Gauhati High Court
WP(C)/6333/2019 on 10 December, 2021
GAHC010205752019
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
WP(C) No. 6333/2019
Smt. Lila Namasudra,
Wife of Late Paresh Namasudra,
resident of village-Chengajan,
PS-Silapathar, District-Dhemaji, Assam.
......Petitioner.
-Versus-
1. The Union of India,
represented by the Secretary,
Ministry of Home Affairs,
New Delhi, Pin-110001.
2. The State of Assam,
represented by the Home Secretary, Government of Assam,
Dispur, Guwahati-5.
3. Election Commission of India,
Nirvachan Sadan, Ashoka Road,
New Delhi-110001.
4. Office of the State Coordinator of National Registration (NRC),
Assam, 1st Floor, Achyut Plaza,
Guwahati-Shillong Road, Bhangagarh,
Guwahati, Assam, Pin-781005.
5. The Deputy Commissioner,
Dhemaji, District-Dhemaji, Assam, Pin-787057.
6. The Superintendent of Police (Border), Dhemaji,
District-Dhemaji, Pin-787057, Assam.
......Respondents.
For the Petitioner: Mr. A. Dasgupta (Sr. Adv.),
Ms. B. Das,
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Mr. B. Das. ......Advocates.
For the Respondents: Asstt.SGI,
Mr. N. Pathak, SC, FT,
Mr. A. Bhuyan, SC, ECI,
Ms. U. Das, GA, Assam,
Ms. L. Devi, SC, NRC. ......Advocates.
BEFORE
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MRS. JUSTICE MALASRI NANDI
Date of Hearing & Judgment : 10th December, 2021
JUDGMENT AND ORDER (ORAL)
[N. Kotiswar Singh, J.]
Heard Mr. A. Dasgupta, learned Senior counsel for the petitioner. Also
heard Ms. L. Devi, learned counsel appearing on behalf of Mr. R.K. Dev
Choudhury, learned Assistant Solicitor General of India, for the respondent No.1
as well as appearing as standing counsel, NRC, for respondent No.4; Mr. N.
Pathak, learned special counsel, FT, appearing for respondent Nos.2 and 6; Mr.
A. Bhuyan, learned standing counsel, ECI, appearing for respondent No.3 and
Ms. U. Das, learned Additional Senior Government Advocate, Assam, appearing
for respondent No.5.
2. In this petition, the petitioner has challenged the order dated 30.08.2018
passed by the learned Foreigners' Tribunal No.2, Dhemaji at Silapathar, Assam,
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in F.T. Case No.290/2016.
3. Briefly, the case of the petitioner as also noted by the learned Tribunal is
as follows.
4. The petitioner claims to be the wife of one Late Paresh Namasudra,
resident of village Chengajan, PS-Silapathar, District-Dhemaji. In the written
statement filed, it is clearly mentioned by the petitioner that she was born at
East Pakistan and also got married in East Pakistan to the aforesaid Paresh
Namasudra. In the year 1964, the petitioner migrated to Assam along with her
husband Paresh Namasudra and stayed in Cachar Migration Camp, in support of
which, a certified copy of the Admission Register book of Refugee Registration
relating to the period of 12.05.1964 to 23.03.1965 was produced. It has been
stated that thereafter, the petitioner and her husband started to live at
Bhatragram in the district of Cachar, where her son Samen Namasudra was
born and he studied up to Class-IV in Bhatragram till the year 1987. Her
husband died at Bhatragram and after her husband's death, the petitioner and
her son shifted to Lanka in the district of Nagaon. They shifted to Chengajan,
PS-Silapathar, in the district of Dhemaji after about 10/12 years of the death of
the petitioner's husband. In the year 1993, the petitioner's name appeared as a
voter under the 114 No Jonai Legislative Assembly Constituency, District-
Dhemaji. The petitioner also referred to a copy of the voters' list of 2011 under
the aforesaid 114 No Jonai Legislative Assembly Constituency where her name
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was also included.
5. The learned Tribunal after considering the written statement and
evidence as well as documents exhibited, though acknowledging that the name
of one Lila Rani Namasudra appears in the admission register of Refugee
Registration within the period of 12.05.1964 to 23.03.1965, held that the
petitioner failed to produce any document or public record upto 1993 that she
was residing in the State of Assam and declared her to be a foreigner of post
25.03.1971.
6. The learned Tribunal noted that in the year 1993 the petitioner would
have attained 45 years of age and no reason has been assigned by her why her
name did not appear in the voters' list before 1993 and that the petitioner was
silent about it. The learned Tribunal observed that as per Section 6A(2) of the
Citizenship Act, 1955, a person to be a citizen of Indian should have been
ordinarily resided in Assam since date of his/her entry into Assam. The learned
Tribunal held that in the present case, though there is evidence that the
petitioner had entered into Assam during the period of 12.05.1964 to
23.03.1965 as per the admission register of Refugee Registration, she failed to
produce any document or public record upto 1993 and accordingly, the learned
Tribunal held that the evidence of the petitioner is not trustworthy and
accordingly, failed to discharge her burden to prove that she acquired
citizenship of India by birth. The learned Tribunal accordingly, inferred that the
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petitioner entered India subsequent to 25.03.1971.
7. Learned Senior counsel for the petitioner submits that when there is
clear evidence to the effect that she along with her husband had entered India
during 12.05.1964 to 23.03.1965, which is duly proved by the register of
Refugee Registration, the opinion of the learned Tribunal that merely because
of the fact that the petitioner could not produce any voters' list prior to 1993
cannot be a ground to deny citizenship. Apart from that, it has been submitted
that the petitioner's son, namely, Samen Namasudra, has been already declared
as an Indian by the same Tribunal on the basis of same set of documents in F.T.
(D) Case No.10/2016 vide order dated 27.04.2016 and as such, if the
petitioner's son has been declared to be an Indian by the same Tribunal on
basis of the same documents, there is no reason, why the petitioner should not
be treated as an Indian.
8. Per contra, Mr. Pathak, learned special counsel, FT, has submitted that
merely because a person has entered India before 1966, he cannot get the
benefit of citizenship unless it is proved that the person has been living
continuously in the State of Assam after his entry and as such, since there is no
document to show that the petitioner is ordinarily resided in Assam, even if she
had entered before 1966, the opinion of the learned Tribunal cannot be said to
be incorrect.
9. Further, the opinion of the learned Tribunal rendered in respect of
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petitioner's projected son cannot be applied in the present case, as the linkage
has to be proved through her parents and not through her son. In the case of
the petitioner's son, namely, Samen Namasudra, he proved his linkage through
his father and not through his mother i.e. the petitioner, and as such, the said
opinion cannot be of any relevance to the claim of the petitioner.
10. Heard the learned counsel for the parties and perused the materials on
record.
11. On perusal of the original records, it is seen that in the inquiry report the
petitioner, Smt. Lila Namasudra has been shown to be the wife of late Paresh
Namasudra, staying in Chengajan under Silapathar Police Station, District-
Dhemaji, Assam and in the said report also it has been mentioned that the
place of birth is East Pakistan. However, as the petitioner allegedly could not
produce any document before the Inquiring Authority, she was considered to be
a doubtful citizen and accordingly, the matter came to be referred to the
Tribunal.
12. Before the Tribunal, the petitioner filed her written statement, in which
she stated that she was born and brought up in East Pakistan and entered India
(Assam) sometime in 1964 along with her husband Paresh Namasudra, and that
she is an illiterate woman born about 72 years ago in East Pakistan and as
such, it was not possible to obtain any birth certificate and moreover, the
petitioner had left East Pakistan due to religious persecution of the Hindus by
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some miscreants in East Pakistan.
13. The petitioner also stated that she is an inhabitant of Shilkuri village
under Karimganj Sub-Division. The petitioner also admitted that she was born
and brought up at Kamalpur village under Jokigong PS, in the district of Sylhet
in East Pakistan, but thereafter, the petitioner entered India as mentioned
above along with her husband. The petitioner also submitted a certified copy of
the Refugee Registration Certificate relating to the period from 12.05.1964 to
23.03.1965 as well as a voters' list of 1993 in respect of 114 No Jonai
Legislative Assembly Constituency, District-Dhemaji under Silapathar Police
Station, Village-Chengajan, where her name appears as a voter at Sl.No.171.
Subsequently, after filing of the written statement, the petitioner also submitted
another voters' list of 2011 in respect of the aforesaid same constituency, where
her name appears at Sl. No.234 as the wife of late Paresh Namasudra.
14. The aforesaid Refugee Registration Certificate was exhibited as Exbt.-B,
in which the name of the petitioner, namely, Lila Rani Namasudra has been
mentioned as the wife of Paresh Namasudra of village Kamalpur, PS-Jakiganj,
District-Sylhet. The aforesaid Refugee Register accordingly, corroborates the
statement of the petitioner that she entered India during the aforesaid period of
12.05.1964 to 23.03.1965. Thus, the entry of the petitioner in India during the
aforesaid period from East Pakistan, in our view, is fully established. The issue
before us is whether the petitioner can be said to be ordinary resident of Assam
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thereafter. Of course, as noted by the learned Tribunal, no document has been
filed by the petitioner before the Tribunal to show that she was an ordinary
resident in the State of Assam thereafter till 1993. However, the fact also
remains that her name appears in the voters' lists of 1993 as well as in the year
2011 clearly indicating that she was very much there in 1993 as well as in 2011.
In view of the specific statement made before the Tribunal that she has been
residing in the State of Assam, in our opinion, merely because she could not
produce any document prior to 1993, it cannot be inferred that she was not
staying in the State of Assam before 1993 as she had categorically stated that
she had initially come to Cachar then thereafter shifted to Bhatragram in
Cachar, where her son studied upto Class-IV in 1987 and thereafter shifted to
Lanka in the district of Nagaon and later on to Chengajan under PS-Silapathar,
as also recorded by the learned Tribunal in paragraph 4 of its opinion. These
facts having not been questioned by the State during the proceeding, in our
opinion, merely because she could not produce any voters' lists prior to 1993
cannot be a ground for disbelieving her claim that the petitioner was in Cachar,
then thereafter in Nagaon and thereafter, in Silapathar, thus in Assam. There is
a conclusive proof that as far as the years of 1993 and 2011 are concerned, the
petitioner was very much in Assam.
15. We do no see any reason why the petitioner should not continue to stay
in Assam after she migrated to India (Assam) from East Pakistan in 1964 after
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she and her family members were subjected to religious persecution in East
Pakistan and there is a definitive proof that she casted her vote in 1993 as well
as in 2011.
16. In our view, the petitioner to prove that she was ordinarily staying in
Assam since her entry in 1964, she does not have to prove her stay with
documentary evidence relatable to every year. In our view, the evidence on
record would indicate that she was ordinarily residing in Assam since her entry
in 1964. There is no assertion or proof to the contrary that she had settled in
any other part of the country. Her statement that after coming from East
Pakistan she stayed in Cachar, then went to Lanka and ultimately settled in
Chengajan in Dhemaji district which is supported by evidence has not been
rebutted.
17. As regards the contention of the learned counsel for the petitioner that
her son Samen Namasudra was declared as Indian and as such this should be a
clinching proof that the petitioner is also an Indian, unfortunately, the said
document was not produced before the Tribunal. Nevertheless, we have gone
through the said opinion for our own satisfaction. In the said opinion dated
27.04.2016 it was recorded by the Foreigners' Tribunal as follows:-
"Decision with reason:
The proceedee, D/W-1 in his deposition stated that he is a permanent
inhabitant of Vill-Chengajan under the District Dhemaji and he was born at
Bhatragram of Kachar.
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The proceedee D.W-1 stated that Lt. Paresh Nomosudra was his father
who came from Pakistan and stayed at refugee camp of Kachar from 12-05-1965
to 23-03-1965. He stated that his father died at Kachar and he came to
Chengajan with his mother in the year 1985. The proceedee submitted a
certificate of Refugee Registration in the name of his father as Ex-B. As linkage
certificate he produced a school certificate as Ex-A, his voter I/D card as Ex-C, a
certified copy of voter list in his name of Jonai LAC of the year 1997 as Ex-D
and a Gaonburha certificate as Ex-E which are accepted.
............................................."
18. From the perusal of the aforesaid recording by the learned Tribunal in
the case of Sri Samen Namasudra, the evidence appears to be the same, which
has been also relied upon by the petitioner in the present case. We have
referred to the aforesaid opinion of the learned Foreigners' Tribunal, Dhemaji-
2nd at Silapathar in F.T.(D) Case No.10/2016 only for our own satisfaction to
examine the genuineness of the claim of the petitioner, though the same was
not adduced before the learned Tribunal by the petitioner.
19. It may be also noted that if it is established that the petitioner is the wife
of Late Paresh Namasudra, who is admittedly the father of Samen Namasudra,
it can certainly be taken into consideration to prove the claim of the petitioner
that she was in Assam after entry in India in 1964. Since the stay of the said
Samen Namasudra in Assam had been proved, the fact that the petitioner is the
mother of Samen Namasudra will be also relevant for the purpose of proof that
she was staying in Assam. The stay of Samen Namasudra in Assam after he
was born in Assam and was brought up in Assam and came with her mother to
Chengajan subsequently corroborates the claim of the petitioner that she was in
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Assam after entry in 1964.
20. Accordingly, in our opinion, the petitioner has been able to establish that
she had entered Assam from East Pakistan in the year 1964 along with her
husband and migrated to Assam and stayed in Cachar, where her son studied
upto Class-IV in Bhatragram and thereafter shifted to Lanka in the district of
Nagaon after the death of her husband and later on shifted to Chengajan at
Silapathar under Dhemaji district, where the petitioner ultimately settled and
her name had been recorded in the voters' list. Thus, we hold that the
petitioner has been ordinarily residing in Assam after entering in India in 1964
and accordingly, would be entitled to the benefit granted under Section 6A(2) of
the Citizenship Act, 1955, i.e., she will be deemed to be a citizen of India as
from 01.01.1966.
21. For the reasons discussed above, we allow this petition by setting aside
the impugned order dated 30.08.2018 passed in F.T. Case No.290/2016 by the
Foreigners' Tribunal No.2, Dhemaji at Silapathar and the petitioner would be
entitled to the benefit under Section 6A(2) of the Citizenship Act, 1955 and
hence she will be deemed to a citizen of India as from 01.01.1966.
22. LCR be remitted to the concerned learned Tribunal forthwith.
Sd/- Malasri Nandi Sd/- N. Kotiswar Singh
JUDGE JUDGE
Comparing Assistant
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