Gauhati High Court
Mahar Uddin Ali vs The Union Of India And 4 Ors on 23 March, 2021
Equivalent citations: AIRONLINE 2021 GAU 155
Bench: N. Kotiswar Singh, Manish Choudhury
Page No.# 1/16
GAHC010024182017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3128/2017
MAHAR UDDIN ALI
S/O. LT. INCHU ALI, VILL. NO. 2 GORESWAR, P.O. and P.S. GORESWAR, DIST.
BAKSA, ASSAM, PIN-781366.
VERSUS
THE UNION OF INDIA and 4 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, SHASTRI BHAWAN, TILOK MARG, NEW DELHI-110001.
2:THE STATE OF ASSAM
REP. BY THE COMM. and SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY.-06.
3:THE DY. COMMISSIONER
BAKSA BTAD
P.O. and P.S. MUSHALPUR
DIST. BAKSA BTAD
ASSAM
PIN-781343.
4:THE SUPDT. OF POLICE B
BAKSA BTAD
P.S. and P.O. MUSHALPUR
DIST. BAKSA BTAD
ASSAM
PIN-781343.
Page No.# 2/16
5:THE OFFICER IN CHARGE
GORESWAR POLICE STATION
P.O. GORESWAR
DIST. BAKSA BTAD
ASSAM
PIN-781366
Advocate for the Petitioner : MR.S Z B AKLAS
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE HON'BLE MR. JUSTICE N. KOTISWAR SINGH HON'BLE MR. JUSTICE MANISH CHOUDHURY Date of hearing & Judgment : 23.03.2021 JUDGMENT AND ORDER (Oral) [N. Kotiswar Singh, J] Heard Mr. M.A. Sheikh, learned counsel for the petitioner. Also heard Mr. B. Deka, learned CGC appearing for respondent No.1; Mr. G. Sarma, learned Special Counsel, F.T. for respondent Nos.2, 3, 4 & 5.
2. In this petition the petitioner has challenged the opinion dated 10.04.2017 passed by the learned Foreigners Tribunal, Baksa (BTAD), Tamulpur in F.T. Case Page No.# 3/16 No.126/BAKSA/2016 arising out of Ref. IM(D)T Case No.339/2002.
3. The petitioner was proceeded on a reference being made against him by the referral authority that the petitioner, Md. Mahar Uddin Ali, aged about 40 years, son of Late Inchu Ali @ Md. Imus Ali, resident of No.2 Goreswar Village, Police Station Goreswar, Dist. Baksa (now) earlier under the then district Kamrup Assam, is an illegal entrant to India (Assam). As per the records, it appears that the reference was made on the basis of an inquiry conducted by the concerned authorities and finding that the petitioner is suspected to be an illegal immigrant from Bangladesh.
4. Accordingly, on the basis of the said reference, the Foreigners Tribunal, Baksa at Tamulpur initiated the proceeding against the petitioner. On being summoned, the petitioner made appearance before the said Tribunal and submitted his written statement dated 17.02.2016 claiming that he was born in the year 1977 and his father, late Inchu Ali @ Md. Imus Ali, S/o- Late Nalu (father) and Tarabenu Nessa (mother) belonged to Village No.2 Goreswar, Baksa, BTAD, Assam. The petitioner also claimed that his name appeared in the voters' list of 1977 and one voter identity card was issued by the Election Commission of India, though in the said identity card his name has been wrongly written as Nahruddin Ali.
It was claimed that the petitioner has been casting his vote from the year 1997 till date in Village-Goreswar, Dist. Baksa, BTAD (Assam) under 57 No. Rangia LAC. The petitioner also submitted other documents, viz., a photo copy of the voters list of 1965 containing his father's name, voters list of the year 1977 in which the name of the petitioner appeared, a certificate issued by the Gaonburah of Village No.2 Goreswar, Page No.# 4/16 Baksa, BTAD, Assam, and a photo copy of Elector Photo Identity Card. However, the learned Tribunal was not convinced with the materials and evidences adduced and held that the petitioner has failed to prove that he is an Indian citizen.
5. Accordingly, the learned Tribunal declared the petitioner a foreigner, who entered to India after 25.03.1971 without having any valid document and without authority. The petitioner being aggrieved by the said opinion of the learned Foreigners Tribunal, passed in F.T. Case No.126/BAKSA/2016, has filed the present writ petition being WP(C) No.3128/2017.
6. During the pendency of this petition and after the petitioner was declared a foreigner, the petitioner filed an additional affidavit in this case and annexed a certified copy of the order dated 29.07.2017 passed by the learned Foreigners Tribunal, Baksa, Tamulpur in F.T. Case No.351/BAKSA/2016, to bring on record the proceeding initiated against his brother, namely, Md. Riajuddin Ali. The petitioner claims that the case of Md. Riajuddin Ali was decided in his favour by the same learned Tribunal vide opinion dated 29.07.2017.
Accordingly, learned counsel for the petitioner submits that the aforesaid finding by the same Foreigners Tribunal against his own brother will set at rest the issue in his favour that he is an Indian and not a foreigner, for the reason that the same Tribunal after considering the evidences and materials on records held that his brother Md. Riajuddin Ali is not a foreigner.
7. We have perused the certified copy of the order dated 29.07.2017 passed by the Page No.# 5/16 learned Foreigners Tribunal, Baksa, Tamulpur in F.T. Case No.351/BAKSA/2016. From perusal of the said order, it appears that one Md. Riajuddin Ali, son of one Late Inchu Ali, resident of Village No.2 Goreswar district Karmup was proceeded before the same Foreigners Tribunal, Baksa on the basis of a reference made by the Superintendent of Police (B), Kamrup against the said Md. Riajudin Ali. In the said order dated 29.07.2017 of the Tribunal, it was also mentioned that the father of Md. Riajuddin Ali is Md. Inchu Ali, son of S/o- Late Nalu (father) and his mother Tarabenu Nessa and his father's name was also entered in the voters lists of 1965, 1970 under 66 No. Tamulpur LAC vide serial No.177 and 168 with House no.70 of Village Goreswar, which were exhibited as Exhibit-1 & 2. From the said order of the Tribunal it is also revealed that the certificate issued by the Gaon Panchayat was also taken into consideration as well as the family identity card vide no.76/40 issued by the Goreswar Gaon Panchayat, which were produced in original. Learned Tribunal after referring to the other documents and evidences on record was satisfied that there were sufficient trustworthy evidences to prove that the said Md. Riajuddin Ali, son of Late Inchu Ali is not a foreigner and accordingly, the reference was answered in the negative by the learned Tribunal, Baksa, Tamulpur and in favour of the said Md. Riajuddin Ali.
8. From the above what transpires is that though the petitioner, Mahar Uddin Ali, has been declared to be a foreigner by the learned Foreigners' Tribunal, Baksa vide order dated 10.04.2017 passed in F.T. Case No.126/BAKSA/2016, soon thereafter, the same Tribunal vide order dated 29.07.2021 passed in F.T. Case No. 351/BAKSA/2016 also declared one Md. Riajuddin Ali, son of late Inchu Ali, whom the petitioner claims to be his Page No.# 6/16 elder brother, as an Indian. Thus, a unique situation has arisen here, where the same Tribunal has declared one brother as a foreigner and another brother as an Indian, if the claim of the petitioner is to be accepted.
9. We are of the view that such an incongruous position obtaining, however, cannot be sustained for the reason that two brothers born to the same parents residing in the same village cannot successively be declared as a foreigner and an Indian respectively by the same Tribunal, though in separate proceedings, when both are claiming to be Indiasn. Either both have to be foreigners or Indians as the case may be. However, this is subject to proof that the said Md. Riajuddin Ali is the elder brother of the present petitioner, Md. Mahar Uddin Ali.
10. The records relating to the proceeding before the Foreigners Tribunal, Baksa, in F.T. Case No.351/BAKSA/2016 relate to Md. Riajuddin Ali, who is not before this Court, are not before this Court As such, merely on the basis of the production of a certified copy of this order dated 29.07.2017 passed in F.T. Case No.351/BAKSA/2016, this Court cannot arrive at a conclusive opinion that the said Md. Riajuddin Ali is indeed the elder brother of the petitioner and therefore, the present petitioner must be also treated to be an Indian.
11. However, we are also of the view that there are sufficient materials mentioned in the Tribunal's order dated 29.07.2017 which indicate that the names of the parents as well as residential addresses of both the persons viz, the petitioner herein and Mr. Riajuddin Ali are similar and as such, if it is proved that the said Mr. Riajuddin Ali is indeed the elder brother of the present petitioner, the impugned opinion given by the learned Foreigners' Tribunal in F.T. Case No.126/BAKSA/2016 (reference IMDT Case No.339/2002) Page No.# 7/16 cannot obviously stand. However, as observed above, this is a question of fact which in our opinion can be best be determined by the learned Tribunal and not by this Court in exercise of the power of judicial review under Article 226 of the Constitution of India.
Accordingly, we consider it to be a fit case where the learned Tribunal should re- examine the claim of the petitioner that the said Riajuddin Ali is the elder brother and if it is found so, the present petitioner also deserves to be declared as an Indian on the strength of the opinion of the Foreigners' Tribunal in F.T. Case No. 351/BAKSA/2016.
12. Accordingly, we allow this petition by directing the learned Foreigners' Tribunal, Baksa, Tamulpur to reconsider the claim of the petitioner that he is not a foreigner but an Indian by taking into consideration the opinion rendered by the Foreigners' Tribunal, Baksa in F.T. Case no.351/BAKSA/2016 reference in IM(D)T case No.337/2002 whereby Md. Riajuddin Ali, who the petitioner claims to be his brother, and pass appropriate order in that regard. As a consequence, since the Foreigners Tribunal, Baksa needs to reconsider the opinion in F.T. Case No.126/BAKSA/2016 with reference to the petitioner, the earlier opinion dated 10.04.2017 passed in F.T. Case No.126/BAKSA/2016 by the learned Foreigners' Tribunal, Baksa is set aside. The learned Tribunal will pass a fresh opinion by taking into consideration the order passed in F.T. Case no.351/BAKSA/2016 in accordance with law.
13. It goes without saying that if the learned Foreigners Tribunal finds that the Foreigners Tribunal in F.T. Case no.351/BAKSA/2016 had indeed passed the opinion on 29.07.2017 declaring the said proceedee Md. Riajuddin Ali to be an Indian and if the Tribunal after hearing the petitioner also finds that the said Md. Riajuddin Ali is the elder Page No.# 8/16 brother of the petitioner, the Tribunal shall declare the petitioner also as an Indian, for which the petitioner may be allowed to adduce evidences, oral and documentary, in support of his claim that he is the brother of Md. Riajuddin Ali.
14. We have issued this direction to the learned Foreigners Tribunal to reconsider the opinion dated 10.04.2017 regarding the claim of the petitioner on the basis of the subsequent opinion of the Foreigners Tribunal dated 29.07.2017 for the following reasons.
15. It could have been argued by the State that perhaps the subsequent opinion of the Foreigners Tribunal dated 29.07.2017 relating to the petitioner's elder brother ought to be reconsidered in the light of the earlier opinion of the Tribunal date 10.04.2017 declaring the petitioner to be a foreigner, rather than the other way round as directed by us. However, the said contention is not tenable for the reason that the subsequent opinion of the Tribunal has attained finality as it was not challenged by the State whereas, the earlier opinion dated 10.04.2017 has been put to challenge by the petitioner and hence not yet attained finality, even if rendered earlier.
Further, it is the settled position of law that while giving an opinion, the standard of proof to be adopted by the Tribunal is preponderance of probability. Thus, if on appraisal of evidences on records, the proceedee is able to make out a case which is favourable to the one which the State seeks to make out, the Tribunal should lean in favour of the proceedee. In the present case, the impugned opinion is against the present petitioner whereas, the opinion rendered by the Tribunal in the case of Mr. Riajuddin Ali is favourable to the petitioner. The opinion given by the Tribunal in favour of Md. Riajuddin Ali was certainly based on certain materials and evidences adduced by the said Mr. Page No.# 9/16 Riajuddin Ali tracing his lineage to the same person and if the same Tribunal could accept the plea/ evidences produced by Mr. Riajuddin Ali to be sufficient to prove his case that he is not a foreigner, this opinion can certainly be invoked and relied upon by the petitioner in support of his claim that he too is an Indian and not a foreigner as he is also tracing his lineage to the same person which, however, it will be subject to the condition that the present petitioner is able to prove that the aforesaid Md. Riajuddin Ali, the other proceedee, is indeed his elder brother as claimed by him born to the same biological parents.
16. When two conflicting opinions are given by the Tribunal on the claim of legacy traceable to the same person and if these opinions relate to the blood relations as brothers or sisters, the one favourable to either of the siblings can be applied to the other. The fact that one of the siblings had been successful to prove that he is an Indian and not a foreigner does clearly indicate that there are sufficient cogent materials to support such a claim made by the other sibling. Failure on the part of the other sibling to convince the Tribunal could be because of certain shortcomings in the nature of evidences adduced, which may be attributable to inability to muster sufficient materials/evidences etc. Standard of proof in such proceeding being preponderance of probability, it can be certainly said that if one of the siblings/blood relations has been able to prove his case that he is an Indian, there cannot be any doubt that the other sibling will be also an Indian even if other sibling does not adduce any evidence except to prove that he is the brother, as otherwise, it would be against law of nature and common sense that the siblings will have different citizenship status, unless relinquished by any one of them.
Page No.# 10/16 Thus, the beneficial view must prevail in such a situation, as arisen hereunder.
17. However, before we part with the case, we would like to make certain observations and directions.
18. From the above what one can observe is that if the contention of the petitioner is accepted to be correct, there were at least two independent proceedings going on against the two brothers who were born to the same parents and who are residing in same village, and these two proceedings had led to two different and conflicting opinions. In one proceeding, one brother has been declared a foreigner and in another, the other has been declared an Indian. These two conflicting opinions cannot co-exist for the simple reason that the two brothers are born to the same parents and as such, they both have to be either Indians or foreigners as the case may be. In our opinion, the present paradoxical situation has arisen only because of lack of proper coordination amongst the various authorities in making the necessary investigation and reference.
19. A proceeding before the Foreigners Tribunal is initiated only when a reference is made by the referral authority. The referral authority makes the reference only on the basis of certain investigation carried out by the competent authority under the Foreigners' Act, 1946 read with the Foreigners (Tribunals) Order, 1964 and other relevant rules and regulations holding the field. The reference is made, based on the investigation, that a particular person is an illegal immigrant or a doubtful illegal immigrant. Thus, a reference can be made only on the basis of the finding arrived at and on conclusion of the investigation conducted by the investigating authority questioning the citizenship of the person concerned. If two investigations were carried out against these two brothers, who Page No.# 11/16 are claiming to be staying together in the same village and claiming the same lineage, we fail to understand why these two investigations were not conducted in a coordinated manner, so that a common investigating could be carried out, leading to a common opinion of the investigating authority. If there is a common investigation by the investigating authority of closely related persons as in the present case, certainly the referral authority can also make a common reference based on the common finding of the investigation of different persons but claiming common lineage and parentage whose citizenship is in doubt. But it appears from the records that two parallel investigations were conducted oblivious of the similar investigations being carried out in the same family located in the same village. Resultantly, two separate references were made which we find to be totally incomprehensible.
20. The situation could have been also averted if the Tribunal had taken up these two proceedings together as these proceedees relate to the same village and are claiming same parentage and legacy.
21. Such a situation could have been also avoided if both of the proceedees who had the knowledge that their own siblings are being proceeded before the same Tribunal and the said fact had been brought to the notice of the Tribunal. It appears from the records that the present petitioner did not bring it to the notice of the learned Tribunal that his claimed own brother Md. Riajuddin Ali, who is residing in the same village, had been also proceeded against in the same Tribunal.
22. Accordingly, we issue the following directions:
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i) Whenever the investigating authority, acting under the Foreigners Act, 1946 read with the Foreigners (Tribunals) Order, 1964 and relevant laws and rules and regulations, is making any investigation about the citizenship of any suspect and if it is found that more than one person who are being investigated, belong to the same family and/or claim the same parentage and legacy, the investigating authority should make a common investigation in respect of these persons, and submit a comprehensive report to the referral authority. Though, the referral authority can make separate references in respect of the each of the individual concerned, it should be connected and consolidated and as far as possible, for proceeding under one common proceeding, by taking up all these references in respect of different proceedings together, thus, avoid rendering conflicting opinions in respect of close relatives/siblings of the same family, who trace their legacy to the same person.
ii) Wherever separate references have been already made and separate proceedings are already going on, the proceedees should inform the learned Tribunal about the pendency of these separate proceedings before the same Tribunal or before a different Tribunal, so as to avoid such conflicting opinions.
iii) The learned Tribunal also, as far as possible, shall ascertain from the records, as to the existence of any such different proceeding going on in respect of sibling or other relatives claiming legacy of the same person(s) Page No.# 13/16 and conduct a joint proceeding, for which the Tribunals also can inquire from the proceedees concerned as to the knowledge of the existence of any such proceeding going on before the same Tribunal or any other Tribunal in respect of their relatives/siblings claiming the same legacy.
iv) Whenever it has been found by the Tribunal that more than one proceeding is going on before the same Tribunal, relating to close relatives/siblings claiming common legacy, the Tribunal should amalgamate these proceedings and a joint and consolidated proceeding should be conducted.
v) Where the Tribunal finds that more than one proceeding is being carried out in different Tribunals in respect of proceedees claiming a common legacy, the Tribunal should bring to the notice of the State to consolidate these proceedings before a single Tribunal after hearing all the proceedees in this regard. If necessary, the State Government/proceedees can move this Court under Article 226 of the Constitution to consolidate these proceedings to be heard before a single Tribunal so as to avoid multiplicity of proceedings and conflicting opinions.
23. In this context, we would like to draw attention of the State Government that because of the extensive use of Information and Communication Technology in Indian judiciary, case data have been consolidated for effective management, developed National Judicial Data Grid (NJDG) and Case Management and Information System (CIS) have been developed. Because of the NJDG and CIS almost all the courts of our country have Page No.# 14/16 been interlinked, enhancing judicial productivity both qualitatively and quantitatively and these have made the functioning of the Indian judicial system more transparent and accountable and facilitated easy disseminating of case information to litigants, apart from making case management better by the courts and also enabling better supervision by the competent authorities.
Considering the difficulties and problems as encountered in this case and as discussed above, we are of the view that creating such data base in respect of the proceedings before the Foreigners Tribunals considering that a large number of cases are pending before the Foreigners Tribunals functioning in the State, would help better management and prevent such problems encountered in the present cases.
24. Foreigners Tribunal though, is a quasi judicial body and not a Court in the strict sense, certainly discharges a very important role in deciding the citizenship of a person and to some extent discharges functions akin to that of a court. The opinion of the Tribunal as to the question whether a person is a foreigner or not is almost binding on the authority which deals with citizenship.
Citizenship is one of the most important rights of a person in the modern society, on the basis of which one can claim other rights which are guaranteed or conferred under the legal system and the Constitution. Thus, if a person is declared an Indian, certainly he can enjoy all the Fundamental Rights and privileges guaranteed under our Constitution, which will be deprived of, if a person is declared a foreigner. From that perspective, Foreigners Tribunal though is a quasi judicial body and giving merely an opinion, yet, it plays a very crucial role in deciding the citizenship of the person concerned having huge Page No.# 15/16 implications on the person concerned.
25. The Hon'ble Supreme Court in Abdul Kuddus Vs. Union of India, (2019) 6 SCC 604 has already held that principle of res-judicata is applicable in a proceeding before the Foreigners Tribunal. However, it has been brought to the notice of this Court that, there are instances where proceedings have been reinitiated against the same person, inspite of the person being already declared an Indian. Thus, initiating a subsequent investigation and making another reference and initiating a proceeding again before a Tribunal can be avoided if such data are properly maintained, which will help detect such unnecessary duplication of efforts.
26. It has been further observed that some of the proceedees though hail originally from one district go to another district for their livelihoods and are proceeded in a different district away from their hometowns. Thus, they face serious disadvantages about gathering evidences and producing witnesses in support of their claim in the remotely located Tribunals. Maintenance of such proper data can help proper investigation, reference and proceeding in the appropriate district to avoid such hardships.
27. Accordingly, we deemed it appropriate to direct the State Government to examine the feasibility of applying Information and Communication Technology to the proceedings before the Foreigners Tribunals, to maintain and preserve data, to make the functioning of the Foreigners Tribunal more efficient, transparent and systematic. It has been stated at the Bar that a large number of cases of more than 1.4 lakhs of suspected illegal immigrants are pending before the Foreigners Tribunals and many more persons are being investigated for reference. Thus, use of Information and Communication Page No.# 16/16 Technology will certainly enhance efficacy, help proper management of the huge number of cases and avoid duplicating and conflicting opinions.
28. With the above observations and directions, the present petition is allowed.
29. Copy of this order be furnished to the Chief Secretary of Assam for doing the needful in terms of the above observations and directions.
Copy of this order be also circulated to all the Tribunals in the State of Assam for doing the needful in terms of the observations and directions.
30. LCRs be immediately remitted to the learned Foreigners Tribunal, Baksa.
31. The petitioner will appear before the learned Tribunal, Baksa on or before 11.05.2021.
JUDGE JUDGE Comparing Assistant