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2022 Supreme(Gau) 429

IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
N. KOTISWAR SINGH, NANI TAGIA, JJ.
Sulekha Haldar, D/o. Late Khitish Chandra Biswas, W/o. Late Rohit Haldar - Petitioner
Versus
The Union of India, Rep. by the Secretary Min. of Home Affairs, Govt. of India & Ors. - Respondent
WP(C) No. 4928 of 2018
Decided On : 15-06-2022

Advocates Appeared:
For the Petitioner: Ms. D. Ghosh.
For the Respondent: Asstt. S.G.I.

Point of Law: When a private document is required to be proved. Even if these certificates are considered to be private documents, fact remains that these documents are more than 30 years old and if these documents are produced from custody of petitioner, who in particular facts of case.

Headnote:
Foreigners Act, 1946 - Section 9 - Evidence Act, 1872 - Section 90 - Citizenship certificate - Illegal immigrant of post - Documentary evidences - Order passed by Foreigners Tribunal by which Tribunal held that petitioner had miserably failed to discharge her burden as envisaged under Section 9 of Act, 1946 and accordingly declared her to be an illegal immigrant of post 1971 stream – Challenged - Case of petitioner, in brief, is that she is daughter of one Khitish Ch. Haldar, son of Srinivash Haldar and Sumati Bala Haldar - Petitioner was born in Chakitup in Nagaon district. Later, her father shifted from Chakitup to Morigaon for business purposes and died there and she married to one Rohit Haldar. Thereafter, petitioner, along with her family, shifted to Ouzari for better livelihood - The original document, i.e., HSLC certificate of year 1970 issued by the Board of Secondary Education, Assam (SEBA) in favour of Kumaresh Biswas having not been questioned would corroborate statement of petitioner that said Kumaresh Biswas, son of Khitish, is the brother of the petitioner. Thus court satisfied that oral evidence of petitioner stands substantially corroborated by documentary evidences - declare the petitioner to be a citizen of India and not a foreigner.(Para 19 and 22)
Finding of the court :
Court view that if aforesaid two crucial documents, namely, registration certificates issued in names of Khitish Ch. Haldar and Sumati Bala Haldar are found to be genuine and have not been questioned/doubted by State, petitioner can claim to be a citizen of this country by descent. The original document, i.e., HSLC certificate of the year 1970 issued by Board of Secondary Education, Assam (SEBA) in favour of Kumaresh Biswas having not been questioned would corroborate the statement of the petitioner that the said Kumaresh Biswas, son of Khitish, is the brother of the petitioner. Thus, court satisfied that oral evidence of the petitioner stands substantially corroborated by documentary evidences - Nothing has been brought on record by State to dispute these claims by shaking her testimony by leading contrary evidence by State - Under the circumstances, we are of view that petitioner has been able to discharge her burden as required under Section 9 of Act, 1946 - For the reasons discussed above, we allow this petition by setting aside the impugned order passed by Foreigners Tribunal No.3rd, Morigaon in Case - Accordingly, we declare the petitioner to be a citizen of India and not a foreigner.
Result: Writ petition disposed of.

JUDGMENT :

N. Kotiswar Singh, J.

Heard Ms. D. Ghosh, learned counsel for the petitioner. Also heard Mr. B. Sharma, learned Central Government Counsel; Mr. G. Sharma, learned Special Counsel, FT; Mr. A.I. Ali, learned Standing Counsel, ECI; Ms. L. Devi, learned Standing Counsel, NRC and Ms. K. Phookan, learned Government Advocate, Assam.

2. In this writ petition, the petitioner has challenged the opinion dated 15.06.2018 passed by the Foreigners Tribunal No.3rd, Morigaon in Case No.FT(D)193/2015 by which the Tribunal held that the petitioner had miserably failed to discharge her burden as envisaged under Section 9 of the Foreigners Act, 1946 and, accordingly, declared her to be an illegal immigrant of post 1971 stream.

3. The case of the petitioner, in brief, is that she is the daughter of one Khitish Ch. Haldar, son of Srinivash Haldar and Sumati Bala Haldar. The petitioner was born in Chakitup in Nagaon district. Later, her father shifted from Chakitup to Morigaon for business purposes and died there and she married to one Rohit Haldar. Thereafter, the petitioner, along with her family, shifted to Ouzari for better livelihood. Presently, the petitioner is settled in Malputa.

4. In support of her claim that the petitioner is an Indian and not a foreigner, she has relied upon the following documents:-

(i). Certificate of registration issued in the name of Khitish Ch. Haldar (Ext.A);

(ii). Certificate of registration issued in the name of Sumati Bala Haldar (Ext.B);

(iii). Voters list of 1997 in which the name of one Samaresh Biswas appears as son of Khitish and one Sumati as the wife of Khitish (Ext.C);

(iv) Voters list of 2005 in which the name of the petitioner appears as the wife of Rohit along with his son Pabitra Haldar (Ext.D);

(v) Voters list of 2014 in which the name of the petitioner appears as the wife of Lt. Rohit Haldar with her son Pabitra Haldar as well as Dipjyoti Haldar and Prasenjit Haldar (Ext.E);

(vi) Certain land documents by which the petitioner sold certain properties on 12.09.2011 (Ext.F);

(vii) Jamabandi copy in which her name appears as per mutation order dated 15.09.2012 (Ext.G);

(viii) Gaonburah certificate dated 24.09.2014 (Ext.H);

(ix) Another Gaonburah certificate issued on 20.03.2014.

5. The Tribunal, however, held that the petitioner had failed to discharge her burden of proof as required under Section 9 of the Foreigners Act, 1946.

6. In order to examine the rationale given by the Tribunal, it may be appropriate to reproduce the reasons assigned in the impugned order, which read as under:

“CRITICAL ANALYSIS OF THE REFERENCE:

4. (i). Ext.A is the certificate of registration issued in the name of Khitish Ch. Haldar who is the father of OP Smti. Sulekha Haldar purportedly obtained on 16.01.1957 from the Election Office, Nagaon. Similarly, Ext.B is also the certificate of registration in the name of Sumoti Halder who is mother of OP Sulekha Haldar issued by the Election Office, Nagaon dated 19.01.1957. It is simply very strange to note as to how migrants from East Pakistan (Bangladesh) have been resorting to making duplicate documents and taking all the privilege of being Indian citizens. I have thoroughly discussed in depth regarding certificate of registration while holding as incharge Member of Foreigners Tribunal No.1, Morigaon in FT(D) Case No.129/2010 (Shri Nibaran Biswas @ Nibaran Mandal) wherein officials of Deputy Commissioner office, Nagaon appeared with record and have recorded their statements that certificates of registration in Nagaon have been issued only since 1962 and Deputy Commissioner is the sole authority to issue citizenship certificate. Be that as it may, since the above two exhibits are not proved as per law more particularly as held by the Apex Court in Life Insurance Company & Anr. Vs. Rampal Sing Bisan reported in (2010) 4 SCC 291 and as such the same cannot be accepted as a genuine document.

(ii) The other exhibits, such as, Ext.C and Ext.D voter list of 1997, 2005 in the name of OP with he

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