MANTU DAS V. THE UNION OF INDIA AND 6 ORS

WP(C)/5822/2019

AI Insights

The case involves Mantu Das, who challenged the opinion of the Foreigners' Tribunal No.2nd, Barpeta, Assam, which declared him a foreigner. The Tribunal's decision was based on the petitioner's failure to prove his citizenship and establish a linkage to his projected father, Makhan Nama Das. The petitioner presented several documents and testimonies, but the court found them inadmissible or insufficient to meet the legal requirements. The court emphasized that the burden of proof lies with the proceedee under section 9 of the Foreigners Act, 1946, and upheld the Tribunal's decision.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 676698 (HC-ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH)
• Appeal Type: Others
• Pronouncement Date: 25-11-2019
• Assessment Year: misc
• Laws Referred To: Foreigners Act, 1946, Evidence Act, 1872
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: G HAZARIKA; J PAYENG; B DAS; S KHANIKAR
• Assessee Lawyers: A ROSHID
• Keywords: Burden of Proof; Citizenship; Foreigner; Illegal entry; Linkage
• Section: 9

Judgement Text

"Page No.# 1/4 GAHC010186332019 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C) 5822/2019 1:MANTU 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 DEPUTY COMMISSIONER BARPETA PIN- 781301 4:THE SUPERINTENDENT OF POLICE (B) BARPETA PIN- 781301 5:THE ELECTION COMMISSION GOVT OF INDIA NEW DELHI- 01 6:THE STATE COORDINATOR NRC Page No.# 2/4 ASSAM GHY- 32 7:THE FOREIGNERS TRIBUNAL NO.2ND BARPETA REP. BY THE STANDING COUNSEL OF THE TRIBUNAL PIN- 78130 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 O R D E R 25.11.2019 (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. J. Payeng, learned counsel represents respondent nos. 2, 3, 4 and 7 whereas Ms. B. Das, learned counsel represents respondent no. 5. Ms. S. Khanikar, learned counsel appears for respondent no. 6. Petitioner assails opinion dated 25.01.2019 passed by the Foreigners’ Tribunal No.2nd, Barpeta, Assam in F.T.(2nd) Case No.735/2016, declaring him to be a foreigner, having illegally entered into India (Assam) on or after the cut-off date i.e. 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, he projected one Makhan Nama Das as his father. In support of his case, as many as 3 (three) documents were exhibited, the particulars of which may be noticed as under: (i) Exhibit-A – Photocopy Sale Deed dated 24.12.1966 in the name of the projected father of the petitioner. Page No.# 3/4 (ii) Exhibit-B – Photocopy of School Certificate dated 22.12.2003 issued by the Headmaster, No.1802 Dakshin Barpeta Road L.P. School by certifying that petitioner completed his education in the school in the year 1977. (iii) Exhibit-C – Photocopy of letter dated 05.03.1970 of the B.D.O, Mondia Development Block written to the projected father of the petitioner. Petitioner examined himself as DW-1 and one Khagendra Acharjee deposed as DW-2. 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 Nama Das. The document at Exhibit-B and Exhibit-C which were brought on record to serve as link documents to the projected father Makhan Nama Das, rendered itself as inadmissible in evidence, inasmuch as, neither the said Certificate of the Headmaster of No.1802 Dakshin Barpeta Road L.P. School nor the letter of the B.D.O, Mandia Development Block and the contents thereof stood proved through the legal testimony of the issuing authority. The Sale Deed produced by the petitioner at Exhibit-A also did not stand proved, either through production of the original records or through the legal testimony of the custodian of the said records. Although not exhibited, the petitioner also submitted PAN Card which, however, cannot be treated as a trustworthy document. Firstly, there is no record of filing of Return of Income Tax by the petitioner at any point of time and secondly, this was not proved by tendering evidence by the Income Tax authority. Petitioner also submitted photocopy of Voter Lists of 1966 and 1997, which are not relevant to establish linkage with his projected father. Important to note that the petitioner is 50 years old and the absence of any voter lists in his name itself makes his status as a citizen of India doubtful. 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. One Khagendra Acharjee, aged about 86 years as in the year 2017, deposed as DW-2 by claiming that he knows the petitioner and that the house of the petitioner is situated near his house. DW-2 in his cross-examination stated that the projected mother of the petitioner is still alive and she is residing with the petitioner and his elder brother Chand Mohan Das. But it is surprising as to why she was not examined as witness. The evidence of Khagendra Acharjee, by its very nature, cannot be taken at its face value, rendering the same as wholly unreliable and untrustworthy. As the primary issue in a proceeding under the Foreigners Act, 1946 and the Foreigners Page No.# 4/4 (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 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 Comparing Assistant "