MARAN MANDAL V. THE UNION OF INDIA and 4 ORS

WP(C)/5048/2016

AI Insights

Maran Mandal filed a writ petition under Article 226 of the Constitution of India challenging the order of the Foreigners' Tribunal, Kamrup, which declared him a foreigner. The Tribunal's decision was based on the finding that Mandal had not established his citizenship, as required under the Foreigners' Act, 1946. The petitioner argued that he migrated to India from East Pakistan in 1964 and had been a voter in India since 1977. However, the court found inconsistencies in his claims and the documents presented, leading to the dismissal of his petition.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 685157 (HC-ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH)
• Appeal Type: Others
• Pronouncement Date: 18-06-2018
• Assessment Year: misc
• Other Referred Cases: Biradmal Singhvi \/Vs\/ Anand Purohit; reported in 1988 (Suppl) SCC 604
• Laws Referred To: Article 226 of the Constitution of India, Foreigners' Act, 1946
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: P C DEY; U K NAIR
• Assessee Lawyers: I HAQUE
• Keywords: Bangladesh; Burden of Proof; Citizenship; Foreigner; Illegal entry
• Section: 9; 226

Judgement Text

"Page No.# 1/5 GAHC010023482016 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C) 5048/2016 1:MARAN MANDAL S/O. LT. RANJAN MANDAL @ MANORANJAN MANDAL, VILL. PUBPAR, JATIYA BHANGRA, P.S. BAIHATA CHARIALI, MOUZA- PATI DARRANG, DIST. KAMRUP R, ASSAM. VERSUS 1:THE UNION OF INDIA and 4 ORS REP. BY THE CHIEF SECRETARY TO THE GOVT. OF INDIA, DEPTT. OF HOME, NEW DELHI. 2:THE STATE OF ASSAM REP. BY THE SECRETARY TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY.-06. 3:THE DY. COMMISSIONER KAMRUP M ASSAM. 4:THE SUPDT. OF POLICE B DIST. KAMRUP R ASSAM. 5:THE OFFICER-IN-CHARGE RANGIA POLICE STATION DIST. KAMRUP R ASSAM Advocate for the Petitioner : MR.I HAQUE Advocate for the Respondent : Page No.# 2/5 BEFORE HONOURABLE MR. JUSTICE UJJAL BHUYAN HONOURABLE MR. JUSTICE NELSON SAILO ORDER Date : 18-06-2018 (Ujjal Bhuyan, J) This case was heard on 21.05.2018 and today is fixed for delivery of order(s). 2. We have heard Mr P C Dey, learned Senior Counsel for the petitioner and Mr U K Nair, learned Senior Special Counsel, Foreigners’ Tribunal (FT). 3. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 17.07.2016, passed by the Foreigners’ Tribunal No. 5, Kamrup at Rangiya in RFT Case No. 55/2015 (State –Vs- Moran Mondal), declaring the petitioner to be a foreigner, who had illegally entered into India (Assam) from Bangladesh after 25.03.1971. 4. This Court by order dated 07.09.2016, 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 his appearance before the Superintendent of Police (Border), Kamrup (Rural) and furnishing of adequate surety. 5. An affidavit-in-opposition has been filed by Sri Nandan Sarma, Deputy Superintendent of Police (Border), Kamrup on behalf of Superintendent of Police (Border), Kamrup (Rural), i.e., respondent No. 4, supporting the impugned order passed by the Tribunal and seeking dismissal of the writ petition. 6. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record, including the record requisitioned from the Tribunal. 7. In his written statement filed before the Tribunal on 04.11.2015, petitioner stated that because of civil disturbances in East Pakistan, his father Monoranjan Mondal @ Ranjan Mondal had migrated to India along with his wife Srimati Mondal, daughter Jugali Mondal and son Moran Mondal in the year 1964. They had taken shelter in the residence of one Mayaram Sarkar, village-Pubpar Jatiabhangra, Page No.# 3/5 Kamalpur Police Station (Now Baihata Chariali Police Station) in the district of Kamrup. Parents became voters of Kamalpur constituency in the year 1977. Petitioner stated that he was born on 26.04.1959 in East Pakistan and came to India along with his parents in 1964 as stated above. Petitioner became a voter in 1985 in respect of Kamalpur constituency and in subsequent years till 2011, when he was marked as a doubtful (D) voter. He had married Smt Bimala Mondal, daughter of Late Sadhu Mondal and out of the said wedlock he has one son and one daughter. 8. Petitioner deposed before the Tribunal as his witness on 05.12.2015. He stated that on 22.04.1964, he along with his parents, namely, Ranjan Mondal @ Monoranjan Mondal and Srimati Mondal with sister Jugali Mondal had migrated to India from East Pakistan and took shelter in the residence of Mayaram Sarkar, who later on gifted half bigha of land out of his own land to his father, Late Ranjan Mondal verbally. He stated that he had studied upto Class-II in the No. 3 Bordangrikuchi Primary School. 9. One Md Riyazuddin Ahmed, Government Gaonburah deposed before the Tribunal. He stated that he knew Moran Mondal and his father Ranjan Mondal. According to him, father of Moran Mondal was residing in Pubpar- jatiya Bhangra village since 1965. He stated that he had issued Exhibit-D certificate, certifying Moran Mondal as the son of Late Ranjan Mondal. 10. Proceeding to the exhibits, we find that Exhibit-A is a duplicate copy of migration certificate dated 22.04.1964. However, this duplicate certificate was in the name of Ranjan Mondal, son of Khatramohan Mondal. 10.1 This document raises more questions than it answers. First of all, it is a duplicate copy. Why a duplicate copy became necessary has not been explained. Secondly, this migration certificate was issued by the Government of West Bengal, meaning thereby that Ranjan Mondal, son of Khatramohan Mondal, had migrated from East Pakistan to West Bengal in India. But as per the stand of the petitioner in his written statement, he along with his father Monoranjan Mondal @ Ranjan Mondal, mother Srimati Mondal and sister Jugali Mondal after migrating to India in 1964 had taken shelter in the residence of one Mayaram Sarkar, village- Pubparjatia Bhangra under Police Station Kamalpur (now Baihata Chariali) in the district of Kamrup, Assam. Therefore, Exhibit-A is contradictory to petitioner’s own statement in the written statement and evidence. Moreover, Exhibit-A was only in the name of Ranjan Mondal, where name of the petitioner was not mentioned. Finally, this document was not Page No.# 4/5 proved. 11. Exhibit-B is a certificate dated 30.06.2015, issued by one Mofizuddin Ahmed, Head Teacher of No. 3 Bordangrikuchi Primary School, certifying that Sri Moran Mondal was the son of Late Ranjan Mondal and Late Srimati Mondal. He had left the school on 31.12.1968 after passing Class-II examination. It was also certified that petitioner’s date of birth was 26.04.1959. 11.1. This certificate cannot be accepted as a valid piece of evidence for more than one reason. Firstly, as per this certificate, petitioner had left the school on 31.12.1968, whereas, this certificate was issued 47 years thereafter, in the year 2015. Such belated issuance raises a serious question mark over the bonafides of such a certificate. Secondly, there is nothing on record to show as to whether No. 3 Bordangrikuchi Primary School was a Government school or a provincialized school or a private (venture) school. We find that the State Emblem of India is embossed at the top of the certificate. If it is not a Government or provincialized school, question of using the State Emblem of India would not arise at all. That apart, under the State Emblem of India (Regulation of Use) Rules, 2007 framed under the State Emblem of India (Prohibition of Improper Use) Act, 2005, a Head Teacher of a primary school is not authorized to use the State Emblem of India. Therefore, such unauthorized use of the State Emblem of India has rendered Exhibit-B to be inadmissible in evidence. Thirdly, the Head Teacher of the school did not depose before the Tribunal along with the contemporaneous record to prove Exhibit- B as well as its contents. Supreme Court in Biradmal Singhvi –Vs- Anand Purohit; reported in 1988 (Suppl) SCC 604, has laid down in clear terms as to how a school certificate and its contents are required to be proved. Therefore, Exhibit-B was not proved. 12. Exhibit-C is a photocopy of pan-card issued by the Income Tax Department, showing the names Moran Mondal and Ranjan Mondal with the date 26.04.1959. 12.1 There is nothing on record to show that petitioner is an income tax payee or that he had filed income tax return at any point of time. Section 139 A of the Income Tax Act, 1961, read with Rule 114 of the Income Tax Rules, 1962, lays down the provisions and procedure for obtaining pan-card. By simply filing a copy of pan-card as a one off document would not be enough to prove citizenship. That apart, this document was also not proved in accordance with law. 13. Exhibit-D is a certificate dated 29.10.2015, issued by Md Riyazuddin Ahmed, Gaonburah, Page No.# 5/5 certifying that Moran Mondal was the son of Late Ranjan Mondal, also certifying that Moran Mondal was a permanent resident of his area and that his father was residing in the village since 1965. There is also embossment of the State Emblem of India in the certificate. Though the Gaonburah deposed before the Tribunal and proved Exhibit-D, the contents of Exhibit-D cannot be said to have been proved. It is evident from the testimony of the Gaonburah that he had issued Exhibit-D certificate on the basis of his personal knowledge. Contents of a document relied upon to prove citizenship will have to be proved on the basis of the contemporaneous record. That apart, a Gaonbuah is also not authorized to use the State Emblem of India, thus rendering Exhibit-D inadmissible in evidence. 14. Though the petitioner stated that his parents became voters of Kamalpur constituency in 1977 and he himself became a voter of the said constituency from 1985 onwards, not a single certified copy of such voters’ list were exhibited by the petitioner. 15. In such circumstances, the narrative presented by the petitioner does not at all inspire confidence; rather it suffers from multiple material contradictions rendering the same wholly improbable. 16. Thus, it cannot be said that petitioner had discharged his burden under Section 9 of the Foreigners’ Act, 1946, to prove that he was not a foreigner, but a citizen of India. Consequently we do not find any merit in the writ petition, which is accordingly dismissed. Interim order passed earlier stands vacated. 17. 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. 18. 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. JUDGE JUDGE Comparing Assistant "