Gauhati High Court
Md. Anuwar Hussain @ Md. Anowar Hussain vs The Union Of India & 4 Ors on 4 March, 2014
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH)
WRIT PETITION (C) NO.4258/2013
Petitioner :
Md. Anuwar Hussain,
@ Md. Anowar Hussain,
Son of late Md. Abdul Samed,
@ Samed Ali & Samed,
Resident of No.2 Bongalbori of
Village Paliguri,
PO- Paliguri,
PS- Jagiroad, Mouza- Gova,
District- Morigaon, Assam.
By Advocates :
Mr. HRA Choudhury, Sr. Advocate,
Mr. A. Alam,
Mrs. R. Choudhury.
Respondents :
1. Union of India, represented by the Ministry of Home Affairs, New Delhi-110 001.
2. State of Assam, represented by the Commissioner & Secretary to the Government of Assam, Home Department, Dispur, Guwahati-781 006.
3. Foreigners Tribunal No.1, Morigaon, District- Morigaon, Assam, Pin-782 105.
4. Superintendent of Police (B), Morigaon, Assam, Pin-782 105.
5. Officer-in-Charge, Jagiroad Police Station, District- Morigaon, Assam, Pin-782410.
By Advocates:
Mr. M. Bhagawati, CGC and GA, Assam.
W .P (C) N o. 4258 of 2013 P age 1 of 8
BEFORE
HON'BLE MR. JUSTICE UJJAL BHUYAN.
Date of hearing : 12-11-2013
Date of Judgment : 04.03.2014
J U D G M E N T AND O R D E R (CAV)
By way of this petition under article 226 of the Constitution of India, petitioner has challenged the legality and correctness of the order dated 25-04-2013 passed by the Foreigners Tribunal (1st), Morigaon in FT (D) Case No.1482/2007 whereby petitioner has been declared to be a foreigner having migrated to Assam after 25-03-1971.
2. Case of the petitioner as projected in the writ petition is that he is a permanent resident of village Paliguri under PS- Jagiroad in the district of Morigaon (Assam). He was born on 01-02-1976 at village Kuranibori under PS- Mayang in the district of Morigaon. His parents, both deceased, were Md. Abdul Samed and Mustt. Sahina Khatoon. His paternal grandfather was Abdul Gani @ Abdul Gani Mistry. Petitioner studied upto class VIII in the Buraburi High School and as per school register, his date of birth is 01-02-1976. Around 1990, petitioner shifted his residence from Kuranibori village to Paliguri village and has been residing there since then.
3. Citizenship of the petitioner was doubted and subjected to verification by the Electoral Registration Officer of Jagiroad Legislative Assembly Constituency, who subsequently submitted report on 28-09-
1997 in which it was stated that petitioner had migrated to India after 1971. Thereafter, the matter was referred to the Superintendent of W .P (C) N o. 4258 of 2013 P age 2 of 8 Police (B), Morigaon, who in turn made a reference to the Foreigners Tribunal No.1, Morigaon (Tribunal). The reference was registered as FT (D) Case No.1482/2007. Notice was issued to the petitioner by the Tribunal, on receipt of which the petitioner submitted his written statement. Petitioner also deposed as a witness to support his case that he is an Indian citizen. A number of documents were exhibited. However, the Tribunal did not accept the explanation of the petitioner and declared him to be a foreigner having migrated to Assam after 25-03-1971. Following the order of the Tribunal, petitioner has been taken into custody by the police and has been lodged in the detention camp.
4. Aggrieved, petitioner has filed the present writ petition assailing the above finding of the Tribunal.
5. This Court by order dated 01-08-2013 issued notice and called for the record. On 18-09-2013, the case was admitted for hearing as the record was received.
6. Heard Mr. A. Alam, learned Counsel for the petitioner and Mr. M.Bhagawati, learned Central Government Counsel as well as State Counsel.
7. Learned Counsel for the petitioner submits that the Tribunal was not at all justified and erred in recording the finding that petitioner is a foreigner having come to India after 25-03-1971. He submits that petitioner had discharged his burden u/s 9 of the Foreigners Act, 1946 and had laid enough materials and evidence before the Tribunal which conclusively proved that the petitioner is a citizen of India. Learned Tribunal had declared the petitioner to be a W .P (C) N o. 4258 of 2013 P age 3 of 8 foreigner only because of discrepancy in the name of his father and discrepancy in his age as recorded in his school certificate and as per his evidence given before the Tribunal. He, therefore, prays for quashing of the order of the Tribunal and setting the petitioner at liberty from the detention camp.
8. Submissions made by the learned Counsel for the petitioner has been opposed by learned Counsel for the respondents. He submits that view taken by the Tribunal is a plausible one and no interference is called for. He further submits that no reliance can be placed on the documents annexed by the petitioner to the writ petition as those are subsequent to the date of Tribunal's order. He therefore seeks dismissal of the writ petition.
9. I have heard learned Counsel for the parties and also perused the record.
10. Before proceeding further, relevant portion of the Tribunal's order may be referred to, which is as under :-
"(3) I have carefully perused the records and heard argument from both sides. After perusal of the documents proved and exhibited, it appears that there are some discrepancies in the name of the father of the OP. In Ext.
'Kha', the voter list, 1966, the voter against serial No.717, house No.194 was Samed Ali, Son of Abdul Gani, but as per Ext. 'Gha', the coy of Jamabandi, Abdul Samed, S/o Abdul Gani was the land holder. Ext. 'Cha' shows that Samed paid revenue in the year 1967, but as per Ext. 'Ka', Ext. 'Ga' and Ext. 'Ja', the O.P., Md. Anowar Hussain is the W .P (C) N o. 4258 of 2013 P age 4 of 8 son of one, Abdul Samed. This discrepancy in the name of the father of the O.P. was fairly admitted by the learned counsel appearing for the O.P. As per records, the name of the father of the OP was Abdul Samed. There is also contradiction in respect of year of birth of the OP. As per evidence of the OP himself, he was 38 years old on the date of deposition, i.e. on 01-04-2013. As such, the year of his birth would be 1975, but as per the School certificate (Ext. 'Ka') issued by the I/C Headmaster, Buraburi High School on 05-02-2011, the date of birth of Md. Anowar Hussain, S/o Lt. Abdul Samed was 01-02-1976. In this respect, the learned Assistant Government Pleader, Mr. B.K. Nath appearing for the State submitted that the School certificate (Ext. 'Ka') was not a genuine document. In this reference, the O.P. miserably failed to establish that his father was an Indian citizen prior to 1971, the cut off year. Although the O.P. claimed that he was born in Assam in the year 1975, but as per School Certificate, it was 1976. He fails to establish the year of his birth not to speak the date of birth. As the O.P. was born either in 1975 or 1976 as per records, he did not attain the age of voting before 1971, the cut off year. But, in such case, the O.P. is required to establish his nationality by descent, but he miserably fails. No birth certificate was produced.
(4) In the result, I am constrained to hold and deem that the O.P., 'D' voter, in this reference, Md. Anowar, S/o Abdul Samed, of village- Kuranibari, PS- Mayang, District-
W .P (C) N o. 4258 of 2013 P age 5 of 8 Morigaion (Assam) is a foreigner U/S 2(a) of the Foreigners Act, 1946, who migrated to Assam after 25-03-1971 as alleged by the State. The name of the O.P. if enrolled in any voter list in Assam be deleted forthwith as per relevant law and Ration Card and MGNREGA Job Card be cancelled immediately if any issued in the name of the O.P. (5) The reference, thus, stands disposed of on contest in favour of the State."
11. A perusal of the order of the Tribunal would show that the Tribunal disbelieved the version of the petitioner primarily on two counts. Firstly, it was held that there was discrepancy in the name of petitioner's father. In one exhibit i.e. the voters list of 1966, the father's name is Samed Ali, son of Abdul Gani but in another exhibit i.e. the Jamabandi, the name is Abdul Samed, son of Abdul Gani. In yet another exhibit i.e. revenue receipt of the year 1967, the name is shown as Samed whereas in the other exhibits, the father of the petitioner is shown as Abdul Samed. In so far discrepancy in the name of petitioner's father is concerned, it is a common phenomenon in rural areas, more particularly among people of Muslim community, to have more than one name or there being variation in the name such as in the name of the petitioner's father. The discrepancy in the name as noticed- Samed Ali, Abdul Samed and Samed, is not so great as to draw adverse inference regarding the citizenship of the petitioner. On the ground of there being such discrepancy in the name of petitioner's father, petitioner could not have been declared as a foreigner.
W .P (C) N o. 4258 of 2013 P age 6 of 8
12. Regarding discrepancy in the age of the petitioner, when he gave evidence before the Tribunal, he declared his age to be about 38 years. He had deposed on 01-04-2013 which would mean that he was born in the year 1975. But as per school certificate, his date of birth is 01-02-1976. It was because of this discrepancy that the Tribunal held that the petitioner failed to prove his year of birth. Again, in the rural areas, there is bound to be some discrepancy while declaring the year of birth of a person. The discrepancy as noticed above is not so grave so as to warrant such an adverse finding.
13. Section 9 of the Foreigners Act, 1946, provides that when a question arises as to whether a person is a foreigner or is not a foreigner, the onus of proving that such 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 notwithstanding anything contained in the Indian Evidence Act, 1872.
14. In the instant case, the petitioner did exhibit some documents to support his case. Therefore, the finding of the Tribunal that the petitioner failed to establish his nationality by descent appears to be not justified. The reasons assigned for arriving at such a finding appear to be a bit trivial. The Tribunal must reach a conclusion that having regard to the mandate of Section 9 of the Foreigners Act, 1946, petitioner failed to prove that he is not a foreigner. Such conclusion must be based on sound logic and cogent reason.
15. In the facts and circumstances of the case as noticed above, I am of the view that the finding recorded by the Tribunal does not appear to be based on sound logic and cogent reason. This is not W .P (C) N o. 4258 of 2013 P age 7 of 8 to say that the petitioner has established his claim to be an Indian citizen. All that is required is for the Tribunal to consider the evidence on record in a reasonable manner and thereafter to record a finding one way or the other.
16. Thus having regard to the above, impugned order of the Tribunal dated 25-04-2013 cannot be sustained and is hereby set aside and quashed. Matter is remanded back to the Tribunal for a fresh decision is accordance with law from the stage of advancing arguments by the parties within a period of three months from the date when the record of the case is received back from this Court by the Tribunal. To enable the petitioner to participate in the proceeding before the Tribunal, let him be released from the detention camp on furnishing adequate surety to the satisfaction of the Superintendent of Police (B), Morigaon. On such release, petitioner shall appear before the Tribunal within seven days thereafter. It is made clear that this Court has not expressed any opinion on merits of the petitioner's claim to be an Indian citizen.
17. Writ petition is allowed to the extent indicated above.
18. Registry to send down the LCR forthwith.
JUDGE
Aparna
W .P (C) N o. 4258 of 2013 P age 8 of 8