exhibited as Exbt.A, as irrelevant. The said certificate clearly indicates the name of the petitioner's husband Mrinal Kanti Dhar, who was earlier serving in the N.F. Railway and as per the said certificate, he was born on 01.02.1943 and he was appointed in the Railways on 16.06.1962 and he retired on 31.01.2003. The said certificate also shows the name of the petitioner as the wife having date of birth on 01.01.1952 and also other children, namely, Joysree Dhar, Uday Sankar Dhar, Gita Sree Dhar, Rupa Sree Dhar, Rabi Sankar Dhar and Barun Kanti Dhar.

4. We fail to understand, how the said document can be said to be irrelevant and liable to be rejected. Rather it shows that the petitioner who was married to the aforesaid Mrinal Kanti Dhar, was serving in the Indian Railways and as such, there is a remote possibility of the petitioner being a foreigner and this document will show, in absence of any contrary proof, that in probability the petitioner would be an Indian as an Indian is most unlikely to marry a foreigner.

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