Gauhati High Court
Ajahar Ali @ Ejahar Ali vs The Union Of India And 9 Ors on 26 February, 2020
Bench: Manojit Bhuyan, Parthivjyoti Saikia
Page No.# 1/5
GAHC010205002019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 6270/2019
1:AJAHAR ALI @ EJAHAR ALI
S/O. LT. MONTAZ ALI, VILL. MATIPARBAT NO.II, P.O. DHARAMPUL, P.S.
JAGIROAD, DIST. MORIGAON, ASSAM, PIN-782105.
VERSUS
1:THE UNION OF INDIA AND 9 ORS.
REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, SHASTRI BHAWAN, TILOK MARG, NEW DELHI-01.
2:THE STATE ASSAM
REP. BY CHIEF SECRETARY TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI-06.
3:THE ELECTION COMMISSION OF INDIA
REP. BY THE CHIEF ELECTION COMMISSIONER
NEW DELHI-110001.
4:THE COMMISSIONER AND SECY.
TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GUWAHATI-06.
5:THE DIRECTOR GENERAL OF POLICE
ASSAM
ULUBARI
GUWAHATI-05.
6:THE SUPDT. OF POLICE (B)
MORIGAON P.O. MORIGAON
DIST. MORIGAON
ASSAM
PIN-782105.
7:THE DY. COMMISSIONER OF MORIGAON
P.O. MORIGAON
DIST. MORIGAON
ASSAM
PIN-781301.
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8:THE STATE COORDINATOR OF NATIONAL REGISTER OF CITIZENS
BHANGAGARH
GUWAHATI
ASSAM
PIN-781005.
9:THE OFFICER IN CHARGE
JAGOROAD POLICE STATION
P.O. JAGOROAD
DIST. MORIGAON
ASSAM
PIN-782105.
10:THE ELECTORAL REGISTRATION OFFICER
79 NO. JAGIROAD (SC) L.A.C. P.O. JAGIROAD
DIST. MORIGAON
ASSAM
PIN-782105
Advocate for the Petitioner : MR. M U MONDAL
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
O R D E R
26.02.2020 (Manojit Bhuyan, J) Heard Mr. M.U. Mondal, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing respondent no.1. Also heard Mr. U.K. Nair, learned senior counsel representing respondent nos.2, 4, 5, 6, 7, 9 and 10; Ms. B. Das, learned counsel for respondent no.3 and Ms. S. Khanikar, learned counsel for respondent no.8.
Petitioner assails opinion dated 26.07.2019 passed by the Foreigners' Tribunal No.1, Morigaon, Assam in Case No. F.T.(C) 594/2010, declaring him to be a foreigner/illegal migrant, having illegally entered into India after 25.03.1971.
For the purpose of discharging burden as required under section 9 of the Foreigners Act, 1946 Page No.# 3/5 to prove that petitioner is not a foreigner, many documents were exhibited by him out of which the followings are relevant to case of the petitioner, may be noticed as under :
(i) Exhibit-A - Copy of NRC in the name of one Mantaz Ali, son of Joynuddin, projected as father of the petitioner..
(ii) Exhibit-B - Copy of Voter List of 1965, in the name of one Mantaz Ali projected as father of the petitioner of village Tuktuki, P.S.-Dhing, District-Nagaon, under No 86 Dhing LAC.
(iii) Exhibit-C - Copy of Voter List of 1970, in the name of one Mantaz Ali projected as father of the petitioner of village Tuktuki, P.S.-Dhing, District-Nagaon, under No 86 Dhing LAC.
(iv) Exhibit-D - Certificate dated 06.05.1992 regarding allotment of Government land in the name of the petitioner.
(v) Exhibit-H - Copy of Voter List of 1985, in the name of Ejahar Ali, aged 32 years and one Rashida Khatun, projected as wife of the petitioner of village Mati Parbat (KO), Muladhari, P.S.-Jagiroad, District-Nagaon, under No 79 No. Jagiroad LAC (SC).
(vi) Exhibit-N - Copy of Voter List of 1977, in the name of the petitioner, aged 32 years along with two projected brothers of village Kotahguri, P.S.-Dhing, District-Nagaon, under No 84 No. BotodrovaAC.
.(vii) Exhibit- O - Certificate issued by the Gaonburah.
Petitioner examined himself as DW-1. One Rashida Khatun, projected 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 the projected father Mantaz Ali of village Tuktuki and only reflection of the projected father's name in the NRC of 1951, Voter Lists of 1965 and 1970 at Exhibit-A, B and C, is wholly insufficient and without relevance if the proceedee/writ petitioner is unable to connect himself to such entity by means of cogent, reliable and admissible document/evidence. The documents brought on record for the purpose of establishing linkage to Mantaz Ali are the Certificate of Allotment of government land issued by the Circle Officer, Morigaon Revenue Circle and the Certificate issued by the Gaonburah, at Exhibits-D and O respectively. The Certificates rendered itself as inadmissible in evidence, inasmuch as, the authors of the said Certificates were not examined to prove the same and the contents thereof. Besides, the Exhibit-D does not pertain to village Tuktuki but Matiparbat.
The voter list with the name of the petitioner is the Exhibit-N Voter List of 1977 of village Page No.# 4/5 Kotahguri, on which much reliance is placed to establish linkage. Apparently, the petitioner was born in the village Tuktuki and reliance placed in the Exhibit-N pertaining to village Kotahguri appears to be out of context and without any meaning and relevance as because the petitioner has nowhere pleaded of ever having shifted to village Kotahguri. Mere statement or production of document is not enough to be considered as a reliable piece of evidence. The Exhibits- E, F, G I, have no relevance as far as the petitioner is concerned as these are related to the parents of the projected wife of the petitioner. The Exhibits- J, K, L and M are the birth certificates of the children of the petitioner. From the very nature of it, the same do not serve any purpose to the petitioner for establishing citizenship.
The statement of DW-2 i.e. Rashida Khatun, who claimed to be the wife of the petitioner, cannot be relied upon in the absence of any documents showing relationship between Montaz Ali and the petitioner. Oral testimony of DW-2 alone, sans any documentary support, cannot be treated as sufficient to prove linkage or help the cause of the petitioner. We would reiterate that in a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 the evidentiary value of oral testimony, without support of documentary evidence, is wholly insignificant. Oral testimony alone is no proof of citizenship. 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 the projected father.
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.
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.
We find no merit in the present petition. Accordingly, the same stands dismissed, however, without any order as to cost.
JUDGE JUDGE Comparing Assistant