Gyanoda Sarkar vs The Union Of India And 3 Ors
2021 Latest Caselaw 2810 Gua

                                                                              Page No.# 1/8

GAHC010268622017




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

                                   Case No. : WP(C)/7997/2017

            GYANODA SARKAR
            D/O- LT SATISH CH. SARKAR W/O- SRI RAJKUMAR SARKAR R/O- CHAPORI
            GAON, P.S. NORTH LAKHIMPUR, DIST- LAKHIMPUR, ASSAM, PIN- 781007



            VERSUS

            THE UNION OF INDIA and 3 ORS.
            THROUGH- THE MINISTRY OF HOME AFFAIRS GRIHA MANTRALAYA,
            NEW DELHI

            2:THE STATE OF ASSAM
            THROUGH- THE SECRETARY
            TO THE GOVT. OF ASSAM
             HOME DEPTT.
             DISPUR
             GHY-6

            3:THE DEPUTY COMMISSIONER
             LAKHIMPUR
             DIST- LAKHIMPUR
            ASSAM

            4:THE SUPERINTENDENT OF POLICEBORDER
             LAKIMPUR
             DIST- LAKHIMPUR
            ASSA

Advocate for the Petitioner :        Mr. N. Sarkar, Amicus Curiae
Advocate for the Respondents :      Ms. L. Devi,     Advocate

                                    Ms. A. Verma,     Special Counsel, F.T.
                                    Ms. U. Das,      Government Advocate
                                                                                 Page No.# 2/8




                                           BEFORE
                          HON'BLE MR. JUSTICE N. KOTISWAR SINGH
                           HON'BLE MRS. JUSTICE MALASRI NANDI




Date of Hearing & Judgment       :     11.11.2021



                               JUDGMENT AND ORDER (ORAL)


[N. Kotiswar Singh, J.]

Heard Mr. N. Sarkar, learned amicus curiae for the petitioner. Also heard Mr. L. Devi,

learned counsel appearing on behalf of Mr. R.K. Dev Choudhury, learned CGC appearing for

respondent No.1; Ms. A. Verma, learned Special Counsel, F.T. appearing for respondent Nos.

2 & 4; and Ms. U. Das, learned State Counsel, Assam, appearing for the respondent no.3.

2. In this petition the petitioner has challenged the order dated 25.04.2017 passed by the

Foreigners Tribunal No.1, Lakhimpur, North Lakhimpur, Assam, in Lakhimpur F.T.-1 Case

No.2450/2011, by which the petitioner was declared a foreigner who had illegally entered

Assam from the specified territory on or after 25.03.1971.

3. Learned counsel for the petitioner submits that apart from the merit of the case, the

petitioner's brother namely, Ranjit Sarkar, son of Late Satish Chandra Sarkar, resident of

Chapori Gaon, Ward No.12, P.S.- North Lakhimpur, Dist. -Lakhimpur had been declared to be

an Indian by the same Tribunal in Lakhimpur F.T.-I Case No2058/2011 vide order dated

28.11.2017 and as such, the petitioner, in view of the said opinion rendered by the same Page No.# 3/8

Tribunal, cannot be declared to be a foreigner.

4. On merits, it has been also submitted by the learned counsel for the petitioner that the

petitioner had produced one identity card bearing the No.1208025/64, which was issued in

the name of Satish Ch. Sarkar by the Camp Commandant, Nowgang. It is clearly evident from

the said document that the petitioner's father had entered into Assam in the year 1964 and if

that is so, the petitioner's father would be deemed to be an Indian in terms of the Section

6A(2) Of the Indian Citizenship Act, 1955 which provides that those persons of Indian origin

who came to Assam before 01.01.1966 from the specified territory and who have been

ordinarily residing in Assam since the date of the entering in Assam shall be deemed to be

citizens of India as from 01.01.1966 and as such, the petitioner, being born to the said Satish

Ch. Sarkar, who was deemed to be a citizen of this country and not an illegal migrant, ought

to be considered as an Indian citizen.

5. LCR has been received and we have perused the records.

6. Having gone though the impugned order dated 25.04.2017, what we have noted is that

the Tribunal discussed certain documents exhibited therein but did not consider them to be

acceptable as evidence to prove the case for the petitioner.

7. The petitioner had filed one photo-copy of the affidavit (Annexure-6 of the writ

petition) sworn by one Saraswati Sarkar wife of late Satish Ch. Sarkar, resident of Village

Bhoram Kachua, P.O.-Bhulki, P.S.-Dinhata, Dist. Cooch Behar, State-West Bengal, who

deposed that Satish Ch. Sarkar was her husband and also that the petitioner is her daughter

who possesses IRC No. 0531693 which, however, was rejected by the Tribunal as having no

evidentiary value.

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The petitioner had also exhibited an identity card issued in the name of her father.

However, said document was in a torn condition and was not very legible and as such, the

Tribunal rejected it also.

As regards Exhibit-3, which was a photo copy of the certified copy of the voters list of

the year 1989 of LAC 111 Lakhimpur, Ward No.9, bearing the name of the proceedee against

Sl. No.941 as well as the photo copy of the voter identity card which was exhibited as exhibit-

4, these were also rejected as being of documents of post 1971 and accordingly, the Tribunal

held that the petitioner is a foreigner of post 1971 stream.

8. Learned counsel for the petitioner, however, submits that in view of the fact that the

petitioner's brother Ranjit Sarkar, son of Late Satish Ch. Sarkar, has already been declared an

Indian by the subsequent opinion rendered by the same Tribunal 28.11.2017 based on the

similar set of documents, the petitioner ought to be also declared an Indian. However, it is to

be noted that the said opinion in favour of the aforesaid Ranjit Sarkar was rendered by the

Tribunal only 28.11.2017, whereas the opinion in respect of the petitioner was rendered

earlier on 25.04.2017. As such, the Tribunal could not have knowledge of the aforesaid

opinion subsequently rendered in respect of the petitioner's brother case.

9. We have, however, noted that the said Ranjit. Sarkar, who the petitioner claims to be his

brother, is the son of one Satish Ch. Sarkar (father) and Smt. Saraswati Sarkar (mother). In

the present proceeding also, the name of petitioner's mother is Saraswati Sarkar and her

husband was late Satish Ch. Sarkar. Similarly, it has been also mentioned in the opinion dated

28.11.2017 that the father of the petitioner therein, Satish Ch. Sarkar while living in Refugee

Camp at Bhoram Kachua, the Camp Commandant, Nowgang issued an identity card bearing Page No.# 5/8

the No.1208025/64 but the same card was in a damaged condition. In the records of this

case we also find a legible true copy of the aforesaid identity card which was attested by the

Block Development Officer, Coochbihar. In the said true copy of the Identity Card, the number

mentioned is 1208025/64 and the name of the Head of the family has been mentioned as

Satish Ch. Sarkar. In the said identity card it has been mentioned that the original place of

residence of the said Satish Ch. Sarkar was Karasapur, P.S. Mohanganj, Dist. Mymensingh,

Pakistan.

10. From the above, it is evident that the said Satish Ch. Sarkar though originally was a

resident of Mymensingh, Pakistan at the relevant time, came to India to take refuge in India

and was given the said identity card. Accordingly, in view of the similarity in the name of the

particulars of the father mentioned in the opinion dated 28.11.2017 in favour of the said

Ranjit Sarkar and the particulars of the petitioner's father, on record available on the record of

the present case, we are of the view that the petitioner also can be declared to be an Indian.

The aforesaid opinion dated 28.11.2017 passed by the Foreigners Tribunal, Lakhimpur in F.T.-I

Case No.2085/2011 could not have been brought to the knowledge of the Foreigners Tribunal

in the present proceeding against the petitioner, as it was subsequently rendered. However,

the said subsequent opinion dated 28.11.2017 rendered in favour of the said Ranjit Sarkar,

son of Satish Ch. Sakar in our view would be highly relevant if the petitioner is able to

establish that the said Ranjit Sarkar is his brother in view of the similarity in the evidences

considered in the said opinion dated 28.11.2017. Accordingly, if the petitioner can establish

that she is the sister of said Ranjit Sarkar, she can claim herself to be an Indian also. Under

such circumstances, we remand this matter to the Foreigners Tribunal for its reconsideration

by taking into account the aforesaid opinion dated 28.11.2017 passed by the learned Page No.# 6/8

Foreigners Tribunal.

11. Citizenship is one of the most important rights of a person in today's world. It is the

key to enjoyment of the rights guaranteed by law of the land. It is through citizenship that a

person can enjoy and enforce fundamental rights and other legal rights conferred by the

Constitution and other statutes, without which a person cannot lead a meaningful life with

dignity. A person stripped of citizenship would be rendered a stateless person, if any other

country refuses to accept him or her as its citizen. Such is the overarching significance and

importance of citizenship to a person. Therefore, any such proceeding which the potential of

depriving citizenship ought to be accordingly, examined from that perspective also. In a

normal proceeding before a court of law, in spite of any adverse finding, the person will

continue to enjoy the rights as a citizen. Only in a criminal proceeding because of any

adverse finding, some of the rights of a person may get affected because of incarceration,

except in the case of capital punishment, when life itself gets extinguished and all the rights

also go away along with it. Though a proceeding under the Foreigners' Tribunal, is merely

quasi-judicial in nature, yet an adverse opinion by the Tribunal that the proceedee is a

foreigner almost seals the fate of the proceedee as far as the issue of citizenship is

concerned, as the authorities are expected to declare such a person a foreigner in terms of

the opinion of the Tribunal and he would be liable to be detained and deported. Thus,

ordinarily, such an opinion of the Tribunal, in our view, ought to be given after analyzing all

the relevant evidence that may be produced by the proceedee and not by ignoring any

relevant evidence.

12. It may be noted that the aforesaid opinion dated 28.11.2017 passed by the Foreigner

Tribunal, Lakhimpur, North Lakhimpur in Lakhimpur F.T-I Case No.2085/11 has not been Page No.# 7/8

challenged before any higher authority and as such, has attained finality.

13. For the reasons discussed above, we allow this petition by setting aside the impugned

order dated 25.04.2017 passed by the Foreigners Tribunal-I, Lakhimpur, North Lakhimpur in

F.T-I. Case No.2450/11 with a direction to the Foreigners Tribunal for a fresh consideration.

While reconsidering the same, the Tribunal will take into account the opinion dated

28.11.2017 rendered in favour of Ranjit Sarkar in F.T.-I Case No.2058/2011 by the same

Tribunal and also the true copy of the identity card which is on record which was issued in the

name of Satish Ch. Sarkar.

14. Accordingly, the petitioner will appear before the Foreigners Tribunal-I, Lakhimpur,

North Lakhimpur on 11.12.2021 and produce the aforesaid opinion dated 28.11.2017 passed

by the same tribunal and allow her to lead evidence to prove the said document. Thereafter,

the Tribunal shall pass the opinion afresh in the light of the document that may be produced

by the petitioner in that regard.

15. It is made clear that since the nationality of the petitioner is already under cloud, she

will continue to remain on bail on furnishing a bail bond of Rs. 5,000/- (Rupees five

thousand) with one local surety of the like amount to the satisfaction of the Superintendent of

Police (Border), Lakhimpur during the pendency of the proceeding before the Tribunal. The

concerned Superintendent of Police (Border) shall also take steps for capturing the

fingerprints and biometrics of the iris of the petitioner. The petitioner also shall not leave the

jurisdiction of Lakhimpur district without furnishing the details of the place of destination and

necessary information including contact number to the Superintendent of Police (Border),

Lakhimpur.

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16. The writ petition stands disposed of accordingly.

17. Copy of this order be furnished to the Superintendent of Police (B), Lakhimpur for

doing the needful.

18 Mr. N. Sarkar, learned Amicus Curiae who has ably assisted this Court in conducting this

writ petition, may be paid the honorarium at the rate fixed under the Rules for the legal aid

counsels.

19. Let the LCR of the concerned Foreigners Tribunal be remitted immediately.

                                        JUDGE                                     JUDGE




Comparing Assistant