MD. MUSTAKIN ALI @ MUSTAKIN KHA @ MUSTAKIN AHMED V. THE UNION OF INDIA and 3 ORS

WP(C)/714/2016

AI Insights

The case revolves around a writ petition filed under Article 226 of the Constitution of India, challenging an order by the Foreigners' Tribunal No. 3, Kamrup (Rural), which declared the petitioner a foreigner. The petitioner, Mustakin Ali, contested the Tribunal's decision, which was based on the absence of evidence proving his citizenship prior to 25.03.1971, the crucial cut-off date established by the Citizenship Act, 1955. The Tribunal's decision was influenced by the petitioner's failure to provide adequate pre-1971 documentation and inconsistencies in the names recorded in various official documents. The High Court dismissed the writ petition, supporting the Tribunal's findings and emphasizing the petitioner's burden to prove his citizenship under the Foreigners' Act, 1946.

• Counselvise Citation: [2016] 140 COUNSELVISE.COM (IT) 742507 (HC-ASSAM)
• Appeal Type: Others
• Pronouncement Date: 11-02-2016
• Assessment Year: misc
• Other Referred Cases: Sarbananda Sonowal Vs. Union of India, State of Assam -Vs- Moslem Mondal
• Laws Referred To: Article 226 of the Constitution of India, Illegal Migrants (Determination by Tribunals) Act, 1983, Foreigners' Act, 1946, Citizenship Act, 1955
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: G SARMA; M BHAGABATI
• Assessee Lawyers: H BHUYAN
• Keywords: Burden of Proof; Citizenship; Deportation; Foreigner; Mechanical approach
• Section: 9; 6A

Judgement Text

"WP(C) 714/2016 BEFORE THE HON’BLE MR JUSTICE UJJAL BHUYAN AND THE HON’BLE MRS JUSTICE RUMI KUMARI PHUKAN (Ujjal Bhuyan, J) Heard Mr H Bhuyan, learned counsel for the petitioner, Ms G Sarma, learned couns el for the Central Government and Mr M Bhagabati, learned Government Advocate, A ssam. 2. This petition has been filed under Article 226 of the Constitution of In dia, challenging the legality and validity of the order dated 30.12.2015, passed by the Foreigners’ Tribunal No. 3, Kamrup (R), Amingaon, Guwahati, in FT Case N o. AFT (R) 335 of 2015, declaring the petitioner to be a foreigner, having illeg ally entered into India (Assam) after 25.03.1971, thus, liable to be deported. 3. It appears that initially a reference was made by the State under the Il legal Migrants (Determination by Tribunals) Act, 1983, with the allegation that petitioner was a foreigner, who had illegally entered into India after 25.03.197 1. The reference was registered before the concerned Tribunal constituted under the said Act. However, after the aforesaid Act was struck down as unconstitution al by the Supreme Court in Sarbananda Sonowal Vs. Union of India; reported in AI R 2005 SC 2920, the reference was re-registered under the provisions of the Fore igners’ Act, 1946 and accordingly was transferred to the Foreigners’ Tribunal No . 3, Kamrup (Rural), Amingaon, Guwahati (hereinafter, referred to as Tribunal ) . 4. Notice issued by the Tribunal was served upon the petitioner, whereafter , he had entered appearance and filed written statement along with copies of cer tain documents. Petitioner also adduced evidence and exhibited a number of docum ents. The matter was heard and after due consideration, Tribunal came to the con clusion that there was no evidence to prove existence of the petitioner or his p arents on Indian soil prior to 25.03.1971, and, therefore, petitioner failed to prove that he was not a foreigner. Accordingly, order dated 30.12.2015 was passe d by the Tribunal, declaring the petitioner to be a foreigner, who had illegally entered into India (Assam), after 25.03.1971, and thus, liable to be deported. 5. It is stated that immediately after passing of the aforesaid order, peti tioner was taken into custody and sent to the detention camp at Goalpara. 6. Aggrieved, present writ petition has been filed. 7. This Court, by order dated 11.02.2016, had issued notice and requisition ed the case record with the interim direction that petitioner should not be depo rted from India. 8. Learned counsel for the petitioner submits that Tribunal did not appreci ate the materials on record judiciously and therefore, came to the erroneous con clusion that petitioner had failed to prove his citizenship. He submits that nam e of petitioner’s father is Ainul Kha, which is recorded in the 1975 Voters’ Lis t, but in the Elector Identity Card of Election Commission of India, name of pet itioner’s father is mentioned as Ainul Ali, instead of Ainul Kha. This was expla ined by the petitioner by filing an affidavit, stating that Ainul Ali and Ainul Kha is the one and the same person, but the Tribunal did not properly appreciate the above aspect of the matter. He further submits that Tribunal had adopted a mechanical approach while arriving at an erroneous finding that petitioner was a foreigner. Therefore, finding of the Tribunal should be set aside and quashed. 9. On the other hand, learned counsel for the respondents, support the orde r passed by the Tribunal and contends that challenge to the same is without any merit and therefore, writ petition should be dismissed. 10. We have heard learned counsel for the parties and also perused the LCR. 11. Before proceeding further, it has to be borne in mind that as per Sectio n 6A of the Citizenship Act, 1955, which was introduced following signing of the Assam Accord in the year 1985, those persons of Indian origin coming from the s pecified territory prior to 01.01.1966 would be treated as Indian citizens; thos e who had entered into India (Assam) from 01.01.1966 to 24.03.1971 would be trea ted as foreigners, but upon registration, they would be disenfranchised for 10 ( ten) years, whereafter, they would become citizens of India; on the other hand, those who are found to have entered into India (Assam) after 25.03.1971, without valid documents would be treated as foreigners and liable to be deported from I ndia. Specified territory has been defined to mean erstwhile East Pakistan and t hereafter Bangladesh. Therefore, the crucial cut off date is 25.03.1971. 12. Section 9 of the Foreigners’ Act, 1946, casts the burden on the proceede e to prove with cogent and reliable evidence that he is not a foreigner, but an Indian citizen. In other words, when a proceeding is drawn up under the aforesai d Act with the allegation that the proceedee is a foreigner, the burden is on th e proceedee to prove that he is not a foreigner, but an Indian citizen. 13. Keeping the above aspect in mind, we may now examine the finding of the Tribunal. 14. Petitioner submitted written statement, in which she stated that name of his father is Ainul Ali. Petitioner’s birth place is Runni Saidpur in the distr ict of Sitamari, State of Bihar. He had come to Assam long years ago and is pres ently residing at Village-Dahali under Police Station-Palashbari, in the distric t of Kamrup (Rural). Name of his father appeared in the Voters’ List of 1975, in respect of No. 139 Runni Saidpur Legislative Assembly Constituency in the State of Bihar. Actual name of his father is Ainul Kha, Son of Ramzan Kha, but in the Elector Identity Card issued to the petitioner by the Election Commission of In dia, petitioner’s father’s name has been wrongly shown as Ainul Ali, instead of Ainul Kha. Petitioner submitted a copy of affidavit sworn by him stating that A inul Ali and Ainul Kha is the one and the same person. Petitioner also stated th at he would submit relevant extracts of the Voters’ List of 1966 and 1971 at a l ater date. 15. Petitioner adduced evidence before the Tribunal as a witness. He stated that he came to Bijoynagar before 40 years from Runni Saidpur, Bihar. His name i s recorded as a voter in the Voters’ List of 1993. Name of his grandfather was R amzan Khan. His name was recorded as a Voter in the Voters’ List of 1975 at Biha r. His father’s name is Ainul Kha, but wrongly recorded as Ainul Ali in the Elec tor Identity Card and other documents. He further stated that he had been gettin g all Government facilities as Indian citizen since 1995 and asserted that he wa s a citizen of India. 16. Petitioner was re-examined subsequently. In his re-examination, he state d that he could not exhibit certain documents on his previous examination. Durin g re-examination, he exhibited residential certificate, issued by the village he adman, job card, voter identity card, income tax pan card and extract of bank ac count passbook. 17. Thus, petitioner exhibited the following documents:- 1) Relevant extract of the Voters’ List of 1993 of No. 50, Palashbari Legis lative Assembly Constituency - Exhibit - 1. 2) Relevant extract of the Voters’ List of 1975 of No. 139 Runni Saidpur Le gislative Assembly Constituency - Exhibit - 2. 3) Affidavit of the petitioner sworn on 14.05.2015, stating that his father ’s name is Ainul Kha, but wrongly shown as Ainul Ali in the Electoral Identity C ard and other documents - Exhibit-3. 4) Certificate dated 23.11.2014 of village headman of Dahali village statin g that petitioner is an inhabitant of the said village and known to him- - Exhibit-4. 5) Job card dated 18.08.2008 issued by the Kamrup district authorities unde r National Rural Employment Guaratee Act -Exhibit- 5. 6) Elector Photo Identity Card, issued by the Election Commission of India on 01.10.2013 - -Exhibit- 6. 7) Pan card of income tax department - Exhibit- 7. 8) Extract of Bank Pass Book of Punjab National Bank (PNB), having 19.04.20 11 as the date of issue - Exhibit- 8. 18. As per Exhibit - 1, which is an extract of the Voters’ List of 1993 of N o. 50, Palashbari Legislative Assembly Constituency, name of the voter at Serial No. 552 is Md Mustakin Ahmed, Son of Ainul Haque, whereas, as per Exhibit - 2, which is an extract of the Voters’ List of No. 139 Runni Saidpur Legislative Ass embly Constituency in the State of Bihar; there is a voter by the name of Ainul Kha, Son of Ramzan Kha; as per Exhibit-6, which is the Elector Photo Identity Ca rd of the Election Commission of India, elector’s name is shown as Mustakin Ali and father’s name is Ainul Ali. In the affidavit sworn by the petitioner, on 14. 05.2015 (Exhibit - 3), it is stated that father’s name of the petitioner is Ainu l Kha, but in the various documents, it was wrongly recorded as Ainul Ali, inste ad of Ainul Khan and he declared that Ainul Ali and Ainul Kha is the one and the same person. Petitioner had sworn this affidavit as Mustakin Ali. 19. From an analysis of the above exhibits, first thing which is noticeable is that all these documents are post-1971, having no nexus or relation with any document prior to 1971. As already noticed above, under Section 6A of the Citize nship Act, 1955, 25.03.1971 is the crucial cut-off date. To prove that one is a citizen of India, reliance must be placed on certain valid documents, issued pri or to 25.03.1971. The other thing which is noticeable is that in the voters’ lis t of 1993, the name of the voter is Md Mustakin Ahmed, Son of Ainul Haque. In th e affidavit of the petitioner, he does not say that Mustakin Ali and Mustakin Ah med is the one and the same person. All that he says is that his father’s correc t name is Ainul Kha, but in various documents, it has been wrongly recorded as A inul Ali. The affidavit also does not say that Ainul Kha is the same person as A inul Haque. The other documents have no legal bearing to the issue under controv ersy, because these documents are all post 25.03.1971 and on the basis of such d ocuments, citizenship can neither be claimed nor granted. The affidavit of the p etitioner (Exhibit - 3) besides being a self-serving document sworn much after t he proceeding was initiated by the Tribunal only adds to the confusion as notice d above and further created doubt in the mind of the Tribunal while deciding the issue. In the writ petition, petitioner has described himself as Mustakin Ali @ Mustakin Kha @ Mustakin Ahmed, son of Ainul Ali@ Ainul Kha, without any explana tion, not to speak of any valid explanation. Even here also there is no mention of Ainul Haque being the father of the petitioner because that is the name shown as the father of Mustakin Ahmed in Exhibit - 1, Voters’ List of 1993. 20. In such circumstances, Tribunal was justified in holding that the docume nts relied upon by the petitioner are all post 25.03.1971, which do not prove ex istence of the petitioner on Indian soil prior to 25.03.1971. In our view, the f inding of fact arrived at by the Tribunal is a correct one and no interference i s called for. 21. A Full Bench of this Court in State of Assam -Vs- Moslem Mondal; reporte d in (2013) 1 GLT 809, had examined amongst various other issues the scope of in terference by a writ Court with the orders passed by Foreigners’ Tribunal. It ha s been held that the certiorari jurisdiction of the writ Court being supervisory and not appellate jurisdiction, the writ Court would not review findings of fac t reached by the Tribunal. The only exception to the above general proposition w ould be in a case where the Tribunal acts on evidence which is legally inadmissi ble or has refused to admit admissible evidence or if the finding is not support ed by any evidence at all, because, then, such error would amount to an error of law apparent on the face of the record. The other errors of fact, howsoever gra ve those may be, cannot be corrected by a writ Court. 22. Thus, on a totality of the facts and circumstances of the case, we do no t find any error or infirmity in the view taken by the Tribunal. No case for int erference is made out. 23. Writ petition is devoid of any merit and is accordingly dismissed. 24. Registry to send down the LCR, forthwith. 25. Registry shall also inform the concerned Foreigners’ Tribunal, Deputy Co mmissioner and Superintendent of Police (Border) about this order, for doing the needful. "