Gauhati High Court
Jiaul Ali @ Ziaul Hoque vs The Union Of India And 5 Ors on 1 October, 2019
Bench: Manojit Bhuyan, Kalyan Rai Surana
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GAHC010169482019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 5262/2019
1:JIAUL ALI @ ZIAUL HOQUE
S/O. TABARAK ALI @ TABARAK HUSSAIN, VILL. MADURIPATHAR, P.O.
AND P.S. SILAPATHAR, DIST. DHEMAJI, ASSAM.
VERSUS
1:THE UNION OF INDIA AND 5 ORS.
REP. BY THE COMM. AND SECY. TO THE GOVT. OF INDIA, HOME AFFAIRS,
DEPTT., NEW DELHI-01.
2:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY.
TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GUWAHATI-06.
3:THE ELECTION COMMISSION OF INDIA
NEW DELHI-01
INDIA.
4:THE STATE CO-ORDINATOR
NRC
ASSAM.
5:THE DY. COMMISSIONER
DHEMAJI
P.O. DHEMAJI
DIST. DHEMAJI
ASSAM
PIN-787057.
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6:THE SUPDT. OF POLICE (B)
DHEMAJI
P.O. DHEMAJI
DIST. DHEMAJI
ASSAM. PIN-787057
Advocate for the Petitioner : MR A ALI
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
O R D E R
01.10.2019 (Manojit Bhuyan, J) Heard Mr. A. Ali, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing respondent no.1. Mr. J. Payeng, learned counsel represents respondent nos.2, 5 and 6 whereas Ms. B. Das, learned counsel represents respondent no.3. Ms. U. Das, learned counsel appears for respondent no.5.
Petitioner assails opinion dated 25.03.2019 passed by the Foreigners' Tribunal No.2, Dhemaji at Silapather in F.T. Case No.802/2017, declaring him to be a foreigner, having illegally entered into the territory of India (Assam) after 25.03.1971 without any valid document.
For the purpose of discharging burden as required under section 9 of the Foreigners Act, 1946 to prove that he is not a foreigner, the petitioner exhibited as many as 8 (eight) documents, the particulars of which may be noticed, as under :
(i) Exhibit-1- Copy of Chitha
(ii) Exhibit-2 - Certified copy of Voter List of 1971 in the name of one Tabarak,
projected father of the petitioner, of village Balaipathar, Mouza-Rupshi, P.S. Sarbhog, Part No.32, sub-division - Barpeta district-Kamrup under 51 No. Jonia LAC.
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(iii) Exhibit-3 - Certified copy of Voter List of 2018 in the name of the petitioner of village Maduripathar, P.S. Silapathar, Part No.213, sub-division - Dhemaji district- Dhemaji under 114 No. Jonia (ST) LAC.
(iv) Exhibit-4 - Family ration card.
(v) Exhibit-5 - Voter ID Card of the petitioner.
(vi) Exhibit-6 - School Leaving Certificate issued by the Headmaster of Khanamukh
High School in the name of the petitioner.
(vii) Exhibit-7 - Copy of PAN Card of the petitioner.
(viii) Exhibit-8 - Land revenue paying receipt.
At the very outset we may place on record that besides the documents exhibited above, the petitioner did not present any independent or official witnesses in his support. As per the written statement and evidence-on-affidavit, the petitioner projected one Tabarak as his father which name appeared in the Voter List of 1971 of village Balaipathar, Barpeta at Exhibit-2. No statement is given by the petitioner as to why he has not produced any voter lists after 1971 of this father, though he is still alive. The petitioner also placed reliance in the Exhibit-6 Certificate issued by the Headmaster of Khanamukh High school to prove his linkage to one Tabarak Hussain of village Maduripathar. The Certificate, however, rendered itself as irrelevant and inadmissible in evidence as the said certificate and contents thereof did not stand proved through the legal testimony of issuing authority. The Voter List of 2018 in the name of the petitioner, aged 31 years at Exhibit-3 pertains to a different village i.e. Madhuripathar in Dhemaji district. There is not a whisper in the written statement of the projected father having shifted to the said village from Balaipathar in Barpeta district. The petitioner failed to prove linkage to Tabarak of the 1971 Voter List of village Balaipathar.
The Chitha, Ration Card, Elector Photo Identity Card, PAN Card, Land Revenue Receipt at Exhibits-1, 4, 5, 7 and 8 remained as documents inadmissible in evidence as it is too well settled that such documents are no proof of citizenship. The said documents were not proved as required under the law. Thus, the petitioner could not prove that he is not an illegal migrant.
Page No.# 4/4 As the primary issue in a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 relates to determination as to whether the proceedee is a foreigner or not, the relevant facts being especially within the knowledge of the proceedee, therefore, the burden of proving citizenship absolutely rests upon the proceedee, notwithstanding anything contained in the Evidence Act, 1872. This is mandated under section 9 of the aforesaid Act, 1946. In the instant case and as observed above, the petitioner not only failed to discharge the burden but also utterly failed to make proof of the most crucial aspect, that is, in establishing linkage to his projected father.
On the available materials, we find that the Tribunal rendered opinion/order upon due appreciation of the entire facts, evidence and documents brought on record. We find no infirmity in the findings and opinion recorded by the Tribunal. We would observe that the certiorari jurisdiction of the writ court being supervisory and not appellate jurisdiction, this Court would refrain from reviewing the findings of facts reached by the Tribunal. No case is made out that the impugned opinion/order was rendered without affording opportunity of hearing or in violation of the principles of natural justice and/or that it suffers from illegality on any ground of having been passed by placing reliance on evidence which is legally impermissible in law and/or that the Tribunal refused to admit admissible evidence and/or that the findings finds no support by any evidence at all. In other words, the petitioner has not been able to make out any case demonstrating any errors apparent on the face of the record to warrant interference of the impugned opinion.
On the discussions and findings above, we find no merit in the writ petition. Accordingly, the same stands dismissed, however, without any order as to cost.
JUDGE JUDGE Comparing Assistant