Md. Jakir Hussain V. The Union of India and The State of Assam and The Deputy Commissioner, Nalbari and The Superintendent of Police (B), Nalbari and The Officer-in-Charge, Nalbari Police Station

WP(C)/5402/2017

AI Insights

The case revolves around the challenge to an order by the Foreigners Tribunal-1, Nalbari, which declared Md. Jakir Hussain a foreigner of the post-25.03.1971 stream. The petitioner contested this decision, arguing that his father had been previously declared not a foreigner in an earlier proceeding, and presented various documents and testimonies to support his claim of Indian citizenship. The respondents, including the Union of India and the State of Assam, supported the Tribunal's decision, questioning the reliability of the evidence provided by the petitioner. The High Court, after examining the evidence and testimonies, concluded that the petitioner had established his citizenship.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 800539 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 28-09-2022
• Assessment Year: misc
• Other Referred Cases: Sarbananda Sonowal Vs. Union of India
• Laws Referred To: Foreigners Act, 1946
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: L DEVI; J PAYENG; K PHUKAN
• Assessee Lawyers: B C DAS; B BARMAN
• Keywords: Citizenship; Evidence; Foreigner; Foreigners tribunal; School certificate; Voter list
• Section: 9

Judgement Text

"Page No.# 1/22 GAHC010200962017 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5402/2017 Md. Jakir Hussain Son of Md. Nur Mohammad Ali, Permanent resident of Village- Sariahtali, P.S. Nalbari, District- Nalbari, Assam. ……Petitioner -Versus- 1. The Union of India, represented by the Secretary to the Government of India, Ministry of Home Affairs, New Delhi, PIN-110001. 2. The State of Assam, represented by the Commissioner & Secretary to the Government of Assam, Home & Political (B) Department, Dispur, Guwahati-6. 3. The Deputy Commissioner, Nalbari, District- Nalbari, Assam. 4. The Superintendent of Police (B), Nalbari, District- Nalbari, Assam. 5. The Officer-in-Charge, Nalbari Police Station, District- Nalbari, Assam. …… Respondents. Page No.# 2/22 BEFORE HON'BLE MR. JUSTICE N. KOTISWAR SINGH HON’BLE MR. JUSTICE NANI TAGIA For the Petitioner : Mr. B.C. Das, Advocate. Mr. B. Barman, Advocate. For the Respondents : Ms. L. Devi, Adv. : Mr. J. Payeng, SC, FT : Ms. L. Devi, SC, NRC : Ms. K. Phukan, Govt. Adv. Dates of Hearing : 20.04.2022 & 21.04.2022. Date of Judgment : 28.09.2022 JUDGMENT AND ORDER [N. Kotiswar Singh, J.] Heard Mr. B.C. Das, learned counsel for the petitioner. Also heard Mr. J. Payeng, learned Standing Counsel, Foreigners Tribunal appearing for respondent Nos.2, 4 & 5; Ms. L. Devi, learned counsel appears on behalf of Mr. R.K.D. Choudhury, learned ASGI for respondent No.1 and Ms. K. Phukan, learned Govt. Advocate, Assam appears for respondent No.3. 2. In this petition, the petitioner has challenged the order dated 28.07.2017 passed Page No.# 3/22 by learned Foreigners Tribunal-1, Nalbari in F.T.(Nal) Case No.(N) 129/2011 [S.P. Reference No.430/10] by which the petitioner had been declared to be a foreigner of 25.03.1971 stream. 3. Petitioner has assailed the said opinion dated 28.07.2017 rendered by the learned Tribunal on various grounds including that he had specifically pleaded before the learned Tribunal that his father was declared to be not a foreigner in an earlier proceeding held against his father in F.T.(Nal) Case No.(N)45/2009 [S.P. Reference No.73/09] vide opinion dated 18.03.2016 and adduced evidences in support of it. It has been submitted that in spite of proving that his father was declared not a foreigner but an Indian, the learned Tribunal ignored the same on the grounds which are not sustainable in law and declared the petitioner to be a foreigner. 4. Learned counsel for the petitioner submits that there are sufficient evidences on record to show that the petitioner is indeed the son of Md. Noor Mohammad Ali who was declared not to be a foreigner by the learned Tribunal in the earlier proceeding vide opinion dated 18.03.2016 passed in F.T.(Nal) Case No.(N) 45/09. 5. In order to appreciate the contentions of the learned counsel for the petitioner, it may be apposite to refer to the brief facts of the pleaded case of the petitioner. 6. Upon receipt of summon from the learned Tribunal, the petitioner duly appeared before the learned Tribunal and filed his written statement. In the written statement filed before the learned Tribunal, the petitioner had specifically pleaded that his Page No.# 4/22 grandfather was Late Amjad Ali who was a resident of village Ghilajari under Police Station-Barpeta of the then Kamrup District and was in possession of certain plot of land measuring 3(three) Bigha which was allotted in his name by the Government of Assam sometime in the year 1962. 7. It has been stated that in the voters list of 1966, the names of his grandparents, Late Amjad Ali and Late Moimona Khatun were entered in respect of 50 No. Barpeta Legislative Assembly Constituency under Serial Nos.339 and 340, House No.109 of Part 2 in village Ghilajari under Police Station Barpeta in the District Barpeta which was part of the then Kamrup, Assam. The petitioner also mentioned in the written statement that the names of his parents were entered in the voters list of 1970 in respect of the same No.50 Barpeta Legislative Assembly Constituency under Serial Nos. 436 and 437, with the same House No.109 and Part No.2. The petitioner also stated that his father Md. Noor Mohammad Ali was born in village Ghilajari under Police Station Barpeta of the then Kamrup District, Assam and thereafter shifted their residence to village Sariahtali under Police Station and District Nalbari, Assam from village Ghilajari. It was also stated that certain plot of land was purchased in the year 1981, 1984, 1985 in the name of the petitioner’s grandfather and they used to reside in village Sariahtali. Page No.# 5/22 It has been submitted that after shifting of residence, the name of the petitioner’s grandfather Late Amjad Ali was entered in the voters list of 1993 in respect of 59 No. Nalbari Legislative Assembly Constituency under Serial No.911, House No.239 of Part No.35, Centre No.35-Sariahtali Gopal Than Lower Primary School Centre. It has been also stated the name of his father Md. Noor Mohammad Ali appeared in the voters list of 1997 in respect of No.59 Nalbari Legislative Assembly Constituency under Serial No.781, House No.247 and Part No.35 and also in the voters list of 2014 in respect of same Legislative Assembly Constituency. It has been stated that the petitioner was born and brought up at village Sariahtali, Mouza Batahgila under Police Station and District Nalbari and was studying in 3 No. Sariahtali Noor Balika L.P. School and he left the School in the year 1995 after passing the Class IV Examination and as per School certificate his date of birth is 01.01.1986. It has been stated that the name of the petitioner was entered in the voters list of 2014 under Serial No.232, House No.278 (Ka) under Part No.57 of 59 No. Nalbari Assembly Constituency and necessary identity card was issued by the Election Commission of India. He also annexed a copy of the PAN Card issued in his name. 8. Learned counsel for the petitioner submits that the petitioner, apart from himself, his father Md. Noor Mohammad Ali also deposed before the learned Tribunal in his favour. The other witnesses examined were the Block Elementary Education Officer and Page No.# 6/22 the Head Teacher of the School where the petitioner studied in the village. 9. According to the learned counsel for the petitioner, in spite of producing sufficient cogent documentary and oral evidences, the learned Tribunal did not properly appreciate the evidence on record and declared him a foreigner of post 25.03.1971 stream. 10. In order to appreciate the contentions of the learned counsel for the petitioner, we will examine the opinion of the learned Tribunal. 11. As evident from the impugned opinion of the learned Tribunal dated 28.07.2017, the learned Tribunal noted the above facts and also documents relied upon. The learned Tribunal also noted the plea of the petitioner that his father was declared as not a foreigner vide opinion dated 18.03.2016 passed in F.T.(Nal) Case No.(N.)45/09. However, the learned Tribunal observed that the petitioner did not remember the name of his grandmother as mentioned in para 7 of the impugned order. 12. The learned Tribunal also made an observation that Nur Mohammad Ali, the father of the petitioner, during the cross-examination, while remembered the names of other relatives, uncle and aunts, did not remember the name of his mother but later on, remembered as Late Moimona Begum, which made the learned Tribunal skeptical of his evidence. 13. The learned Tribunal on consideration of evidence of the Head Teacher of 3 No. Sariyahtoli Nur Balika L.P. School, observed that she had issued the certificate Page No.# 7/22 purportedly on 03.01.1996 while she stated that she was working in the School as Teacher since 29.06.1997. 14. Referring to the evidence of the Block Elementary Education Officer, the learned Tribunal made the observation that the said witness did not know whether the School from which the petitioner passed, was officially empowered for Co-Education or not. 15. After making the aforesaid observations, the learned Tribunal made the following conclusion as contained in para Nos. 13 and 14 of the impugned order which read as follows, “13. As per Police Verification Report, Md. Jakir Hussain son of Md. Nur Mohammad of Village- Sariyahtoli (Howly Suba), Police Station and District- Nalbari aged about 20 years as in 2010 could not produce any valid documents and so he was suspected to enter into India illegally after 25th March, 1971. 14. On careful scrutiny of the above, it transpires that Amjad Ali son of Rahmat Ali aged about 41 years of Village- Ghilajari, Police Station- Barpeta as reflected in the 1966 Electoral Roll (Ext.1) was a different person than Amjad Ali son of Rahmat, age-80 of Village-Sariyahtoli as reflected in the Electoral Roll of 1993 (Ext.7). There is a vast age difference between two persons apart from the difference of places. No cogent reason/evidence were put forth to establish that both are same person. The presence of the ancestors of Jakir Hussain – the present O.P. can be presumed from 1993 in India.” 16. The learned Tribunal held that no cogent reason/evidence have been put forth to establish that both are same person. Accordingly, the learned Tribunal held that the presence of the ancestors of the petitioner, Jakir Hussain can be presumed from 1993 in India. Accordingly, the learned Tribunal held that the petitioner has failed to prove his citizenship. Page No.# 8/22 17. Mr. Das, learned counsel for the petitioner submits that it is not correct that the petitioner has not produced any evidence. On the contrary, there are sufficient documentary evidences to show that the petitioner is the son of Nur Mahammad Ali an Indian citizen who in turn was the son of Amjad Ali also an Indian citizen on the basis of various documents produced before the Tribunal. 18. Mr. Das submits that even though there are some differences in the age of the parents and grandparents, yet, these cannot be said to be of such nature to be fatal as held by the learned Tribunal and this cannot be a ground to disbelieve the evidence of the petitioner, more so, when other cogent material evidences have been adduced by the petitioner. 19. Mr. Das, accordingly, submits that the aforesaid finding is not borne by records and is liable to be set aside. 20. In response, Mr. J. Payeng, learned Standing Counsel, Foreigners Tribunal has submitted that perusal of the opinion dated 28.07.2017 would clearly indicate that the evidence of O.P.W.2, the projected father of the petitioner, namely, Nur Mohammad Ali who deposed as O.P.W.2 is not at all reliable. Mr. Payeng submits that it has been clearly reflected in para No.9 of the opinion that his father did not remember the name of his mother though he recollected it only later on. It has been submitted that it is impossible for any son not to remember the name of his mother. This clearly indicates that the said witness is not the genuine father of the petitioner. Otherwise, he would have remembered his own mother’s Page No.# 9/22 name. His conduct is plainly untenable and which is contrary to the normal human relationship. 21. It has been, accordingly, submitted by Mr. Payeng that if we examine the conduct of the said witness, it is clearly evident that he is not the genuine father of the petitioner. Even if it is assumed that said Md. Nur Mohammad Ali to be an Indian as held by the Tribunal in another proceeding, what is important is to establish the link of the petitioner with said Nur Mohammad Ali. 22. It has been submitted by Mr. Payeng that in the present case, the petitioner has utterly failed to establish the link between himself and the said Nur Mohammad Ali. 23. Mr. Payeng also submits that the petitioner is seeking to rely on the school certificate to show his linkage with his projected father, but as can be seen from para No.10 of the impugned opinion, the said certificate has been shown to be fraudulently obtained inasmuch as in para No.10 of the impugned order, the person who had issued the certificate, namely, Smt. Kusum Das Baruah had stated that though she had been working as a Teacher since 29.06.1997, the school certificate bears the date 03.01.1996. Therefore, it is impossible for a person to issue the certificate on a date when the person was not in service. This clearly shows that the said School certificate was fraudulently obtained and if the petitioner is seeking to rely on the said document to show his linkage with his father which has turned out to be a manufactured document, certainly, the basis for the linkage does not remain any more. 24. Further, Mr. Payeng also submits that there are reasons not to believe the Page No.# 10/22 testimony of said Kusum Das Baruah, O.P.W.4 also for the reason that though the School in which the petitioner apparently studied was a girls’ school, i.e. 3 No. Sariyahtoli Nur Balika L.P. School and not a co-education school. The said witness O.P.W.4 stated that it was a Co-Education School without showing any evidence as to the authority under which girls’ schools could be converted to a co-education school. In fact, the subsequent witness, namely, Nikujna Barman, the Block Elementary Education Officer who was examined as O.P.W.3 also had stated before the learned Tribunal that he did not know whether the School was officially empowered to impart co-education. Thus, it is clearly evident that the testimony of the aforesaid witness, Kusum Das Baruah cannot be relied upon as her testimony is full of contradictions and impossibilities. 25. Mr. Payeng submits that the school certificate is not reliable also for the reason that it was not based on any school records which had been stated to have been all destroyed during the flood. Thus, it is plainly evident that the said school certificate is a manufactured document without any basis and the petitioner also relied upon a person whose testimony is not trustworthy. 26. Mr. Payeng further submits that the burden of proof is cast upon the proceedee as mandated under Section 9 of the Foreigners Act, 1946 to prove that he is not a foreigner primarily for the reason that it is impossible for the State to prove that the said person is not a foreigner, as it is a fact which is within the personal knowledge of the person himself, as also observed by the Hon’ble Supreme Court in Sarbananda Page No.# 11/22 Sonowal Vs. Union of India, (2005) 5 SCC 665, [Sarbananda Sonowal (I)] wherein, the Hon’ble Supreme Court in para 42 held as follows “ 42. It is elementary that a person who has illegally come from Bangladesh to India and is residing here for his better economic prospects or employment etc. would never disclose that he has come from Bangladesh but would assert that he is an Indian national and resides in India. There is no question of his telling his date of entry or giving any information on the aforesaid points. According to Rules 7 and 8 of the Rules, the inquiry officer has to submit a report in Form II and Item No.5, 10, 11 and 12 are exactly identical to that in Form I. Rules 10, 10-A and 10-B lay down that an application to the Tribunal under Section 8(2) shall be made in Form III, an application to the Central Government under Section 8-A(2) shall be made in Form V and a declaration under Section 8-A(2) shall be made in Forms V and VI. Curiously enough Column No.6 of Form III requires the applicant to furnish the following information regarding the alleged illegal migrant: - (a) whether he entered India on or after 25th March, 1971; (b) date of his entry into India; (c) whether he is a foreigner; and (d) whether he entered India without being in possession of a valid passport or travel document or lawful authority in that behalf.” 27. It has been contended that no proceedee will admit that he has come from Bangladesh and everybody would claim that he is a genuine Indian. Therefore, unless the evidence adduced is of an impeachable nature, on the basis of such doubtful and fraudulently obtained certificate, nobody can be granted citizenship of this country. 28. Mr. Payeng has also submitted that there is not a single evidence other than the said school certificate to show the linkage of the petitioner with his projected father Nur Mohammad Ali and in fact, in none of the voters lists, the name of the petitioner is shown along with his projected father. 29. Mr. Payeng further submits that the learned Tribunal arrived at its conclusion and gave its opinion based on the facts which cannot be said to be unreasonable or wrong and it is now well settled that the High Court in exercise of power of certiorari cannot Page No.# 12/22 go into the factual errors and the scope of interference by this Court is limited. It can correct only such errors which are apparent on the face of the record as also observed by the Full Bench of this Court in State of Assam and Ors. Vs. Moslem Mondal and Ors., 2013 (1) GLT 809. In para 112 of Moslem Mandal (supra), the Full Bench has observed as follows, “(112) Article 226 of the Constitution confers on the High Court power to issue appropriate writ to any person or authority within its territorial jurisdiction. The Tribunal constituted under the 1946 Act read with the 1964 Order, as noticed above, is required to discharge the quasi-judicial function. The High Court, therefore, has the power under Article 226 of the Constitution to issue writ of certiorari quashing the decision of the Tribunal in an appropriate case. The scope of interference with the Tribunal’s order, in exercise of the jurisdiction under Article 226, however, is limited. The writ of certiorari can be issued for correcting errors of jurisdiction, as and when the inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it or if such Court or Tribunal acts illegally in exercise of its undoubted jurisdiction, or when it decides without giving an opportunity to the parties to be heard or violates the principles of natural justice. The certiorari jurisdiction of the writ Court being supervisory and not appellate jurisdiction, the Court cannot review the findings of facts reached by the inferior Court or Tribunal. There is, however, an exception to the said general proposition, in as much as, the writ of certiorari can be issued and the decision of a Tribunal on a finding of fact can be interfered with, if in recording such a finding the Tribunal has acted on evidence which is legally inadmissible or has refused to admit admissible evidence or if the finding is not supported by any evidence at all, because in such cases such error would amount to an error of law apparent on the face of the record. The other errors of fact, however grave it may be, cannot be corrected by a writ court. As noticed above, the judicial review of the order passed by the inferior Court or the Tribunal, in exercise of the jurisdiction under Article 226 of the Constitution, is limited to correction of errors apparent on the face of the record, which also takes within its fold a case where a statutory authority exercising its discretionary jurisdiction did not take into consideration a relevant fact or renders its decision on wholly irrelevant factors. Hence, the failure of taking into account the relevant facts or consideration of irrelevant factors, which has a bearing on the decision of the inferior court or the Tribunal, can be a ground for interference of the Court or Tribunal’s decision in exercise of the writ jurisdiction by the High Court.” Page No.# 13/22 30. In the present case, there is no such error apparent on the face of the record. In fact, the evidence led by the petitioner is rather full of contradictions and based on fraudulent evidence and as such, no case is made out for interference by this Court. 31. Mr. Payeng submits that under the circumstances, since there is no documentary evidence on record except the said school certificate issued which has been proved to be false and fraudulently obtained, nothing remains to connect the petitioner with the said projected father and as such, it has been submitted that this petition deserves to be dismissed. 32. Mr. B.C. Das, learned counsel for the petitioner, on the other hand, submits that the fact that the said Nur Mohammad Ali has been proved to be an Indian citizen in terms of earlier opinion of the learned Tribunal in another proceeding has not been denied and it is also the fact that he stays in the same village where the petitioner stays and as such, there is ample evidence to show the present petitioner is son of the aforesaid Nur Mohammad Ali. 33. Learned counsel for the petitioner submits that the petitioner also filed the voters list of 2014 where the name of his father is also shown and as such, it cannot be said that the name of the petitioner does not appear in the voters list with his father. 34. Having heard the learned counsel for the parties and having gone through the records, we would like to make the following observations. Page No.# 14/22 35. While the learned counsel for the State has laid great stress in the discrepancy in the evidence of the Head Teacher of No.3 Sariyahtoli Nur Balika L.P. School thus discarding the school certificate in projecting that the petitioner has relied on unreliable evidence and that the father of the proceedee, Noor Mohammad Ali could not instantly remember his own mother’s name when asked, though he mentioned it later, many other evidences on record have not been considered in proper perspective. 36. The most important and significant piece of evidence is the opinion of the Foreigners Tribunal No.1, Nalbari in F.T.(Nal) Case No.(N)45/09 dated 18.03.2016 by which the Foreigners Tribunal No.1, Nalbari held Md. Noor Mohammad Ali, son of late Amjad Ali, a resident of Sariyahtoli, P.S. Nalbari, District- Nalbari to be an Indian. 37. The learned Tribunal did not discuss the effect of this opinion while mentioning about it in para 6 of the opinion. It is to be noted that the said Noor Mohammad Ali had appeared before the Tribunal and testified in favour of the petitioner. The learned Tribunal did not doubt the said Noor Mohammad Ali as a fictitious person except for observing that he did not remember the name of his mother during cross- examination, but later remembered as Late Maimona Begum. It may be noted that the said Noor Mohammad Ali was about 60 years old when he deposed before the Tribunal. His evidence could not be disbelieved, merely because of the temporary lapse of memory of the witness. It was not the case that he did not at all remember his mother’s name. It has been recorded that he remembered after a while. Thus, there is no reason to doubt his testimony. His testimony corresponds to the facts Page No.# 15/22 narrated in the earlier opinion of the Foreigners Tribunal in F.T.(Nal) Case No.(N)45/09. 38. We have noted that the said Noor Mohammad Ali testified that his parents shifted from village Ghilajari to village Sarihatoli. In the voters list of 2014, the name of the father of the proceedee, Nur Mohammad Ali as the son of Amjad is shown under Sariahtali, P.S. Nalbari, District Nalbari at Sl. No.230, House No.278 Ka. 39. Similarly, in the voters list of 2014, the proceedee Jakir Hussain, is shown as the son of Nur Mohammad in the same village of Sarihatali, P.S. Nalbari, District Nalbari at Sl. No.232, House No.278Ka. Thus, what is seen is that the House number of the proceedee Jakir Hussain and that of his projected father Nur Mohammad is shown to be same i.e., 278Ka in the same village. 40. Hence, we can say that the proceedee Jakir Hussain and his projected father Nur Mohammad stay in the same house. If Nur Mohammad, who is the son of Amjad and the father of the petitioner has been declared as an Indian, stays in the same house why not believe the testimony of the petitioner that he is an Indian? These aspects have been wholly ignored by the learned Tribunal. It cannot be a mere coincidence that OPW2 Md. Nur Mohammad Ali and the person declared an Indian by the Foreigners Tribunal in F.T. (Nal) Case No.45/09 bears the same name and they stay in the same village. Page No.# 16/22 41. Since the records of the aforesaid F.T. (Nal) Case No.(N)45/09 have been requisitioned, we have examined the deposition of the proceedee therein (namely, Md. Noor Mohammad Ali, son of Late Amjad Ali, resident of Sariahtoli, P.S. Nalbari, District Nalbari). His testimony recorded on 29.01.2016 in the aforesaid proceeding against him reads as follows, “Name : Md. Noor Mahammad Ali Age:57 Name of the Father : Late Amjad Ali Residence : Sariahtoli P.S. Nalbari Occupation : Day Labour Dist. Nalbari OSA I am O.P. of this case. I was born in village Ghilajari under then Police Station Barpeta of District Barpeta. I cannot remember my date of birth. My father’s name is Late Amjad Ali. A plot of land measuring 3 Bighas 2 Kathas 5 Lechas was settled in the name of my father Amjad Ali by S.D.O. Barnagar on 26.2.62. Ext.1 is the Certified copy that petition and order. My parents names are enlisted in the voter list of 1966 of No.50 Barpeta Legislative Assembly Constituency vide serial No.339 and 340, house No.109 of Part No.2. My mother’s name is Late Mainona Khatun. Ext.2 is the certified copy of the voter list. My parents name are also enlisted in the voter list of 1970 of No.50 Barpeta Legislative Assembly Constituency vide serial Nos.436 and 437 house No.109 of Part No.2. Ext.3 is the certified copy of that voter list. About 20 years ago my father shifted our residence to village Sariahtoli under Police Station and District Nalbari and now we are living in village Sariahtoli. My name is enlisted in the voter list of 1997 of No.59 Nalbari Legislative Assembly Constituency vide serial No.781, house No.287 of Part No.35. Ext.4 is the certified copy of that voter list. I am not a Foreigner. I am casting my voter till now. X X X X Elector Photo Identity Card is issued in my name. It is not a fact that I told before Police that I was born in village Kharsila under Mymansingh District of Bangladesh. It is not a fact Page No.# 17/22 that I come to village Sariahtoli about 16/17 years ago.” 42. We will now reproduce the evidence by way of affidavit submitted by the OPW2 (Md. Noor Mohammad Ali, son of Late Amjad Ali) who was examined as the father of the proceedee, as follows, “I. Md. Noor Mohammad Ali aged@ 60 years s/o Late Amjad Ali, by occupation cultivation, by religion Islam, r/o vill. Sariahtali, P/s & Dist. Nalbari, Assam do hereby solemnly affirm and declare as follows:- 1. That, I am permanently residing at afore said locality and a citizen by birth. 2. That, my father namely Amjad Ali (now deceased) was citizen of India by birth and resident of village Ghilajari under police station Barpeta then Kamrup District and a plot of land measuring 3 Bighas o kathas o Leshas was settled in my father’s name by A.S.O., Barnagar on 3-4-1962. 3. That, my father is Amjad Ali (now deceased) and mother’s name is Moimona Khatun (deceased) is enlisted in the voter list of 1966 of 50 No. Barpeta legislative assembly Constituency vide serial No,339 and 340, house No.109 of part no. 2 in village Ghilajari under police station Barpeta in the Dist. Barpeta then Kamrup, Assam. 4. That, the name of my parents are also enlisted in the voter list of 1970 of No.50 of Barpeta Legislative Assembly constituency vide serial No.436 and 437, house No.109, part no.2 of village Ghilajari under police station Barpeta in the Dist. of Barpeta then Kamrup, Assam. 5. That, I was born in village Ghilajari under police station Barpeta then Kamrup District, Assam and thereafter our parents shifted residence to village Sariahtali under police station and District Nalbari, Assam from village Ghilajari under Barpeta police station by purchasing landed property in the year of 1981, 1984, 1985 in the name of my father and used to reside village Sariahtali. 6. That, the name of my father, Amjad Ali (now deceased) was also enlisted in the voter list of 1993 of 59 no. Nalbari legislative assembly constituency vide serial no.911, house no. 239 of part no.35, center name is 35- Sariahtali Gopal than lower primary School. Page No.# 18/22 7. That, my name is enlisted in the voter list of 1997 of No.59 Nalbari legislative Assembly Constituency vide serial no.781, house no.247 of part no.35 under police station & district Nalbari, Assam. 8. That, my name is also enlisted in the voter list of 2014 of No.59 Nalbari legislative Assembly Constituency vide serial No.230, house no.278(ka) of part no.57 under police station & district Nalbari, Assam. 9. That, the electoral photo identity card was issued in my name by electoral registration officer, Nalbari dated 01/10/2013, bearing No.-HFW5736618. 10. That, Jakir Hussain ie. The opposite party is my son and he was born & brought up at village Saraihatali, Mouza Batahgila under police station & District Nalbari, Assam and opp. party was a student of 3 No.Sariahatali Noor Balika L.P. School and he left the School in 1995 after passing the class-IV Examination and and my date of birth is 01/01/1986. 11. That, his name is enlisted in the voter roll of 2014, Sl. no.232, house no.278(ka) under Part no.57 of 59 Nalbari Assembly Constituency. 12. That, elector photo identity card has also been issued in my son’s name vide card no.HFW5736630 issued by the electoral registration officer dated 01/10/13. 13. That, PAN card bearing No.AJXPH6053L has also been issued in my son’s name by the income tax department under the Govt. of India. 14. That, a case was instituted against me before this tribunal bearing case no.F.T.(Nal) Case No.45/09 of S.P. Reference No.73/09 which was disposed of vide judgment dated 18-03- 2016 passed by B.K. Sarma, A.J.S., Member, Foreigners Tribunal, No.1, Nalbari declaring me as Indian citizen i.e. not a foreigner. 15. That, my parents are citizen of India and therefore, my son is not a foreigner. 16. That, the contents of this evidence on affidavit was read over in my mother language and this affidavit shall be used as deposition of me as witness of the above noted case. 17. That, the following documents has been submitted before this tribunal, namely- Ext.(1) Certified copy of petition & order of landed document of K.P. patta No.2464 of 1961-62 of my father namely Late Amjad Ali of vill. Ghilajari. Ext.(2) Copy of sale deed executed in favour of my father namely Amjad Ali (now deceased) Page No.# 19/22 dated 09/02/1981 against land measuring 1 Bigha 4 Kotha of dag no.418 (ceiling sarkari) of vill. Sariahtali, Dist. Nlabari, Assam. Ext.(3) Copy of sale deed executed in favour of my father namely Amjad Ali (now deceased) dated 02/01/1984 against land measuring 2 Kotha 13 lechas of dag no. 524 under Touzi Bahira of vill. Sariahtali, Dist. Nalbari, Assam. Ext.(4) Copy of sale deed executed in favour of my father namely Amjad Ali (now deceased) dated 23/02/1985 against land measuring 2 kotha 15 leshas of dag no. 420 under Touzi Bahira of vill. Sariahtali, Dist. Nalbari, Assam. Ext.(5) Certified copy of voter list of father (Amjad Ali) & mother (Maimana Khatun) in the year 1966. Ext.(6) Certified copy of voter list of mother (Maimana Khatun) in the year 1970. Ext.(7) Certified copy of voter list of father (Amjad Ali) in the year 1993. Ext.(8) Certified copy of voter list of father (Noor Mahammad Ali) & mother (Jahanara Begum) in the year 1997. Ext.(9) Certified copy of my voter list in the year 2014. Ext.(10) Photo copy of my electoral photo identity card. Which is compared with original. Ext.(11) Certified copy of Judgment of F.t.(Nal) Case No.(N) 45/09 of S.P. Reference No.73/09 which was disposed off vide Judgment dated 18-03-2016 passed by B.K. Sarma, A.J.S., Member, Foreigners Tribunal, No.1, Nalbari by declaring me as Indian Citizen. Ext.(12) Photo copy of School certificate of the Opposite party which is compared with original. Ext.(13) Certified copy of voter list of the opposite party in the year 2014. Ext.(14) Certified copy of electoral photo identity card of the opposite party which is compared with original. Ext.(15) Photo copy of Pan Card of the opposite party which is compared with original. Ext.(16) Copy of Gaon burha’s certificate of vill. Sariahtali, Dist.- Nalbari. These are true to be best of my knowledge and belief & information.” Page No.# 20/22 43. We also reproduce his evidence during his cross-examination which reads as follows, “Md. Jakir Hussain is my first son. I have three sons including Md. Jakir Hussain, Abdul Hussain aged about 24 years and Ashraful Ali, aged about 15 years. I have two daughters namely- Musstt. Nurjahan Begum, aged about 28 years, Musstt. Nur Nahar Begum, aged about 22 year. Abdul Ali was my uncle and Amjad Ali was my father. Late Akhran Nessa and Tuku Begum was my father’s sisters. I do not remember the name of my mother. Later on I remember my mother’s name as Late Maimona Begum. I cast my vote. I have four brothers and two sisters namely- Md. Munser Ali, aged about 62 years, including me, Md. Mainuddin Ali, aged about 40 years, Md. Makbul Ali, aged about 25 years and Musstt. Adarjan Begum, aged about 50 years and Musstt. Asia Begum, aged about 22 years. I was born in Village Ghilajari under Barpeta District and I shifted my residence to Village Sariyahtoli under Nalbari Police Station and District about 40 years ago. Though my father was a resident of Village Gilajhari. He expired at Village Sariyahtoli at my residence about 10 years ago.” 44. A careful perusal and comparison of the aforesaid two sets of evidences would clearly indicate that the deponents/witnesses in both the proceedings are one and the same person as both of them testified same background facts about their parents, shifting of village etc. We have also compared the Left Thumb Impressions (LTI) of both the deponents which appear to be identical. If the State had doubted, the State could have easily verified by getting these examined from the scientific experts or finger prints experts. But the same was not done. 45. In this regard, we may recollect what the Hon’ble Supreme Court held in Sarbananda Sonowal (I) (supra) where it was held in para 26 as follows, “………………….In order to establish one’s citizenship, normally he may be required to give evidence of one’s citizenship, normally he may be required to give evidence of (i) his date of Page No.# 21/22 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- A1(d) of the Citizenship Act. All these facts would necessarily be within the personal knowledge of the person concerned and not 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………..” In the present case, the petitioner has given all the information as contemplated in the Sarbananda Sonowal (I) but the State has not contradicted any of the facts, nor led any evidence in rebuttal. Further, the State has opted not to verify these pieces of information. Moreover, no questions were asked about the identity of the witness OPW2 who was projected as the father of the petitioner who was declared to be an Indian. 46. We are satisfied that the projected father of the proceedee, namely “Noor Mohammad Ali”, is the same person who was declared to be an Indian by the said Foreigners Tribunal. If that is so, the irrefutable conclusion is that the present petitioner, Md. Jakir Hussain who is the son of the said Noor Mommad Ali, is also an Indian. 47. This is the inescapable inference that can be drawn in favour of the petitioner on the basis of the evidences as discussed above. 48. Under the circumstances, for the reasons discussed above, we are of the view that in spite of the irregularities in the school certificate, the incontrovertible conclusion that can be drawn is that the petitioner is an Indian and not a foreigner, Page No.# 22/22 being the son of an Indian. 49. It may be also noted that in a proceeding before the Foreigners Tribunal, while the onus is on the procedee to prove that he is not a foreigner but an Indian, the standard of proof is preponderance of probability. In the present case, we are satisfied that the petitioner has been able to prove on the basis of preponderance of probability that he is an Indian and not a foreigner. 50. Accordingly, we allow this petition by setting aside the impugned opinion dated 28.07.2017 passed by the learned Foreigners Tribunal-1, Nalbari in F.T.(Nal) Case No. (N) 129/2011 and hold that the petitioner has been able to prove that he is an Indian and not a foreigner as alleged. 51. With the above observations and directions, the present petition stands disposed of. 52. LCR be remitted forthwith to the concerned Foreigners Tribunal. JUDGE JUDGE Comparing Assistant "