Dismissed

Sisir Biswas @ Sisir Nomosudra v. the Union of India and 4 Ors.

Gauhati HC18 May 2018WP(C)/4155/2016

Case brief

AI extract

What is this about?

The Gauhati High Court examined a writ petition challenging an order declaring the petitioner a foreigner. The court found the petitioner failed to prove he is a citizen of India by adducing cogent, reliable, and admissible evidence linking him to an Indian parent prior to the relevant citizenship cutoff date.

What did the court decide?

Writ petition dismissed; interim order vacated; registry instructed to inform concerned authorities.

Sisir Biswas @ Sisir Nomosudra Vs the… — Constitutional and Fundamental Rights | Gauhati HC (2018)

¶1

Page No.# 1/6

¶2

GAHC010020242016

¶3

THE GAUHATI HIGH COURT

¶4

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

¶5

Case No. : WP(C) 4155/2016

¶6

1:SISIR BISWAS @ SISIR NOMOSUDRA

¶7

S/O LT. GOPESH BISWAS, R/O MANIKKUNA, P.S. and DIST- KARIMGANJ, ASSAM

¶8

VERSUS

¶9

1:THE UNION OF INDIA

¶10

REP. BY THE SECY., MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, NEW DELHI-1

¶11

2:THE STATE OF ASSAM

¶12

REP. BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY-6

¶13

3:THE DY. COMMISSIONER KARIMGANJ ASSAM

¶14

4:SUPERINTENDENT OF POLICE B KARIMGANJ DIST- KARIMGNAJ ASSAM

¶15

5:THE OFFICER IN CHARGE P.S. and DIST- KARIMGNAJ ASSA

¶16

Advocate for the Petitioner : MR.S DAS

¶17

Advocate for the Respondent : ASSTT.S.G.I.

¶18

Page No.# 2/6

¶19

BEFORE HON'BLE MR. JUSTICE UJJAL BHUYAN HON'BLE MR. JUSTICE NELSON SAILO

¶20

Date : 18-05-2018

¶21

O R D E R

¶22

( Ujjal Bhuyan, J .)

¶23

We have heard Mr. S. Das, learned counsel for the petitioner and Mr. A. Kalita, learned

¶24

Special Counsel, Foreigners Tribunal (FT).

¶25

2 . By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 18.12.2015 passed by the Foreigners Tribunal-I, Karimganj in FT Case No.831/2009 (State Vs. Sisir Biswas) declaring the petitioner to be a foreigner.

¶26

3. Notice in this case was issued on 23.08.2016. While requisitioning the case record, an interim order was passed to the effect that petitioner should be allowed to remain on bail subject to his appearance before the Superintendent of Police (Border), Karimganj and furnishing of adequate surety.

¶27

4. Smt. Leena Doley, Additional Superintendent of Police (Head Quarter), Karimganj has filed an affidavit on behalf of Superintendent of Police (Border), Karimganj, respondent No.5 supporting the order passed by the Tribunal.

¶28

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

¶29

6. In his written statement filed before the Tribunal, petitioner stated that he was born on 02.08.1967 at village Manikona under Karimganj Police Station in the district of Karimganj. His father was Gopesh Namasudra, son of late Kamal Ram Namasudra. Father was a voter in 1966 in respect of North Karimganj constituency and again in 1970. Petitioner studied in

¶30

Page No.# 3/6

¶31

Laxmibazar High School. He became a voter of North Karimganj constituency in 1989. Petitioner changed his ‘title’, i.e., surname in the year 2005 and began to write Biswas as his surname instead of Namasudra.

¶32

7. Though petitioner did not mention material particulars like name of paternal grandmother, mother, brothers and sisters, if any, etc., from whatever were disclosed in the written statement, what is discernible is that according to the petitioner, he was born on 02.08.1967. His father was Gopesh Namasudra, son of late Kamal Ram Namasudra, who was a citizen of India. Petitioner changed his surname from Namasudra to Biswas in the year 2005. Being the son of Gopesh Namasudra, petitioner was, therefore, a citizen of India.

¶33

8. Let us examine as to whether petitioner could prove the above facts-in-issue by adducing cogent, reliable and admissible evidence.

¶34

9. Petitioner deposed as his witness. He identified himself as Sisir Biswas and that he belonged to scheduled caste community. His father’s name was Gopesh Biswas @ Gopesh Namasudra. Sisir Biswas and Sisir Namasudra was one and the same person.

¶35

10. One Rony Roy, a local villager, deposed as witness No.2 on behalf of the petitioner.

¶36

11. Proceeding to the exhibits, we find that Ext.1 is a certified copy extract of the voters list of 1966 in respect of North Karimganj constituency. Here, the first voter was Gopesh Namasudra, son of Kamal Ram Namasudra, aged 40 years.

¶37

12. Ext.2 is a certified copy extract of the voters list of 1970 in respect of North Karimganj constituency where the sole voter was Gopesh Namasudra, son of Kamal Ram Namasudra, aged 44 years.

¶38

13. Similarly, Ext.3 is an extract of the voters list of 1989 in respect of North Karimganj

¶39

Page No.# 4/6

¶40

constituency where the sole voter was Sisir Namasudra, son of Gopesh Namasudra, aged 25 years.

¶41

14. Till this point of time, voters were either Gopesh Namasudra, son of Kamal Ram Namasudra or Sisir Namasudra, son of Gopesh Namasudra.

¶42

15. In the voters list of 2010 in respect of North Karimganj constituency (Ext.4), the sole voter was Sisir Biswas, son of Gopesh Biswas, aged 41 years.

¶43

16. Ext.5 is a caste certificate dated 10.08.2011 issued by the Sub-Divisional Officer for the Deputy Commissioner, Karimganj certifying that Sisir Biswas was the son of Gopesh Biswas and Sabitri Biswas and that he belonged to the Namasudra caste which was recognized as a scheduled caste in the State of Assam.

¶44

17. Ext.6 is a provisional school certificate dated 12.11.2010 certifying that Sisir Kumar Namasudra was the son of late Gopesh Kumar Namasudra who was a student of Laxmibazar High School in the year 1981 and his date of birth was 02.08.1967.

¶45

18. Till this point, there is no document on record to show that Sisir Biswas was the son of Gopesh Namasudra of Exhibits 1 and 2 or Sisir Biswas of Exhibits 4 and 5 was the same person as Sisir Namasudra of Ext.3.

¶46

19. At this stage, what is of significance is that according to the petitioner, he had changed his surname from Namasudra to Biswas in the year 2005. If that be so, this fact ought to have been reflected in the school certificate issued on 12.11.2010 (Ext.6) but the said certificate was issued in the name of Sisir Kumar Namasudra and not in the name of Sisir Biswas.

¶47

20. Ext.7 is an affidavit sworn by the petitioner on 01.09.2011 stating that in the year

¶48

Page No.# 5/6

¶49

2005, he had changed his surname from Namasudra to Biswas. Due to ignorance, no affidavit was sworn before. Sisir Biswas and Sisir Namasudra was one and the same person.

¶50

21. We are afraid; we can accept such a self-serving affidavit as a valid piece of evidence. Sections 1 and 3 of the Indian Evidence Act, 1872 read with Order XIX Rule 1 of the Code of Civil Procedure, 1908 makes it abundantly clear that such a suo moto affidavit is neither proof nor evidence.

¶51

22. The last of the exhibits is a photo-copy of Elector Photo Identity Card stated to have been issued by the Election Commission of India where the elector’s name was mentioned as Sisir Biswas and the relation’s name was mentioned as Gopesh Biswas. For the same reasons as mentioned above, this certificate would also be of no assistance to the petitioner inasmuch as on the basis of this certificate, no linkage can be established between Sisir Biswas and Gopesh Namasudra relatable to a period prior to 25.03.1971 which is the cut-off date for identification of foreigners in the State of Assam as per Section 6A of the Citizenship Act, 1955, as amended. Sisir Biswas appeared for the first time in the voters list of 2010 (Ext.4). There is no admissible evidence on record to trace his linkage to an Indian parent relatable to a period prior to 25.03.1971. Thus, petitioner had failed to prove the facts-in-issue by adducing cogent, reliable and admissible evidence. Accordingly, petitioner had failed to discharge his burden under Section 9 of the Foreigners Act, 1946 to prove that he was not a foreigner but a citizen of India.

¶52

23. There is no statement either in the written statement or in the evidence that petitioner or his parents had taken shelter in India because of religious persecution or fear of religious persecution either in East Pakistan or in Bangladesh. No such statement has also

¶53

Page No.# 6/6

¶54

been made in the writ petition too.

¶55

24. Resultantly, we do not find any merit in the writ petition, which is accordingly dismissed. Interim order passed earlier stands vacated.

¶56

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

¶57

26. Copies of this order may also be furnished to learned Standing Counsel, Election Commission of India and State Coordinator, NRC.

¶58

JUDGE JUDGE

¶59

Comparing Assistant

Sisir Biswas @ Sisir Nomosudra v. the Union of India and 4 Ors.

Case brief

What is this about?

What did the court decide?

Sisir Biswas @ Sisir Nomosudra v. the Union of India and 4 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Musstt. Amina Khatun Vs the Union of India and 3 Ors.

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

X-X-X Vs in Re MD Mustafa and Anr.

Jamila Bibi @ Jomila Khatun Vs the Union of India and 6 Ors.

Badal Bhowmik Vs the State of Assam and 6 Ors.

Mahamad Ali Vs the Union of India and 5 Ors.