Point of Law – Indian Citizenship – State owes an obligation to see that such persons and their descendants who had fled from the then East Pakistan because of religious persecution are not treated as the foreigners for technical and unreasonable grounds which we have found to be so in the present case.

JUDGMENT :

1. Heard Ms. D. Ghosh, learned counsel for the petitioner. Also heard Mr. J. Payeng, learned Special Counsel, FT; Mr. A. Bhuyan, learned Standing Counsel, ECI; Ms. K. Phukan, learned Govt. Advocate and Ms. L. Devi, learned Standing Counsel, NRC.

2. In this petition, the petitioner has challenged the order dated 15.12.2021 passed in Case No. FT(D)873/2011 by the Foreigners Tribunal-2nd Morigaon by which the petitioner was declared to be a foreigner of post 1971 stream.

3. Learned counsel for the petitioner submits that the aforesaid opinion is rendered without properly appreciating the evidence on record and also without any proper enquiry before she was proceeded before the Tribunal.

4. According to the petitioner, this is the third round of litigation. In the first round, order passed by the Tribunal on 22.08.2013 in Case No. FT(D) 873/2011 was challenged before this Court in WP(C) No.2322/2014 on the ground that the petitioner was not heard. This Court vide order dated 15.11.2017 allowed the said writ petition enabling the petitioner to contest the reference by adducing evidence. The Tribunal again on appreciation of evidence held the petitioner to be a foreigner vide order dated 28.11.2018.

5. The said opinion dated 28.11.2018 was again challenged before this Court in WP(C) No.635/2019. In the said writ petition, in course of the proceeding, this Court desired to know whether the father of the petitioner was still alive. Considering the deficiencies in the evidence, this Court felt that examination of Anil Biswas, who was projected as the father of the petitioner, was necessary to verify the correctness of the certificates relied upon by the petitioner. This Court vide order dated 18.02.2019, passed in WP(C) No.635/2019, remanded the matter to the Tribunal to examine Anil Biswas, the father of the petitioner and also the person issuing the Gaon Panchayat certificate. Accordingly, the matter was placed before the Tribunal again, and Anil Biswas, the father of the petitioner, appeared before the Tribunal and adduced evidence.

6. The Tribunal, however, did not believe the testimony of the petitioner and her projected father, Anil Biswas on various grounds including that the petitioner was not able to prove that Anil Biswas is her father and also on the ground that the petitioner did not mention the name of her mother in her written statement.

7. The Tribunal held that the petitioner has not produced any reliable document other than the oral evidence to prove that her parents and grandparents existed in Indian soil prior to 25.03.1971 and accordingly, held that the petitioner is a foreigner of post 1971 stream.

8. The plea of the petitioner before the Tribunal, in brief, was that first of all, the Verification Officer did not make a proper investigation and the referral authority did not properly apply his mind before making the reference to the Tribunal.

Her case is that she is an Indian national by birth, born in village Palda Muragachha, P.O.-Charuitipi, P.S.-Kotwali, in the district of Nodia of West Bengal and she studied there in a Primary School and passed Class- IV examination and though she was promoted to Class-V, she left the school and as per school records, her date of birth was 02.11.1979. The Head Teacher of the said school issued a certificate in that regard.

She also claimed that her father’s name is Anil Biswas and the grandfather’s name was Late Khudiram Biswas. Her father was an Indian citizen, born and brought up at aforesaid village Palda Muragachha. It was also stated that her father had purchased a plot of land from one Sudhanya Kumar Biswas of the same village by executing a Registered Sale Deed No.1905 dated 06.02.1967 and had constructed his house there and had been staying there permanently. Her father also purchased another plot of land from one Santosh Kumar Biswas of the same village in 1978. She also stated that her father’s name was enrolled in the voters list of 1966. However, since the