Gauhati High Court
Page No.# 1/9 vs The Union Of India And 4 Ors on 25 April, 2025
Author: M. R. Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/9
GAHC010192932017
2025:GAU-AS:5039-
DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/787/2017
RUKIA BEGUM LASKAR @ RUKIYA BEGUM
D/O LT. ANFOR ALI LASKAR @ LT. ANFOR ALI, W/O MOJOKKIR ALI
LASKAR @ MOJOKKIR ALI, VILL. DHONEHARI PT.II, P.S. SILDOBI, P.S.
SONAI, DIST- CACHAR, ASSAM
VERSUS
THE UNION OF INDIA and 4 ORS
REP. BY THE ASSTT. SOLICITOR GENERAL OF INDIA
2:THE STATE OF ASSAM
REP. BY THE SECY. TO THE GOVT. OF ASSAM
DEPTT. OF HOME
DISPUR
GHY-6
3:THE MEMBER
FOREIGNERS' TRIBUNAL 6TH SILCHAR
CACHAR
ASSAM
PIN-788001
4:THE SUPERINTENDENT OF POLICE B
SILCHAR
CACHAR
ASSAM
PIN-788001
5:THE DY. COMMISSIONER
SILCHAR
CACHAR
Page No.# 2/9
ASSAM
PIN-78800
Advocate for the Petitioner : MR.S Y AHMED, MRM J QUADIR
Advocate for the Respondent : ASSTT.S.G.I., GA, ASSAM
BEFORE HON'BLE MR. JUSTICE MANASH RANJAN PATHAK HON'BLE MR. JUSTICE BUDI HABUNG Date of Hearing : 07.03.2024 Date of Judgment : 25.04.2025 Judgment and Order (CAV) (M. R. Pathak, J.)
1) Heard Mr. Mustafa Jamal Quadir, learned counsel for the petitioner and Mr. Jiten Payeng, learned Standing Counsel, Home Department, Assam for the respondent Nos. 2 and 4. Also heard Mr. R. Talukdar, learned Government Advocate, Assam for the respondent No.5.
2) Aggrieved with the Judgment/Order dated 29.03.2016 passed by the Foreigners Tribunal, 6th, Silchar, Cachar, Assam in F.T.6th Case No. 239/2015 whereby, the petitioner has been declared to be a foreigner/illegal migrant of post 25.03.1971 stream, she has filed this writ petition praying amongst others, to set aside and quash the said Judgment and Order dated 29.03.2016, noted above.
3) Earlier on 14.02.2017 while issuing notice, the Court called for the records of said F.T.6 th Case No. 239/2015 from the Foreigners Tribunal, 6 th, Silchar, Cachar and in the interim, directed the respondents that the petitioner shall not be taken into custody and deported from India and further granted interim bail to her directing her to appear before the Superintendent of Police (Border), Cachar, Silchar within 15 days from the date of the said order dated 14.02.2017.
4) Pursuant to the said order of the Court dated 14.02.2017, the Registry has already received the relevant records from the concerned Foreigners Tribunal and the petitioner is also on interim protection as per the said direction of the Court.
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5) From the records of the case, it is seen that on perusal of the police enquiry report in F.T. Case No. 396/2012 that was enquired through the Sub-Inspector of Police (Border), Sonai Police Station, the Superintendent of Police (Border), Cachar, Silchar, prima-facie found that the petitioner Rukia Begum Laskar, daughter of late Anfar Ali, wife of Mogikir Ali Laskar, resident of Dhonehari Part-II, Police Station-Sonai, District-Cachar is staying in India (Assam) without any lawful documents pertaining to her nationality and the said authority found her to be a foreigner of post 25.03.1971 stream. As such, the SP (B), Cachar, Silchar by its letter under Memo No. (B)/E/122/2012/1153-72 dated 09.11.2012 referredthe said F.T. Case No. 396/2012 relating to the petitioner to the Foreigners Tribunal, Cachar, Silchar under the Foreigners (Tribunals) Order, 1964 seeking its opinion as to whether the petitioner is a foreigner or not.
6) On receipt of the said reference dated 09.11.2012, it was placed before the Foreigners Tribunal No. 6th, Silchar, Cachar (hereinafter referred to as the said Tribunal) for necessary consideration, wherein the said F.T. Case No. 396/2012 was registered and re-numbered as F.T. Case No. 239/2015 and the Tribunal on 11.09.2015 issued notice to the petitioner fixing the matter on 01.10.2015 for her appearance and filing of her representation/reply/written statement along with the relevant documents and production of evidence in support of her case.
7) As on 01.10.2015, the Tribunal did not receive the service report, it fixed the said F.T. Case No. 239/2015 on 09.11.2015. The petitioner on 09.11.2015 submitted her written statement before the Tribunal in said F.T. Case No. 239/2015.
8) In her written statement dated 09.11.2015 submitted before the Tribunal in said F.T. Case No. 239/2015, the petitioner stated that the allegation made against her are not correct and untrue and she denied all the allegations made against her. In her said written statement the petitioner stated that she is an Indian national by birth and residing at Village-Dhonehari Part-II, Post Office-Sildubi, Police Station-Sonai, District-Cachar, situated under 10 No. Sonai Legislative Assembly Constituency.
9) In her written statement, the petitioner also stated that name of her father was recorded in the Voter List and NRC Legacy Data of the year 1966 under 12 No. Sonai LAC at Serial No.261, House No.55, Circle No.30, E P No.-19.
10) She in said written statement also stated that the Secretary of Dakhin Saidpur Gaon Panchayat, Sonai issued a certificate in her favour that was countersigned by the Block Page No.# 4/9 Development Officer of Sonai Development Block.
11) The petitioner in her said written statement further stated that her name was recorded in the Voter List of the year 2013 and Elector Photo Identity Card with No. FZW814295 was also issued in her name. She stated that she is an Indian national and her forefather came to Assam on or before 1971 and that she is not a foreigner.
12) After taking time on three dates, the petitioner on 11.03.2016 submitted her Evidence-on- Affidavit, exhibiting six documents in support of her case, which are ―
(i) 1966 Voter List of 12 No. Sonai LACofVillage-Soidpur Part-V, Electoral Block No.19, Circle No.30, Police Station-Sonai, Sub-Division-Silchar, District-Cachar, containing the name of one Anfar Ali, son of Abdul Majid, at Serial No.261, House No.55, as Exhibit-
1.
(ii) 1975 Voter List of 10 No. Sonai LAC ofVillage-Soidpur Part-V, Electoral Block No.26, Circle No.30, Police Station-Silchar, Sub-Division-Silchar, District-Cachar, containing the name of one Anfar Ali, son of Abdul Majid, at Serial No.310, House No.50, as Exhibit-
2.
(iii) 1985 Voter List of 10 No. Sonai LAC ofVillage-Soidpur Part-V, Electoral Block No.28, Circle No.30, Police Station-Silchar, Sub-Division-Silchar, District-Cachar, containing the name of one Anfar Ali Mong, son of Abdul Majid Mong, at Serial No.119, House No. 44, as Exhibit-3.
(iv) 1997 Voter List of 10 No. Sonai LAC ofVillage-Dhonehari Part-II, Electoral Block No.67, Police Station-Sonai, Sub-Division-Silchar, District-Cachar, containing the name of Rukia Begum, wife of Majakkir Ali, at Serial No.622, House No.563, as Exhibit-4.
(v) 2005 Voter List of 10 No. Sonai LAC under 2 No. Silchar Parliamentary Constituency of village-Dhonehari Part-II, Electoral Block No. 81, Police Station-Sonai, Circle-Sonai, Sub-Division-Silchar, District-Cachar, containing the name of Rukia Begum, wife of Majakkir Ali, at Serial No.841, House No.563, as Exhibit-5.
(vi) 2015 Voter List of 10 No. Sonai LAC under 2 No. Silchar Parliamentary Constituency, relating to village-Dhonehari Part-II, Electoral Block No. 83, Police Station-Silchar, Circle-Sonai, Sub-Division-Silchar, District-Cachar, containing the name of Rukia Begum Laskar, wife of Majakkir Ali Laskar, at Serial No.936, House No.563, as Exhibit-6.
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13) It is seen from the records of the case that the petitioner projected one Anfar Ali as her father, son of Abdul Majid, resident of Village-Soidpur Part-V, under Sonai Police Station ofSilchar Sub-Division, District-Cachar, whose name figured in the Voter Lists of the year 1966, 1975 and 1985 pertaining to Sonai Legislative Assembly Constituency.But the petitioner did not place any relevant, admissible document to prove her linkage with her saidprojected father Anfar Ali.
14) In her written statement dated 09.11.2015submitted before the Tribunal in said F.T. Case No. 239/2015, the petitioner admitted that she is residing at Village-Dhonehari Part-II, Post Office-Sildubi, Police Station-Sonai, District-Cachar under Sonai Legislative Assembly Constituency. She also stated that, said Anfar Ali, her projected father, is from Village-Soidpur Part-V, Police Station-Sonai, Sub-Division-Silchar, District-Cachar under Sonai LAC. However, the petitioner did not state where was she born and brought up, where did she reside prior to her marriage and nor did she stated that she ever resided at said Village-Soidpur Part-V.
15) From the Exhibit-4, Voter List of 1997 containing the name of the petitioner,it is seen that the petitioner was of 26 years in the year 1997 andher name for the first time figured in the said Voters List. Considering the said Voters List, her birth year was found to be of 1971. As such, the name of the petitioner should have figured in the Voter List in the year1989 itself at the age of 18 years. Butit is only after her marriage, name of the petitioner figured for the first time in the Voter List of 1997. There is no explanation from the petitioner in that regard.
16) It is also seen that the petitioner in her written statement dated 09.11.2015 or thereafter, before the Tribunal did not disclose the name of her mother, her grandparents or her siblings, if any, as been specified by the Hon'ble Supreme Court in the case of Sarbananda Sonowal Vs Union of India reported in (2005) 5 SCC 665.
17) From the Voters Lists Exhibits - 1, 2 and 3, exhibited by the petitioner before the Tribunal though it can be seen that one Anfar Ali, son of Abdul Majid of Village-Soidpur Part-V, Electoral Block No.19, Circle No.30, Police Station-Sonai, Sub-Division-Silchar, District-Cachar existed in India in the year 1966 and thereafter, from 1975 to 1985, but the continuous presence of said Anfar Ali, son of Abdul Majid in India during the period from 1966 to 1974was not proved before the Tribunal as the petitioner did not exhibit and prove any Voter List(s) of said Anfar Ali after the year 1966to the year1985.
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18) Mr. Kadir, learned counsel appearing for the petitioner relying on the decisions of co- ordinate Bench of this Court in the case of Abdul Khalique (MD) Vs Union of India and Others, reported in 2013 (1) GLT 941and in the case of Smti. Tulshi Barman Vs Union of India and 3 others in WP(C) No. 7927/2015 decided on 17.04.2017 submitted that the testimony of the petitioner filed in her written statement and Evidence-in-Chief was not challenged by the State by way of cross-examination and therefore, her evidence remained unrebated. As such, petitioner could prove that she is the daughter of said Anfar Ali, son of Abdul Majid.
19) Mr. Jiten Payeng, learned Standing Counsel, Home Department placed reliance on the following judgments stating that the petitioner failed to prove her linkage with Anfar Ali, son of Abdul Majid, her projected father to establish her Indian citizenship. The Judgments relied by Mr. Payeng are -- (i) Ayesha Khatun -Vs- Union of India and Others , reported in 2017 (3) GLR 820;
(ii) Saru Sheikh -Vs- Union of India and Others, reported in 2017 (4) GLR 295; (iii) Jehirul Islam- Vs- Union of India and Others, reported in 2017 (5) GLR 670; (iv) Rashminara Begum -Vs- Union of India and Others, reported in 2017 (4) GLT346 and (v) Hazara Khatoon -Vs- Union of India and Others, reported in 2019 (1) GLT784.
20) We have perused and considered the judgments cited by both the parties.
21) The Hon'ble Apex Court, comprising a Bench of its three Hon'ble Judges in the case of Sarbananda Sonowal -Vs- Union of India reported in (2005) 5 SCC 665havelaid downthat --In order to establish one's citizenship, he or she should give evidence of (i) his/her date of birth, (ii) his/her place of birth, (iii) name of his/her parents, (iv) their place of birth and citizenship and also (v) the place of birth of his/her grandparents that is relevant under Section 6-A(1)(d) of the Citizenship Act, since all these facts are within the personal knowledge of the person concerned and not of the authorities of the State. Only after giving such evidence by the proceedee the State authorities can verify the facts and can then lead evidence in rebuttal, if necessary.The same is in accordance with the underlying policy of Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him/her.
22) Relying on the Constitution Bench Judgment in the case of Union of India-Vs-Ghaus Mohd, reported in AIR 1965 SC 1526, theHon'ble Supreme Court in the said case of Sarbananda Sonowal (supra) havealso held that -- the Foreigners Act, 1946confers wide ranging powers to Page No.# 7/9 deal with all foreigners or with respect to any particular foreigner or any prescribed class or description of foreigner for prohibiting, regulating or restricting their or his/her entry into India or their presence or continued presence including their arrest, detention and confinement. The most important provision is Section 9 (of the Foreigners Act, 1946) which casts the burden of proving that a person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall lie upon such person. Therefore, where an order made under the Foreigners Act is challenged and a question arises whether the person against whom the order has been made is a foreigner or not, the onus or the burden of proving that he/she is not a foreigner is upon such a person.
23) In a reference case where theState did not examine any witness and failed to adduce any rebuttable evidence,a Foreigner's Tribunal answered the reference against the State, i.e., in favour of the proceedee; a co-ordinate Bench of this Courtin the case of State of Assam & Others -Vs- Ohab Ali, reported in 2018 (4) GLT 360,relying on the Full Bench Judgment of this Court in the case of State of Assam and Others -Vs- Moslem Mondal and Others, reported in 2013(1)GLT 809(decided on 03.01.2013) haveheld that --such approach taken by the Tribunal is contrary to the law laid down by the Full Bench of this Court in Moslem Mondal(supra), as under Section 9 of the Foreigners' Act, 1946, burden is on the proceedee to prove that he/she is not a foreigner, but a citizen of India and that the said burden never shifts, wherethe said burden is required to be discharged by the proceedee by adducing evidence that are admissible; that must be proved and that must have relevance to the facts in issue.
24) In thesaid judgment of Ohab Ali(supra),the Court also held that by mere filing of documents without examining its admissibility and without the documents being proved or without examining its relevance, it cannot be said that the proceedee had discharged his/her burden. The Court in thesaid judgment of Ohab Ali(supra),have alsosettled that the question of rebuttal evidence by the State before the Tribunal will arise only if (i) the proceedee before the Tribunal adduces evidence that are admissible, (ii) those have been proved and (iii) thoseevidence have relevance.
25) The Court by the said judgment of Ohab Ali(supra),finding the said opinion recorded by the Tribunal answering the reference against the Stateon its failure to examine any witness and to adduce any rebuttable evidence,being not legally sustainable, accordingly, set aside the said finding recorded by the Tribunal.
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26) We have also seen that theHon'ble Supreme Court in thecase of Sarbananda Sonowal (supra) haveheld that -- the State can lead evidence in rebuttal, if necessary.
27) From her written statement dated 09.11.2015, her Evidence-on-Affidavit filed on 11.03.2016 and Exhibits 4, 5 & 6 the petitioner claimed to be the wife of Majakkir Ali/Majakkir Ali Laskar. But she did not state to be the daughter of Anfar Ali, son of Abdul Majid except merely stating that name of her father was recorded in the voter list/NRC legacy data of 1966. Further, the petitioner neither produced nor exhibited any linkage document(s) before the Tribunal so as to proveher linkage with said Anfar Ali, son of Abdul Majid that she is the daughter of said Anfar Ali, son of Abdul Majid or thatsaid Anfar Ali, son of Abdul Majid is her father.
28) It is also seen that the petitioner did not disclose the name of her mother. She also did not state or disclose whether her parents are alive or have expired and if so, when. The petitioner did not state or disclose before the Tribunal about her date of birth, her place of birth, name of her parents, place of birth of her parents and the place of birth of her grandparents to prove her Indian Citizenship as laid down by the Hon'ble Apex Court, as noted above.
29) From the impugned Judgment and Order dated 29.03.2016 of the Foreigners Tribunal, 6 th, Silchar, Cachar, Assam passed in F.T.6th Case No. 239/2015 it is seen that the Tribunal after considering entire materials on record including all the exhibits produced by the petitioner, her written statement filed on 09.11.2015 as well as her Evidence-in-Chief submitted on 11.03.2016 came to the finding that the petitioner miserably failed to discharge her burden as required under Section 9 of the Foreigners Act, 1946 to prove that she was born through genuine Indian parents and accordingly, found her to be a foreigner/illegal migrant of post 25.03.1971 stream.
30) From the records of the case we have also seen that the petitioner failed to prove her lineage to said Anfar Ali, son of Abdul Majid, whose name appears in document pertaining to the period prior to 25.03.1971.
31) After hearing the learned counsels for the parties and considering all the materials on record, we are of the view that the impugned opinion passed by learned Member, Foreigners Tribunal, 6th, Silchar, Cachar, Assam in F.T.6th Case No. 239/2015 through the Judgment/Order dated 29.03.2016, noted above, whereby the petitioner was opined to be a foreigner/illegal migrant of post 25.03.1971 does not call for any interference.
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32) For the reasons above, we are of the view that this writ petition is devoid of any merit and the same stands dismissed.
33) The protection granted to the petitioner earlier on 14.02.2017 is hereby recalled andstands vacated.
34) Registry shall return the records of F.T.6th Case No. 239/2015 to the Foreigners Tribunal, 6th, Silchar, Cachar, Assam forthwith, along with a copy of this Order.
35) Registry shall also forward a copy of this Order to the Superintendent of Police (Border), Cachar, Silchar for its information and necessary use.
JUDGE JUDGE Comparing Assistant