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2022 Supreme(Gau) 755
IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
N. KOTISWAR SINGH, NANI TAGIA, JJ.
Pratap Debnath @ Pranab Debnath, Son Of Late Biraj Mohan Debnath – Appellant
Versus
The Union Of India – Respondent
WP(C) 6216 of 2018
Decided on : 30-09-2022
Advocate Appeared:
For the Appellant : Ms. D. Ghosh, Ms. N. Deka, Mr. S. Roy, Adv.
For the Respondents: Mr. P.K. Medhi, Mr. J. Payeng, Mr. A.I. Ali, Ms. U. Das, Adv
Point of Law: Illegal Immigrants to India - Genuineness and correctness of certificates/voter id etc., - since no opportunity was given to the witnesses to explain the same, the matter is remanded to the Tribunal for re-examination of the witness.
Headnote:
Foreigners’ Act, 1946 - Section 9 - Failure to discharage burden of proof – Genuineness and correctness of certificates – Illegal immigrants to India – Differences in age - Difference in age cannot be the sole ground for disbelieving the evidence if there are other credible corroborating evidences available inasmuch as the voters lists generally do not reflect the correct age of the voters. (Para 48)
Finding of the Court:
Merely because the name of her mother Sabitri is not shown in the voters list, does not necessarily mean the voters list is doubtful because the said voters lists are certified copies issued by the competent authority of the Election Commission of India. There cannot be any doubt as far as entry in the name of the father of said Bakuli i.e. Harish Chandra Debnath is concerned. Thus, the certified copy of the voters list cannot be rejected as doubtful - Matter is remanded to the Tribunal for re-examination of the witness(es) and also to examine any other documents which may be produced to support the genuineness of the aforesaid documents.
Result: Petition allowed
JUDGMENT :
N. Kotiswar Singh, J.
Heard Ms. D. Ghosh, learned counsel for the petitioners. Also heard Mr. P.K. Medhi, learned CGC; Mr. J. Payeng, learned Standing Counsel, FT; Mr. A. I. Ali, learned Standing Counsel, ECI; Ms. L. Devi, learned Standing Counsel, NRC and Ms. U. Das, learned Government Advocate, Assam, appearing on behalf of their respective respondents.
2. In this writ petition, the petitioners have challenged the order, dated 28.02.2018, passed by the learned Member, Foreigners’ Tribunal No. 1, Morigaon, Assam, in Case No. F.T.(C)133/2010. The learned Tribunal held that the proceedees therein, had entered India illegally on the ground that they had failed to discharge their burden of proof as envisaged under Section 9 of the Foreigners’ Act, 1946, and declared them illegal migrants who entered India (Assam) after 25.03.1971.
3. In order to appreciate the rival contentions raised by the contesting parties, it may be apposite to briefly refer to the facts of the case involved.
4. As also mentioned in the impugned order, dated 28.02.2018, upon receipt of the reference from the competent authority, the learned Tribunal registered the case and summons were issued to the proceedees, namely, (1) Shri Pranab Debnath, S/o of Shri Dhiraj Mohan Debnath, (2) Shri Paritosh Debnath (brother), (3) Shri Manik Debnath (brother), (4) Shri Sankar Debnath (brother), (5) Shri Dhiraj Mohan Debnath (father), and (6) Smti. Bakuli Debnath (mother), of village Kanabori under Jagiroad PS in the district of Morigaon, Assam.
5. Upon receipt of the notice, the Opposite Parties, named-above, duly appeared before the learned Tribunal and filed their written statement, in which, it was mentioned that Pratap Debnath was wrongly written as Pranab Debnath and similarly, the name of another proceedee, Dhiraj Mohan Debnath has been wrongly written, instead of Biraj Mohan Debnath and accordingly, prayed for correction of the names. The learned Tribunal, accordingly, by order dated 18.07.2016, after perusal of the voter ID and Gaon Burah Certificate, ordered for correction of the names.
6. In the written statement, it was contended that though the proceedee Nos. 1, 2, 3 and 4 were born and brought up at village Kanabari under Jagiroad PS and their father Shri Biraj Mohan Debnath (OP No. 5), now deceased, was born at Lumding Town, Ward No. 4 under Nagaon District and OP No. 6, Smti. Bakul Debnath, also known as Bakuli, was born and brought up at village Nakhola under Jagiroad PS. It was mentioned in the written statement that the grandfather of OP Nos. 1, 2, 3 and 4 is Mahesh Ch. Debnath but he was also known as Khirod. It was also stated that OP No.5, Biraj Mohan Debnath cast his vote in the year 1966 and later on, shifted to the village Nakhola after buying a piece of land on 05.04.1960. It has been further stated in the written statement that the father of OP No. 6 is Harish Ch. Debnath who had been casting his vote since 1965. It has also been mentioned that Biraj Mohan Debnath (OP No. 5) has already expired. Accordingly, it was submitted that OPs are Indian citizens.
7. In the present proceeding, the OPs filed a number of documents to prove their case, which, are as follows:
(i) Ext. A Death Certificate of Biraj Mohan Debnath
(ii) Ext. B 1997 Voter list of all OPs
(iii) Ext. C 1977 voter list of parents of DW-1
(iv) Ext. D 1966 voter list of Biraj Mohan Debnath
(v) Ext. E School Certificate of Manik Debnath
(vi) Ext. F Admit Card of OP4
(vii) Ext. G School Certificate of OP6
(viii) Ext. H Gaonburah Certificate
(ix) Ext. I 1965 voter list of Harish Ch. Debnath (father of OP6).
(x) Ext. J 1970 voter list of father of OP6.
(x) Ext. K Land document of Biraj Mohan Debnath.
8. Apart from filing the aforesaid documents, the petitioners also examined several witnesses, namely, Manik Debnath (OP No. 3), who examined himself as DW-1 and Smti. Bokuli Debnath (OP No. 6) who examined herself as DW-2.
9. In his evidence, Manik Debnath (OP No. 3) stated that his father Biraj Mohan D
