Gauhati High Court
Har Mohan Das vs The Union Of India And 6 Ors on 20 November, 2019
Equivalent citations: AIRONLINE 2019 GAU 757
Bench: Manojit Bhuyan, Ajit Borthakur
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GAHC010194592019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 5957/2019
1:HAR MOHAN DAS
S/O. MAKHAN NAMO DAS @ MAKHAN TALUKDAR, VILL. MILAN NAGAR,
P.S. BARPETA ROAD, DIST. BARPETA, PIN-781314.
VERSUS
1:THE UNION OF INDIA AND 6 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, DEPTT. OF HOME, NEW
DELHI-01.
2:THE STATE OF ASSAM
REP. BY THE SECRETARY TO THE GOVT. OF ASSAM
DEPTT. OF HOME
DISPUR
GUWAHATI-06.
3:THE DY. COMMISSIONER
BARPETA
PIN-781301.
4:THE SUPDT. OF POLICE (B)
BARPETA
PIN-781301.
5:THE ELECTION COMMISSION
GOVT. OF INDIA
NEW DELHI-01.
6:THE STATE CO-ORDINATOR OF NATIONAL REGISTRATION (NRC)
ASSAM
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GUWAHATI-32.
7:THE FOREIGNERS TRIBUNAL NO.2ND
BARPETA REP. BY THE STANDING COUNSEL OF THE TRIBUNAL
PIN-781301
Advocate for the Petitioner : MR. A ROSHID
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE HONOURABLE MR. JUSTICE MANOJIT BHUYAN HONOURABLE MR. JUSTICE AJIT BORTHAKUR order Date : 20-11-2019 (Manojit Bhuyan, J) Heard Mr. A. Roshid, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing respondent no. 1. Mr. A. Kalita, learned counsel represents respondent nos. 2, 3, 4 and 7. Ms. B. Das, learned counsel represents respondent no. 5 whereas Ms. U. Das, learned counsel represents respondent no.6.
Petitioner assails order/opinion dated 28.02.2019 passed by the Foreigners' Tribunal No. 2 nd, Barpeta, Assam in FT (2 nd) Case No. 749/2016, declaring him to be a foreigner having illegally entered into India (Assam) on or after 25.03.1971.
For the purpose of discharging burden as required under section 9 of the Foreigners Act, 1946 to prove that the petitioner is not a foreigner, as many as 3 (three) documents were exhibited, the particulars of which may be noticed as under:
(i) Exhibit-A - Photocopy of Sale Deed dated 24.12.1966 in the name of Makhan Ch. Das, projected as father of the petitioner.
(ii) Exhibit-B - Photocopy of school certificate dated 01.09.1995 issued by Sorhab Uddin Ahmed, Head Teacher of No. 367 Jakhlirpar L.P. School, by certifying that petitioner is the son of Makhan Das and the petitioner passed the Class-I examination in the year 1975.
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(iii) Exhibit-C - Photocopy of letter dated 05.03.1970 of the B.D.O., Mondia Development Block.
Petitioner examined himself as DW-1 and one Meera Bora deposed as DW-2 in the capacity as the Head Teacher of the Exhibit-B school.
Apart from the documents produced and exhibited, as above, no other documents, as admissible in evidence, were brought on record to demonstrate and establish any kind of relationship/linkage to the projected father Makhan Das. The document at Exhibit-C, which was brought on record to serve as a link document to the projected father Makhan Das, rendered itself as inadmissible in evidence, inasmuch as, neither the said Certificate nor the contents thereof stood proved through the legal testimony of the issuing authority. In so far as the other link document at Exhibit-B is concerned one Meera Bora deposed as DW-2 in the capacity as the Head Teacher of 367 No. Jakhlirpar Primary School. Apparently, said Meera Bora is not the author of the Exhibit-B certificate. Notwithstanding the same, DW-2 stated that the date of birth of the petitioner is 01.01.1969 and the certificate was issued by the then Head Teacher Sohrabuddin Ahmed. It was also stated that she had been working as teacher of the school since 2011 and the certificate at Exhibit-B was not countersigned by the Deputy Inspector of Schools. Further, she had not seen any relevant documents in the name of the petitioner connected to the certificate at Exhibit-B. Also, she has not seen the name of the petitioner in the school register book of 1986, as brought by her to the Tribunal.
From the facts above, it is a clear case that the petitioner has failed link herself to her projected father Makhan Ch. Das, which name appeared in the Exhibit-A Sale Deed dated 24.12.1965. The testimony of DW-2 falls utterly short of being considered as credible, cogent, reliable and admissible evidence. It would be worth observing that although the petitioner is aged 51 years as on date, not a single voter list with his name as a voter was brought on record. This itself makes his status as a citizen of India doubtful.
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.
Page No.# 4/4 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 Kishor Comparing Assistant