PRAN DAS V. THE UNION OF INDIA AND 6 ORS.

WP(C)/5887/2019

AI Insights

The case involves Pran 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 inability to provide sufficient evidence to prove his citizenship or establish a familial linkage to his projected father, Makhan Chandra Nama Das. The High Court of Gauhati, after reviewing the evidence and arguments presented, upheld the Tribunal's decision, emphasizing the petitioner's failure to discharge the burden of proof as required under section 9 of the Foreigners Act, 1946.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 721759 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 18-11-2019
• 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; M VERMA
• Assessee Lawyers: A ROSHID
• Keywords: Burden of Proof; Citizenship; Foreigner; Illegal entry; Linkage
• Section: 9

Judgement Text

"Page No.# 1/4 GAHC010190812019 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C) 5887/2019 1:PRAN 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 DY. COMMISSIONER BARPETA PIN-781301. 4:THE SUPDT. OF POLICE (B) BARPETA PIN-781301. 5:THE ELECTION COMMISSION GOVT. OF INDIA NEW DELHI-01. 6:THE STATE CO-ORDINATOR OF NATIONAL REGISTRATION (NRC) ASSAM Page No.# 2/4 GUWAHATI-32. 7:THE FOREIGNERS TRIBUNAL NO.2ND. BARPETA REP. BY THE STANDING COUNSEL OF THE TRIBUNAL PIN-781301 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 18.11.2019 (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. M. A. Verma, learned counsel appears for respondent no. 6. Petitioner assails opinion dated 2812.2018 passed by the Foreigners’ Tribunal No.2nd, Barpeta, Assam in F.T.(2nd) Case No.736/2016, 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 Chandra Nama Das as his father. In support of his case, as many as 4 (four) 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. (ii) Exhibit-B – Photocopy of School Certificate dated 08.03.1993 issued by the Headmaster, No.367 Jakhlirpara L.P. School by certifying that petitioner completed his Page No.# 3/4 education in the school in the year 1972. (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. (iv) Exhibit-D – Photocopy of the PAN Card 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 Chandra Nama Das. The document at Exhibit-B, which was brought on record to serve as a link document to the projected father Makhan Chandra Nama Das, rendered itself as inadmissible in evidence, inasmuch as, the said Certificate of the Headmaster of No.367 Jakhlirpara L.P. School nor the Exhibit-C letter of the B.D.O, Mandia Development Block and the contents thereof did not stand proved through the legal testimony of the issuing authority. The PAN Card at Exhibit-D 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. Important to note that petitioner is 59 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 85 years as in the year 2017, deposed as DW-2 by claiming that he knows the petitioner since his birth and had seen the projected father of the petitioner. DW-2 in his cross-examination stated that in F.T.(II) Case No.1989/2012 he was declared as Indian where he deposed that he migrated from the then East Pakistan in 1964. In this context it is surprising as to how DW-2 knew the petitioner from the year of birth i.e. 1961. DW-2 also stated that projected mother of the petitioner is still alive but it is again surprising as to why she was not examined as witness. Further, neither in the written statement nor in the evidence tendered, the petitioner made any mention of Khagendra Acharjee as his neighbour. Thus, the evidence of Khagendra Acharjee 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 (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 Page No.# 4/4 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. Office to send back the case records to the Tribunal forthwith. A copy of this order be made part of the case records of the Tribunal for future reference. JUDGE JUDGE Comparing Assistant "