Gauhati High Court
Rukia Begum Barbhuiya @ Rukia Begum vs The Union Of India And 5 Ors on 9 May, 2023
Author: Achintya Malla Bujor Barua
Bench: Achintya Malla Bujor Barua
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GAHC010046482021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2279/2021
RUKIA BEGUM BARBHUIYA @ RUKIA BEGUM
W/O- KARIM UDDIN, D/O- LT. HAFIZ UDDIN BARBHUIYA OF VILL- SEWTI
PART-I, P.S. KATIGORAH, DIST.- CACHAR, ASSAM
VERSUS
THE UNION OF INDIA AND 5 ORS
REP. BY THE COMM. AND SECY. TO THE GOVT. OF INDIA, HOME DEPTT.,
NEW DELHI-1, INDIA
2:THE STATE OF ASSAM
THE COMM. AND SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY-6
3:THE STATE CO-ORDINATOR
NATIONAL REGISTER OF CITIZENS (NRC)
ASSAM
ACHYUT PLAZA
BHANGAGARH
GHY-5
4:THE ELECTION COMMISSION OF INDIA
TO BE REP. BY THE COMMISSIONER
NIRVACHAN SADAN
ASHOKA ROAD
DELHI- 110001
5:THE DY. COMMISSIONER
CACHAR
P.O. P.S. SILCHAR
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DIST.- CACHAR
ASSAM
6:THE SUPERINTENDENT OF POLICE (B)
CACHAR
DIST.- CACHAR
ASSA
Advocate for the Petitioner : MR. A M S MAZUMDER
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
09.05.2023 (AM Bujor Barua, J) The petitioner raises a claim that the reference was returned back by the Tribunal by arriving at a conclusion that the reference made to it is faulty and contrary to the materials on record and for the purpose refers to a judgment and order of this Court in WP(C)No.7104/2015. In a proceeding before a Foreigners Tribunal, the relevant provision of law governing the same is Section 9 of the Foreigners Act 1946 which provides that the burden to prove that a person is a citizen of India would be on the proceedee himself and not on the State.
2. This provision is also in conformity with what the Hon'ble Supreme Court has provided in paragraph 26 of Sarbananda Sonowal Vs. Union of India and Another reported in (2005) 5 SCC 665 that the fact as to whether a person is a Page No.# 3/4 citizen or not would necessarily be within the personal knowledge of the person concerned and not of the authorities of the State. In such circumstance, the Supreme Court provided that after the person concerned has given evidence on these points, the State authorities can verify the facts and can lead evidence in rebuttal, if necessary. It further provided that if the State authorities dispute the claim of citizenship by a person and assert that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the aforesaid points. In the circumstance, we have to understand that as per the conclusion arrived at by the Hon'ble Supreme Court in paragraph 26 of Sarbananda Sonowal (supra), the State authorities while making a reference is not expected to have the complete materials with them to substantiate that a person concerned may or may not be a citizen.
3. It is on this circumstance, that a reference is required to be made to the Tribunal for a determination on the citizenship of a person. If the State authorities while making a reference is expected not to have any material with them for arriving at a conclusion on the citizenship of a person, it would again be a situation in conflict that the reference made is a faulty reference and it is contrary to the materials that may be available on record before the Tribunal. We requested Mr. D Mazumdar, learned Advocate General to look into the aforesaid inconsistency.
4. For further submission, list on 17.05.2023.
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JUDGE JUDGE
Comparing Assistant