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Judgment
V. K. Bist, J.
Present Special Appeal is directed against the judgment and order dated 02.04.2018, passed by the learned Single Judge, in Writ Petition No. 2538
(M/S) of 2015, Ukha Devi @ Basanti Devi and others vs State of Uttarakhand and others, whereby the writ petition filed by the writ petitioners
(appellants herein) was dismissed.
2) Brief facts of the case, as narrated in the writ petition, are that petitioner no. 1 (appellant herein) claims herself to be a permanent resident of
village Jirdharibakhal, Gram Sabha, Sundolabakhal, P.O. Kingorikhal, Patti Gujdu, Block Nainidanda, Tehsil Dhoomakot, District Pauri Garhwal. She
fell in love with one Mr. surendra Singh @ Sant Bahadur, who was the resident of Nepal. He was working as a contractor in Chamoli. Subsequently
both of them got married to each other in the year 1985. After marriage, the petitioner no. 1 left her parental home and starting residing with her
husband in Vilalge Trikot, P.O. Burjola, Tehsil Thariali, District Chamoli. Petitioner nos. 2 to 9 were begotten out of said wedlock.
3) Petitioner no. 1 moved an application before the District Magistrate, Chamoli (Annexure no. 1 to the writ petition) with a prayer that she is residing
in village Trikot, P.O. Burjola, Tehsil Tharali, District Chamoli since last 35 years and despite that her name and name of her family members has not
been entered in the relevant records. Due to this reason she is unable to get her voter I.D., Aadhar card, ration card and domicile certificate. She
prayed that the same be provided to her so that she may avail the facilities made available to a citizen of India. Copy of certificate of cancellation of
Pariwar Register (Annexure no. 3 to the writ petition) would reveal that petitioner no. 1 Smt. Ukha Devi d/o late Khushal Singh, r/o village
Jirdharibakhal (Sundolabakhal), P.O. Kingorikhal, Tehsil Dhoomakot, District Pauri Garhwal is the domicile of said place and her marriage was
solemnized with Sri Surendra Singh s/o late Sri Roop singh, Village Trikot, Tehsil Tharali, Block Tharali, District Chamoli. Her date of birth, as per
Pariwar Register, was indicated as 04.09.1959.
4) Copies of birth certificates of petitioner nos. 6 to 9 were also annexed as Annexure nos.
R.A. 1 to the rejoinder affidavit filed in the writ petition. In these birth certificates, the date of birth of petitioner nos. 6 to 9 were mentioned as
15.06.1996, 05.08.2001, 01.06.1997, 15.06.1993, respectively, and their parentage is shown as Sri Sant Bahadur (father) and Smt. Ukha Devi
(mother). School leaving certificate of petitioner no. 3 is also annexed, showing his date of birth as 01.03.1988. Unfortunately, Surendra Singh @ Sant
Bahadur, husband of petitioner no. 1, died in the year 2007 due to drowning.
5) Subsequently, a letter dated 23.02.2015 was written by the Block Development Officer, Tharali addressed to petitioner no. 1 stating therein that a
complaint letter received from the office of District Magistrate, Chamoli for enquiry against you. After enquiry it was found that though Ukha Devi
w/o Surendra Singh used to reside in village Trikot, but her husband was of Nepali origin and due to this reason, her name does not figure in Pariwar
Register of the Gram Panchayat and other documents. Therefore, it is not possible to enter the name of petitioner no. 1 in the Voters list, ration card
and other documents, as she is a foreign citizen.
6) Counter affidavit was filed on behalf of respondent nos. 3 and 4. A perusal of counter affidavit would reveal that the averments made on oath in
the writ petition have not been specifically denied. In reply to the contents of paragraph no. 2, it is contended that the petitioner no. 1 neither has
submitted any proof regarding herself of a single person / woman named Ukha Devi and Basanti Devi, nor does she adduced any document of Family
Register Part -2 containing her name alongwith her father namely Khushal Singh. Even in the relevant Pariwar Register of concerned village her
name is not mentioned alongwth other family members. There is no specific denial to the averments made in the writ petition.
7) It is settled proposition of law that statements made on oath, unless denied specifically, are presumed to be correct.
8) Learned Single Judge has dismissed the writ petition on the pretext that the petitioner no. 1 (appellant no. 1 herein) got married to Surendra Singh, a
citizen of Nepal, 35 years back and left India and had gone to Nepal and, thereafter, never returned to her native village.
9) It is not the case of the respondent State that appellant no. 1 ever acquired citizenship of Nepal. The learned Single Judge, without there being any
specific denial of the averments made in the writ petition, has held that she has not submitted any proof of her birth in India. On a perusal of record, it
would reveal that it is not a case of the respondents, besides the respondents have taken a stand that appellant no. 1 got married with a person having
citizenship of Nepal. The findings recorded by learned Single Judge are against the material available on record and against the settled proposition of
law that the facts should be presumed proved unless rebutted specifically. This proposition of law has not been considered by the learned Single
Judge.
10) In the present Special Appeal, a copy of Pariwar Register is again filed. The name of the appellant no. 1 figured in the Pariwar Register by Shri
Khushal Singh. The Pariwar Register was prepared more than 20 years back and its validity has not been challenged. Provision contained in Section
3(2)(a) of the Citizenship Act, 1955 provides that for acquiring citizenship by birth, a person should have been born in India on or after the 26th day of
January, 1950, but before the 1st day of July, 1987. The date of birth of petitioner no. 1 (appellant no. 1 herein) is 04.09.1959. After her marriage with
Surendra Singh in the year 1985, appellant nos. 2 to 9 were born and brought up in India, but this fact has not been considered by the learned Single
Judge. Thus, on the basis of material available on record, we are of the considered view that the learned Single Judge has committed patent illegality in
dismissing the writ petition.
11) In view of the above, the impugned judgment and order dated 02.04.2018, passed by learned Single Judge, is unsustainable in law. The same is
liable to be set aside and is hereby set aside. Consequently, the letter dated 23.02.2015 issued by the Block Development Officer, Tharali, is quashed.
12) The Special Appeal is, accordingly, allowed.
13) A writ of mandamus is issued directing respondent nos. 1 to 4 to issue domicile certificate and other certificates, viz., Aadhar Card, PAN card,
voter I.D. etc. in favour of the appellant no. 1 along with her family members (appellant nos. 2 to 9), treating her to be the citizen of India by birth.