Dismissed

Panu Barman @ Panesh Barman v. the Union of India and 3 Ors.

Gauhati HC17 May 2018WP(C)/4148/2017

Case brief

AI extract

What is this about?

High Court dismissed a writ petition challenging the Foreigners Tribunal order declaring petitioner a foreigner. Court held petitioner failed to prove existence of himself or father traceable to pre-1971 period under Section 6-A of Citizenship Act, 1955 based on submitted evidence.

What did the court decide?

Petition dismissed; interim order vacated; registry directed to send down LCR for follow-up steps.

Panu Barman @ Panesh Barman Vs the… — Constitutional and Fundamental Rights | Gauhati HC (2018)

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GAHC010030532017

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 4148/2017

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1:PANU BARMAN @ PANESH BARMAN S/O. LT. SACHINDRA BARMAN, R/O. VILL. BUDUWATI, P.S. SOTEA, DIST. SONITPUR ASSAM.

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VERSUS

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1:THE UNION OF INDIA and 3 ORS.

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REP. BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, NEW DELHI-01.

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2:THE STATE OF ASSAM REP. BY THE COMM. and SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GUWAHATI-6.

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3:THE DY. COMMISSIONER DIST. SONITPUR TEZPUR ASSAM PIN-784001.

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4:THE SUPERINTENDENT OF POLICE DIST. SONITPUR TEZPUR ASSAM PIN-784001

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Advocate for the Petitioner : MR.P SUNDHI

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Advocate for the Respondent : GA, ASSAM

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BEFORE HONOURABLE MR. JUSTICE UJJAL BHUYAN HONOURABLE MR. JUSTICE NELSON SAILO

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ORDER

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Date : 17-05-2018

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(Ujjal Bhuyan, J)

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This case was heard on 25.04.2018 and today is fixed for delivery of order(s).

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We have heard Mr P Sundi, learned counsel for the petitioner and Mr J Payeng, learned Special Counsel, Foreigners’ Tribunal (FT).

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By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 04.04.2017, passed by the Foreigners’ Tribunal, 6^th , Tezpur at Sootea in Case No. FT C (6) 323 of 2016 (State –Vs- Panu Barman), declaring the petitioner to be a foreigner, who had illegally entered into India (Assam) from Bangladesh after 25.03.1971.

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Following the aforesaid order passed by the Tribunal, petitioner was taken into custody.

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On 17.07.2017, this Court had issued notice while requisitioning the case record and passed an interim order to the effect that petitioner should not be deported from India, until further order(s).

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Submissions made by learned counsel for the parties have been considered. Also perused the materials on record, including the record requisitioned from the Tribunal.

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In his written statement filed before the Tribunal on 20.07.2016, petitioner stated that he was born and brought up at village- Haribhanga under Rupohihat Police Station in the district of Nagaon. Presently, he was residing at village-Buduwati, under Sootea Police Station in the district of Sonitpur (Assam). His father was Sachindra Chandra Sinha, who was a voter of Kaliabor constituency in the year 1965 and, thereafter, in the year 1971. Sachindra Chandra Singha died long back. Petitioner cast his vote in the year 1977 as a voter of Biswanath Assembly Constituency. He further stated that Panu Barman @ Panesh Barman was one and the same person being the petitioner. Likewise, Sachindra Barman and Sachindra Chandra Singha was one and the same person being the father of the petitioner. 7.1 Thus, from the written statement of the petitioner, what is discernible is that according to the petitioner, his father Sachindra Chandra Sinha was a citizen of India and being his son he was, therefore, a citizen of India.

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Let us examine whether petitioner could prove the above facts in issue by adducing cogent,

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reliable and admissible evidence.

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Petitioner deposed as his witness No. 1 before the Tribunal on 30.08.2016, mentioning his age as 55 years. If the petitioner was 55 years of age in 2016, it would mean that he was born sometime in the year 1961. He stated that his father was a resident of Haribhanga under Rupohihat Police Station in the district of Nagaon, where he was a voter. He was a small child at that time. Thereafter, the family shifted from Haribhanga village to Buduwati village under Sootea Police Station in the district of Sonitpur. His father had cast vote in 1971 in the present place of residence, whereafter, father died. In the year 1997, petitioner had cast his vote and regularly thereafter. Petitioner exhibited as many as 11 (eleven) documents.

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9.1 In cross-examination, petitioner stated that his mother was Late Jamini Devi, who had expired about 22 years ago. His brother, Jagat Barman, was residing in the same village of Buduwati.

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Sri Bholanath Chetri deposed as witness No. 2 on behalf of the petitioner. He identified himself as the Government Gaonburah of the village. He stated that Exhibit-6 certificate was issued by him and he identified his signature as Exhibit-6 (1). In his cross-examination, he admitted that he had been the Government Gaonburah of the concerned village since 28.06.2013 only. His further statement was that he knew the proceedee (petitioner) since the last 10 years and he did not know where the petitioner was brought up. He further admitted that he did not know the father of the petitioner.

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One Sarala Biswas deposed as witness No. 3. She identified herself as a member of the Gaon Panchayat and neighbour of the petitioner. According to her, petitioner was in possession of landed property at village Buduwati. In her cross-examination, she stated that she was 32 years of age and was born and brought up at village Buduwati. As per her knowledge, petitioner and his family were from Nagaon, but she did not know where the petitioner was born and brought up. She also did not know the whereabouts of father and mother of the petitioner.

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Sri Chandra Kanta Barman, a neighbor of the petitioner, deposed as witness No. 4. He stated that he was the Ward President of the village and knew the petitioner as he was from the same village. He stated that petitioner and his family had shifted from Nagaon to Sootea about 48 years back. Father of the petitioner had expired 4 years after shifting.

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Proceeding to the exhibits, we find that Exhibit-1 is a photocopy of voters’ list extract for the year 1965 in respect of Kaliabor constituency. Here, two of the three voters were Sachindra Chandra Singha, son of Kashinath, aged 28 years; and Jamini Devi, wife of Sachindra, aged 22 years. They were

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residents of village Haribhanga under Rupohihat Police Station in the district of Nagaon.

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The next document is also an extract of a voters’ list which is totally illegible and nothing is discernible therefrom except the names, Sachindra Singha, Jamini Devi and Sukhibala. Nothing can be discerned from this document as of which year and constituency this extract of the voters’ list related to. Therefore, this document marked as Exhibit-2 would be of no assistance to the petitioner.

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Exhibit-3 is an extract of the voters’ list of 1977 in respect of Biswanath constituency. This document is not a certified copy of the voters’ list and certainly not the original copy. Therefore, it is neither primary evidence nor secondary evidence. Even then, if we consider this document at its face value, what we find is that at Serial No. 1662, the name Panesh Barman appeared and he was shown as son of Late Sachindra Barman, aged 32 years. In Exhibit-1, voter was Sachindra Chandra Singha, but in Exhibit-3, Panesh Barman was shown as son of Late Sachindra Barman. There is nothing on record to show that Sachindra Chandra Singha in Exhibit-1 was one and the same person as Sachindra Barman of Exhibit-3.

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Exhibit-4 is a voters’ slip dated 04.04.2016 in the name of Panesh Barman. In the absence of any linkage with Sachindra Chandra Singha of Exhibit-1, this document also cannot have any probative value.

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Similar is the position in respect of Exhibit-5, which is an elector photo identity card stated to have been obtained from the Election Commission of India, where the elector was Panesh Barman and the relation was Late Sachindra Barman. All the other documents on record mentioned that Sri Panesh Barman or Panu Barman was the son of Late Sachindra Barman. But as noticed above, there is no existence of Sachin Barman or Sachindra Barman on Indian soil prior to 1977. The first time his name appeared was in Exhibit-3 voters’ list of 1997, where Panesh Barman was mentioned as son of Late Sachindra Barman.

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In addition to the above, we may mention that Exhibit-6 was a certificate issued by the Gaonburah, DW-2, but we have already discussed the evidence tendered by DW-2, who stated that he knew the petitioner for the last 10 years, i.e. since 2006. He had deposed that he did not know from where petitioner had come or who was his father. Therefore, even this certificate, Exhibit-6, where Panesh Barman was mentioned as son of Late Sachindra Barman cannot be said to have been proved. In addition to the above, there are other material irregularities in the certificate, such as, unauthorized use of the State Emblem of India, rendering the same unacceptable and inadmissible in evidence.

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Net result of the above discussion is that petitioner’s contention that Sachindra Barman whom he claimed to be his father and a citizen of India is not supported by the documents on record. The documents on record do not indicate existence of Sachindra Barman. As noticed above, his name appeared for the first time in the 1997 voters’ list as father of Panesh Barman.

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Under Section 6-A of the Citizenship Act, 1955, as amended, citizenship of India in so far Assam is concerned has to be proved by establishing existence of self or father or grandfather traceable to a period prior to 25.03.1971. To claim citizenship, in the context of Section 6 A, one must demonstrate existence of self or linkage through parents or through grand-parents on Indian soil prior to 25.03.1971. Petitioner had failed to establish the above facts in issue. He had failed to discharge his burden under Section 9 of the Foreigners’ Act, 1946. In such circumstances, we have no other alternative but to dismiss the writ petition and uphold the order passed by the Tribunal.

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Resultantly, we find no merit in the writ petition, which is accordingly dismissed.

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Interim order passed earlier stands vacated.

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Registry to send down the LCR forthwith and inform the concerned Foreigners’ Tribunal, Superintendent of Police (Border) and Deputy Commissioner for taking necessary follow-up steps.

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A copy of this order may also be furnished to learned Standing Counsel, Election Commission of India and State Coordinator, National Register of Citizens (NRC), for doing the needful.

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JUDGE JUDGE

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Comparing Assistant

Panu Barman @ Panesh Barman v. the Union of India and 3 Ors.

Case brief

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Panu Barman @ Panesh Barman v. the Union of India and 3 Ors.

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