The Gauhati High Court recently comprising of a bench of Justice N. Kotiswar Singh and Justice Malasri Nandi declared an Assam woman, Puspa Rani Dhar as an Indian by setting aside an order of a foreigners' tribunal in Assam's Bongaigaon declaring her as a foreigner. (Smti Puspa Rani Dhar v. The Union of India and others)
The bench also ruled that the question of registration of the petitioner who is otherwise Indian does not arise as she had been an Indian and not a foreigner at any point in time.
Facts of the case
The present petition has been filed challenging the impugned order passed by the learned Member, Foreigners Tribunal No.1, Bongaigaon, Assam, by which the petitioner was declared as a foreign national of post 25.03.1971 stream.
The Tribunal had said that the certificate dated January 31, 2003, issued by the Railway authorities was irrelevant in proving that she was an Indian.
Essentially, the said certificate indicated that the name of the petitioner's husband was Mrinal Kanti Dhar, who served in the N.F. Railway and was born in February 1943 and he was appointed in the Railways in 1962 and retired in 2033.
The said certificate also showed the name of the petitioner as the wife of Mrinal Kanti Dhar having the date of birth on January 1, 1952.
The Foreigners' Tribunal said that the documents Dhar had produced failed to establish her link with her father Hirendra Nath Paul. So she was declared "foreigner and deportable". Dhar then moved the Gauhati High Court in 2018 by filing a writ petition against the order.
Contention of the Parties
The learned counsel for the State, however, submitted that even if the petitioner is declared to be an Indian, she will be required to register herself with the Registering Authority.
Court's observations & Judgment
The Court observed, thus in response to the argument for the Counsel for the State that even if the petitioner is declared to be an Indian, she would be required to register herself with the Registering Authority.
The court taking note of the same remarked, “However, we do not agree with the said
submission for the reason that registration of a person arises only when he/she is found to be an illegal entrant to this country from the specified territory between the period of 01.01.1966 and 25.03.1971 and who has been ordinarily a resident in the State of Assam thereafter, and detected to be a foreigner.”
The court at the outset noted that it failed to understand, how the said document could be said to be irrelevant and liable to be rejected.
The bench remarked, "Rather it shows that the petitioner who was married to the aforesaid Mrinal Kanti Dhar, was serving in the Indian Railways and as such, there is a remote possibility of the petitioner being a foreigner and this document will show, in absence of any contrary proof, that in probability the petitioner would be an Indian as an Indian is most unlikely to marry a foreigner."
Perusing more documents like Voters' lists, a land document of 2008 the Court came to the conclusion, “The petitioner has been able to produce sufficient evidence before the learned Tribunal to show that she is an Indian citizen and not a foreigner.”
Further, the Court held that the petitioner does not have to register herself as the State states, because registration of a person arises only when he/she is found to be an illegal entrant to India between the period of January 1, 1966, and March 25, 1971, and who has ordinarily been a resident in the State of Assam thereafter, and detected to be a foreigner.
Further, the court took into account the certificate issued by the Bengal Medical Union dated 1966, wherein it was certified that one Hirendra Nath Paul whom the petitioner claims to be her father, is a member of the said Union.
The court noted that this document would also indicate that if his father was in Bengal in 1966, this will be a piece of strong corroborative evidence that the petitioner is an Indian.
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