WP(C)/4497/2019
2021 Latest Caselaw 935 Gua

                                                                                      Page No.# 1/20

GAHC010145412019




                               THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                      WP(C) No.4497/2019

      Sri Biswajit Debnath,
      S/O- Late Banamali Debnath.
      R/O village- No.2 Bhairabpur,
      P.S.-Silapathar,
      District- Dhemaji (Assam)
      PIN-787059.
                                                                                   .....PETITIONER
                -VERSUS-

      1.    Union of India represented by the Secretary to the Govt. of India, Ministry of Home
            Affairs, New Delhi-110001.
      2.    The State of Assam, represented by the Commissioner and Secretary, Govt. of Assam,
            Home & Political Department, Dispur, Guwahati-781006.
       3.   The Election Commission of India, Nirvachan Sadan, Ashoka Road, New Delhi-110001.
       4.   State of Coordinator of National Register of Citizenship (NRC), Assam, Bhangagarh,
            Guwahati-5, District-Kamrup(m), Assam, PIN-781005.
       5.   The Deputy Commissioner, Dhemaji, P.O. & P.S.-Dhemaji, Assam, PIN-787057
       6.   The Superintendent of Police (Border), Dhemaji, District-Dhemaji, PIN-787057.
                                                                               .....RESPONDENTS

BEFORE HON'BLE MR. JUSTICE MANASH RANJAN PATHAK HON'BLE MR. JUSTICE SOUMITRA SAIKIA

Advocate for the petitioner : Mr. B. Chetry, Advocate.

Advocates for respondents : Mr. U. K. Nair, Senior Advocate, : Mr. J. Payeng, Advocate for respondent Nos.2, 5 and 6.

: Mr. G. Sarma, CGC for respondent No.1 : Ms. B. Das, Standing Counsel, ECI for Page No.# 2/20

respondent No.3.

: Ms. G. Hazarika, Standing Counsel, NRC for respondent No.4.

Date of hearing                    :      16.11.2020 and 19.11.2020.

Date of judgment                  :       12.03.2021.


                               JUDGMENT & ORDER (CAV)
(Soumitra Saikia, J.)

1. Heard Mr. B. Chetry, learned counsel for the petitioner. Also heard Mr. U. K. Nair, learned senior Advocate assisted by Mr. J. Payeng, Advocate for respondent Nos.2, 5 and 6; Mr. G. Sarma, learned Central Government Counsel for respondent No.1; Ms. B. Das, learned Standing Counsel, Election Commission of India for respondent No.3 and Ms. G. Hazarika, learned Standing Counsel, NRC for respondent No.4.

2. This writ petition has been filed by the petitioner being aggrieved by the order dated 13.05.2019 passed by the Member, Foreigners Tribunal No.2, Dhemaji at Silapathar in FT Case No.26/2018. By the said order, the Member, Foreigners Tribunal on the grounds and reasons mentioned therein rendered its opinion declaring the petitioner to be a foreigner of post 25.03.1971, under Section 2 (1) (a) of the Foreigners Act, 1946 who had illegally entered into the territory of India (Assam) on or after 25.03.1971 without valid documents and directed the Deputy Commissioner (Election), Dhemaji as well as the Superintendent of Police (Border), Dhemaji to take necessary steps as per law.

3. The petitioner claims to be an Indian citizen by birth and a permanent resident of No.2 Bhairabpur under Silapathar Police Station of Dhemaji district in the State of Assam. He claims to be belonging to Bengali Nath Community (Hindu).

4. From the recital of the opinion dated 13.05.2019 rendered by the learned Member, Foreigners Tribunal, Dhemaji, it is seen that the case of the petitioner was forwarded by the Superintendent of Police (Border), Dhemaji expressing doubt about the nationality of the petitioner with a further prayer to decide whether the petitioner is an illegal migrant or not. On receipt of the reference, the learned Tribunal registered a case and issued notice on the Page No.# 3/20

petitioner and pursuant to the receipt of notice, the petitioner appeared before the Tribunal and contested the case.

5. In his written statements filed by the petitioner before the Tribunal, he projected the case that he was born and brought up at village Murkongselek, P.O./P.S.-Jonai, Mouza-Jonai in the district of Dhemaji in Assam. The petitioner projected one Banamali Debnath and one Manimala Debnath as his father and mother respectively. He stated in his written statements filed on 27.01.2019, that he was born about 38 years ago in No.2 Bhairabpur village, P.S.- Silapathat, district Dhemaji at the address mentioned in the written statement. He submitted that the allegations against him that he illegally entered Assam after 24.03.1971 or between 01.01.1966 and 24.03.1971 as an illegal migrant without valid documents was baseless, false, fabricated and entirely concocted.

In support of his case, the petitioner exhibited the following documents:

Ext.1-Membership certificate issued by Akhil Assam Udbastu Congress. Ext.2-Copy of land document for the year 1966.

Ext.3-Certified copy of the voter list for the year 1966 under 115 Dhemaji LAC.

Ext.4-Certified copy of voter list for the year 1997 under 114 Jonai LAC. Ext.5-Death certificate of Banamali Debnath, S/O-Narendra Debnath. Ext.6-Caste certificate of Banamali Debnath, S/O-Narendra Debnath. Ext.6(A)- Caste certificate of Biswajit Debnath.

Ext.7-School certificate issued by the Office Headmaster, Silapathar Janajati High School.

Ext.8-Birth certificate of Biswajit Debnath, S/O-Banamali Debnath. Ext.9- Copy of the ration card.

Ext.10-Certificate issued by the President, Muktiar Gaon Panchayat, P.O.- Silabali, district-Dhemaji.

6. In Ext.1, Ext.7 and Ext.10 as the authors were not examined, the Tribunal considered them to be not proved and the exhibits were considered to have no evidentiary value. In so far as Ext.3 is concerned, which is the certified copy of voter's list of 1966, the petitioner/proceedee relied on Ext.3 to project one Narendra Debnath whose name appeared Page No.# 4/20

in the said voters list to be his grandfather. The Tribunal held that the age of the father, namely, Narendra Debnath is shown to be calculated on 01.01.1970. According to the Tribunal, for the voters list of 1966, the age of the father cannot be calculated on 01.01.1970. Therefore, the Tribunal expressed doubt about the genuineness of the voters list. The Tribunal further held that the voters list of 1966 is not reliable on another count, i.e. the petitioner/proceedee was unable to produce any other voters list or public record to prove citizenship status of the said Narendra Debnath who he had projected to be his grandfather. Accordingly, the Tribunal held that the petitioner failed to prove the citizenship status of Narendra Debnath as genuine citizen of India on the basis of 1966 voters list.

7. As regards the voter's list of 1977 which was exhibited by the petitioner to prove the citizenship of his father Banamali Debnath, son of Narendra Debnath, the Tribunal held that although the age of the voter is shown to be 44 years in the voter's list of 1977. However, the petitioner was unable to produce any other valid document prior to 1977 to project that the voter therein, namely, Banamali Debnath was his father. The Tribunal accordingly held that, the petitioner/proceedee being unable to produce any other voter's list or public record to prove the citizenship status of Banamali Debnath, (projected father of the petitioner) that he was a genuine citizen of India.

8. In so far as the caste certificate Ext.6(A) and the birth certificate, Ext.8 are concerned, the Tribunal held that although it appears that the petitioner-Biswajit Debnath is the son of Banamali Debnath, but it cannot be said that on the basis of these documents the petitioner discharged his burden to prove his citizenship under Section 9 of the Foreigners Act, 1944 to prove that he is not a foreigner but a citizen of India by birth through genuine Indian parents. The Tribunal held that the documents of the petitioner are not trustworthy and accordingly opined that the petitioner is a foreigner of post 25.03.1971 who had entered into the territory of India (Assam) after 25.03.1971 without valid document.

9. On the above facts, learned counsel for the petitioner made the following three fold submissions:-

His first submission is that the reference itself is not maintainable in view of the findings recorded in the Verification Officer's Report. He pointed out that at Sl. No.16 of the Page No.# 5/20

Report, it was categorically indicated that the proceedee, namely, the petitioner herein did not migrate into Assam. At Sl. No.17 it is indicated that the place from where he migrated (State/country) it is indicated "Not Applicable". Similarly, in respect of the migration period also it is indicated as "Not Applicable". The learned counsel for the petitioner submits that in view of such categorical finding in the enquiry made by the Verification Officer, there was no scope for the Electoral Registration Officer to refer the case of the petitioner to the Tribunal for opinion. And consequently the Tribunal exercised its powers in rendering the impugned opinion.

10. The second submission of the learned counsel for the petitioner is that his father late Banamali Debnath was declared a "D Voter". Upon a reference made to the then IM(D)T, Dhemaji in case No.IM(DMJ) 179/1991 in respect of one Sri Krishna Debnath, his family members, the learned IM(D)T, Dhemaji by order dated 30.03.1996 answered the reference in negative and in favour of the opposite parties therein. The opposite parties therein including the petitioner's father Sri Banamali Debnath who was declared to be not an illegal migrant. In view of this order, the learned counsel for the petitioner submits that it is evident that the petitioner's father not being declared to be an illegal migrant, the consequential benefit on the petitioner as his son, should have been conferred by the learned Tribunal. That not having been done, the impugned order of the learned Tribunal is bad in law and should therefore be suitably interfered with. In support of his contentions he relies upon the judgment of the apex Court rendered in Abdul Kuddus & Others vs. Union of India and Others reported in (2019) 4 GLT (SC) 7.

11. The third submission of the learned counsel for the petitioner is that even assuming though not admitting that the other evidences exhibited were not relied upon by the learned Tribunal, the birth certificate issued by the concerned authority to the effect that the petitioner's date of birth was on 27.11.1981, had remained unrebutted before the Foreigner's Tribunal. As such, the Tribunal ought to have accepted the birth certificate exhibited by the petitioner. The further submission is that the school certificate exhibited by the petitioner before the Tribunal as Ext.7 also ought to have been accepted by the learned Tribunal as discharge of the burden of proof by the petitioner in respect of his citizenship. The learned counsel for the petitioner submits that in view of the ratio laid down by the Apex Court in the Page No.# 6/20

case of ShyamLal @ Kuldeep vs Sanjeev Kumar and Others reported in (2019) 12 SCC 454, there is a presumption under the Evidence Act as to the genuineness of public documents including school leaving certificate produced in evidence, when the same is not questioned. The learned counsel also relied upon the judgment of this Court rendered in Motiur Rahman vs Union of India to support the contention that the discrepancies in recording of names, age and address of the family members of the proceedee and it cannot be a ground to discard the certificate produced/relied upon.

12. Per contra, Mr. U. K. Nair, learned Senior Counsel representing the State of Assam submits that there is no deficiency in the impugned opinion rendered by the Tribunal requiring any interference by this Court. The learned senior counsel submits that the exhibits produced were fairly considered by the learned Tribunal and the submission of the petitioner as a proceedee before the Tribunal was duly considered and upon proper appreciation of the evidences adduced, the learned Tribunal has come to return a finding holding the petitioner to be an illegal migrant and thereby it does not require any interference as contended by the petitioner.

13. In the written statements it is seen that the names of his grandparents were not mentioned and the address of the petitioner was shown to be No.2 Bhairabpur, Silapathar, Dhemaji. In the written statement it is stated that he was born and brought up in the village Murkongselek, P.O./P.S. Jonai, Mouza-Jonai, district- Dhemaji but his school certificate exhibited shows that the petitioner to be an inhabitant of No.2 Bhairabpur which is the address shown there the petitioner resided during the proceedings before the Tribunal. In his evidence before the Tribunal he stated that his father expired in the year 2018 and that his father was a "D Voter", but his name appeared in the voters list of 1997 after the judgment of IM(D)T Dhemaji in case no. IM(DMJ)179/1991 in respect of one Krishna Debnath and his family members which included his projected father Sri Banamli Debnath. However, the said order was not exhibited before the Tribunal.

14. Upon the materials pleaded before this Court as well as those evident from a perusal of the records of the Tribunal, and upon hearing the learned counsel for the parties we accordingly proceed to deal with the matter.

Page No.# 7/20

15. In terms of the provisions of Foreigners Act, 1946 read with the Foreigners (Tribunal) Order 1964 as well as the provisions of the Citizenship Act, 1955 and the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, in case of any person whose citizenship status is marked as "Doubtful (D)", the person has to register before the Foreigners Registration Office and his or her name will not be included in the voter list for next 10 years from the date of registration. In the event, the individual whose citizenship status is marked as doubtful, questions the correctness of his status, then the Electoral Verification Officer (EVO) has to refer the matter to the concerned Foreigners Tribunal for its opinion. Upon such reference being made, the Foreigners Tribunal in terms of the procedure laid down under the Foreigners Tribunal Order, 1964 will proceed to render the opinion upon affording such opportunities to the individual/proceedee as laid down in the provisions of the Foreigners' Tribunal Order, 1964. It is submitted by the learned counsel for the State that the reference to the learned Foreigners Tribunal, through Superintendent of Police (Border) of the concerned district was made at the instance of the petitioner. Such submissions of the respondents have not been denied by the counsel for the petitioner.

16. From the records, it is seen that in the birth certificate, the date of birth of the petitioner was shown as 27.11.1981 at No.2 Murkongselek, Jonai and his father's name was shown as Sri Banamali Debnath. However, in the school certificate his date of birth was shown as 19.06.1982 and he was shown to be an inhabitant of village No.2 Bhairabpur. In the death certificate showing the death of his projected father Banamali Debnath also, it is seen that his father Banamali Debnath's parents were shown to be Narendra Debnath and SoyagBala Debnath and his wife's name was shown to be Manimala Debnath and the address was shown to be No.2 Bhairabpur, P.S.-Silapathar, P.S.-Silapathat, District Dhemaji.

17. In view of the procedure laid down in law, the reference having been made by the ERO; the verification conducted by the Local Verification Officer and their findings will not have any relevance. In this context a judgment rendered by a Division Bench of this Court in the case of "H.R.A. Choudhury vs. Election Commission of India , reported in 2002(1) GLT 1", negated a challenge made to the order of the Election Commission of India which provided that names of persons which have been entered into the Electoral Rolls and against which the letter 'D' has been indicated to denote that their citizenship status is "Doubtful/disputed" shall Page No.# 8/20

not be allowed to cast their votes in the ensuing elections or any elections thereafter so long the citizenship status is not decided in his favour by an appropriate Tribunal. It was held by this Court that any decision with regard to the status of the person marked as "Doubtful" can only be decided by the Foreigner's Tribunal. Relevant extract of the judgment rendered by this Court in the case of HRA Choudhury (Supra) is recorded below:

"XXXXXXXXXXXXXXXXX

( 6 ) It appears that the Election commission of India, (hereinafter referred to as "the Commission"), has issued instructions from time to time to the Chief electoral Officer, Assam, for intensive revision of the electoral rolls in Assam with reference to 1.1.1997 as the qualifying date. These instructions of the Commission are contained in the communications dated 7. 10. 1996,4. 2. 1997 and 17. 7. 1997, copies of which have been annexed to the reply affidavit filed on behalf of the commission. The instructions of the commission which provide that the cases of persons whose citizenship is in doubt are to be referred to appropriate Tribunals for determination of their citizenship are contained in paragraph-3. 8, 3.9 and 3. 10 of the guidelines annexed to the communication dated 17/7/1997 of the commission to the Chief Electoral Officer, Assam. The said paragraphs 3.8, 3.9, and 3. 10 of the guidelines are quoted herein below:

"3. 8 The Electoral Registration Officer shall, on receipt of the verification reports from the Local Verification Officers, consider the same. Where he is satisfied, on such report and such other material/information as may be available to him, about the eligibility of a person, he shall allow his name to continue on the roll and include it in the final roll. Where, however, he is not so satisfied and has reasonable doubt about the citizenship of any person, he shall refer all such doubtful cases to the competent authority under the Illegal migrants (Determination by Tribunals) Act, 1983 or the Foreigners Act, 1946, as the case may be. For the convenience of the Electoral registration Officer, the Commission has devised a pro forma (Annexure-'b') for making such reference which shall Page No.# 9/20

be adopted by all the Electoral Registration Officers. While making such a reference, the Electoral registration officer shall also furnish to the competent authority all documentary evidence collected during the process of verification (including the local verification report)pertaining to the person concerned, and also inform the person concerned of his case having been referred by him to the competent authority.

3. 9. After the case of a person has been referred by the Electoral Registration officer to the competent authority as aforesaid, he shall wait for a decision of the relevant Tribunal in relation to that person and act according to such decision.

3. 10. Where the relevant Tribunal decides that any such person is not a citizen of India, the Electoral Registration Officer shall proceed under Rule 21a of the Registration of Electors Rules, 1960 to have the name of such person deleted from the electoral roll, before it is finally published. The electoral Registration Officer shall issue notice as required under the proviso to the said Rule 21a of the Registration of electors Rules, 1960 to the individual concerned in the prescribed format. (Please see para-16 of Chapter V - Claims and objections - of the Hand Book for electoral Registration Officers). It further appears that by an order dated 5. 1.1998 of the Commission, copy of which has been annexed to the reply affidavit filed on behalf of the commission, it has been directed that persons whose names have been provisionally entered in the electoral rolls in the State of Assam and against whose names the letter 'd' has been indicated to denote that their citizenship status as doubtful/disputed, shall not be allowed to cast their vote at the ensuing general election to the House of the People and also at any election held thereafter either to the House of the People or to the legislative Assembly of the State of Assam so long as the citizenship status of any such person is not determined in his favour by the appropriate Tribunal to whom his case has been referred. For the aforesaid direction of the Page No.# 10/20

Commission, reasons have also been recorded by the commission in the said order dated 5. 1.1998. Portions of the said order dated5.1.1998 which contained the direction and. the reasons and which are relevant for deciding these cases are quoted hereunder.

"whereas, the Commission has carefully examined that question and observed that under article 326 of the Constitution, "the elections to the House of the People and to the Legislative assemblies of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than eighteen years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election," and whereas, Section 16 of the Representation of the People Act, 1950 further provides that a person shall be disqualified for registration in an electoral roll, if, he, inter alia, is not a citizen of India; and whereas, Sections 62 (1) and 62 (2) of the RP Act, 1951 provide that no person shall, even if his name is for the time being entered in the electoral roll of any constituency, vote at any election in any constituency, if he is subject to any of the disqualifications referred to in section 16 of the RP Act, 1950; and whereas, the conjoint reading of the above-referred Article 326 of the Constitution, Section 16 of the RP Act, 1950 and Section 62 of the RP Act, 1951, leaves no one in any manner of doubt that only a citizen of India alone, and no one else, is eligible to vote at elections to the house of the People and the State Legislative assemblies; and whereas, in the light of the above unambiguous mandate of the Constitution of India and RP Act, 1950 and 1951 that only the Indian citizens alone, and no one else, shall vote at the aforesaid elections, it logically follows that a person, whose citizenship Page No.# 11/20

status is in question and under consideration before a foreigners Tribunal or an Illegal Migrants determination Tribunal shall not be eligible to vote, unless such Tribunal decides in his favour that he is a citizen of India. Now, therefore, the Election Commission of India, under its plenary powers of superintendence, direction and control of preparation of electoral rolls for, and conduct of elections to, Parliament and Legislature of every State, hereby directs that the aforementioned persons, whose names have been provisionally entered into the electoral rolls in the State of Assam and against whose names the letter 'd' has been indicated to denote that his citizenship status is doubtful/disputed, shall not be allowed to cast their votes at the ensuing general election to the House of the People, and also at any election held thereafter, either to the House of the People or to the Legislative Assembly of the State of Assam (or to the Legislature of any other State), so long as the citizenship status of any such person is not determined in his favour by the appropriate Tribunal, to whom his case has been referred.

Xxxxxxxxxxxxxxxxxxx

18. At this stage, it may be mentioned that the Illegal Migrants (Determination by Tribunals) Act, 1983 is no longer in existence, the same having been declared unconstitutional Page No.# 6/10 by the Supreme Court in Sarbananda Sonowal Vs Union of India reported in (2005) 5 SCC 665. Therefore, in so far paragraph 3.8 of the guidelines dated 17.07.1997 is concerned, the reference would be under the Foreigners Act, 1946.

19. The above exercise was repeated in the year 2005 with the Election Commission of India again going for intensive revision of electoral rolls in the State of Assam taking 01.01.2005 as the qualifying date. In this connection, guidelines dated 17.06.2004 were issued by the Election Commission of India. Paragraph 2.2 of the guidelines dealt with "D" voters. It was mentioned that the guidelines issued in 1997 would be followed while dealing with such category of persons. Paragraph 8 dealt with verification by Electoral Registration Officers. It laid down the procedure while carrying out such verification including verification by Local Verification Officer. As per paragraph 8.6, Local Verification Officer would conduct the Page No.# 12/20

verification by making an on the spot visit and the person concerned could adduce any one or more of the documents mentioned therein in support of his claim as a citizen of India. After due verification, the Local Verification Officer was required to submit his report in the prescribed format. Under paragraph 8.8, Electoral Registration Officer on receipt of the verification report from the Local Verification Officer should consider the same. Where he was satisfied about the eligibility of a person, he should allow the name of such person to continue on the electoral roll but where he was not so satisfied and had reasonable doubt about the citizenship of any person he should refer such doubtful cases to the competent authority under the then Illegal Migrants (Determination by Tribunals) Act, 1983 or the Foreigners Act, 1946 in a prepared format (Annexure-B to the guidelines dated 17.06.2004) to the competent authority for making reference to the Tribunal and await the decision of such Tribunal.

20. Section 2(a) of the Foreigners Act, 1946 defines a foreigner to mean 'a person who is not a citizen of India'. Under section 3 of the Act of 1946, the Central Government is empowered to make provisions either general or with respect to foreigner or with respect to any particular foreigner or any prescribe class of foreigner prohibiting, regulating or restricting the entry of foreigner into India or their departure there from or their presence or their continuation presence in the country. Under the said powers conferred under section 3 of the Act of 1946, the Foreigners (Tribunal) order's 1964 has been issued by the Central Government under clause 2(1) the Central Government is empowered to refer to the question as to whether a person is or is not a foreigner within the meaning of Foreigner Act, 1946 to a Tribunal to be constituted for the purpose for its opinion. The Central Government vide notification dated 19-04-1958 and 17-02-1976 have delegated upon the Government of Assam, Superintendent of Police (Border) and Deputy Commissioner (In-Charge) of police, the powers to make references to the Foreigners Tribunal under Order 2(1) of the Foreigners (Tribunal) order 1964 and to seek an opinion as to whether a person is a foreigner or not within the meaning of Foreigners Act 1946. However, where the Electoral Registration Officer upon an enquiry report upon Legal Verification Officer expresses doubt that the person concerned is not a citizen of India, then the case is required to be forwarded to Superintendent of Police (Border) of the concerned district. The Superintendent of Police Page No.# 13/20

(Border) thereafter has to make the reference to the competent Foreigners Tribunal under section 2(1) of Foreigners (Tribunal) Order's 1964.

21. Upon the reference being made to the Foreigners Tribunal the status of "D Voters" will be removed only upon an opinion rendered by the competent Foreigners Tribunal holding that the person concerned is not an illegal migrant and/or is a citizen of India. Therefore, once a person is declared as a "D Voter", that status can only be negated upon proper opinion rendered by Foreigners Tribunal on the basis of materials available and/or presented before the competent Tribunal during the course of hearing. In that view of the materials as evident from the records of the case that the petitioner having himself filed an application before the Electoral Registrar Officer, Jonai for deletion of the "D Voter's" status in so far as the petitioner is concerned by his application available at page 17 of the Tribunal record's, the contention raised by the petitioner that the proper enquiry was not conducted before referring the matter to the Tribunal and thereby the Tribunal ought not to have assumed its jurisdiction, cannot be sustained. In view of such materials available in the lower Court's record and in view of the law laid down by this Court, the contentions of the learned counsel for the petitioner that the local verification officer's report reflecting that the petitioner did not migrate into Assam from the "specified territory" and therefore, the reference itself is without jurisdiction, is incorrect and therefore, same cannot be accepted.

22. In respect of the second submission of the petitioner that his father, namely, Banamali Debnath who had been declared to be "not a foreigner" by order dated 30.03.1996 by the IM(D)T, Dhemaji in case no. I.M.(DMJ) 179/1991, the written statement filed and the evidences adduced before the Tribunal reveal that the said fact was not brought out before the Tribunal in his written statements. Further, even after the petitioner mentioned about the order in his deposition before the Tribunal, there was no attempt to produce any copy of the said order as an exhibit and to prove its contents before the Tribunal. A perusal of the records of the Tribunal also reveals that there is no application making an appropriate prayer before the Tribunal seeking leave to produce the said document as an exhibit before the Tribunal. The order dated 30.03.1996 in I.M.(DMJ) 179/1991passed by the IM(D)T, Dhemajih as been produced before this Court for the first time. It is also interesting to note that in the said order rendered by the IM(D)T, the proceedees before the learned IM(D)T were Sri Krishna Page No.# 14/20

Debnath, his wife Smt. Jayati Devi, sister Mami Devi, brother Banamali Debnath and nephew Nitta Debnath. It is the contention of the learned counsel for the petitioner that the persons 'Nitta Debnath' and 'Banamali Debnath' referred to in the order dated 30.03.1996 by the learned IM(D)T are the petitioner and his father respectively. However, except for a statement in paragraph 1 and paragraph 4 of the present writ petition that the petitioner is also known as "Nita Debnath" by his nick name; before the Tribunal neither in the written statements filed nor in the evidences adduced, was there any reference to the petitioner being known also as an alias as "Nitta Debnath". No supporting and evidence document has been brought before this Court to support the contention of the learned counsel for the petitioner that "Nitta Debnath" and Biswajit Debnath-the petitioner herein are one and the same person.

23. Accordingly, the contention of the petitioner that Nitta Debnath is one and the same person as stated in paragraph 1 and paragraph 4 of the writ petition, cannot be accepted at this belated stage and that too without any supporting evidence/document. If the person "Nitta Debnath" is not to be accepted as the present petitioner, then the acceptance of the said "Sri Banamali Debnath" who has been declared to be "not a foreigner" by order dated 30.03.1996 by the IM(D)T, Dhemaji cannot be accepted to be the projected father of the petitioner, without supporting evidence to that effect. It is also seen that there are contradictory statements made by the petitioner in his pleadings in the present proceedings. In paragraph 4 of the writ petition the petitioner has stated that the IM(D)T in its order dated 30-03-1996 in case no. IM (DMJ) dated 179/91 had negated the reference holding that the opposite parties namely-'Krishna Debnath', Jayanti Debnath, Mali Debi, Banamali Debnath and Nita Debnath are not illegal migrantes as their parents had brought the family to India in 1964 or at least well ahead of the stipulated date of 25-03-1971. However, a reference to the order dated 30-03-1996 itself available @ page 23 (A) Annexure E to the writ petition reveals that it is not a correct reflection of the said order. The IM(D)T in the said order had held inter alia that " Thus we are led to believe the statements of the O.P. that the members of the family came to India in 1964 or at least well ahead of the scheduled dated of 25-3-1971" . Be that as it may, the statements of the petitioner in paragraph 14 of this writ petition and in paragraph 15 of the written statement, that the petitioner and his father are citizens of India by birth are contrary to the findings of Page No.# 15/20

the IMDT in its order dated 30-03-1996 that the members of the family including Banamali Debnath, the projected father of the petitioner, came to India in 1964 or at least well ahead of the scheduled date of 25-03-1971. Therefore, the contentions of the petitioner that he and his father are citizens of India by birth is wholly unreliable and therefore cannot be accepted.

24. The submission of the petitioner that Nitta Debnath and "Sri Banamali Debnath" (projected to be the petitioner's father in the present proceeding) found mentioned in the order dated 30.03.1996 passed by the learned IM(D)T are one and the same person are not acceptable on another count also. Such statement would be self defeating inasmuch as if the person Nitta Debnath and the present petitioner is also one and the same person, then that ought to have been the primary objection questioning the reference made by the Electoral Verification Officer (EVO) before the Foreigners Tribunal. However, such objections are not found taken up by the petitioner before the Tribunal in his written statements or for that matter even in the pleadings in the present writ proceedings. In that view of the matter, the second submission made by the learned counsel for the petitioner also fails and is therefore not accepted.

25. In so far as the third submission is concerned in respect of the Tribunal's refusal to accept the birth certificate as sufficient proof even that contention of the petitioner by itself does not help the petitioner in sustaining his argument inasmuch as that a scrutiny of the birth certificate referred to reveals that the date of birth of the petitioner is recorded as 27.11.1981 and the place of birth is shown as No.2 Murkongselek, Jonai. It is also seen that the certificate was issued on 08.06.1995. It is seen that his date of birth and the address are not one and the same as found recorded in the school leaving certificate which is also relied upon by the petitioner as Ext.7 before the Tribunal. No statement was made by the petitioner in his written statement or in his evidences adduced before the Tribunal explaining the discrepancies. That apart, this certificate was issued in the year 1995 where the year of birth was reflected as 1981. This is in apparent contravention to the "Registration of Births & Deaths Act, 1969 and the Rules made thereunder" and the "Assam Registration of Births & Deaths Rules, 1999". Such discrepancies cannot be overlooked as minor discrepancy as sought to be projected by the learned counsel for the petitioner. In view of such factual discrepancy, mere reliance on the birth certificate will not help the petitioner to prove the Page No.# 16/20

linkage that his projected father, namely, Banamali Debnath. Consequently, the burden of proof as required under Section 9 of the Foreigners Act, 1946 has not been discharged by the petitioner to establish linkage between him and his projected father Banamali Debnath. Although there is no quarrel with the ratio laid down by the judgment of the Apex Court in ShyamLal @ Kuldeep (supra) it will not come to the aid of the petitioner. However, in the facts of the present case the ratio of the judgment of the Apex Court in ShyamLal @ Kuldeep (supra) cannot be applied inasmuch as the contents of the school certificate or the birth certificate has not been proved before the Foreigner's Tribunal as per the mandate of the Evidence Act. The judgment of the Apex Court in " ShyamLal (supra)" is an authority for the proposition that Birth Certificate if not objected to at the stage of making it an exhibit cannot be questioned later on.

26. In this context the judgment of the Apex Court rendered in Birad Mal Singhvi vs- Anand Purohit reported in 1988 (supp1) SCC 604 will be very relevant and the relevant portion is extracted below:

"14. We would now consider the evidence produced by the respondent on the question of age of Hukmi Chand and Suraj Prakash Joshi. The respondent examined Anantram Sharma PW 3 and Kailash Chandra Taparia PW 5. Anantram Sharma PW 3 has been the Principal of New Government High Secondary School, Jodhpur since 1984. On the basis of the scholar's register he stated before the High Court that Hukmi Chand joined school on 24-6-1972 in Ninth class and his date of birth as mentioned in scholar's register was 13-6-1956. He made this statement on the basis of the entries contained in the scholar's register Ex. 8. He admitted that entries in the scholar's register are made on the basis of entries contained in the admission form. He could not produce the admission form in original or its copy. He stated that Hukmi Chand was admitted in Ninth class on the basis of transfer certificate issued by the Government Middle School, Palasani from where he had passed eight standard. He proved the signature of Satya Narain Mathur the then Principal who had issued the copy of the scholar's register Ex. 8. Satya Narain Mathur was admittedly alive but he was not examined to show as to on what basis he had mentioned the date of birth of Hukmi Chand in Ex. 8. The evidence of Anantram Sharma merely proved that Ex. 8 was a copy of entries in scholar's register. His testimony does not show as to on what basis the entry relating to date of birth of Hukmi Chand was made in the scholar's register. Kailash Chandra Taparia PW 5 was Deputy Director (Examination) Board of Secondary Education, Rajasthan, he produced the counterfoil of Secondary Education of Hukmi Chand Bhandari, a copy of which has been filed as Ex. 9. He also proved the tabulation record of the Secondary School Examination 1974, a copy of which has been filed as Ex.

Page No.# 17/20

10. In both these documents Hukmi Chand's date of birth was recorded as 13- 6-1956. Kailash Chandra Taparia further proved Ex. 11 which is the copy of the tabulation record of Secondary School Examination of 1977 relating to Suraj Prakash Joshi. In that document the date of birth of Suraj Prakash Joshi was recorded as 11-3-1959. Kailash Chandra Taparia stated that date of birth as mentioned in the counterfoil of the certificates and in the tabulation form Ex. 12 was recorded on the basis of the date of birth mentioned by the candidate in the examination form. But the examination form or its copy was not produced before the court. In substance the statement of the aforesaid two witnesses merely prove that in the scholar's register as well as in the secondary school examination records the date of birth of a certain Hukmi Chand was mentioned as 13-6-1956 and in the tabulation record of secondary school examination a certain Suraj Prakash Joshi's date of birth was mentioned as 11-3-1959. No evidence was produced by the respondent to prove that the aforesaid documents related to Hukmi Chand and Suraj Prakash Joshi who had filed nomination papers. Neither the admission form nor the examination form on the basis of which the aforesaid entries relating to the date of birth of Hukmi Chand and Suraj Prakash Joshi were recorded was produced before the High Court. No doubt, Exs. 8. 9, 10, 11 and 12 are relevant and admissible but these documents have no evidentiary value for purpose of proof of date of birth of Hukmi Chand and Suraj Prakash Joshi as the vital piece of evidence is missing, because no evidence was placed before the court to show on whose information the date of birth of Hukmi Chand and the date of birth of Suraj Prakash Joshi were recorded in the aforesaid document. As already stated neither of the parents of the two candidates nor any other person having special knowledge about their date of birth was examined by the respondent to prove the date of birth as mentioned in the aforesaid documents. Parents or near relations having special knowledge are the best persons to depose about the date of birth of a person. If entry regarding date of birth in the scholar's register is made on the information given by parents or someone having special knowledge of the fact, the same would have probative value. The testimony of Anantram Sharma and Kailash Chandra Taparia merely prove the documents but the contents of those documents were not proved. The date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar's register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, Page No.# 18/20

9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents have no probative value and the dates of birth as mentioned therein could not be accepted.

15. The High Court held that in view of the entries contained in the Exs. 8, 9, 10, 11 and 12 proved by Anantram Sharma PW 3 and Kailash Chandra Taparia PW 5, the date of birth of Hukmi Chand and Suraj Prakash Joshi was proved and on that assumption it held that the two candidates had attained more than 25 years of age on the date of their nomination. In our opinion the High Court committed serious error. Section 35 of the Indian Evidence Act lays down that entry in any public, official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. In Raja Janaki Nath Roy v. Jyotish Chandra Acharya Chowdhury [AIR 1941 Cal 41 : 45 CWN 141 : 193 IC 419] a Division Bench of the Calcutta High Court discarded the entry in school register about the age of a party to the suit on the ground that there was no evidence to show on what material the entry in the register about the age of the plaintiff was made. The principle so laid down has been accepted by almost all the High Courts in the country, see Jagan Nath v. Mali Ram [AIR 1951 Punj 377] , Sakhi Ram v. Presiding Officer [AIR 1966 Pat 459] , Ghanchi Vora Samsuddisn Isabhai v. State of Gujarat [AIR 1970 Guj 178] and Radha Kishan Tickoo v. Bhushan Lal Tickoo [AIR 1971 J&K 62] , In addition to these decisions the High Courts of Allahabad, Bombay, Madras have considered the question of probative value of an entry regarding the date of birth made in the scholar's register or in school certificate in election cases. The courts have consistently held that the date of birth mentioned in the Page No.# 19/20

scholar's register or secondary school certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made, is examined, see Jagdamba Prasad v. Jagannath Prasad, [42 ELR 465 (All HC)] K. Paramalali v. I.M. Alangam [31 ELR 401 (Mad HC)] , Krishna Rao Maharu Patil v. Onkar Narayan Wagh [14 ELR 386 (Bom HC)] .

17. The appellant was declared elected as he had polled majority of valid votes. His election could not be set aside unless the respondent-election petitioner was able to prove that Hukmi Chand and Suraj Prakash Joshi had attained the age of 25 years on the date of nomination by producing cogent and reliable evidence before the High Court. The burden to prove that fact was on the respondent throughout and he could not and did not discharge that burden merely by producing the documentary evidence Exs. 8, 9, 10, 11 and 12 or on the basis of oral testimony of Anantram Sharma PW 3 and Kailash Chandra Taparia PW 5. As discussed earlier these documents do not conclusively prove the dates of birth of Hukmi Chand and Suraj Prakash Joshi. The entries regarding dates of birth contained in the scholar's register and the secondary school examination have no probative value, as no person on whose information the dates of birth of the aforesaid candidates was mentioned in the school record was examined. In the absence of the connecting evidence the documents produced by the respondent, to prove the age of the aforesaid two candidates have no evidentiary value. The High Court committed serious error in accepting the dates of birth as mentioned in the aforesaid documents. In our view the High Court's entire approach in considering the question of dates of birth was wholly misconceived. The burden to prove the fact in issue, namely, the dates of birth of Hukmi Chand and Suraj Prakash Joshi was on the respondent who was the election petitioner. The respondent could not succeed if no evidence was produced by the appellant on the question of age of the aforesaid candidates and his election could not be set aside merely on the ground that the respondent had made out a prima facie case that the entry contained in the electoral roll regarding the age of two candidates was incorrect. It appears that in his list of witnesses the appellant had included the name of Suraj Prakash Joshi and his father Maghdutt Joshi as witnesses but they were not examined by him. Similarly, Hukmi Chand was also cited by the appellant but he was also not examined instead Navratan Mal Bhandari, brother of Hukmi Chand was examined as PW 4 and Ghanshyam Chhangani was examined as PW 6 by the appellant, who supported the appellant's case that Hukmi Chand and Suraj Prakash Joshi had not attained the age of 25 years on the date of nomination. Since the appellant had not examined Hukmi Chand, Suraj Prakash Joshi or their parents, the High Court drew adverse inference against him. The High Court committed serious error in doing so. There was no question of drawing adverse inference against the appellant, as the burden to prove the age of Hukmi Chand and Suraj Prakash Joshi was on the election petitioner and since he had failed to prove the same by cogent evidence no adverse inference could be drawn against the appellant.

Page No.# 20/20

In fact, burden was on the respondent to prove his case by producing Hukmi Chand and Suraj Prakash Joshi, or their parents to prove and corroborate the dates of birth as mentioned in the school register and the certificate. If he failed to do that he could not succeed merely because appellant had not produced them. In the circumstances no adverse inference was at all possible to be drawn against the appellant for not examining Hukmi Chand and Suraj Prakash Joshi or their parents."

[Emphasis Supplied]

27. In view of all the above discussions we do not find any ground to come to a conclusion that the Foreigner's Tribunal's opinion dated 13.05.2019 is contrary to the provisions of law or that any material evidence presented by the petitioner was not considered and/or wrongly considered and that it requires any interference in the writ jurisdiction. Consequently, we find no ground to interfere with the impugned opinion dated 13.05.2019 passed by the learned Member, Foreigners Tribunal No.2, Dhemaji at Silapathar in FT Case No.26/2018.

28. The writ petition is accordingly found to be devoid of merit and is therefore dismissed. No costs.

29. Registry is directed to transmit the case record connected to FT Case No.26/2018 to the Foreigners Tribunal No.2, Dhemaji at Silapathar.

                 JUDGE                                                   JUDGE


 Compiring Assistant