Gauhati High Court
Amjad Ali @ Amjat Ali vs The Union Of India And 6 Ors on 9 December, 2019
Equivalent citations: AIRONLINE 2019 GAU 578
Bench: Manojit Bhuyan, Soumitra Saikia
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GAHC010167192019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 5503/2019
1:AMJAD ALI @ AMJAT ALI
S/O- LT KASEM ALI, VILL- NARAMARI RESERVE UNDER P.S.
DHARAMTUL, DIST- MORIGAON, ASSAM
VERSUS
1:THE UNION OF INDIA AND 6 ORS.
REP. BY ITS SECY., DEPTT. OF HOME, NEW DELHI
2:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
DEPTT. OF HOME
DISPUR
GHY-6
3:THE ELECTION COMMISSION OF INDIA
NEW DELHI-110001
4:THE DY. COMMISSIONER
MORIGAON
ASSAM
5:THE MEMBER
FOREIGNERS TRIBUNAL NO. 1
MORIGAON
6:THE SUPERINTENDENT OF POLICE (B)
MORIGAON
ASSAM
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7:THE STATE COORDINATOR
NRC ASSAM
ACHYUT PLAZA (1ST FLOOR)
BHARALUPUR
BHANGAGARH
GHY-
Advocate for the Petitioner : MR S M T CHISTIE
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
O R D E R
09.12.2019 (Manojit Bhuyan, J) Heard Mr. S.K. Das, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing respondent no.1. Also heard Mr. J. Payeng, learned counsel for respondent nos.2, 4, 5 and 6; Ms. B. Das, learned counsel for respondent no.3 and Ms. U. Das, learned counsel for respondentno.7.
Petitioner assails opinion dated 06.02.2019 passed by the Foreigners' Tribunal No.(1 st), Morigaon, Assam in Case No. F.T.(C) 758/2010, declaring him to be a foreigner/illegal migrant, having illegally entered into India (Assam) after 25.03.1971.
For the purpose of discharging burden as required under section 9 of the Foreigners Act, 1946 to prove that petitioner is not a foreigner, as many as 10 (ten) documents were exhibited by him, the particulars of which may be noticed, as under :
(i) Exhibit-1 - Certified copy of order dated 14.10.2016 passed in the F.T.(C) Case No.107/2010, in favour of Kasem Ali, Hanufa Khatoon and Rafikul Ali.
(ii) Exhibit-2 - Certified copy of Voter List of 1965, in the name of one Kasem Ali, aged 35 years, projected as father of the petitioner of village Ghehuwa Chalchali, P.S. Rupahi, district- Nagaon, under Rupahihat LAC.
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(iii) Exhibit-3 - Certified copy of Voter List of 1970, in the name of one Abdul Hamid, projected as grandfather of the petitioner, one Kasem Ali, aged 45 years, projected as father of the petitioner along with others of village Ghehuwa Chalchali, P.S. Rupohi, district- Nagaon, under 87 No. Rupahihat LAC.
(iv) Exhibit-4 - Certified copy of Allotment letter in the name of one Kasem Ali, projected father of the petitioner.
(v) Exhibit-5 - Sale Deed in the name of the Abdul Hamid, projected grandfather of the petitioner.
vi) Exhibit-6 - Certified copy of Voter List of 2011, in the name of the petitioner, aged 47 years, son of Kasem Ali along with others, of village Naramari, P.S. Mayong, district- Morigaon, under 79 No. Jagiroad (SC) LAC.
vii) Exhibit-7- Certified copy of Voter List of 2014, in the name of the petitioner, aged 48 years, son of Kasem Ali and one Jayeda Begum, projected wife of the petitioner of village Naramari, P.S. Mayong, district- Morigaon, under 79 No. Jagiroad (SC) LAC.
viii) Exhibit-8- Birth Certificate of in the name of one Chariful Islam, son of Amjat Ali.
ix) Exhibit-9- Birth Certificate of in the name of one Faizul Islam, son of Amjat Ali.
x) Exhibit-10 - Certificate issued by the Gaonburah of Ghehuwa Chalchali, certifying that petitioner shifted from Chaidaria village and presently residing with his family in the Ghehuwa village.
Exhibit-11 to 15 exhibited by DW-2 Jayeda Begum.
xi) Exhibit-11 - Chitha in the name of the petitioner.
xii) Exhibit-12 - Certified copy of Voter List of 1971, in the name of one Asrab Ali.
xiii) Exhibit-13 - Certified copy of Voter List of 1997, in the name of one Achar Ali along with other.
xiv) Exhibit-14 - Certificate issued in the name of the petitioner's projected wife i.e. Jayeda Begum
xv) Exhibit-15 - Certificate issued Gaonburah in the name of the petitioner's projected wife i.e.
Jayeda Begum
Petitioner examined herself as DW-1. One Jayeda Begum, projected as wife of the petitioner, deposed as DW-2.
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 either the projected grandfather Abdul Hamid of Exhibit-3 Voter List of 1970 or to the projected father Kasem Ali, which name appeared in the Voter Lists of 1965, 1970 and Allotment Letter at Exhibits-2, 3 and 4. Moreover, Exhibit-5 Sale Deed in the name of the grandfather did not stand proved, either through production of the original records or through the legal testimony of the custodian of the said records. The only document at Exhibit-10, which was brought on record to serve as a link document to the projected father Kasem Ali and shifting of family from Ghehuwa Chalchali to Naramari, rendered itself as inadmissible in evidence, inasmuch as, the said Certificate and the contents thereof did not stand proved through the legal testimony of the issuing authority. As regards Exhibit-1, the petitioner Page No.# 4/5 relied upon order dated 14.10.2016 by which Md. Kasem Ali, Musstt. Hanufa Khatoon and one Md. Rafikul Ali were declared to be Indian citizens and the petitioner projected them as his parents and brother but makes no mention of himself why his name is not included in the same order. Petitioner's name for the first time appeared in the Voter List of 2011 at Exhibit-6 at the age of 47 years. No explanation is also given why his name is not enlisted prior to 2011. Exhibit- 7 is also not reliable as in the year 2014, the petitioner's age is shown 48 years instead of 50 years. The Exhibits-8 and 9 are the birth certificates of the sons of the petitioner. From the very nature of it, the same do not serve any purpose to the petitioner for establishing citizenship. This is a clear case where the petitioner utterly failed to prove linkage and to discharge the burden, as required of him, under section 9 of the Foreigners Act, 1946.
The Exhibits-11 to 15 are documents produced and exhibited by one Jayeda Begum, who deposed as DW-2, in her capacity as wife of the petitioner. On a bare perusal of the statement of DW- 2, the same does not appear to be credible. DW-2 could not establish that the petitioner is the son of Kasem Ali through any legally admissible documents. The evidence of DW-2, thus, falls short of being considered as cogent, reliable and admissible evidence, so much so, to establish linkage of the petitioner to his parents through said DW-2.
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 for the reasons recorded 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 grandfather through the projected father.
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 Page No.# 5/5 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.
Office to send back the case records to the Tribunal forthwith.
A copy of this order be made part of the case records of the Tribunal for future reference.
JUDGE JUDGE Comparing Assistant