Gauhati High Court
Ajijul Hoque vs Union Of India & Ors on 30 August, 2013
Equivalent citations: AIR 2014 (NOC) 17 (GAU.)
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH)
WP(C) 1488 of 2013
Md. Ajijul Hoque,
S/o. Md. Ahmad Ali,
Vill. - Ghiladhari,
P.O.- Koupati,
P.S. - Dalgaon,
Dist.- Darrang, Assam.
............Petitioner.
-Vs-
1. The Union of India, represented by the
Commissioner and Secretary of the Govt.
of India, Home Department, New Delhi.
2. The State of Assam, represented by the
Commissioner and Secretary to the Govt.
of Assam, Home Department , Dispur,
Guwahati-6.
3. Member, Foreigners Tribunal (3rd),
Darrang, Mangaldoi, Assam.
Respondents.
BEFORE THE HON'BLE MR. JUSTICE B.K. SHARMA For the petitioners : Mr. A. Ali, Adv.
For the respondents: Mrs. H.M. Phukan, GA, Assam.
Ms. B. Das, CGC.
Date of hearing : 23/072013.
Date of judgement : 30/08/2013.
WP(C) 1488/2013 - CAV Page 1 of 6
JUDGEMENT AND ORDER (CAV)
This writ petition is directed against the judgment and order 2.01.2013 passed by the learned Member, Foreigners Tribunal(III) Darrang , Mangaldoi in FT (III) Case No. 2682/2012 declaring the petitioner to be foreigner (Illegal Bangladeshi Migrant) who entered into Assam after cut off date 25.03.1971.
2. I have heard eard Mr. A. Ali, learned counsel for the petitioner. Also heard Ms. B. Das, learned CGC and Mrs. H. M. Phukan, learned State Counsel. I have also perused the materials on record including the records received from the Tribunal.
3. According to the petitioner he is a citizen of India, by birth. In response to the reference that was made against him and the notice received from the Tribunal, the petitioner responding to the proceeding submitted his written statement on 15.102012. In the said written statement it was contended that his grand father's name appeared in the voter list of 1966 as Habil Seikh (Ext.1). The petitioner also claimed that he is a resident of village Ghiladhari and in support of the same, produced a certificate issued by the Gaonbura (Ext.2). He also produced a Job Card of NREGA (Ext.3). Ext.4 is the Pass Book of State Bank of India, Koupati Branch in the name of the petitioner.
4. The father of the petitioner Ahmad Ali in his oral evidence stated that his father late Habil Seikh was a voter of 1966. To that effect he also sworn an affidavit (Ext.5). He also stated about Ext.6, and certificate issued by the local Gaonbura certifying that he is a resident of village Ghiladhari.
5. Above are the documents on the basis of which the petitioner seeks to prove his Indian Citizenship and that too by birth. As discussed by this learned Tribunal in Ext.1 photocopy of the voter list, name of one Lt. Habil Seikh appears depicting his age as 40 WP(C) 1488/2013 - CAV Page 2 of 6 years. According to the statement of Ahmad Ali, the purported father of the petitioner, Lt. Habil Seikh expired about 15 years ago, which would be around 1997. However, except the 1966 voter list no other voter list could be produced containing the name of Habil Seikh.
6. As pointed out by the learned Tribunal the most crucial point is that the father of the petitioner at the time of making the deposition was about 65 years of age. However, both the petitioner (W No. 1) and his father (W No. 2) are silent in their deposition as to whether Ahamd Ali, i.e the father of the petitioner was ever enrolled as voter. There is also no proof that Lt. Habil Seikh is the grand father of the petitioner.
7. It is on the basis of the aforesaid evidence only, the petitioner claims to be an Indian Citizen, by birth, which by no stress of imagination can be accepted. On perusal of the records received from the Tribunal, it is found that the petitioner had also produced Family Identity Card bearing No. 2682/2012 purportedly issued on 1.07.2007. He also produced Special Family Identity Card purportedly issued in the name of Ahammad Ali. Another Family Identity Card was also produced which contains the name of Ahammad Ali. Even if the said Family Identity Cards are accepted, the same cannot prove the Indian Citizenship, that too by birth.
8. In Sarbananda Sonowal-I Vs. union of India reported in (2005) 5 SCC 665, the Apex Court while discussing the problem being faced by the State of Assam due to illegal migration and their continued presence in the State has been vividly discussed the alarming situation. While striking out the IM(D)T Act, 1983, the Apex Court also dealt with the modality of proving one's Indian citizenship. It has been emphasized that the burden of proof is always on the proceedee as per provisions of Section 9 of the Foreigners Act, 1946. In Sarbananda Sonowal-I, the Apex Court dealing with the burden of proof, made the following observation :-
WP(C) 1488/2013 - CAV Page 3 of 6"26. There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country. In order to establish one's citizenship, normally he may be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship. Sometimes the place of birth of his grandparents may also be relevant like under Section 6-A(1)(d) of the Citizenship Act. All these facts would be necessarily be within the personal knowledge of the person concerned and hot of the authorities of the State. After he has given evidence on these points, the State authorities can verify the facts and can then lead evidence in rebuttal, if necessary. If the State authorities dispute the claim of citizenship by a person and assert that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the aforesaid points. This is in accordance with the underlying policy of Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
9. Above apart, merely by producing some photocopies, one cannot establish his Indian citizenship. Even in case of production of certified copies of the documents, something more is required as per the Law of Evidence. As has been held by the Apex Court in (2010) 4 SCC 491 (LIC of India Vs. Ram Pal Singh Bisen), even admission of a document in evidence does not amount to its proof, in other words, mere making of exhibit of a document does not dispense with its proof, which is required to be done in accordance with law. It was the duty of the petitioners to have proved the documents in accordance with law. Under the Law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amounts to admission of contents but not its truth. Thus, the documents (Photocopies) having not been produced and marked as required under the Evidence Act, cannot be relied WP(C) 1488/2013 - CAV Page 4 of 6 upon by the Court. Contents of the document cannot be proved by merely filing in a Court.
10. Needless to say that the High Court exercising its power of judicial review under Article 226 of the Constitution of India cannot sit on appeal over the finding of facts recorded by the Court/Tribunal. It is only when the Court/ Tribunal exercise a jurisdiction without being empowered or in excess of it or fails to exercise the vested jurisdiction or acts illegally, the Writ Court exercising its jurisdiction can interfere with the same. The High Court can interfere with the order of the Tribunal exercising its writ jurisdiction only if it is proved that it is a case of no evidence at all or there is error apparent on the face of the record. The power of judicial review under Article 226 of the Constitution is limited only to correction of errors apparent on the face of the records and does not need long drawn out process of reasons on points whether there may be conceivably two views. In the instant case, I do not find any infirmity in the impugned judgement and order requiring any interference of this Court exercising its power of judicial review under Article 226 of the Constitution of India.
11. The writ petition is dismissed. There shall be no order as to costs.
12. Let copies of this judgement be sent to SP(B), Mangaldoi and the Deputy Commissioner, Mangaldoi for taking further course of action towards detention of the petitioner in the detention camp for his deportation to his country of origin and for deletion of his name from the voter list. Copies of this order shall also be sent to the Union Govt. in the Ministry of Home and so also to the State Government in the Home Department for their necessary follow up action in terms of this judgement and order. Another copy be furnished to Ms. H.M. Phukan, the learned State Counsel for her follow up action.
WP(C) 1488/2013 - CAV Page 5 of 613. List after one month for furnishing report by the respondents, more particularly, the SP(B), Mangaldoi and Deputy Commissioner, Mangaldoi regarding action taken in favour of this judgement and order.
14. Let the LCR be sent down along with the copy of this judgement and order.
JUDGE Sukhamay WP(C) 1488/2013 - CAV Page 6 of 6