AMARI DAS @ AMARI BISWAS V. THE UNION OF INDIA and 6 ORS.

WP(C)/3493/2017

AI Insights

Amari Das filed a writ petition under Article 226 of the Constitution of India, challenging the legality and validity of an order by the Foreigners' Tribunal, Baksa, which declared her a foreigner post-1971. The reference against her was initiated under the Illegal Migrants (Determination by Tribunals) Act, 1983, suspecting her to be an illegal migrant. The Tribunal's decision was based on the lack of credible evidence linking her to Indian citizens. The petitioner presented several documents, including a PAN card and voter lists, to establish her citizenship by birth in India. However, the court found these documents insufficient to conclusively prove her Indian citizenship, leading to the dismissal of her petition.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 683325 (HC-ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH)
• Appeal Type: Others
• Pronouncement Date: 04-12-2018
• Assessment Year: misc
• Other Referred Cases: Mustt. Rabiya Khatun \\u2013Vs- Union of India (WP(C) No. 4986/2016)
• Laws Referred To: Article 226 of the Constitution of India, Illegal Migrants (Determination by Tribunals) Act, 1983, Foreigners Act, 1946
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: S G I; U K NAIR
• Assessee Lawyers: A K DUTTA
• Keywords: Citizenship; Foreigner; Foreigners tribunal; Illegal migrant; PAN card
• Section: 226

Judgement Text

"Page No.# 1/6 GAHC010026382017 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C) 3493/2017 1:AMARI DAS @ AMARI BISWAS W/O- NARAYAN DAS@NARAYAN BISWAS, D/O- DEBENDRA CHANDRA NAMASUNDRA, R/O- VILL- BETNA, P.O- GORESWAR, DIST- BAKSA, BTAD, ASSAM VERSUS 1:THE UNION OF INDIA and 6 ORS. REP. BY THE SECRETARY, MIN OF HOME AFFAIRS, NORTH BLOCK, CENTRAL SECRETARIAT, NEW DELHI 2:THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM DEPPTT. OF HOME ASSAM CIVIL SECRETARIAT DISPUR GUWAHATI ASSAM PIN- 781006 3:THE DIRECTOR GENERAL OF POLICE ASSAM ULUBARI GUWAHATI- 781007 4:THE ADDITIONAL DIRECTOR GENERAL OF POLICE B ASSAM BHANGAGARH GUWAHATI ASSAM PIN- 781005 5:THE SUPERINTENDENT OF POLICEB Page No.# 2/6 BAKSA DIST- BAKSA ASSAM PIN- 783390 6:THE DISTRICT MAGISTRATE DEPUTY COMMISSIONER BAKSA DIST- BAKSA ASSAM PIN- 783390 7:THE JAILOR DIST JAIL KOKRAJHAR ASSAM PIN- 78310 Advocate for the Petitioner : MR.A K DUTTA Advocate for the Respondent : ASSTT.S.G.I. BEFORE HONOURABLE MR. JUSTICE MANOJIT BHUYAN HONOURABLE MR. JUSTICE NANI TAGIA ORDER Date : 04-12-2018 Heard Mr. A.K. Dutta, learned counsel for the petitioner as well as Mr. G. Sarmah, learned counsel for respondent No.1 and Mr. U.K. Nair, learned senior counsel for the respondent Nos. 2 to 7. By this petition under Article 226 of the Constitution of India, the petitioner challenges the legality and validity of an order dated 15.03.2017 passed by the Foreigners’ Tribunal, Baksa, in F.T. Case No. 391/BAKSA/2016, whereby, the petitioner has been held to be a Foreigner of post 25/03/1971. The reference against the writ petitioner/O.P was initiated under the provisions of the Illegal Migrants (Determination by Tribunals) Act, 1983 by the Superintendent of Police (B), Kamrup against the O.P Smti Amari Das, W/o Sri Narayan Das, Village:- Page No.# 3/6 Betna, P.S:- Goreswar, District:- Kamrup (now Baksa) (Assam) suspecting to be an illegal migrant. Subsequently, the said reference was transferred to the Foreigners Tribunal, Nalbari to answer the reference as per the provisions of the Foreigners Act, 1946 and the Rules framed there under. In view of the judgement of the Hon’ble Apex Court as reported in 2005(5) SCC 665. Again, upon constitution of the jurisdictional Foreigners Tribunal for Baksa district, the reference was transferred to the Tribunal at Baksa for disposal. Accordingly, notice was issued to the O.P and upon receipt of the notice thereof, she has filed her written statement. In her written statement, the writ petitioner/O.P has claimed to be an Indian citizen by birth and stated that she was born at Village:- Goreswar, P.S:- Goreswar and her father’s name is Debendra Ch. Das and her mother’s name is Bimala Prava Dashya and their names were entered in the voters list of 1965 under Village:- Goreswar, P.S:- Goreswar and the O.P got married with Sri Narayan Das of Village:- Betna, P.S:- Goreswar. In support of her case, the writ petitioner/O.P has exhibited 5 exhibits which are as follows:- “Ext:1 is the PAN card of the petitioner which shows the name of her father as Debendra Ch. Das and her mother as Bimala Prava Dashya. Ext:2 is the voter lists of 1965 wherein her parent’s name appeared at Serial Nos. 1125 and 1126, House No. 420 of Village:- Goreswar, P.S:- Goreswar under 66 No. Tamulpur LAC. Ext:3 is the land purchasing deed in the name of her father Debendra Ch. Das vide Deed No. 1672 dated 30.05.1960 duly registered at the office of the Sub- Registrar, Rangia. Ext:4 is the voter list of 1965 in which the name of the writ petitioner/O.P is Page No.# 4/6 shown with her husband Sri Narayan Das of Village:- Betna, P.S:- Goreswar. Ext:5 is the Elector Photo Identity Card being No. HBP9444717.” Referring to the aforesaid exhibits, learned counsel for the petitioner submits that Ext:1 which the PAN card of the petitioner is the only evidence or exhibit through which the writ petitioner/O.P seeks to establish her linkage with her father Debendra Ch. Das. The learned counsel for the petitioner submits that Ext:1 which is the PAN card of the petitioner clearly shows that she is the daughter of Debendra Ch. Das and Bimala Prava Dashya who are the citizens of India and therefore, she has been able to prove her linkage with her father and accordingly, the learned Tribunal by the impugned order dated 15.03.2017 ought not to have held her as Foreigner who had entered into Assam(India) from the specified territory (Bangladesh) on 25.03.1971. Submissions made by the learned counsel for the petitioner have received our due consideration. The law with regard to the admissibility of the PAN card as an evidence to establish one’s linkage with another is no longer res-integra and the same has been settled in the case of Mustt. Rabiya Khatun –Vs- Union of India (WP(C) No. 4986/2016) decided on 09.02.2018, wherein, it was held as under: “17. Petitioner introduced Exhibit-5, a PAN card of the Income Tax Department wherein Rabiya Khatun was shown as related to Kurdus Ali and her date of birth was mentioned as 10.09.1974. 17 A. Tribunal took the view that this PAN card could not be treated as trustworthy document. We concur with the view of the Tribunal for more than one reason. Firstly, petitioner is not an income tax payee. There is no record of filing of return of income tax by the petitioner at any point of time. That apart, Page No.# 5/6 petitioner appears to be from agricultural background. Agricultural income is exempt from the purview of the Income Tax Act, 1961. Therefore, obtaining of PAN card by the petitioner appears to be quite unusual. 17 B. Secondly, this PAN card was not proved by tendering of evidence by the Income tax authority. Had a responsible officer of the income tax department deposed before the Tribunal, it would have been clear as to whether petitioner had indeed made any application for obtaining the PAN card and the particulars of such application. In the absence thereof, no credence can be given to such a PAN card. 17 C. Thirdly, this PAN card categorically mentioned the date 10.09.1974, which may be presumed to be the date of birth of the card holder. If the date of birth was known to the petitioner, certainly the same should have been mentioned in the written statement as well as in the evidence-in-chief filed by way of affidavit. But that was not done. 18. Therefore, this Exhibit-5 cannot be said to be a valid piece of evidence to establish that Kurdus Ali was a citizen of India and that Rabiya Khatun was the daughter of Kurdus Ali and thereby she was a citizen of India.” In the light of the law laid down above, Ext:1 which is the PAN card of the writ petitioner/O.P cannot be held to be a valid piece of evidence to establish that Debendra Ch. Das was a citizen of India and that Smti Amari Das was the daughter of Debendra Ch. Das. Apart from the Ext:1, we find no other exhibits mentioned above which can be said to be establishing a link between the writ petitioner/O.P with her projected father Debendra Ch. Das. For the reasons discussed hereinabove, we find no infirmity in the impugned order dated 15.03.2017 passed in F.T. Case No. 391/BAKSA/2016 by the learned Tribunal, Baksa. Page No.# 6/6 The writ petition, therefore, lacks merit and the same accordingly stands dismissed with no other as to cost. The Registry to send back the records to the concerned Tribunal forthwith. JUDGE JUDGE Comparing Assistant "