Dismissed

Pabitra Debnath Nath v. the Union of India and 4 Ors.

Gauhati HC16 May 2019WP(C)/3674/2017

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a writ petition challenging a Foreigners Tribunal's order declaring the petitioner a foreigner. The petitioner failed to prove his citizenship via documents (Migration Certificate, Sale Deed, EPIC, etc.) due to infirmities, post-1971 dates, and lack of supporting evidence. The Court held the Tribunal's factual finding was not perverse.

What did the court decide?

Writ petition dismissed; interim order recalled; case records sent back to the Tribunal.

Pabitra Debnath Nath Vs the Union of… — Constitutional and Fundamental Rights | Gauhati HC (2019)

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Page No.# 1/5

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GAHC010027662017

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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) 3674/2017

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1:PABITRA DEBNATH NATH

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S/O LT. JAGADISH DEVNATH VILL- NAMATI P.S. and DIST. NALBARI, ASSAM

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VERSUS

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1:THE UNION OF INDIA and 4 ORS.

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REP. BY THE SECRETARY TO THE GOVT. OF INDIA, DEPARTMENT OF HOME AFFAIRS, NEW DELHI.

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2:THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECRETARY HOME AND POLITICAL B DEPARTMENT DISPUR.

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3:THE SUPERINTENDENT OF POLICE BORDER NALBARI ASSAM

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4:THE DEPUTY COMMISSIONER NALBARI ASSAM

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5:THE OFFICER-IN-CHARGE NALBARI POLICE STATION NALBARI ASSA

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Advocate for the Petitioner : MR.B C DAS

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Advocate for the Respondent : GA, ASSAM

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Page No.# 2/5

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BEFORE HONOURABLE MR. JUSTICE MANOJIT BHUYAN HONOURABLE MR. JUSTICE MANISH CHOUDHURY

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ORDER

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Date : 16-05-2019 (Manish Choudhury, J)

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Heard Mr. B. K. Sarma, learned counsel for the petitioner as well as Mr. U. K. Nair, learned senior counsel representing the respondent nos. 2 to 5. None appears for respondent no. 1.

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The petitioner assails the order/opinion dated 08.05.2017 passed by the Foreigners Tribunal – 1, Nalbari in FT(Nal) Case No. (N)2517/2006, whereby, the Tribunal held that the petitioner, Pabitra Debnath Nath, son of Lt. Jagadish Devnath, Village – Namati, Police Station – Nalbari, District – Nalbari, Assam as the proceedee, failed to discharge his burden of proof as mandated under Section 9 of the Foreigners Act, 1946 and accordingly, he was declared to be a foreigner of post 24.03.1971 stream, having illegally entered into the territory of India from the specified territory without any valid document.

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The primary issue for determination is as to whether the petitioner, Pabitra Debnath Nath succeeded to establish his linkage with a person who is an Indian national. It may be noted that the petitioner as the proceedee, could not produce before the Tribunal any Electoral Roll of any period recording his name as a voter.

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On a reference made by the Superintendent of Police (Border), Nalbari, the Tribunal issued notice to the proceedee and on receipt of the notice, the proceedee appeared and contested the case by filing his written statement on 28.02.2017 denying the allegation and stating that he is an Indian citizen by birth. In his written statement, the proceedee stated that his father coming from East Pakistan in the year 1957, had been residing at Village – Namati and died at the said village. A photocopy of his father’s migration certificate of 1957 was enclosed. The proceedee’s father, Lt. Jagadish Chandra Devnath purchased land at Village – Namati in the year 1965 and to substantiate the same, a copy of sale deed was annexed. Enclosing a permanent residence certificate, the proceedee stated, without mentioning any detail, that his school certificate and other documents would be submitted at

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the time of filing his evidence. It was further stated that having born and completing education etc. at Village – Namati, he had been residing at the same village.

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On 16.03.2017, the proceedee adduced his evidence on affidavit as the sole witness exhibiting 7 (seven) number of documents. At the time of submitting his evidence on affidavit the proceedee reiterated the same facts as in the written statement. He further stated that he had been serving as a teacher. To establish the fact that he is a citizen of India and not a foreigner within Section 2 (a) of the Foreigner’s Act, 1946, he produced and exhibited the following documents :-

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(i) Ext.1 – A Migration Certificate No. 100236;

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(ii) Ext.2 – A Sale Deed;

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(iii)Ext.3 – An Admit Card of High School Leaving Certificate (HSLC) Examination, 1983 issued in the name of Pabitra Nath;

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(iv)Ext.4 – A Permanent Residence Certificate issued to Pabitra Nath from the

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office of the Deputy Commissioner, Kamrup;

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(v) Ext.5 – An appointment order dated 11.01.1996 issued in the name of Pabitra

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Nath for the post of Assistant Teacher;

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(vi) Ext.6 – A PAN Card issued in the name of Pabitra Nath; and

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(vii)Ext.7 – An Elector Photo Identity Card (EPIC) issued on 01.10.2013 in the name

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of Pabitra Nath.

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In Sarbananda Sonowal vs. Union of India and another, (2005) 5 SCC 665, it is held that in order to establish one’s citizenship, normally he may be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship. In a proceeding under the Foreigners Act, 1946 read with Foreigners (Tribunals) Order, 1964 the issue is whether the proceedee is a foreigner or not and Section 9 of the Foreigners Act, 1946 casts the burden of proof on the proceedee to prove that he is not a foreigner. The same is based on the legal principle that the facts which are within the personal knowledge of a person should be proved by him and not the party who avers the negative because those facts are within the personal knowledge of the person concerned and not of the authorities of

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the State. After such proceedee has given evidence on the above points, the State authorities can verify the facts and can, thereafter, lead evidence in rebuttal, if necessary. Written statement is the basic statement of defence of a proceedee before the Foreigners Tribunal. Keeping in mind the mandate of Section 9 of the Foreigners Act, 1946, it is incumbent upon the proceedee to disclose at the first instance itself i.e. in his written statement all relevant facts specially within his knowledge having a material bearing on his claim to citizenship of India. Material facts pleaded in the written statement are thereafter required to be proved by adducing cogent and reliable evidence. It is also trite that a party cannot traverse beyond the pleadings made in the written statement (ref – Rashminara Begum vs Union of India & Ors., 2017 (4) GLT 346). But in the instant case, the necessary details, as has been observed above, have been found to be lacking in the written statement as well as in the evidence on affidavit.

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The records in original have been perused. As regards Ext.1, the Tribunal had found the same to be torn and partially illegible bearing no signature and seal of any authority. Ext.2 was found to bear two sets of dates i.e. 08.03.1962 and 08.03.1965. Having found such infirmities, the Tribunal did not place reliance on those two documents. On perusal of the same from the records, we cannot persuade ourselves to take a different view on those two documents from the view that was taken by the Tribunal and we are also of the view that those two exhibits i.e. Ext.1 and Ext.2 cannot be taken into consideration for the purpose of considering the matter of citizenship of the proceedee. It is further noticed that Ext.2 reflects one Jagadish Chandra Devnath as the purchaser whereas in Ext.4, Ext.5, Ext.6 and Ext.7, the name of the proceedee’s father was shown either as Jagadish Nath or Jagodish Nath. No cogent, convincing and conclusive ground is available on the record for us to accept that Jagadish Chandra Devnath on one hand and Jagadish Nath/Jagodish Nath on the other hand, are one and the same person.

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In Ext.3, the name of the projected father of the proceedee did not appear and the same cannot be considered for the purpose of linkage. In Ext.4, Ext.5, Ext.6 and Ext.7, either Jagadish Nath or Jagodish Nath was shown as the father of the proceedee. But on perusal of Ext.4, the date of issue could not be discerned for which the Tribunal did not place reliance. Ext.5, Ext.6 and Ext.7 are documents post 1971. Ext.5 is an order issued under the hand of

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Deputy Inspector of Schools, Nalbari whereby the proceedee was stated to have been appointed as an Assistant Teacher in Hastinapur Venture L.P. School, Nalbari. Such an appointment letter where the name of the father of the appointee is mentioned cannot be considered for the purpose of citizenship. Ext.6 i.e. the PAN Card besides being not proved, cannot be considered to be a valid piece of evidence as a proof of citizenship, as has been held by a co-ordinate bench of this Court in W.P.(C) No. 4986/2016 (Mustt. Rabiya Begum vs Union of India) and W.P.(C) No. 583/2017 (Gulbhan Begum vs Union of India & Ors.). In so far as Elector Photo Identity Card (Ext.7) is concerned, besides not being proved, it is a post 24.03.1971 document. It has been held by a co-ordinate bench of this Court in W.P.(C) No. 3547/2016 (Md. Babul Islam vs State of Assam) that merely producing such an Elector Photo Identity Card in the absence of supporting evidence, would not be a proof of citizenship.

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A perusal of the order/opinion dated 23.08.2018 passed by the Tribunal shows that the Tribunal had appreciated the entire evidence led by the petitioner before it in the proper perspective and, thereafter, had rendered the finding that the petitioner had failed to establish his claim to be a citizen of India by reliable and cogent documentary evidence. Such a finding being a finding of fact, a writ Court exercising jurisdiction under Article 226 of the Constitution of India does not, ordinarily, interfere with such finding of fact unless there is perversity because the jurisdiction so exercised is supervisory and not appellate. In view of the point raised on behalf of the petitioner, the evidence led before the Tribunal by the petitioner is once again revisited only to reassure ourselves as to whether there was any perversity or error in appreciation in the order/opinion of the Tribunal. There being none, this writ petition is, resultantly, found to be bereft of merit and the same stands accordingly dismissed. There shall be no order as to costs.

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Interim order passed on 20.06.2017 stands recalled. Concerned State authorities to take action accordingly.

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Office to send back the case records to the Tribunal forthwith.

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JUDGE

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Comparing Assistant

Pabitra Debnath Nath v. the Union of India and 4 Ors.

Case brief

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Pabitra Debnath Nath v. the Union of India and 4 Ors.

Case brief

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