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Wp(C) 1107/2013

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Wp(C) 1107/2013 1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) WP(C) NO.1107/2013 1. Kalachand Barman, S/o Late Ganga Ram Barman, R/O- Village Thekasu Part-I, P.O- Dudhnoi, P.S- Dudhnoi, Dist- Goalpara, Assam. 2. Sri Krishna Kanta Barman, S/o Late Ganga Ram Barman, R/O- Village Thekasu Part-I, P.O- Dudhnoi, P.S- Dudhnoi, Dist- Goalpara, Assam. 3. Sri Sahadev Barman, S/o Sri Kalachand Barman, R/O- Village Thekasu Part-I, P.O- Dudhnoi, P.S- Dudhnoi, Dist- Goalpara, Assam. (Represented by his father Kalachand Barman). 4. Ms. Kapasi Barman, D/o Sri Krishna Kanta Barman, R/O- Village Thekasu Part-I, P.O- Dudhnoi, P.S- Dudhnoi, Dist- Goalpara, Assam. (Represented by Krishna Kanta Barman). ………………………… Petitioners - Versus- 1. The Union of India, represented by the Secretary to the Govt of India, Ministry of Home Affairs, New Delhi. 2 2. The State of Assam, represented by the Commissioner and Secretary to the Government of Assam, Home Department, Dispur, Guwahati-6. 3. The Deputy Commissioner cum Election Officer, Goalpara district, Goalpara, Assam. 4. The Superintendent of Police (B), Goalpara, District- Goalpara, Assam. …………………… Respondents BEFORE HON’BLE MR. JUSTICE B.K. SHARMA For the petitioner : Mr. B. Singha, Adv. For the respondents : Mr. M. Bhagabati, CGC & learned State Counsel. Date of hearing : 21.01.2014 Date of Judgment : 21.01.2014 JUDGMENT AND ORDER (ORAL) 1. This writ petition is directed against the common judgment and order dated 04.12.2012, passed by the learned Member, Foreigners Tribunal, Goalpara, in F.T. Case No.2583/G/10 (GLP Dist. Case No.455/2003)[(Union of India –vs- (i) Krishna Kanta Barman, (ii) Arati Barman and (iii) Kapasi Barman] and in F.T. Case No.2581/G/2010 (Glp Dist. Case No.453/2003)[Union of India –vs- (i) Kalachand Barman and (ii) Sahadev Barman]. By the said order, they have been declared to be foreigners of post 1971 stream, requiring their expulsion from Indian Territory and also deletion of their names from the voter list. 3 2. On receipt of the notice from the Tribunal, the petitioners had entered appearance by filing written statements denying the plea of the State that they are illegal migrants. In the notice, they were indicated as illegal migrants from the then East Pakistan during the period from 01.01.1966 to 25.03.1971. In the written statement, the petitioners took the plea that they are not illegal migrants of 1966 and 1971 stream. According to them they had migrated to India in 1964 due to internal disturbance in the then East Pakistan. Further statement made in the writ petition is that they had taken shelter in the Dudhnoi Refugee camp. In the evidence in chief filed in the format of affidavit also the said stand was taken along with the stand that the name of the father of the petitioners No. 1 and 2 appeared in the voter list of 1970 and 1979 and also thereafter. 3. In support of the stand of the petitioners, they had produced certain documents as mentioned in the impugned judgment of the learned Tribunal. One such document is the Annexure-1 Relief Eligibility Certificate incorporating the name of the father of the petitioners No. 1 and 2 Sri Ganga Ram Barman, showing him as son of Chand Mohan Barman. Other documents produced by the petitioners are the voter lists of 1970 and 1979 incorporating the name of Ganga Ram Barman. They also produced the Border Entree Slip of 1964 and voter lists of 1989, 1997, 2010 and also one school certificate. 4. In the voter list of 1970 and 1979, name of one Ganga Ram Barman appears. While in the 1970 voter list, he is shown as the son of Late Bholo Ram Barman, but in the voter list of 1979, he is shown as the son of Chanmohan. 4 5. Mr. B. Singha, learned counsel for the petitioners submits that because of the mistake committed by the authority responsible for enrolment of names, the petitioners cannot be made to suffer. According to him, Ganga Ram Barman reflected in 1970 and 1979 voter lists is one and the same person. However, due to the mistake committed by the enumerator, his father’s name was reflected as Bholo Ram Barman in the voter list of 1970 instead of Chanmohan. Referring to the Relief Eligibility Certificate, original of which was produced before the Tribunal, in which the name of Ganga Ram’s father is shown as Chand Mohan Barman, he submits that even if the voter list of 1970 is left aside, these two documents i.e. the Relief Eligibility Certificate and the 1979 voter list would clearly indicate that Ganga Ram had come to India in 1964 along with the petitioners No.1 and 2. 6. In the Relief Eligibility Certificate, Ganga Ram Barman is shown as the head of the family amongst other members including the petitioners No.1 and 2. Be it stated here that the petitioner No.3 is the son of the petitioner No.1 and the petitioner No.4 is the daughter of petitioner No.2. 7. The learned Tribunal has disbelieved the aforesaid facts with the following analogy:- “Thus to determine above noted issue for both brother respondents I have discussed entire evidence on record. In their written statement both the respondent failed to state whether they were born in East Pakistan or they were born in India. In a substance manner they stated that their father Gangaram Barman came from East Pakistan in year 5 1 964 and his name was enrolled in 1 970 voter list as well as 1 979 voter list. But there is no iota of evidence to show the fact that parents of respondent entered into India in 1 964. Along with documents a Relief Eligibility Certificate page no. 1 , 2 and 3 is nothing but format of application to be filled up head of the family. In column no. 5 date of arrival in India is shown to be 2- 5- 64. But at the bottom of page no. 3 there is particular space for signature and thumb impression of the head of the family. Just above the signature and thumb impression of the head of the family a thumb impression is seen but there is nothing to show it is whose thumb impression nor there is any endorsement. To its left corner there is a space for date. This date is given to be 9- 8- 65. On reverse page there is a space to be “Certificate “and there is also space for the authority concern to state the materials that he found during course of his personal enquiry. There is nothing about his personal enquiry, only there is an illegible signature without any date with its seal to be “Camp Commandant” No. 1 1 , Matia. ” So, question arises on which date it was signed. If at all respondent entered into India on 2- 5- 64 why they had to apply after 1 ½ years there is no any explanation. On the 4th page there is space for official use which is consisted of R. E. C no. , date on which vaccinated and there are other columns to show the relief granted but this 6 certificate is totally vacant. So, we are unable to consider this R. E. C to be a valid document because we have the instance that family entered into India on 1 9- 10- 70 and this type of certificate was signed by Camp Commandant on 1 3- 6- 65, So, I hold that this R. E. C is nothing but marketable documents. The first documents is submitted in respect of Gangaram Barman, Monglu Barman, Nimeshwari Devi and Kadamani Devi in 1 977, voter list and second voter list certificate copy of voter list of 1 979 in respect of Gangaram Barman. R. E. C shows wife of Gangaram is Binodindi Barman. According to 1 970 voter list Gangaram is son of late Boloram Barman aged 65 years and his wife is Nimeswari Devi aged 56 years. Monglu S/O Gangaram is aged 35 years and kadamoni his wife aged 27 years. 1 979 voter list shows Gangaram is son of Chand Mohan aged 50 years. Both voter list shows that it is not the voter list of Gangaram in whose name R. E. C stands. Gangaram of 1 970 and Gangaram of 1 979 are not one and same person. Excluding these 2 documents, certified copy of 1 989 voter list in respect of Kalachand Barman and Krishna Kanta Barman with other family members we get their father’s name is shown to be Gangaram Barman. Kalachand Barman admitted in his cross examination that Binodini is his mother’s name. So, 1 970 voter list is not voter list of father of both the respondent because 1 970 voter list shows wife of Gangaram is Nimeshwari. ” 7 8. From the above, what is seen is that although it is the pleaded case of the petitioners that Ganga Ram i.e. the father of the petitioners No.1 and 2 had come from the then East Pakistan in 1964 and his name was also enrolled in the 1970 and 1979 voter list, the Tribunal disbelieved the same on the ground of variation of the name of the grandfather of the petitioners No. 1 and 2 in the voter list of 1970 and 1979. However, the fact remains that in the 1979 voter list, the name of their grandfather was correctly reflected.
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