Rupmohan Barman vs The Union Of India And 5 Ors
2021 Latest Caselaw 3050 Gua

                                                                Page No.# 1/6

GAHC010269252017




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

                             Case No. : WP(C)/23/2018

         RUPMOHAN BARMAN
         S/O LT. RUKMINI BARMAN
         R/O VILL- LAMGOAN
         P.S. BOKO
         DIST. KAMRUP (R), ASSAM



         VERSUS

         THE UNION OF INDIA AND 5 ORS
         REP. BY THE SECRETARY TO THE MINISTRY OF HOME AFFAIRS, GOVT. OF
         INDIA, NEW DELHI.

         2:THE STATE OF ASSAM
          REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
          HOME DEPARTMENT
          DISPUR
          GUWAHATI-06.

         3:THE DEPUTY COMMISSIONER

          KAMRUP (R)
          AMINGAON
          DIST. KAMRUP (R)
          ASSAM

         4:THE SUPERINTENDENT OF POLICE (B)
          KAMRUP (R)
         AMINGAON
          DIST. KAMRUP (R)
         ASSAM

         5:THE ELECTORAL REGISTRATION OFFICER
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              49 NO. CHAYGAON LAC
             P.S. CHAYGAON
             DIST. KAMRUP (R)
             ASSAM

             6:THE STATE CO-ORDINATOR OF NRC
             ASSAM
              P.O. AND P.S. BHANGAGHAR
              GUWAHATI-05
              DIST.KAMRUP (M)
             ASSA

Advocate for the Petitioner   : MR. S ISLAM

Advocate for the Respondent : ASSTT.S.G.I.

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

Date of Hearing & Judgment : 24.11.2021

JUDGMENT AND ORDER (ORAL)

[N. Kotiswar Singh, J.]

Heard Mr. S. Islam, learned counsel for the petitioner. Also heard Mr. P.S. Lahakar,

learned CGC appearing for respondent no.1 & 6; Mr. J Payeng, learned Special Counsel, F.T.

appearing for respondent nos. 2 & 4; Mr. A.I. Ali, learned Standing Counsel, ECI appearing for

respondent nos.5 and Ms. U. Das, learned State Counsel, Assam, appearing for the

respondent no.3.

Page No.# 3/6

2. In this petition the petitioner has challenged the impugned opinion dated 28.08.2017

passed by the Foreigners Tribunal No.2, Kamrup(R), Boko, Assam, in B F.T Case No.465/2016,

by holding that the petitioner is an illegal immigrant, who entered India without valid

documents after 25.03.1971.

The petitioner was proceeded before the aforesaid Tribunal after the reference was made

as his citizenship was found doubtful.

3. We have perused the LCR and minutely examined the opinion dated 28.08.2017 passed

by the Foreigners Tribunal No.2, Kamrup(R), Boko, Assam, in B F.T Case No.465/2016.

4. The case of the petitioner is that the petitioner was born and brought up in Lamgaon

village under Boko Police Station Kamrup district. He stated that his father, namely, Rukmini

Barman was born in East Pakistan (Bangladesh) and he had migrated to India on 11.05.1964

and the Government of India also issued a Migrant Family Card (Relief Eligibility Certificate)

on 18.04.1967 in favour of the petitioner' father. The petitioner also stated that the name of

his father was enrolled in the voters list of 2005, in which the name of Rukminin Barman as

well as Rupmohan Barman appeared. He had also relied on the voter Identity card issued by

the Election Commission of India. Apart from him, he also examined one Gaonburah of

Lamgaon as D.W.2 who submitted an affidavit in support of the claim of the petitioner.

Accordingly, it has been submitted that the petitioner is an Indian and not an illegal

immigrant. It has been submitted that the petitioner's father arrived in India in the year 1964

and being the son of the aforesaid migrant, his case is covered under Section 6A(2) of the

Citizenship Act, 1955 which provides that subject to the provisions of sub-sections (6) & (7),

all persons of Indian origin who came before the 1 st day of January, 1966 to Assam from the Page No.# 4/6

specified territory and who have been ordinarily resident in Assam since the dates of their

entry in Assam shall be deemed to the citizens of India as from the 1 st day of January, 1966.

However, the Tribunal rejected the said plea.

5. The reasons for not accepting the plea of the petitioner by the Tribunal is to be found

in the following paragraph, which is reproduced herein below:

"In the instant case, it seems that there is no voter list in the name of the father of the opposite party prior to 1971. There is only one voter list in the name of the proceedee and his father in the year 2005 which is not sufficient to prove that the father of the opposite party has entered India before 1971. There is not even a single land document in the name of the father of D.W.1 and if the father of the opposite party has entered India in the year 1964 then why has his name not registered in the voter list of 1966. The proceedee has not given any reason as to why his father has not casted vote till 2005. When the nationality of the father is in doubt, the nationality of his son could not be ascertained. Thus, due to insufficient document naturally a doubt arises in mind regarding the Citizenship of the Opposite Party. It seems that after 2005, no voter lists are found either in the name of the opposite party or his father. After going through all the documents found in record it appears to me that the opposite party and his

ancestors were not citizen of India and have entered India after 25 th March, 1971."

Accordingly, the Tribunal gave the following opinion:

"In view of above discussion, observation and after going through the documentary and oral evidences in my opinion, I come to the conclusion that the opposite party Rupmohan Barman does not belong to Indian National and he is found as foreigner."

6. We do not agree with the aforesaid reasons and conclusion arrived at by the Tribunal.

There is clinching evidence in the form of Exhibit-A which is the Migrant Family Card (Relief

Eligibility Certificate) issued on 18.04.1967 by the competent authority of this country which

clearly records the name of Rukmini Barman as the head of the family, who is stated to be

the father of the petitioner. In the said card the name of other persons i.e. brother and sisters Page No.# 5/6

who had come along with Rukminin Barman are also recorded. In the said card, it has been

mentioned that they were sheltered in the Bamunigaon Refugee Camp in Kamrup District,

Assam. In the said card the date of arrival in India has been recorded as 11.05.1964 and that

they had arrived from East Pakistan. The genuineness of the said document has never been

questioned. Thus, in our opinion if the said document which is more than 30 years old unless

doubted, the same would have presumptive value as provided under Section 90 of the Indian

Evidence Act, 1872. That apart, we have also noted the deposition of the D.W.2, Gaonburah

who had not been cross-examined by the State by questioning his credential or casting any

doubt on the deposition made by him, who had clearly stated that D.W.1 is the son of

Rukmini Barman and that his father had entered India from Bangladesh and was living in

Lamgaon and the Ministry of Rehabilitation, Govt. of India had issued the Migrant Family Card

(Relief Eligibility Certificate) to him. We have also noted that the name of the petitioner and

his father, namely, Rukmini Barman are recorded in the voters list of 2005. Thus, it is clearly

seen that the local official had also testified about the parentage of the petitioner clearly

linking and declaring Rukmini Barman as the father of the petitioner and there is credible

documentary evidence that the said Rukmini Barman entered India from East Pakistan on

1964.

7. Under such circumstances, we are of the view that there are sufficient credible evidences

to show that the petitioner's father is one Rukmini Barman who had entered India in 1964

and as such, the petitioner is entitled to get the benefit as provided under Section 6A(2) of

the Citizenship Act, 1955 through his father. As regards the opinion of the Tribunal that the

name of the petitioner's father did not appear in any of the voters list prior to 2005, in our

view it cannot be a ground to discredit/disbelieve a clear evidence on record i.e. the Migrant Page No.# 6/6

Family Card which is Exhibit-A to show that the petitioner's family had entered into Assam in

the year 1964. Thus, merely because the name of a person does not appear in the voter list,

in our view the same cannot be a ground to disbelieve the clear evidence on record in the

form of Exhibit-A. Accordingly, we are of the opinion that the petitioner has been able to

prove that he being the son of aforesaid Rukmini Barman, who had entered Assam in 1964,

would be entitled to get the benefit of Indian citizenship as provided under Section 6A(2) of

the Citizenship Act, 1955.

8. Accordingly, we set aside the impugned opinion dated 28.08.2017 passed by the

Foreigners Tribunal No.2, Kamrup(R), Boko, Assam, in B F.T Case No.465/2016 and declare

the petitioner as an Indian and not a foreigner.

9. With the above observations, the present petition stands disposed of.

10. Let the LCR of the Foreigners Tribunal, Kamrup(R), Boko be remitted immediately.

                                  JUDGE                                   JUDGE



Comparing Assistant