ABDUL MALEK @ MALEK ALI V. THE UNION OF INDIA AND 6 ORS.

WP(C)/8567/2018

AI Insights

The case revolves around Abdul Malek @ Malek Ali, who challenged the order of the Foreigners Tribunal, Bongaigaon, declaring him a foreigner. The Tribunal's decision was based on the petitioner's inability to prove his linkage to his projected father, Sorhaf Ali, whose name appeared in voter lists prior to the cut-off date of 25.03.1971. The petitioner relied on various voter lists and documents to establish his citizenship, but the Tribunal and subsequently the High Court found discrepancies and insufficient evidence to support his claims. The High Court's decision emphasized the burden of proof on the petitioner to establish his citizenship, which he failed to meet.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 722517 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 03-05-2019
• Assessment Year: misc
• Other Referred Cases: Sarbananda Sonowal vs. Union of India and another, Md. Babul Islam vs. State of Assam, Musstt. Rabiya Khatun vs. Union of India, Gulbhan Begum vs. Union of India
• Laws Referred To: Foreigners Act, 1946, Foreigners (Tribunals) Order, 1964, Article 226 of the Constitution of India
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: S G I
• Assessee Lawyers: H R A CHOUDHURY
• Keywords: Burden of Proof; Citizenship; Foreigner; Linkage; Voter lists
• Section: 9

Judgement Text

"Page No.# 1/5 GAHC010275242018 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C) 8567/2018 1:ABDUL MALEK @ MALEK ALI S/O LATE SORHAB ALI @ SOHRAB ALI MANDAL P.S. ABHAYAPURI (NOW MERRCHAR) DIST. BONGAIGAON, ASSAM, PIN - 783384 VERSUS 1:THE UNION OF INDIA AND 6 ORS. REP. BY THE MINISTRY OF HOME AFFAIRS, NEW DELHI- 110001. 2:THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI - 781006. 3:THE DEPUTY COMMISSIONER BONGAIGAON DIST. BONGAIGAON ASSAM PIN -783380 4:THE SUPERINTENDENT OF POLICE BONGAIGAON ASSAM PIN -783380. 5:THE ELECTION COMMISSION OF INDIA NEW DELHI- 110001. Page No.# 2/5 6:THE STATE COORDINATOR NATIONAL REGISTER OF CITIZENS (NRC) ASSAM PIN- 78103 Advocate for the Petitioner : MR H R A CHOUDHURY Advocate for the Respondent : ASSTT.S.G.I. BEFORE HONOURABLE MR. JUSTICE MANOJIT BHUYAN HONOURABLE MR. JUSTICE MANISH CHOUDHURY ORDER Date : 03-05-2019 (Manish Choudhury, J) Heard Mr. A. Matin, learned counsel for the petitioner as well as Mr. J. Payeng, learned counsel representing respondent nos. 2 to 4. Also heard Ms. U. Das, learned counsel representing respondent no. 7. None appears for respondent nos. 1 and 6. The petitioner assails the order/opinion dated 12.01.2018 passed by the Foreigners Tribunal, Bongaigaon No. 2 at Abhayapuri in Case No. BNGN/ FT-2/APR/159/16, declaring the petitioner to be a foreigner, having illegally entered into India after 24.03.1971 without any valid document. The primary issue for determination is as to whether the petitioner, Abdul Malek @ Malek Ali succeeded to establish his linkage with his projected father. The Tribunal had held that the petitioner had failed to establish his linkage with his projected father, whose name appeared in the voter lists of 1966 (Ext. 1 & Ext. 1A) and in the voter list of 1970 (Ext. 2) at village - Majeralga Bartik Char, Police Station - North Salmara, Sub-Division & District - Goalpara for Bongaigaon LAC. For the purpose of establishing linkage to Indian parents who had been ordinarily residing in Assam (India), relatable to a period prior to the cut-off date i.e. 25.03.1971, the petitioner projected one Sorhaf Ali, son of Moku Mondal, his name being recorded as voter from the village, mentioned Page No.# 3/5 above, in the voter lists of 1966 (Ext. 1 & Ext. 1A) and in the voter list of 1970 (Ext. 2). These are the three primary documents relied upon by the petitioner to prove his citizenship along with another voter list of 1989 (Ext. 3) in respect of village - 181-Harirchar Pt.II, Police Station - Abhayapuri, Sub- Division - North Salmara, District - Goalpara of Abhayapuri North LAC, wherein the name of one Sohrab Ali Mondal, son of Late Soku Mondal was recorded. In the written statement, the petitioner mentioned only about 1966 and 1970 voter lists and there was no mention of 1989 voter lists. The names “Sorhaf Ali, son of Moku Mondal” “Sohrab Ali Mondal, son of Late Soku Mondal” were not same and were not acceptable to be of one person. In none of the aforesaid voter lists viz. Ext. 1, Ext. 1A, Ext. 2 & Ext. 3, the name of the petitioner appeared. It has also emerged that Ext. 1, Ext. 1A & Ext. 2 pertained to village - Majeralga Bartik Char, Police Station - North Salmara, Sub-Division & District -Goalpara of Bongaigaon LAC whereas Ext. 3 pertained to village - 181-Harirchar Pt.II, Police Station - Abhayapuri, Sub-Division - North Salmara, District - Goalpara of Abhayapuri North LAC. The petitioner sought to explain the two different places by taking the plea, in the written statement, that as there was heavy soil erosion at the first place in the year 1981-82, their house got totally damaged which compelled them to shift their residence to the second place and by that time, the parents of the petitioner expired. But the petitioner had failed to establish the same by any supporting documentary evidence. The petitioner had also failed to mention the year in which his parents had expired. In Ext. 1, the name of one Salaha Khatun appeared as the wife of Sorhaf Ali while in Ext. 1A & Ext.2, names of Salaha Khatun & Hajara Khatun appeared as the wives of Sorhaf Ali. On the other hand, name of Hajara Khatun was recorded as the wife of Sohrab Ali Mondal in Ext. 3. Apart from the discrepancies in the names, neither in his written statement nor in his evidence on affidavit the petitioner had ever disclosed the name of his mother, meaning thereby, there was no effort on the part of the petitioner to establish his linkage through his mother. In Sarbananda Sonowal vs. Union of India and another, (2005) 5 SCC 665, it is held that 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. In a proceeding under the Foreigners Act, 1946 read with Foreigners (Tribunals) Order, 1964 the issue is whether the proceedee is a foreigner or not and Section 9 of the Foreigners Act, 1946 casts the burden of proof on the proceedee to prove that he is not a foreigner. The same is based on the legal principle that the facts which are within the personal knowledge of a person should be proved by him and not the party who avers the negative because those facts are within the personal knowledge of the person concerned and not of the authorities of the State. In view of non- disclosure of the name of his mother, and an adverse inference can very well be drawn against the petitioner as in none of the aforesaid voter lists viz. Ext. 1, Ext. 1A, Ext. 2 & Ext. 3, the name of the Page No.# 4/5 petitioner appeared. Ext. 4, Ext. 5, Ext. 6 and Ext. 7 are extracts of voter list of 1997, voter list of 2011, voter list of 2013 and voter list of 2016 respectively pertaining to village - 181-Harirchar Pt.II, Police Station - Abhayapuri, Sub-Division - North Salmara, District - Goalpara of Abhayapuri North LAC. In Ext. 4, Ext. 5, Ext. 6 and Ext. 7, the petitioner claimed that his name, Malek Ali, son of Sorhab Ali was recorded as a voter along with his wife, Kohinur Begum. Ignoring the discrepancies in the name of the father of the petitioner as Chorhab Ali instead of Sorhab Ali in those four exhibits and assuming the same as one then also, the same would go to show the presence of the petitioner on Indian soil only from the year 1997 onwards. Further, none of the names which appeared in Ext. 3, appeared in Ext. 4, Ext. 5, Ext. 6 and Ext. 7 to support the claim of the petitioner. In such situation, it was for the petitioner as the proceedee to establish a linkage with his projected father in the instant case, who has to be an Indian national by cogent and acceptable evidence. But the petitioner had failed to establish any such linkage. In so far as Elector Photo Identity Card (Ext. 8) is concerned, besides not being proved, it is a post-25.03.1971 document. It has been held by a co-ordinate bench of this Court in W.P.(C) No. 3547/2016 (Md. Babul Islam vs. State of Assam) that merely producing such an Elector Photo Identity Card in the absence of supporting evidence, would not be a proof of citizenship. Ext. 9 is a PAN Card issued by the Income Tax Department in the name of the petitioner, Malek Ali, son of Chorab Ali. The issuing authority of the PAN Card was not examined before the Tribunal. As the PAN Card was not proved, the same cannot be accepted as a proof of citizenship, as has been held in W.P. (C) No. 4986/2016 (Musstt. Rabiya Khatun vs. Union of India). Similarly, the copy of the pass-book (Ext. 10) is not a proof of citizenship, in view of the decision W.P. (C) No. 583/2017 (Gulbhan Begum vs. Union of India). In Ext. 11, the petitioner was shown as a pattadar of a plot of land, covered by patta no. 100 & dag no. 81, situated at village - Majeralga Bartik Char along with Maidan Ali, Kader Ali, Monnaf Ali, Maijuddin Ali & Abdul Jalil who were also shown as sons of Sorhab Ali of village - Majeralga Bartik Char. But Ext. 11 which bears no date, rather than supporting the cause of the petitioner in his claim towards linkage with his projected father belied such claim in view of Ext. 3 because in Ext. 3, Abdul Kader and Abdul Awol were shown as the sons of Sohrab Ali Mondal. The names of the sons of his projected father appearing in Ext. 11 did not appear in Ext. 3 and similarly, the names of the sons of his projected father appearing in Ext. 3 did not appear in Ext. 11. In view of the aforesaid Page No.# 5/5 discrepancies, the petitioner had failed to establish his linkage with his projected father. A perusal of the order/opinion dated 12.11.2018 passed by the Tribunal shows that the Tribunal had carefully appreciated whatever evidence was led by the petitioner before it and, thereafter, had rendered the finding that the petitioner had failed to establish his claim to be a citizen of India by reliable and cogent documentary evidence. Such a finding being a finding of fact, a writ Court exercising jurisdiction under Article 226 of the Constitution of India does not, ordinarily, interfere with such finding of fact unless there is perversity because the jurisdiction so exercised is supervisory and not appellate. In view of the point raised on behalf of the petitioner, the evidence led before the Tribunal by the petitioner is once again revisited by us only to reassure as to whether there was any perversity in the order/opinion of the Tribunal. There being none, this writ petition is, resultantly, found to be bereft of merit and the same stands accordingly dismissed. There shall be no order as to costs. Interim order passed on 09.01.2019 stands recalled. Concerned State authorities to take action accordingly. Office to send back the case records to the Tribunal forthwith. JUDGE JUDGE Comparing Assistant "