Dismissed

Smt. Padda Sarkar @ Padda Rani Sarkar v. the Union of India and 3 Ors.

Gauhati HC4 Jun 2018WP(C)/7201/2016

Case brief

AI extract

What is this about?

Petitioner sought quashing of an order declaring her a foreigner by the Foreigners Tribunal. Court doubted links between petitioner and migration certificate holders due to name discrepancies and lack of voting records. Affirmed petition dismissal and vacated bail interim order.

What did the court decide?

Writ petition dismissed; interim bail order vacated. Registry to send record to concerned authorities.

Smt. Padda Sarkar @ Padda Rani Sarkar… — Constitutional and Fundamental Rights | Gauhati HC (2018)

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GAHC010031362016

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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) 7201/2016

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1:SMT. PADDA SARKAR @ PADDA RANI SARKAR

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D/O. HEM CHANDRA DAS @ HEM CHANDRA MANDAL, W/O. KARTIK SARKAR, VILL. PUBPAR JYOTIA BHANGRA, MAUZA- PATI DARRANG, P.S. BAIHATA CHARIALI, DIST. KAMRUP, 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 TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI-110001.

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2:THE STATE OF ASSAM REP. BY THE COMM. and SECY. TO THE GOVT. OF ASSAM POLITICAL and HOME DEPTT. DISPUR GHY.-06.

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3:THE DY. COMMISSIONER KAMRUP R AMINGAON GHY.

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4:THE SUPDT. OF POLICE B AMINGAON DIST. KAMRUP R ASSAM PIN-

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5:THE OFFICER IN CHARGE BAIHATA CHARIALI P.S. P.O. BAIHATA CHARIALI DIST. KAMRUP ASSAM PIN

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Advocate for the Petitioner : MR. B K SHARMA(Amicus Curiae)

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Advocate for the Respondent : GA, ASSAM

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BEFORE

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

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ORDER

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Date : 04-06-2018

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( Ujjal Bhuyan, J .)

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This case was heard on 07.05.2018 and today is fixed for delivery of order.

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2. We have heard Mr. B.K. Sharma, learned counsel for the petitioner and Mr. U.K. Nair, learned Senior Special Counsel, Foreigners Tribunal (FT).

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3 . By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 11.08.2016 passed by the Foreigners Tribunal No.5, Kamrup at Rangia in R.F.T Case No.56/2015 (State Vs. Padda Sarkar @ Padda Rani Sarkar) declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from Bangladesh after 25.03.1971.

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4. This Court by order dated 01.12.2016 had issued notice while requisitioning the case record and passed an interim order to the effect that petitioner should be allowed to remain on bail subject to her appearance before the Superintendent of Police (Border), Kamrup and furnishing of adequate surety.

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5. On subsequent dates, when the case was ready for admission-hearing, there was no representation on behalf of the petitioner. Therefore, on 19.03.2018, we requested Mr. B.K. Sharma, a learned counsel of this Court to assist the Court as amicus curiae. Thereafter, case was heard on 07.05.2018 with Mr. Sharma ably presented the case of the petitioner.

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6. Mr. Sharma, learned amicus curiae, has referred to the migration certificate, i.e., Ext. A dated 05.03.1964 relied upon by the petitioner to contend that grandfather and father of the petitioner had migrated to India (Assam) from East Pakistan prior to 01.01.1966. Therefore, they would be deemed citizens of India as per provisions contained in Section

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6A(2) of the Citizenship Act, 1955, as amended. Further submission is that the said certificate has to be taken as genuine in view of Section 90 of the Indian Evidence Act, 1872.

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7. On the other hand, Mr. Nair, learned Senior Special Counsel, submits that the above contention of Mr. Sharma would become relevant only if petitioner is able to establish her linkage with Kartik Chandra Das, Gyanada Sundari Das and Hem Chandra Das whose names were mentioned in the migration certificate.

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8. 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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9. In her written statement filed before the Tribunal on 04.11.2015, petitioner stated that grandfather of the petitioner, namely, Kartik Chandra Das @ Kartik Chandra Mondal, his wife Gyanada Sundari Das @ Gyanada Sundari Mondal and elder son Hem Chandra Das @ Hem Chandra Mondal migrated to India from erstwhile East Pakistan due to civil disturbances in the year 1964 and settled down at village Sambaria under Lanka Police Station in the district of Nagaon. She was born to Shri Hem Chandra Das @ Hem Chandra Mondal and Smt. Mongla Mondal on 02.04.1969 at village Sambaria. Parents became voters of Hojai constituency in 1977. On 12.01.1983, she had married Kartik Sarkar @ Kartik Chandra Sarkar of village Pubpar Jyotia Bhangra under Baihata Chariali Police Station in the district of Kamrup (Rural). After her marriage, she came to be known as Padda Sarkar @ Padda Rani Sarkar. She became a voter of Kamalpur constituency in the year 1989. In the verification column, petitioner identified herself as wife of Kartik Sarkar @ Kartik Chandra Sarkar and aged about 46 years. If the petitioner was 46 years of age in 2015, it would mean that she was born sometime in the year 1969.

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

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11. Petitioner deposed as her witness before the Tribunal. Petitioner narrated more or less the same thing as stated in her written statement.

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12. Proceeding to the exhibits, we find that Ext. A is a migration certificate dated 05.03.1964 permitting Kartik Chandra Das, Gyanada Sundari Das and Hem Chandra Das to enter into India without passport through the check-post situated at Gede in the district of

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Nadia in the State of West Bengal. This certificate was granted on the basis of an application made by the above three persons on 03.03.1064.

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13. Ext. B is an Income Tax department PAN Card in the name of Padda Rani Sarkar and Hem Chandra Mondal with the date 02.04.1969 printed thereon. First of all, mere filing or production of a PAN Card of the Income Tax department would be no proof of citizenship. That apart, circumstances under which PAN card was obtained has also not been mentioned. This Court has held that purported filing of PAN card by a proceedee who does not have any record of submitting income tax returns would raise more questions than it would answer. Even then, the second name in Ext.B, i.e., Hem Chandra Mondal does not correspond or correlate to Hem Chandra Das of Ext.A.

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14. Ext. C is an elector photo identity card in the name of the elector Padda Rani Sarkar with the relation’s name mentioned as Kartik Sarkar. This document is also of no relevance because it is not indicative of petitioner’s linkage with Hem Chandra Das of Ext. A.

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15. The last exhibit is an affidavit sworn by the petitioner herself on 29.07.2017 stating that the father’s correct name was Hem Chandra Mondal but in the migration certificate, it was wrongly mentioned as Hem Chandra Das instead of Hem Chandra Mondal. Likewise, grandfather’s name was wrongly mentioned as Kartik Chandra Das instead of Kartik Chandra Mondal.

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16. We are afraid; we can accept such a self-serving suo moto affidavit filed by the petitioner as either proof or evidence having regard to the provisions contained in Sections 1 and 3 of the Evidence Act, 1872 read with Order XIX Rule 1 of the Code of Civil Procedure. It is not possible to accept the plea of another person that names of the certificate holders in the migration certificate were wrongly recorded in the absence of any objection to that effect by the certificate holders themselves.

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17. We may now revert back to the migration certificate dated 05.03.1964. Even though this document was not proved, we have considered the same. We find that it was in the name of Kartik Chandra Das, Gyanada Sundari Das and Hem Chandra Das. They were allowed to enter into India through the check-post of Gede in the district of Nadia in West Bengal. According to the petitioner, both in her written statement as well as her evidence, her

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grandfather and father had settled down at village Sambaria under Lanka Police Station in the district of Nagaon. Therefore, it is evident that the names figuring in Ext. A are nowhere related to the petitioner.

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18. As per Ext. A, Hem Chandra Das was 20 years of age in 1964 and, therefore, in the ordinary course, his name would have been figured in the voters list in India subject to registration as a citizen of India under Section 5(1)(a) of the Citizenship Act, 1955, i.e., 7 years after ordinarily residing in India. In other words, he would have been eligible to be a citizen of India in 1971 and thereafter his name ought to have figured at least in 1 or 2 voters lists but there is no such document. In the absence thereof, the narrative presented by the petitioner cannot be accepted as amounting to discharge of her burden under Section 9 of the Foreigners Act, 1946. Thus petitioner failed to prove that she was not a foreigner but a citizen of India.

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

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20. Before parting with the record, we would like to place on record our appreciation for the assistance rendered by Mr. B.K. Sharma as the amicus curiae. He shall be entitled to his fees as prescribed by the Assam State Legal Services Authority.

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21 . 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.

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

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JUDGE JUDGE

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Comparing Assistant

Smt. Padda Sarkar @ Padda Rani Sarkar v. the Union of India and 3 Ors.

Case brief

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Smt. Padda Sarkar @ Padda Rani Sarkar v. the Union of India and 3 Ors.

Case brief

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What did the court decide?

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