Sabir Ahmed V. Union of India and State of Assam and Deputy Commissioner, Hojai and Superintendent of Police, Hojai and Officer in-Charge, Jamunamukh Police Station

WP(C)/7792/2016

AI Insights

Sabir Ahmed challenged the opinion of the Foreigners' Tribunal, which declared him a foreigner based on insufficient evidence of his Indian nationality. The Tribunal's decision was based on discrepancies in the petitioner's documents and lack of credible evidence linking him to his claimed Indian parents. The High Court reviewed the evidence, including voter lists and school certificates, and found that the petitioner did not adequately prove his citizenship. The court referenced several precedents to affirm that the burden of proof in nationality cases lies with the individual, not the state.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 800541 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 16-09-2022
• Assessment Year: misc
• Other Referred Cases: Sirajul Hoque -Vs- State of Assam, Jesmin Begum @ Jesminara Begum \/ Union of India & 6 ors, The State of Assam and Anr -Vs- Ohab Ali, Moslem Mondal -Vs- State of Assam
• Laws Referred To: Article 226 of the Constitution of India, Foreigners Act, 1946, Citizenship Rules, 1956
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: S G I
• Assessee Lawyers: S AZIZ
• Keywords: Evidence; Foreigners tribunal; Indian Citizenship; Voter list; Nationality
• Section: 9

Judgement Text

"Page No.# 1/9 GAHC010124142016 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/7792/2016 SABIR AHMED S/O LT. SONAHAR ALI @ BONAHAR ALI, VILL. SARUPATHER, P.S. JAMUNAMUKH, DIST- HOJAI, ASSAM VERSUS UNION OF INDIA and 4 ORS. REP. BY THE MINISTRY OF HOME AFFAIRS, NEW DELHI 2:THE STATE OF ASSAM REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY-6 3:THE DY. COMMISSIONER HOJAI ASSAM 4:THE SUPERINTENDENT OF POLICE B HOJAI ASSAM 5:THE OFFICER IN-CHARGE JAMUNAMUKH POLICE STATION DIST- HOJAI ASSA Advocate for the Petitioner : MRS.S AZIZ Advocate for the Respondent : ASSTT.S.G.I. Page No.# 2/9 BEFORE HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK HONOURABLE MRS. JUSTICE MITALI THAKURIA JUDGMENT Date : 16-09-2022 Heard Mr. A. M. Ahmed, learned counsel appearing for the petitioner. Also heard Mr. U. K. Goswami, learned Central Government Counsel for respondent No. 1; Mr. J. Payeng, learned Standing Counsel Foreigners’ Tribunal, Assam for respondent No. 2, 4 and 5 and Ms. U. Das, learned Government Advocate, Assam for respondent No. 3. 2. This is an application under Article 226 of the Constitution of India whereby the opinion dated 31.10.2016, passed by the learned Member, Foreigners’ Tribunal, Nagaon Court No. 10th at Sankardev Nagar, Hojai, passed in F.T. Case No. 111/2015 is under challenge. 3. On the basis of a reference made by the competent authority, notice was issued to the petitioner to prove his Indian citizenship. The notice was served upon the petitioner and he appeared before the Tribunal and filed his written statement along with all original documents which were exhibited as Ext. 1 to 6 and also adduced his evidence as DW-1. The petitioner claimed that he is a Indian Citizen by birth and permanent resident of village – Sorupathar, under Jamunamukh Police Station in the District of Hojai, (earlier Nagaon) Assam. He claimed himself to be the son of Late Sonahar Ali and Late Piarun Nessa, who died in the year 2001 and 1994 respectively. He further claims that his grandparents Late Sabed Ali and Samsul Nessa were also Indian Citizen by birth and the name of his grandmother, paternal uncle (Asman Ali) his father Sonahar Ali and mother Piarun Nessa appeared in the voter list of 1966 (Ext.1) at village Ujan Kupa, Pt. I, under Hailakandi Police Station of 9 Hailakandi Legislative Assembly Constituency (In short “LAC”). The name of his father appeared in the voter list of 1970 (Ext. 2) at village Sorupather under Jamunamukh Police Station of 92 Jamunamukh LAC. Petitioner further stated that his father shifted his residence from Hilakandi to present village Sorupather in the search of livelihood in the year 1969 but unfortunately, his mother’s name did not appear in the voter list of 1970 along with his father. But, his mother’s name appeared in the voter list 1970 at village Ujankupa under Hailakandi Police Station of 9 Page No.# 3/9 Hailakandi LAC. The father of the petitioner along with paternal uncles purchased a plot of land from one Samsul Hoque of village- 84, No. Block, Mouza- Jamunamukh, by registered Sale Deed dated 12.04.1969. A Photocopy of the sale deed dated 12.04.1969 is annexed vide Annexure-D. 4. The petitioner stated that he was born on 11.10.1967 and brought up at village Sorupather and he had passed Class VII from Jamunamukh M.E. Madrassa. In this regard, he also exhibited one School certificate dated 06.10.2015 (Ext.6), issued by the Head Master of that School, showing his date of birth as 11.10.1967 as per admission register of the School. 5. It is pertinent to mention here that the name of the petitioner first appeared in the voter list of 1997 (Ext.3) along with his wife and father under 90 Jamunamukh LAC, Village Sarupathar, the then district Nagaon, where the name of petitioner is written as Saber Ahmed instead of Sabir Ahmed. The concerned Gaonburah of village Sarupather also issued a certificate in his name (Ext.5) and Election Commission also issued an Electro Photo Identity Card to the petitioner (Annexure-H). 6. Despite having all the documents, the Enquiry Officer without making any proper enquiry submitted false report before the Superintendent Police (Border), Nagaon for making reference to Foreigners’ Tribunal and accordingly, the Superintendent of Police (B), Nagaon, without ascertaining the correctness of enquiry report, referred his name to Foreigners’ Tribunal, alleging that the petitioner is a Foreigner. On the basis of the reference and report, the learned Member of Foreigners’ Tribunal issued notice dated 10.09.2014, without any specific ground and asked the petitioner to appear before the Foreigners’ Tribunal for filing his representation and to adduce his evidence and witness. 7. After going through the materials available in the record and the documents exhibited therewith along with evidence of DW1, the Tribunal held that the documents of the petitioner exhibited therewith are not sufficient at all as required, and thus, are of no evidentiary relevance. Moreover, as held by the Hon’ble Apex Court, mere long stay in the country and enrolment of the name in the voter’s list did not confer any right to continue to stay in the country (Citizenship Rules, 1956). 8. We have gone through the relevant documents placed by the learned counsel for the Page No.# 4/9 petitioner to prove his Indian Nationality and also the other documents relied on by the learned counsel for the petitioner as well as evidence adduced by him as DW1. It is submitted that the voter list of 1966, specifically shows the name of one “Sonahar Ali”, the projected father of the petitioner along with his mother under the 9 Hailakandi LAC of Sub-Division Hailakandi at Village Uzankupa. Further, the name of his projected father also appeared in the voter list of 1970 at 90 Jamunamukh LAC under Nagaon District. His father’s name further appeared in the 9 Hailakandi LAC in the year 1970 along with his mother and his paternal uncle. Petitioner submitted that Annexure-D, the sale deed which was executed in the year 1969 also supports that they had purchased land under Jamunamukh Police Station prior to 1971 and the voter identity card issued by the Election Commission also supports the plea that he is an Indian National. Learned counsel for the petitioner also submitted that the School certificate issued by the Head Master of Jamunamukh M.E. Madrassa also specified petitioner’s date of birth as per the admission register of the School as 11.10.1967. Apart from that, his name also appeared in the voter list of 1997 and 2010 under 90 Jamunamukh LAC, where he cast his vote as Indian National. It is submitted that the learned Member of the Foreigner’s Tribunal inspite of all those did not consider all the relevant documents and passed the impugned opinion mechanically and arbitrarily declared the petitioner to be a Foreigner and hence, the opinion passed by the learned Tribunal is liable to be set aside. He further submitted that inadvertently, the name of his father appears as Bunaharali instead of Sonahar and for this discrepancy of the name of his father or his own name, his nationality cannot be questioned. He relied on a decision of Hon’ble Apex Court reported in (2019) 5 SCC-534, Sirajul Hoque -Vs- State of Assam wherein para 3 and 4 read as: “3. There is no doubt that the great grandfather’s name Amtullah appears as Amtullah throughout the document. Equally, there is no doubt about the father’s name which appears as Hakim Ali throughout. The only discrepancy found is that in some of the documents Kefatullah later becomes Kematullah. However, what is important to note that his father’s name Amtullah continues as Amtullah and the other family members associated continued as such. Also produced are NRC Registration details of the year 1971 of the grandfather who is noted to be Kefatullah in this document. Other voter’s lists are then produced where the letter F becomes the letter M with other family names remaining the same. In fact, the appellant has himself produced a document of 1981 from the Income Tax Department giving his Permanent Account Number. Apart from these documents, certain other later documents have also been produced including photo identity cards issued by the Page No.# 5/9 Election Commission of the India and identity cards issued to his brother including voters’ lists in which the appellant’s name appears. 4. Having gone through these documents, we are of the view that it is not possible to state that Kematullah is not the same despite being named Kefatullah in some of the documents. This being so, the grandfather’s identity, father’s identity, etc. has been established successfully by the appellant. Further, the mere fact that the father may later have gone to another village is no reason to doubt this document.” 9. In this context the learned standing counsel of Foreigners’ Tribunal, Assam Mr. J. Payeng, submitted that the School certificate, which is relied on by the petitioner to prove his date of birth is seems to be issued only on 08.10.2015, though the petitioner left the said Madrassa on 31.12.1983. Therefore, the reasonable doubt arises in regards to genuineness of the said certificate. Apart from that, it is seen that the petitioner failed to examine the Head Master of the School, who had issued the said certificate by bringing the original School admission register in record. In this regard, Mr. J. Payeng relied on a decision of another Division Bench of this Court in the case of Jesmin Begum @ Jesminara Begum –vs- Union of India & 6 ors in WP(C) 3084 of 2019 decided on 25.09.2019 wherein it is held that: “However, the said certificate rendered itself as inadmissible and it is in as much as, authority of the said certificate were not examine to prove the context thereafter………………..” 10. In the instant case also it is seen that though the petitioner claimed that the certificate is issued by the Head Master of M.E. Madrassa but he did not adduced evidence in person to prove the contents of the same. 11. The petitioner also took the plea that though the name of his father is “Sonahar” but inadvertently, the name of his father in the voter list of 1970 of Jamunamukh Constituency was appeared as “Bunahar Ali” instead of “Sonahar” though the “Sonahar” and “Bunahar Ali” is one and same person. But, the petitioner did not furnish any relevant documents to prove that “Sonahar” and “Bunahar Ali” are the one and same person. Rather, it reveals that the name of father of “Sonahar” is mentioned as “Sabed Ali” in the voter lit of 1966 of 9 Hailakandi LAC, whereas, the father’s name of “Bunahar Ali” is mentioned as “Jubed” in the voter list of 1970 of 90 Jamunamukh LAC, Mr. J. Payeng, learned Standing Counsel, also raise the point that the age of “Sonahar” is mentioned as 27 years in the voter list of 1966 whereas, in the voter list of 1970 the age of the person named “Bunahar” is mentioned as 42 Page No.# 6/9 years. So a person cannot be 42 years of age within a period of four years, if his age was 27 years in the year 1966. Mr. J. Payeng, the learned counsel for the Foreigners’ Tribunal further stated that the petitioner produced only voter list of 1966, 1970, 1997 and 2010 but there is no mention or no documents of the voter lists in between 1970 to 1997 where the name of the petitioner first appeared. 12. One photocopy of the sale deed has been annexed along with the petition but the records reveal that said sale deed was not exhibited by the petitioner whereby he claimed about purchase of land prior to 1971. More so, the petitioner also failed to adduce the evidence of the Gaonburah, who had issued a certificate which is exhibited as Ext. 5. Under the Foreigners’ Act, it is the bounden duty of the procedee to prove the documents to establish his nationality. In this context, the learned standing counsel Mr. J. Payeng, relied on a decision of this Court in WP(C) 2641 OF 2017 (The State of Assam and Anr -Vs- Ohab Ali) and in Paragraph 16 of the Judgment it is stated as under: “16. On the other hand, from the impugned order, we find that after narrating the case projected the respondent, Tribunal observed that State did not examine any witness and failed to adduce any rebuttable evidence. Therefore, Tribunal answered the reference against the State. We are afraid the approach taken by the Tribunal is contrary to the law laid down by the Full Bench of this Court in State of Assam-Vs- Moslem Mondal reported in 2013 (1) GLT 809. Under Section 9 of the Foreigners’ Act, 1946, burden is on the proceedee to prove that she is not a foreigner, but a citizen of India and this burden never shifts. This burden has to be discharged by the proceedee by adducing evidence which are admissible; which must be proved; and which must have relevance to the facts in issue. By mere filing of documents without examining its admissibility and without the documents being proved or without examining its relevance, it cannot be said that the proceedee had discharged his burden. Question of rebuttal evidence by the State will arise only if the proceedee adduces evidence which are admissible, proved and which have relevance”. 13. Mr. J. Payeng also submitted that the scope of interference in exercising certiorari jurisdiction under Article 226 is limited. In this Context he also relied on the Full Bench decision of this Court in the Moslem Mondal’s case reported in 2013 (1) GLT, 809, which reads as: “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, Page No.# 7/9 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 b 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 provisions contained in sub- section (3) of Section 6a of the 1955 Act read with Rule 19 of the 2009 Rules”. 14. So from the deliberation made above, it is seen that as per the petitioner he is an Indian Citizen by birth and permanent resident of village Sorupathar under Jamunamukh Police Station in the district of Hojai (earlier Nagaon) and claimed that he is the son of late “Sonahar Ali” and late “Piarun Nessa”, whose names were also appeared in the voter list of 1966 (Ext 1), at village Uzankupa, part I under Hilakandi Police Station of 9 LAC Hilakandi. Apart from that, he also claims that his grandparents late “Sabed Ali” and “Samsul Nessa” were also Indian Citizen by birth. Moreover, petitioner claimed that name of his father also appeared in the voter list of 1970 in Jamunamukh constituency though inadvertently, his name appeared as “Bunahar Ali” instead of “Sonahar Ali” though “Bunahar Ali” and “Sonahar Ali” is one and same person. But, from the discussion made above, it is seen that the petitioner could not furnish any relevant documents to prove that “Bunahar Ali” and “Sonahar Ali” is one and same person. It also appears that the name of the father of “Sonahar Ali” is mentioned as “Sabed Ali” in the voter list of 1966 under Hilakandi constituency whereas; the father’s name of “Bunahar Ali” is mentioned as “Jubed Ali” in the voter list of 1970 under Jamunamukh constituency. From those exhibits, it also reveals that in the voter list of 1966, the age of “Sonahar Ali” is mentioned as 27 years whereas in the voter list of 1970 the age of the person named “Bunahar Ali” is mentioned as 42 years. Thus, it is pointed out by the learned counsel Mr. J. Payeng that a person cannot be 42 years within a period of four years, if the age of the person was 27 years as per the voter list of1966. More so, it reveals that the name of the father of said “Sonahar Ali” and “Bunahar Ali” also differs as discussed above. As per the written statement the father of the petitioner shifted from Hilakandi to present address at Sorupathar under Jamunamukh Police Station and used to reside there and Page No.# 8/9 accordingly, the name of his father also appeared in the voter list of 1970 under the Jamunamukh constituency along with his uncle Asman Ali. But there is no mention in the written statement that his uncle also shifted along with the father of the petitioner from Hilakandi to present address at Sarupathar under Jamunamukh Police Station and used to reside there. Thus, it is seen that the petitioner could not prove any linkage with his projected parents. 15. Under the Foreigners Act, 1946, the primary issue in a proceeding relates to determination as to whether the proceedee is foreigner or not and the fact that the proceedee is declared as a foreigner is also within the knowledge of the proceedee and hence, the burden of proving citizenship absolutely lies upon the proceedee and this is also mandated under section 9 of the Foreigners Act 1946. 16. But, as discussed above, the petitioner failed to establish not only the linkage between his projected parents but also failed to prove the contents of the documents that he relied upon, particularly, his school certificate as well as certificate issued by Gaonburah. He also failed to prove his Indian Nationality by adducing relevant materials or supporting documents on evidence. 17. So, from the entire discussion made above and from the available materials in the record, we find that after proper appreciation of evidence as well as the documents relied on by the petitioner, the learned Member of Foreigners’ Tribunal had rightly passed the opinion and accordingly, we find no infirmity in the impugned findings and opinion given by learned Member Foreigners’ Tribunal. 18. In view of discussion above, we are of the view that the learned Tribunal has correctly arrived at the impugned finding and the opinion dated 31.10.2016, where interference of this Court is not at all necessary. 19. As such, this Court is of the opinion that the impugned finding and opinion dated 31.20.2016, passed by learned Member, Foreigners’ Tribunal, Nagaon 10th at Sankardev Nagar, Hojai (erstwhile District Nagaon, presently Hojai) in F.T. Case No. 111/2015 does not call for any interference. 20. Accordingly, we find the present writ petition to be devoid of merit and therefore, it Page No.# 9/9 stands dismissed. 21. Send back the LCR to the concerned Foreigners’ Tribunal along with a copy of this order. JUDGE Comparing Assistant "