Gauhati High Court
I) Misba Uddin vs The Union Of India And 4 Ors on 1 April, 2021
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh, Soumitra Saikia
Page No.# 1/8
GAHC010204872016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3578/2016
ON THE DEATH OF MUSTAFA UDDIN HIS LEGAL HEIRS FATIMA BIBI AND
ORS. REPRESENTING
W/O LT. MUSTAFA UDDIN, VILL. UTTAR SAMARALI, P.S. MURAJHAR, DIST-
NAGAON, ASSAM.
1: E) ASAT UDDIN
S/O. LATE MUSTAFA UDDIN.
1: J) HALIMA BEGUM
D/O. LATE MUSTAFA UDDIN.
ALL ARE RESIDENTS OF VILLAGE UTTAR SAMARALI
P.S. MURAJHAR
DIST. NAGAON
ASSAM.
1: F) AFTAB UDDIN
S/O. LATE MUSTAFA UDDIN.
1: D) MONIR UDDIN
S/O. LATE MUSTAFA UDDIN.
1: H) IKRAM UDDIN
S/O. LATE MUSTAFA UDDIN.
1: A. FATIMA BIBI
W/O. LATE MUSTAFA UDDIN.
1: G) NAIM UDDIN
S/O. LATE MUSTAFA UDDIN.
1: FAKAR UDDIN
Page No.# 2/8
S/O. LATE MUSTAFA UDDIN.
1: MOIN UDDIN
S/O. LATE MUSTAFA UDDIN.
1: I) MISBA UDDIN
S/O. LATE MUSTAFA UDDIN
VERSUS
THE UNION OF INDIA and 4 ORS
REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, NEW DELHI-1
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY-6
3:THE DY. COMMISSIONER
NAGAON
DIST- NAGAON
ASSAM
4:THE SUPERINTENDENT OF POLICE B
NAGAON
ASSAM
5:THE OFFICER IN CHARGE
MURAJHAR POLICE STATION
NAGAON
ASSA
Advocate for the Petitioner : MS.S KALITA
Advocate for the Respondent :
Page No.# 3/8
BEFORE
HONOURABLE MR. JUSTICE N. KOTISWAR SINGH
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
Date : 01-04-2021 (N. Kotiswar Singh, J.) Heard Mr. J. Ahmed, learned counsel for the petitioners. Also heard Mr. N. Pathak, learned Special Counsel, FT and Mr. K.K. Parashar, learned CGC.
2. By filing this petition, the present petitioners, who are legal heirs of one Mustafa Uddin, who was proceeded against and declared to be a foreigner of post 25.03.1971 stream by the Foreigners Tribunal, Nagaon, Court No.7 at Lanka in FT/L/Case No.26/2015 have challenged the same.
3. As mentioned above, initially, the said Mustafa Uddin, Son of Late Ismail Ali, resident of Village-Uttar Samarali, PS. Murajhar, Nagaon was proceeded and the Tribunal gave the finding that he is a foreigner vide order dated 29.04.2016. Being aggrieved, the said Mustafa Uddin preferred this writ petition.
4. During pendency of this petition, the said Mustafa Uddin expired. Thereupon, the present legal heirs have impleaded themselves as legal heirs in this proceeding.
5. We have perused the original records as well as heard the learned counsel for the parties.
6. The Tribunal gave the finding against the said Mustafa Uddin declaring him to be a foreigner of post 25.03.1971 on the following grounds:-
"(1) Ext.1 is the voter list of 1966 in which the OP's father's name alone is mentioned as Ismail Ali, S/o. Nasib Ali aged 35 years in 1966. If the age of the OP's father was 35 years in 1966 that admittedly, is year of birth would be 1931 i.e., prior to the freedom movement in India. A person born in 1931 cannot be expected to have resided in a hired premises prior to 1950 and as such, he ought to have some landed property Page No.# 4/8 somewhere within this country which is not. Moreover, a person (OP's father) having attained the age of 35 years in 1966 also cannot expected to have not married, however, such fact has no mentioning in the evidence of DW1 or in his cross and as such, I am of the view that Ext.1 is not a credible evidence.
(2) Ext.2 is the voter list of 1970 in which like Ext.1, the OP's father name only been recorded as Ismail Ali, S/o. Nasib Ali, aged 39 years and the age is exact as per Ext.1.
However, the discussion made above in respect of Ext.1 is reiterated and not repeated again.
(3) Ext.3 is the voters list of 1985 in which apart from the OP's own name, his wife's and brother's name is recorded along with the name of his mother at Sl No.508 thereof as Jaigun Nessa Bibi, W/o. Ismail aged 45 years in 1985. What seems to be surprising in Ext.3 is that OP's own age is shown as 40 years whereas his mother's age is 45 years which in no way is believable.
(4) Moreover, as per Ext.3 if the OP's mother was 45 years in 1985 the obviously, her year of birth would be 1940 if so then, her age in 1966 was 26 years and in 1970 as 30 years and as per evidence of the OP/DW's she was surviving at that point of time; but as appears from Exts.1 and 2, the OP's mother name not been rented either in Ext.1 or in Ext.2 and as such, it casts a doubt about the actual parental status of the OP's. Even it did not contain the actual name of the OP as Mustafauddin therein.
(5) Ext.5 is the voter list of 1993 in which the OP's own name along with his wife are mentioned. The name of the OP is mentioned at Sl No.826, aged 50 years, however, as per Ext.3, his age should have 48 years. Now, so far as the name and age of the OP's wife is concerned, her name is mentioned at Sl No.827 as Fatima Bibi, W/o. Mustafauddin, aged 40 years in 1993. As appears from Ext.3, the OP's wife was 21 years in 1985 whereas after 8 years only, her age became 40 years instead of 29 years. Such difference of age of 11 years has not been explained in the evidence of the OP/DW1 and as such, it seems to be a doubtful document.
(6) Exts.5, 6 and 7 are the voters list of 1997, 2005 and 2010 respectively containing the OP's own name and the names of his family members these documents having Page No.# 5/8 been issued much after the cutoff date of 25.03.1971 and as such, these are not sufficient to support the Indian citizenship of the OP unless its linkage are properly established.
(7) It is also not explained in the evidence of OP/DW1 as and when his father or the OP himself has shifted from Bhedeuati Village, PS. Jamunamukh to Uttar Shamrali village under Murajhar PS as claimed by him vide Exts.3, 4, 5, 6 and 7. These exhibits have no proper links with Exts.1 and 2 and as such the same are procured documents.
(8) Ext.8 is the certificate issued by the Govt. Gaonburah of the Uttar Shamrali village but the same is not proved in accordance with the provision of the Indian Evidence Act, 1872.
(9) Ext.9 is an affidavit in support of different names of the OP to be read as Mustafauddin instead of Mustafa Ahmed. However, Ext.9 is not a valid piece of documentary evidence in support of his nationality of India as per the Evidence Act ."
7. As regards the first ground, the Tribunal made a very strange reasoning to reject the credibility of the voters list of 1966, which was exhibited as Ext.1 by observing that a person born in 1931 cannot be said to have resided in a hired premises prior to 1950 and he ought to have some landed property somewhere within this country, which is not.
We fail to understand on what basis the said conclusion could have been arrived at, as the same is not borne by records or by any legal supposition.
It has also been mentioned that father of the proceedee having attained the age of 35 years in 1966 cannot be expected not to have married, which fact was not mentioned in the evidence of DW1 or in his cross-examination. There is no law that a person, who has attained 35 years, must be married. We, therefore, find that said finding arrived at by the Tribunal is to be without any legal or evidential basis.
8. Coming to the second ground, we find that the Tribunal rejected the voters list of 1970 which was exhibited as Ext.2 on the ground that in Ext.2, only the name of the father of the proceedee was recorded. It is to be mentioned that Ext.2 is merely an extract of the voters list of 1970 reflecting only the name of the father of the proceedee and, as such, it cannot be ground to ignore the said evidence.
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9. Coming to the third ground, we find that in the voters list of 1985, which was exhibited as Ext.3, the name of the mother of the proceedee was recorded as Jaigun Nessa Bibi, W/o. Ismail, aged 45 years in 1985 while showing the age of the proceedee as 40 years. The Tribunal disbelieved that a person who is 40 years could be mothered by a woman who is aged about 45 years. As regards this apparent impossible situation, learned counsel for the petitioners submits that the said discrepancy has already been explained in the evidence of the proceedee where it has been clearly mentioned that the said Jaigun Nessa Bibi is not the real mother of the proceedee but his stepmother. The real mother of the proceedee was late Halima Begum on whose expiry, the father of the proceedee married Jaigun Nessa Bibi. Hence, the minor difference in the age. We are of the view that merely because the stepmother was elder to the proceedee by only about by five years, it cannot be ground to disbelieve, as she was not the biological mother of the proceedee.
10. Coming to the fourth ground, for the same reason, we do not agree with the finding arrived at by the Tribunal.
It may be mentioned that the Tribunal also made an observation that in Exts.1 and 2, the name of the mother of the proceedee was not entered which, however, has been explained by the learned counsel for the petitioners that as the mother of the proceedee had expired, her name was not entered in the said voters lists of 1966 and 1970. We accept the said explanation to be adequate.
11. Coming to the fifth ground, we find that the Tribunal because of the discrepancy in the age did not believe the voters list of 1993 which was exhibited as Ext.4. Comparing the voters list of 1993 with the voters list of 1985, the Tribunal held that voters list of 1993 is doubtful.
In the voters list of 1993, the age of the proceedee was shown to be 50 years but, according to the Tribunal, the age of the proceedee should have been 48 years.
We are of the view that the difference being only two years as regards the age of the proceedee is not material. Similarly, as regards the discrepancy with regard to the age of the wife of the proceedee, the same also cannot be a ground to disbelieve for the reason that if the name of the husband and other particulars are correctly reflected in the voters lists, Page No.# 7/8 because of mere difference in the age, it cannot be disbelieved. In this regard, it may be noted that normally the approximate age is entered in the voters list and no accurate age is entered in the voters list.
12. Coming to the sixth ground that Exts.5, 6 and 7, which are voters lists of 1997, 2005 and 2010 respectively were issued after the cutoff date of 25.03.1971 and as such these are not sufficient documents to prove the citizenship of the proceedee, we are of the view that though these voters lists may not be the sole basis for establishing the case of the proceedee to be a citizen of this country, yet these voters lists can be used to corroborate the other evidences and, hence, cannot be ignored.
13. Coming to the seventh ground about shifting of village from Bhedeuati village to Uttar Shamrali village, the same having been explained by the proceedee in the written statement as well as in the cross-examination, which were not considered by the Tribunal, the Tribunal ought not to have drawn any adverse inference against the proceedee.
14. As regards the ground No.8, in ignoring the Ext.8, which is the certificate issued by the Gaonburah, we do not find the conclusion of the Tribunal to be incorrect as the person who issued the said certificate was not examined.
15. Coming to the last ground, i.e., ground No.9, we find that the Tribunal had no valid reason for ignoring the affidavit filed by the proceedee to explain that Mustafauddin and Mustafa Ahmed are the same and one person. The Tribunal could not have ignored such a documentary evidence as the said affidavit is a piece of evidence which can be used to corroborate the other evidences also.
16. Accordingly, for the reasons discussed above, we are not able to agree with the conclusion and the finding arrived at by the Tribunal that the proceedee Mustafa Uddin is a foreigner.
17. Normally, we would have remanded the matter to the Tribunal for fresh consideration on the basis of the evidence on records in accordance with law. However, since the proceedee Mustafa Uddin has already expired, no useful purpose would be served by remanding the matter to the Tribunal to reconsider his case.
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18. Accordingly, we allow this petition by setting aside the impugned order dated 29.04.2016. However, in the event if the Tribunal wishes to proceed against any of the present legal heirs of said Mustafa Uddin on the basis of a valid reference that may be made by the referral authority, the Tribunal will do so in accordance with law by appreciating the evidences that may be adduced by the proceedee(s).
19. With the above observations and directions, the writ petition shall stand allowed.
20. Records be remitted forthwith to the concerned Tribunal.
JUDGE JUDGE Comparing Assistant