WA 269/2009 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY HON’BLE MR. JUSTICE A.C. UPADHAYAY The judgment and order dated 7/8/2009 passed by the learned Sing le Judge in WP(C) 80/2009 is the subject matter of challenge in the instant appe al. Thereby the appellant’s assailment of the order dated 7/7/2008 passed by the learned Foreigners Tribunal, Morigaon, in F.T. (D). Case No. 532/2006 adjudging her not to be a citizen of India and directing her deportation was negated. We have heard Mr. M.H. Rajborbhuiya, learned Counsel for the app ellant and Mrs. B. Goel, learned State Counsel. Also heard Mr. H. Rahman, learne d Assistant Solicitor General of India, Gauhati High Court, Guwahati. Briefly stated the facts necessary for the disposal of the appea l are that on receipt of a report from the concerned authority, a proceeding was initiated with the then Illegal Migrants (Detention) Tribunal, Nagaon, for the purpose of determining the nationality of the appellant. Eventually the proceedi ng was transferred to the Foreigners Tribunal, Nagaon, and was registered as F.T . (D). Case No. 532/2006, State versus Smti Malati Das. On issuance of notice in the proceeding, the appellant along with her husband Gouranga Das appeared befo re the learned Tribunal and sought time on two occasions to file written stateme nt. They however subsequent thereto abandoned the proceedings. The learned Tribunal, therefore, proceeded ex-parte in the matter and on a threa dbare consideration of the materials on record, which included the statement of Shri Tilak Ch. Bora, J.E. (E & D) Department, Morigaon, as PW 1 amongst others t o the effect that the appellant before him had stated that she had come from Ban gladesh with her father by its order dated 7/7/2008 held against her Indian nati onality and thereby directed her deportation from the territory of India. The le arned Tribunal in recording this finding had duly observed that the appellant ha d failed to contest the proceeding and more importantly omitted to discharge her burden in law to refute the report on the basis of which the same had been init iated. Being aggrieved, the appellant instituted WP(C) 80/2009 contendi ng that she is a citizen of India by birth and that the name of her father late Dinesh @ Dinesh Biswas who was a resident of village Gourmara Dalni under Moriga on P.S. & Dist-Morigaon (earlier Nagaon) had appeared in the voter’s list of 196 6 under No. 83 Bukani L.A. Constituency (S.C.) Part No. 27, Vote Centre 20 of Go rumara Dalni. She also claimed that his name had appeared at Sl. No. 201 in the voter’s list of 1970 for the said constituency as well. She asserted her marriag e with one Shri Gouranga Das @ Gour Charan Das of village Kusumpur under Mayang P.S. According to her, on receiving notice of the proceedings before the learned Tribunal, she appeared before it along with her husband and submitted a copy of the voter’s list of 1970 in which her father’s name had been enlisted. She stat ed that at that point of time, the voter’s list of 1966 was not readily availabl e with them. The appellant has averred that she thereafter did not appear in the proceedings being under the impression that on a perusal of the voter’s list of 1970, the matter would be dropped. She eventually instituted the writ proceedin g on being served with a notice No. MRG/B/Q-1/2008/27 dated 10/08 issued by the Superintendent of Police (Border), Morigaon, requiring her to leave the territor ies of India within seven days. The learned Single Judge, after hearing the learned Counsel for the parties, by the judgment and order impugned, has rejected the petition. Mr. Rajborbhuiya has emphatically argued on the basis of the cop ies of the voter’s list of the year 1966 and 1970 as well as the certificates da ted 10/12/2008 and 8/12/2008 of the President of the Buraburi Gaon Panchayat and the local Gaonburha that as it is apparent therefrom that the appellant had bee n born in India before the cut of date i.e. 25/3/1971, she is entitled to be adj udged as a citizen of India by birth and, therefore, the determination to the co ntrary on the face of the materials on record, is illegal and unsustainable in l aw. To endorse his submissions, the learned Counsel has also placed reliance on the copies of the voter’s list of the years 1997 and 2005 enlisting the appellan t’s name as voter of No. 79 Jagiroad (S.C.) Constituency. According to the learn ed Counsel, these documents though on record, have not been properly appreciated in the writ proceeding. Mr. Rajborbhuiya has urged that in view of illiteracy o f the appellant, the unintentional omission on her part to contest the proceedin gs before the learned Tribunal ought not to be applied against her to her great detriment and prejudice. When confronted with the fact of absence of surname of the appellant’s father in the voter’s list of 1966 and 1970 as well as anomaly i n age of the appellant in the voter’s list of 1997 and 2005, the learned Counsel has clarified that such errors are the yield of casual exercises done by the en umerators in course of the process undertaken by them. In all Mr. Rajborbhuiya h as implored this Court to consider the case of the petitioner with compassion. Mr. Goel has argued in response that as none of the documents on which reliance has been made by the appellant is conclusive of her status of ci tizen of India by birth, having regard to the detailed consideration made by the learned Single Judge, the impugned judgment and order does not merit interferen ce in the appeal. The learned Assistant Solicitor General has generally endorsed t he arguments advanced on behalf of the State respondents. The pleadings available and the documents accompanying the appea l have been scrutinised by us. To start with, the parties are not in issue that the appellant though had appeared before the learned Tribunal on two occasions h ad thereafter ceased to do so. Except the ground of illiteracy as has been put a cross in course of the arguments, none other has been cited before us justifying her abjurement of the proceedings. The appellant’s claim of having laid before the learned Tribunal a copy of the voter’s list of 1970 is also not borne by the order dated 7/7/2008 passed by it deciding the proceeding ex-parte against her. On the other hand, the said order in categorical terms refers to the statement of Shri Tilak Ch. Bora, J.E. (E & D) Department, Morigaon, examined as PW1 refer ring to the appellant’s statement before him that she had come from Bangladesh w ith her father. This statement per se vis-à-vis the appellant may not be decisiv e for the issue but viewed in the attendant facts and circumstances and the othe r materials on records is of some significance. A perusal of the voter’s list of the year 1966 though demonstrat es the name of one Dinesh appearing at Sl. No. 201 of the Assam Legislative Cons tituency No. 83 Bukuni (S.C.) Constituency, in absence of the surname of Biswas suffixed thereto it is not possible to definitely conclude that the same relates to the father of the appellant. The copy of the voter’s list of 1970 for the sa me Constituency also suffers from the same deficiency. Though the name of the ap pellant prima facie appears in the voter’s list of the Assam Legislative Constit uency No. 79 Jagiroad (S.C.) Constituency for the years 1997 and 2005, the same ipso facto is not probative of her status of citizenship by birth as claimed by her. This is more so as the voter’s list of 1966 and 1970 referred to hereinabov e do not conclusively establish that her father’s name had appeared therein. The learned Single Judge in this regard with reference to the vo ter’s lists of 1966 and 1970 while rejecting the photo copies thereof as inadmis sible as evidence had also inter alia observed that the age of Dinesh projected as the father of the appellant as 35 was overwritten in the voter’s list of 1970 . On a totality of the consideration of the pleadings and the materials on recor d, the learned Single Judge was of the opinion that the appellant had failed to discharge the burden of proving her status as the citizen of India by birth. The learned Single Judge reiterated as well that in absence of any clinching eviden ce that Shri Dinesh @ Dinesh Biswas is her father, her claim of citizenship by b irth, on the basis of the voter’s list of 1966 and 1970 cannot be entertained. On an evaluation of the documents available on records, we do not find any convi ncing reason to take a different view. Though great emphasis has been laid also on the certificates issued in favour of the appellant as alluded hereinabove, in the above factual background, we are unable to attach any premium thereto to de cide the issue in favour of the appellant. In the above view of the matter, we do not see any merit in the appeal, which is accordingly dismissed. No costs.