DAYAMOY NATH Vs. UNION OF INDIA
LAWS(GAU)-2018-12-95
HIGH COURT OF GAUHATI
Decided on December 03,2018

Dayamoy Nath Appellant
VERSUS
UNION OF INDIA Respondents

JUDGEMENT

NANI TAGIA, J. - (1.) Heard Ms. D Ghosh, learned counsel for the petitioner as well as Ms. G. Sarmah, learned counsel for respondent No.1; Mr. J. Payeng, learned counsel for respondent Nos. 2, 5, 6, 7 and 8; Ms. N. Upadhyay, learned counsel for respondent No.3 and Ms. U. Das, learned counsel for respondent No.4. By this petition, under Article 226 of Constitution of India, the petitioner seeks to challenge the legality and validity of the order dated 09.01.2017 passed by the learned Member, Foreigners' Tribunal No. 2nd, Karimganj, in F.T. Case No.284/2015 arising out of police enquiry No. D/330/1998 made by Supdt. of Police (B), Karimganj and old F.T. Case No.344/2013 of Foreigners' Tribunal No.1st, Karimganj, whereby the petitioner/ opposite party has been held to be a foreigner who entered into India from Bangladesh illegally after 25.03.1971. On receipt of Notice, the writ petitioner/opposite party filed his written statement wherein it has been stated that he was born at village- Chandbari, PO- Duttagram, PS-Nilambazar under the district of Karimganj, Assam. The name of his father is stated to be Late Kamini Mohan Nath and her mother's name to be Sindhu Bala Devi. It is stated that his father's name appeared in the Electoral Roll of 1966 vide Sl. No. 47, House No.9, Part No-96 under LA 7 South Karimganj Constituency. Again, in the Electoral Roll of 1970 his parents' names appeared at Sl. No. 59, 60, House No.9, Part No-96 under LA 7 South Karimganj Constituency. It is further stated in the written statement that the writ petitioner/opposite party's father expired in the year 1975 and he along with his mother and brothers shifted their residential place from village - Chandbari to village -Duhalia Colony, PO- Duhalia, PS-Patharkandi, Karimganj, Assam, and started to reside there permanently. It has also been stated that the petitioner studied upto Class-VIII in Govt. Aided Palli Unnayan H.S. School, Karimganj in the year 1998 and his name appeared for the first time in the Electoral Roll of 1997 under LA 2 Patharkandi Constituency wherein his name is recorded as "D" voter and he has also been issued Voter Identity Card bearing No. GPS4841241. Ext.1 is the Electoral Roll of 1966, Ext.2 is the Electoral Roll of 1970, Ext.3 is the School Transfer Certificate issued by Headmaster of Govt. Aided Palli Unnayan H.S. School, Ext.4 is the Electoral Roll of 1997 and Ext.5 is the Voter Identity Card. On perusal of Ext. 1 and Ext.2, i.e. Electoral Roll of 1966 and 1970, it is found that the name of the projected father of the writ petitioner/opposite party, Late Kamini Mohan Nath and his mother Sindhu Bala Devi is recorded therein. However, in the Electoral Roll of 1997, which is Ext.4, where the petitioner's name is stated to have appeared for the first time, it is found that name of the petitioner's father has been mentioned as Bolo Ram Nath, which is quite different from his projected father, namely, Kamini Mohan Nath. The writ petitioner/opposite party in order to establish linkage with his father (Late Kamini Mohan Nath), whose name find place in the Electoral Roll of 1966 and 1970, seeks to rely on Ext.3 and Ext.5, which are School Transfer Certificate and the Voter ID Card respectively. On perusal of Ext.3, it is found that it is a School Transfer Certificate dated 06.01.1999 issued by the Headmaster, Palli Unnayan H.S. School, wherein it has been certified that Sri Dayamoy Nath (writ petitioner) is the son of Late Kamini Mohan Nath, who had left the school on 30.12.1998 and his age according to the Admission Register is 24 years, 1 Month and 16 days. He has further been certified to have read upto Class-VIII and promoted to Class-IX. The School Certificate (Ext.3) was pressed into service by the petitioner as proof of his linkage with the projected father Late Kamini Mohan Nath. This certificate cannot be of any assistance to the petitioner for the reason that law in this regard is well settled. School Admission Register is not a public record within the meaning of Section 35 of the Indian Evidence Act and therefore, it is necessary to prove the contents of the said Admission Register and/or Certificate issued on the basis thereof. In Birad Mal Singhvi Vs. Anand Purohit, 1988 (Supp) SCC 604, the Hon'ble Supreme Court has held that date of birth recorded in school certificate or school register would have no evidentiary value unless the person who made the entry or who gave the information relating to the date of birth is examined. In the absence of evidence of such person, entries contained in school register or certificate would have no probative value. It has also been held that it is necessary to examine the parents or the person on whose information the entry might have been made and in the absence of connecting evidence, documents produced to prove the age of the certificate holder or other entries would have no evidentiary value. In the instant case, neither the Headmaster of the School was examined and deposed before the Tribunal to prove the Ext.3 nor the School Admission Register was produced in original before the Tribunal to prove the contents of Ext.3. Thus, Ext.3 was not a proved document, therefore, no reliance can be placed on Ext.3. Proceeding to Ext.5, which is a photocopy of the Voter ID Card, the next document relied upon by the petitioner to prove his linkage with the projected father (Late Kamini Mohan Nath), we find that the said Voter ID Card was issued on 10.01.2013. Insofar as this Ext.5 is concerned, besides not being proved, it is a post 25.03.1971 document. Merely producing such a Voter ID Card in absence of any supporting evidence would not be a proof of citizenship. Besides Ext.3 and Ext.5 as discussed above, we find no other exhibit or document through which the petitioner seeks to establish linkage with his late father Kamini Mohan Nath. Therefore, we are of the considered view that in the facts and circumstance of the case, the writ petitioner/opposite party has failed to establish his linkage with the projected father Late Kamini Mohan Nath with any cogent and reliable evidence. In that view of the matter, we find no infirmity in the impugned order dated 09.01.2017 passed by the learned Member, Foreigners' Tribunal No. 2nd, Karimganj, in F.T. Case No. 284/2015. For the reasons and discussions made hereinabove, we find no merit in the writ petition and the same stands dismissed without any order as to cost. ;


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