Gauhati High Court
Page No.# 1/12 vs Union Of India And 7 Ors on 30 May, 2025
Author: M. Nandi
Bench: Manash Ranjan Pathak, Malasri Nandi
Page No.# 1/12
GAHC010024782024
2025:GAU-AS:7017-
DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/726/2024
ABUL KASHEM @ ABDUL KASHEM
S/O- LATE JOINUDDIN,
VILL- DHUMAR PATHAR,
P.S- HOWLY,
DIST- BARPETA, ASSAM, PIN-781316
VERSUS
UNION OF INDIA AND 7 ORS
REP. BY THE SECRETARY TO THE MINISTRY OF HOME AFFAIRS, GOVT. OF
INDIA, SASTRI BHAWAN, NEW DELHI- 110001.
2:THE STATE OF ASSAM
REP. BY THE COMMISIONER AND SECRETARY TO THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-6
3:THE DISTRICT COMMISSIONER
BAJALI
PIN-781325
4:THE DISTRICT COMMISSIONER
BARPETA
PIN-781301
5:THE SUPERINTENDENT OF POLICE (B)
BARPETA
PIN-781301
6:THE ELECTION COMMISSION
Page No.# 2/12
GOVT OF INDIA
NEW DELHI-110001
7:THE STATE COORDINATOR
NATIONAL REGISTER OF CITIZENS
ASSAM
HOUSEFED 2ND FLOOR
GUWAHATI-32
DIST- KAMRUP (M)
8:THE FOREIGNERS TRIBUNAL
BAJALI
DIST- BAJALI
PIN-78132
Advocate for the Petitioner : MR. A ROSHID, MS. T BEGUM
Advocate for the Respondent : DY.S.G.I., GA, ASSAM,SC, ECI,SC, F.T
BEFORE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK HONOURABLE MRS. JUSTICE MALASRI NANDI JUDGMENT & ORDER (CAV) Date : 30-05-2025 (M. Nandi, J) Heard Ms. T. Begum, learned counsel for the petitioner. Also heard Mr. J. Payeng, learned Standing Counsel, FT matters; Ms. P. Baruah, learned Standing Counsel, ECI and Mr. P. Sarma, learned Government Advocate, Assam.
2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has prayed to set aside the impugned order dated 13.12.2022, passed by the learned Member, Foreigners' Tribunal, Bajali in F.T. Case No.381/2017, declaring the petitioner as foreigner who entered into India after 25.03.1971.
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3. A police reference case was made against the petitioner. The Superintendent of Police (B), Barpeta forwarded the case to the Foreigners' Tribunal, Bajali for adjudication. The case was registered vide F.T Case No.381/2017. On receipt of the summons, the petitioner appeared before the Tribunal and filed his written statement. In his written statement, the petitioner stated that he is a labour by profession. In his absence the Enquiry officer took his name and no enquiry was made to know his original identity and in support of his citizenship. But Superintendent of Police (B), Barpeta referred the case suspecting the opposite party as a foreigner of post 25.03.1971. The case was referred without fair investigation behind the back of the opposite party. Therefore, the question of producing documents before the I.O does not arise and as such, the alleged reference is illegal, faulty, bad in law and liable to be dismissed.
4. The written statement of the petitioner further discloses that he was born on 01.01.1955 and brought up at village - Dhumarpathar under Sarbhog P.S, the then Kamrup district (now Barpeta), Assam. His father's name was Joinuddin and mother's name was Jamiron Nessa. His father died in the year 1963. His grandparent's name was Ahal Uddin and Moymon Nessa, who died long back. His father was the only child of Ahal Uddin.
5. It also reveals from the written statement that the petitioner has two brothers namely- Abul Kashem and Hasen Ali and one sister namely Jahura Khatun. The petitioner got married in the year 1980. All the family members of the petitioner are citizen of India by birth and there is no case pending against any member of his family.
6. The petitioner also stated in the written statement that he read up to class III at Chenglimari LP School, Barpeta where his father's name was reflected and Page No.# 4/12 he left the Chenglimari LP School in the year 1965. In this regard, the Head master of the said school issued a certificate on 20.10.1985 and thereafter, due to financial hardship he could not pursue his further studies.
7. It also reveals from the written statement that the petitioner had owned and possessed a plot of land covered by Patta No.215, Dag No.346 of village - Dhumarpathar, inherited from her mother i.e. Jamiron Nessa and her name has been recorded in the jamabandi as a pattadar. After the death of his mother i.e. Jamiron Nessa, the names of her legal heirs i.e. the present petitioner and his brother Hasen Ali were mutated as pattadars of the said land. Moreover, gaonburah of village - Dhumarpathar issued a certificate in favour of the petitioner, whereby it was certified that the petitioner is the son of Joinuddin.
8. In support of his stand, the petitioner also adduced evidence-on-affidavit wherein he reiterated the same thing whatever he stated in his written statement and exhibited the following documents -
a) Ext.A - School certificate
b) Ext.B - Voter list of 1997
c) Ext.C - Voter list of 2010
d) Ext.D - Revenue paying receipts
e) Ext.E - Jamabandi
f) Ext.F - Land holding certificate
g) Ext.G - Electoral Photo Identity Card
h) Ext.H - Gaonburah certificate
9. Learned counsel for the petitioner has submitted that in spite of producing sufficient documents before the learned Tribunal, he was declared foreigner. No Page No.# 5/12 opportunity was given to the petitioner to produce his relevant documents before the Enquiry Officer to prove the fact that he is an Indian citizen.
10. It is further submitted that the parents of the petitioner were resident of village - Dhumarpathar under Sarbhog P.S of Barpeta district. The names of his mother and brother have been recorded in the voter list of 1977. The names of the petitioner and his mother have been recorded in the voter lists of 1985, 1997 and 2010.
11. According to the learned counsel for the petitioner, the grandmother of the petitioner owned a plot of land at village - Dhumarpathar under Barpeta district. After the death of his grandmother, the name of the petitioner's mother i.e. Jamiron Nessa was recorded as pattadar in jamabandi. After the death of the petitioner's mother, the name of the petitioner and his brother Hasen Ali have been recorded as pattadars in Dag No.346.
12. The last limb of submission of learned counsel for the petitioner is that the petitioner is the son of genuine Indian parents and the petitioner has submitted all the relevant documents and adduced witnesses before the Tribunal but the Tribunal rejected all the witnesses and the documents produced by the petitioner without any valid ground. Under such backdrop, the learned counsel for the petitioner prays to set aside the impugned order of the Tribunal.
In support of his submission, learned counsel for the petitioner has relied on the following case laws -
a) (2020) 5 GLT 395 ( Mazibar Miah Vs. Union of India and others )
b) (2022) 3 GLT 816 (Karim Ali Vs. Union of India and others ) Page No.# 6/12
13. Per contra, learned counsel for the FT matters, Mr. Payeng submits that the petitioner has failed to prove his linkage with his projected parents as the name of his father has not been tallied in all the voter lists. Moreover, there are lots of contradictions in the statement of the witnesses regarding death of the father of the petitioner.
14. Mr. Payeng also referred para 23 of the judgment of the Tribunal which is reproduced as follows -
"OP examined one Hasen Ali as his younger brother who was examined as DW-4, who filed his Examination-in-Chief on 29.11.2021 where he has stated his age as 56 years. During cross-examination by the State also DW-4 described his age as 56 years. Both OP and DW-4 have stated in their chief that their father namely Joinuddin died in 1963 and they have been reiterated the same in their cross-examination. DW-4 seems to be a literate person who claims that he passed B.com examination from B.H. College, Howly. If DW-4 was 56 years as on 29.11.2021, he was born sometime in 1965. Accordingly, his birth itself appears to be a mystery in as much as he was born after 2 (two) years from the year of his father's death that is surprising which is one aspect."
15. Accordingly, the learned counsel for the respondent has submitted that the Tribunal has rightly passed the order declaring the petitioner as an illegal migrant which needs no interference by this Court and prayed for dismissal of the writ petition.
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16. Now coming to the document vide Ext.A - school certificate of the petitioner issued by head master of Chenglimari LP School. From Ext.A, it reflects that one Abdul Kashem, s/o Joinuddin, an inhabitant of Dhumarpathar left the Chenglimari LP School on 1965. His age at that date according to the admission register was 10 years. He was reading in class III and had passed the examination for promotion to class IV. The Ext.A was issued on 20.10.1985 i.e. after 20 years of leaving of the school by the petitioner.
17. One Abdul Kader was examined as DW-3 to prove the school certificate. He deposed in his evidence that he has been serving as head master of 760 No. Chenglimari LP School since 2015. It was told that the school was burnt by miscreants on 21.07.1994 for which he could not produce any admission register of that relevant time. He personally knew OP namely Abdul Kashem. His father's name was Joinuddin. He is a resident of village - Dhumarpathar.
18. In his cross-examination, DW-3 replied that he did not know whether OP had studied in their school as he was senior to him. They had lodged FIR before the police when the school was gutted by fire. But he did not have any copy of the said FIR. He saw his father when he studied in L.P School. Their school was established in 1945.
19. Though DW-3 stated that the petitioner was a student of Chenglimari LP School but the certificate vide Ext.A was issued by the earlier head master who is no more. The DW-3 also has failed to produce the admission register from which the entry in Ext.A was recorded. As a result of which, literally Ext.A is not proved.
20. In the case of Hamida Begum Vs. Union of India vide WP(C) 2294/2016 , it was held that the date of birth recorded in school certificate or school register Page No.# 8/12 would have no evidentiary value unless the person who made the entry or who gave the information relating to the date of birth is examined. In the said case, this Court has also referred the judgment of Hon'ble Supreme Court vide Birad Mal Singhvi Vs. Anand Purohit, reported in 1988 (Supp.) SCC 604.
21. Let us now examine the other documents submitted by the petitioner i.e. vide Ext.B - Voter list of 1997 and Ext.C - Voter list of 2010. As per Ext.B voter list, the name of A. Kashem, s/o Joinuddin has appeared. The age of A. Kashem shows in Ext.B as 44 years and residence of Dhumarpathar under Barpeta district.
22. According to the petitioner, he was born on 01.01.1955 and the eligibility for casting vote of the petitioner should have been in 18 years i.e. in the year 1973. But as per document available in the record, he first casted vote in the year 1997. There is no clarification from the side of the petitioner on his failure to produce the earlier voter list. The petitioner is also totally silent whether he casted vote prior to 1997. In his cross-examination, the petitioner stated that his name was enrolled for the first time in the voter list of 1977 under Bhawanipur LAC along with his mother and younger brother. But the said 1977 voter list was not exhibited before the Tribunal and as such, not available in the record.
23. From 2010 voter list vide Ext.C, the name of A. Kashem has appeared, s/o of Joinuddin aged about 55 years which should have been 57 years, along with one Ms. Hanufa Khatun, w/o Ajhar Ali from the same house no. 41. There is no reflection in the written statement or the evidence of the petitioner how Hanufa Khatun is related with the petitioner.
24. Proceeding to the Gaonburah certificate vide Ext.H, issued by Sadananda Sargiary, examined before the Tribunal as DW-2. From his deposition, it reveals Page No.# 9/12 that he is the gaonburah of village - Salbari and Madhopur. He is also holding the additional charge of village- Dhumarpathar and Silapatri. He knew Abul Kashem as he was a resident of his village. He proved Ext.H issued by him. Subsequently, DW-2 also stated that the petitioner was the resident of village- Dhumarpathar. Presently, he resides at village - Kaljhar.
25. In his cross-examination, DW-2 replied that village - Madhopur and village
- Dhumarpathar are adjacent village. He had not verified anything before issuing the certificate. The petitioner has left village - Dhumarpathar after communal riots held in 1994. He has no knowledge whether the petitioner attended any school or not. His brother namely Hasen Ali presently resides at village - Dhumarpathar.
26. As per evidence of the petitioner, he is the permanent resident of village - Dhumarpathar in Barpeta district. The petitioner nowhere stated that he had left Dhumarpathar village after communal riots of 1994. The electoral roll of 1997 and 2010 also reflect that A. Kashem had casted vote from village- Dhumarpathar. Situated thus, the statement of the petitioner has contradicted with the version of the DW-2.
27. Though the petitioner did not disclose the fact either in his written statement or in his evidence that he was shifted from village - Dhumarpathar to Kaljhar but in his cross-examination, petitioner has stated that he presently resides at village - Kaljhar. He shifted to Kaljhar in the year 1994. But his name has not been enrolled at village - Kaljhar.
28. According to the petitioner, he got married to one Aymon Nessa. After her death he again married to Suratjan, D/o of Iyad Ali in the year 1980 and they have two sons and one daughter. But in his cross-examination, the petitioner Page No.# 10/12 replied that the name of his wife is Suratjan. Before Suratjan, he got married to Rabiya Khatun and Saimon. After their death, he re-married to Suratjan. It transpires that the petitioner has contradicted his own statement regarding his first wife Aymon Nessa.
29. Coming to land documents vide Ext.D, Ext.E and Ext.F, the petitioner examined DW-5, lat mandal of Bajali Revenue Circle. He deposed in his evidence that as per documents i.e. original jamabandi of village - Dhumarpathar vide Patta No.215 covered by Dag No.346, one Jamiron Nessa, wife of Joinuddin, was the original pattadar of a plot of land measuring 2 bigha 1 katha 6 lechas.
30. After the death of Jamiron Nessa, the name of Abul Kashem and Hasen Ali were recorded by way of inheritance vide order dated 18.03.2017 over the land measuring 1 bigha 2 katha 6 lechas. Prior to that, Jamiron Nessa had donated 4 kathas of land by way of registered gift deed to the President/Secretary of village - Dhumarpathar, Uttar Multipurpose Community Hall and Mosque on 14.11.2014.
31. From the evidence of DW-5, it is crystal clear that in the year 2014, the said Jamiron Nessa was alive as she donated her plot of land to the Masjid Committee. But according to the petitioner and Hasen Ali (DW-4), their mother Jamiron Nessa died after 1985 which is a vague statement. However, it can be taken into consideration that mother of the petitioner died may be in the year 1985. As such Jamiron Nessa who gifted the property in the year 2014 to the Masjid Committee is not one and the same person i.e. the mother of the petitioner.
32. It appears from the statement of DW-4 who is the projected brother of the petitioner that his mother Jamiron Nessa died after 1985 at Kaljhar village.
Page No.# 11/12 As per statement of the petitioner, they shifted from village-Dhumarpathar to Kaljhar in the year 1994 after communal breakout which is again contradicted to the statement of DW-1 and DW-4.
33. In a proceeding under the Foreigners Act, 1946, and the Foreigners (Tribunals) Order, 1964, the primary issue for determination is whether the proeedee is a foreigner or not. The relevant fact being especially within the knowledge of the proceedee, as such, the burden of proving citizenship absolutely rests upon the proceedee, notwithstanding anything contained in the Indian Evidence Act, 1872. This is mandated under Section 9 of the Foreigner's Act, 1946.
34. We take note that in Sarbananda Sonowal vs Union of India, reported in (2005) 5 SCC 665, Hon'ble Supreme Court has observed that the procedure under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964, is just, fair and reasonable and does not offend any constitutional provision. It has further observed that there can be no matter of doubt that the State of Assam is facing external aggression and internal disturbance on account of large scale illegal migration of Bangladeshi nationals and therefore, it becomes the duty of the Union of India to take all measures for protection of the State of Assam from such external aggression and internal disturbance as enjoined in Article 355 of the Constitution of India.
35. Having noticed as above, another aspect to be noted is that the scope of interference under Article 226 of the Constitution of India to a decision of the Tribunal is limited to correct errors of jurisdiction or when decision is made by the tribunal without giving opportunity of hearing or when judgment is rendered in violation of the principles of natural justice or where there appears to be an error apparent on the face of the record. None of the above grounds exist in the Page No.# 12/12 present case. To reiterate, sufficient opportunities had been given to the petitioner to discharge the burden of proving that she is not a foreigner, which she utterly failed to discharge. The documents exhibited by the petitioner before the Tribunal are not sufficient to hold that the petitioner is a citizen of India by birth.
36. In view of the above, we find no merit in the present petition. Accordingly, the writ petition stands dismissed and the order/opinion of the Tribunal is affirmed. There shall be no order as to cost.
37. Transmit the records to the Tribunal.
JUDGE JUDGE Comparing Assistant