Declared foreigner obtained passport even as his Indian citizenship claim had been pending before the HC
Staff Reporter
Guwahati: The Gauhati High Court has come down heavily on the Department of Home and the Director General of Police, Assam, for the issuance of a passport to a person who had been ruled a foreigner by a Foreigners Tribunal and whose claim to Indian citizenship was already pending before it. The HC ordered the Home Department and the DGP to cause an inquiry into the matter, cast responsibility and take appropriate steps against the erring personnel who facilitated a favourable police report to such a person.
The division bench of Justice Sanjay Kumar Medhi and Justice Pranjal Das issued the order in a writ petition (WP(C)/1610/2020) filed by the petitioner to challenge the opinion in the impugned order dated October 25, 2019, passed by the Foreigners' Tribunal, Hojai, in Case No. (F.T./L/Case No. 1296/2016) arising out of SP's Case No. 731/2012.
By the impugned judgement, the petitioner, who was the proceedee before the Tribunal, has been declared to be a foreigner post March 25, 1971.
The petitioner submitted a number of documents, including voter certified copies of 1965, 1970, 1977, 2005, 2010 and 2016; the photocopies of Elector Identity Cards; Transfer Certificate of Nur Nagar LP School; a residency certificate issued by the Gaon Burah; a Revenue paid receipt; the Original Passport; an affidavit with the name and year of birth of the petitioner's grandfather; and a Sale Deed.
The petitioner's counsel submitted that the name of the petitioner's father appears in the voters list for the year 1965. The petitioner also relied on the voters lists from 2005 and 2010, which include his name.
The counsel further submitted that evidence was adduced by the petitioner himself as Defence Witness (DW) 1, his mother as DW2 and his maternal uncle as DW3.
The court, however, disregarded the oral testimony of the witnesses.
The standing counsel of the Home Department said the burden of proving citizenship rests absolutely upon the petitioner, notwithstanding anything contained in the Evidence Act of 1872.
The court, after going through the evidence and hearing the witnesses, stated that the passport in the name of the petitioner was not proved in accordance with the law and that no personnel from the passport office had adduced evidence.
"We are of the view that the petitioner as proceedee had failed to discharge his burden to prove his citizenship," the court ruled.
Therefore, the bench believed that the impugned order passed by the Member of the Foreigners' Tribunal, Hojai, does not call for any interference.
The bench ruled, "The interim order passed earlier stands vacated. The actions consequent upon the opinion rendered by the learned Tribunal would follow in accordance with law."
Dismissing the writ petition on the grounds mentioned, the Court said it was intrigued by the fact that a passport (No. K5157665) has been claimed to have been issued in the name of the petitioner.
"This Court fails to comprehend as to how such a Passport could have been issued inasmuch as, prior to issuance of such Passport, which is effective from May 30, 2013, the present Reference was already pending. A mandatory pre-requisite for issuance of a Passport is police verification. This Court fails to understand as to how a favourable report could have been given in such a police report when the aspect of the petitioner's citizenship itself was questioned by the Reference," the bench stated.
The bench further ordered, "Considering the seriousness of the matter where a proceedee facing a citizenship issue has been granted a Passport, this Court directs the Department of Home, Assam and the Director General of Police, Assam, to cause an inquiry in the matter, cast responsibility and take appropriate steps against the erring personnel. Action taken in this regard be intimated to the Registry of this Court expeditiously."
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