Appeal by a man declared an alien against the Foreigners Tribunal. The High Court rejected arguments regarding notice defects and lack of birth citizenship proof due to contradictory documents, upholding the lower courts' dismissal of the approach case.
Interim order vacated; appeal dismissed with direction to return records.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC010025982015
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA 359/2015
1:HOWAH KHATUN @ HOWA
D/O LT. HASEN ALI, W/O LT. KHABIR UDDIN, R/O VILL. BURIKHAMAR, P.O. BURIKHAMAR, P.S. SARTHEBARI, DIST. BARPETA, ASSAM.
VERSUS
1:THE UNION OF INDIA and 3 ORS
REPRESENTED BY THE MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, NEW DELHI-1
2:THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY- 6.
3:THE DIRECTOR GENERAL OF POLICE ASSAM ULUBARI GHY- 5.
4:THE SUPERINTENDENT OF POLICE B BARPETA ASSAM.
5:THE OFFICER-IN-CHARGE SARTHEBARI POLICE STATION DIST.- BARPETA ASSAM
Advocate for the Petitioner : MR.M ALI
Advocate for the Respondent : ASSTT.S.G.I.R-1
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BEFORE HONBLE MR. JUSTICE UJJAL BHUYAN HON BLE MR. JUSTICE NELSON SAILO
ORDER
Date : 06-02-2018
( Ujjal Bhuyan, J .)
Heard Mr. M.U. Mahmud, learned counsel for the appellant and Mr. G. Pegu, learned Govt. Advocate, Assam.
2 . This appeal is directed against the final order dated 30.09.2015 passed by the learned Single Judge dismissing the writ petition WP(C) No.2570/2014 filed by the appellant as the writ petitioner against the order dated 27.11.2013 passed by the Foreigners Tribunal No.III, Barpeta in FT Case No.39 (III)/2011 (State of Assam Vs. Howah Khatun) declaring the appellant as a foreigner who had illegally entered into India (Assam) from Bangladesh after 25.03.1971.
3. It is seen that initially reference was made by the Superintendent of Police (Border), Barpeta under the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) with the allegation that appellant was an illegal migrant as defined under the said Act. Be it stated that under Section 3(1)(C) of the IMDT Act, an illegal migrant was defined as a foreigner who had unauthorisedly entered into India after 25.03.1971. The reference was registered as IMDT Reference Case No.3429/B/98 before the Tribunal constituted under the said Act.
4. In Sarbananda Sonowal Vs. Union of India, (2005) 5 SCC 665, Supreme Court declared the IMDT Act to be unconstitutional. One of the consequential directions issued was to transfer all the references pending before the Tribunals constituted under the IMDT Act to the Tribunals constituted under the Foreigners Act, 1946 read with the Foreigners (Tribunals) Order, 1964. Accordingly, the related reference was transferred to the Foreigners Tribunal No.III, Barpeta (Tribunal) where it was re-registered as FT Case No.39(III)/2011.
5. Notice issued by the Tribunal was duly served upon the appellant whereafter appellant had entered appearance before the Tribunal and filed written statement denying the allegation made that she was a foreigner by claiming to be a citizen of India by birth.
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Appellant also adduced evidence, so also the State. After hearing the matter, Tribunal passed the order dated 27.11.2013 answering the reference in favour of the State in the above manner.
6. Aggrieved, appellant preferred the related writ petition before this Court, which was registered as WP(C) No.2570/2014. A Single Bench of this Court by order dated 30.09.2015 dismissed the writ petition.
7. Hence, this appeal.
8. By order dated 03.03.2016, the appeal was admitted for hearing with an interim direction that appellant should appear before the Superintendent of Police (Border), Barpeta and furnish adequate surety.
9. In the course of hearing on 23.11.2017, in view of the submissions made by learned counsel for the appellant that notice issued to the appellant by the Tribunal did not indicate the stream of foreigners to which appellant was suspected to belong and secondly that the Verification Officer in his report had remarked that appellant did not migrate to Assam, the case record was requisitioned.
10. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record, including the record requisitioned from the Tribunal.
11. It appears that appellant had exhibited as many as 8 documents in support of her case in addition to her deposition. Tribunal had examined each and every exhibit tendered by the appellant in great detail and after due appreciation, noticed major discrepancies and contradictions whereafter it was observed as under:-
“12. On careful perusal of the W/S filed by the OP, her evidence on Affidavit, her further evidence-in-chief recorded on oath, the cross-examination portion of her evidence as well as the aforesaid documents relied upon by her, some major discrepancies an contradictions, as mentioned below, are found in her version which cast a serious doubt in the trustworthiness of her version.
(a) In Para 6 of her Affidavit, the OP has stated that the age of her father was 38 years and the age of her own mother Jahiran Nessa was 35 years as recorded in the
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voters’ list of 1966 (Ex-A) but that the age of her father was wrongly recorded as 51 years in the voters’ list of 1970 (Ex-B) which actually should have been 42 years. Now, even if for argument sake, this statement of the OP is accepted to be correct and the age of her father is accepted as 42 years in 1970, the statement of the OP that Hellal Uddin is her step brother (as stated by her in her cross-examination) cannot be accepted to be true and correct statement for the simple reason that in 1970 the age of Helaluddin is shown as 29 years in Ex-A and 33 years in Ex-B. This shows that Helal Uddin was just 9(nine) years younger to his father which fact, in no case, can be accepted as true. There is no evidence on record to show that the own mother of Helal Uddin namely Sakina Khatun had another person as her husband before she married Hasen Ali. This casts a serious and genuine doubt in the truthfulness of the version of the OP.
(b) No voters’ list, except Ex-A and Ex-B, has been filed by the OP in this case showing the names of her projected parents, brothers and step brothers. In her crossexamination, the OP has stated that the land covered by KP No.172 (Ex-H) was purchased by her father and that after the death of her father the said land was mutated in the names of her seven brothers. On perusal of Ex-H, it is found that the land in question was allotted on 31st March 2009 by the then Assistant Settlement Officer, Sujangram Circle, Abhayapuri in the names of (i) Billal Uddin (ii) Iman Ali (iii) Azgar Ali (iv) Asraf Ali (v) Fazar Ali (vi) Dulal Ali (all sons of one Hasen Ali) and (vii) Fatey Bewa w/o Hasen Ali. If, not conceding but for argument sake, the statement of the OP to the effect that after the death of her father the land was mutated in the names of her seven brothers is accepted as a correct statement, the statement of the OP that her parents expired after 1970 cannot be accepted to be a true statement because the land in question was allotted in 2009, i.e., after about 39 years of the stated death after 1970 of the projected father of the OP. As per Ex-H, the land was allotted on 31st March 2009 for 20 years only and not inherited by the pattadars. Further, there is nothing on record to show as to who is or was Fatey Bewa who is shown as wife of late Hasen Ali. In Exh-A and Ex-B, no name of any Fatey Bewa is shown as one of the wives of Hasen Ali. The land was allotted vide Ex-H on 31st March
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2009 for 20 years which shows that it was a Government land which was allotted in the name of the concerned pattadars and not a land purchased by any other person including the projected father of the OP. Therefore, it clearly appears that Ex-H does not pertain to the projected parents or brothers of the OP. Again if it is accepted that the land was mutated in the names of the seven brothers of the OP (which is not a true fact as discussed above) after the death of her father then it cannot be accepted as a true statement that the parents of the OP expired after 1970 because the land was allotted as per Ex-H in March 2009 which shows that the projected father of the OP was alive at least till early 2000. Ex-H clearly shows that Fatey Bewa was the wife of late Hasen Ali and all other six pattadars were sons of Hasen Ali and Fatey Bewa. In absence of any reliable evidence on record and in view of the self contradictory statements of the OP, it cannot be accepted that the persons named in Ex-H are the brothers or step brothers and also that Fatey Bewa is or was the own mother or the step mother of the OP. No sale deed showing purchase of the aforesaid land by the projected father of the OP has been filed and proved in this case. This again casts a very serious doubt in the veracity of the version of the OP.
(c) Similarly Ex-E is the copy of the Jamabandi of Khiraj Myadi land wherein the names of same persons as are recorded in Ex-H are shown recorded as pattadars. Nothing is mentioned in the remark column of Ex-E to show whether the land in question was mutated in the names of the persons named in it by virtue of inheritance or by virtue of purchase or whether it was allotted land or purchased land. In Ex-E also the names of Fatey Bewa is shown as the wife of late Hasen Ali and others are shown as sons of late Hasen Ali. Therefore, both Ex-E and Ex-H are found to be not sufficient and reliable evidence to show that the projected father of the OP ever purchased or possessed the land in question.
(d) No explanation is furnished in this case by the OP to clarify as to why no voters’ list published after 1970 showing the names of the projected brothers/step brothers of the OP could be filed and proved. In Ex-A and Ex-B only the name of Helal Uddin is found recorded. As discussed above, it cannot be said for certain, in absence of any reliable evidence on record, that the projected brothers or the step brothers of the OP
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including Helal Uddin were sons of late Hasen Ali and Sakina KHatun or Jahiran Nessa. Ex-E and Ex-H belies the statement of the OP that the said brothers/step brothers of the OP were sons of late Hasen Ali and Sakina Khatun or late Hasen Ali and Jahiran Nessa because Ex-E and Ex-H clearly show that they were sons of late Hasen Ali and Fatey Bewa. The name of Helal Uddin who is shown as a voter and son of Hasen Ali has not even been mentioned in Ex-E and Ex-H. Therefore, it cannot be said for certain that Hasen Ali whose name appears in Ex-A and Ex-B is the same Hasen Ali whose name appears in Ex-E and Ex-H. This further deepens the doubt in the veracity of the evidence of the OP.
(e) Ex-C and Ex-D are the voters’ lists of 1989 and 1997 containing the names of the OP and her husband only which appears to be not relevant to decide the nationality of the OP who claims her to be citizen of India by birth. She has to prove her claim that she is a citizen of India by birth, by adducing sufficient and independent reliable evidence to prove her own antecedent which is found lacking in this case. Therefore, Ex-C and Ex-D which relates to her husband is not sufficient proof to prove that she is a citizen of India by birth. In Ex-C and Ex-D the name of her husband only and not the name of her father is found recorded against her name. So, Ex-C and Ex-D are found of not much importance and relevant as far as the proof of her (OP’s) citizenship is concerned.
(f) The linkage certificate (Ex-F) issued on 27-02-2013 by Gaonbura of village Burikhamar shows that Hawa Khatun is the wife of Khabirudin of village Burikhamar. This does not prove that she was born in Assam (India). Ex-G is a certificate issued on 17-07-2011 by the secretary of Kokila Gaon Panchayat certifying that Hawa Khatun D/O Late Hashen Ali residing at village Kokila Dakshin para is known to the certificate issuing authority. It is further certified in Ex-G that her (Hawa Khatun’s) father’s name is included in the Electoral Roll 1966/1997/2005 vide Sl. No.108, House No.31, Centre No.143, Const. No.34 Abhayapuri North LAC of village Kokila Dakshin para. No voters’ list of 1997 or 2005 showing the name of late Hashen Ali (projected father of the OP) is, however, filed and proved in this case. The certified copy of voters’ list of 1966 (ExA) filed in this case shows that it pertains to 42 No. Abhayapuri (SC) LAC and not to 34
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No. Abhayapuri North LAC as certified in Ex-G. Whatever be the case as it may, there is nothing in Ex-G to show that Hawa Khatun (OP in this case) was born at village Kokila Dakshin para. Ex-G further shows that Hawa Khatun D/O Hashen Ali is residing at village KIokila Dakshin para which again contradicts the statement of the OP that after her marriage she is presently residing at village Burikhamar. Therefore Ex-F and Ex-G are also found to be of no help to the OP to prove that she is a citizen of India by birth.”
12. Thereafter Tribunal held that appellant had failed to discharge her burden and answered the reference in favour of the State declaring her to be an illegal foreigner from the specified territory of post 25.03.1971 stream.
13. The finding returned by the Tribunal that appellant was an illegal foreigner from the specified territory of post 25.03.1971 stream is a finding of fact based on appreciation of evidence. Ordinarily, a writ Court would not interfere with such a finding of fact. Notwithstanding the same, learned Single Judge re-appreciated the entire evidence on record, including the record requisitioned from the Tribunal, and held as under:-
“6. As discussed in paragraph-12(b) of the impugned judgment, the petitioner failed to produce any voter list except Ext-A and Ext-B to projecting the names therein as her parents, brothers and step brothers. As regards the Ext-H document, the allotment of the land was on 31.3.2009. On the other hand, it was the stand of the petitioner that her parents expired after 1970 and the land of the father was inherited by his legal heirs. There is no explanation in respect of the gap of 39 years. Further, as discussed in the impugned judgment, Ext-H land was allotted on 31.3.2009 for 20 years only and not inherited by pattadars. Also there is nothing on record to show as to who is or was Fatey Bewa shown as wife of late Hasen Ali. In Ext-A and Ext-B no name of any Fatey Bewa is shown as one of the wives of Hasen Ali. It is in such circumstances, the learned Tribunal has rightly concluded that Ext-H does not pertain to projected parents or brothers of the petitioner.
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based on no evidence. This court exercising writ jurisdiction cannot sit on appeal over such finding based on evidence.”
14. Thereafter, learned Single Judge dismissed the writ petition and affirmed the order passed by the Tribunal. We do not find any error or infirmity in the view taken by the learned Single Judge, not to speak of any perversity to justify interference at the appellate stage. A finding of fact returned by the Tribunal was affirmed by the learned Single Judge. Such a finding of fact may not be disturbed by the appellate Court at the stage of appeal unless a clear case of perversity is made out which is not the case here.
15. Record discloses that Election Commission of India had ordered intensive revision of electoral rolls in respect of Sarukhetri Assembly Constituency in the State of Assam with reference to 01.01.1997 as the qualifying date. In this connection, a house-to-house enumeration was carried out during the period from 16.01.1997 to 15.04.1997. Though the name of the appellant was included in the draft electoral roll published on 24.07.1997, Electoral Registration Officer for the said constituency expressed doubts about the citizenship of the appellant and got the matter verified by an on the spot local verification. On consideration of the report of such verification, Electoral Registration Officer recorded reasonable doubt that appellant was not a citizen of India following which the matter was forwarded to the Superintendent of Police, Barpeta for making the reference vide intimation dated 03.11.1997. Following the same, Superintendent of Police (Border), Barpeta made the reference under the IMDT Act.
16. We have already noticed transition of the reference from one under the IMDT Act to one under the Foreigners Act, 1946.
17. Tribunal had issued notice to the appellant on 16.05.2011 stating that the reference was registered on the basis of the allegation made by the Superintendent of Police, Barpeta as to why she should not be declared to be a foreigner under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964.
18. Before proceeding further, it would be apposite to advert to and address the two principal objections raised by learned counsel for the appellant. As noticed above, the first objection is that notice served upon the appellant did not indicate the stream of foreigners to which appellant was suspected to belong which is the requirement under Section 6A of the
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Citizenship Act, 1955, as amended which provides for two streams of foreigners with distinct consequences – one stream being 01.01.1966 to 25.03.1971 (disenfranchisement for 10 years only but no deportation) and post 25.03.1971, liable to be deported.
19. Adverting to the written statement, evidence-in-chief and the writ petition filed by the appellant, we notice that at no point of time, appellant had raised this issue either before the Tribunal or before the learned Single Judge saying that non-specification of the stream of foreigners in the notice had caused prejudice to him by preventing him from putting up an effective defence. Such a ground has been put forward as an oral submission only at the time of hearing without any pleading. However, notwithstanding the same, we have considered this objection raised by the appellant.
20. We find from the record that in the notice issued to the appellant by the Tribunal, it was mentioned that she was suspected to be a foreigner as per the Foreigners Act, 1946 read with the Foreigners (Tribunals) Order, 1964. As per Section 2(a) of the Foreigners Act, 1946, a foreigner is one who is not a citizen of India. This was the basic allegation against the appellant. In so far non-mentioning of the stream of the foreigners is concerned, we have already seen that the reference was made under the IMDT Act suspecting the appellant to be an illegal migrant. Section 3(1) (C) of the IMDT Act clearly defines an illegal migrant to be a foreigner who had unauthorisedly entered into India after 25.03.1971.
21. Therefore, it is more than evident that the allegation against the appellant was that he was a foreigner who had illegally entered into India (Assam) after 25.03.1971. In Ananda Ghosh Vs. Union of India, (2017) 4 GLR 815 , followed by Abiran Nessa Vs. Union of India, 2017 (4) GLR (NOC 5), this Court has held that wrong mentioning of the stream of foreigners in the notice contrary to the reference made by the State would not vitiate the ultimate conclusion reached by the Foreigners Tribunal that the proceedee is a foreigner of post 25.03.1971 stream. Therefore, this objection has no substance and is accordingly rejected.
22. Regarding the second objection of the learned counsel for the appellant that in the local verification report preceding the reference, the Verification Officer had remarked that appellant did not migrate to Assam.
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23. We have already noticed that reference was made by the Superintendent of Police under the IMDT Act based on the report of the Electoral Registration Officer dated 03.11.1997 recording his reasonable doubt that the appellant was not a citizen of India. It is this report which is the basis of the reference and not the report of the Local Verification Officer as would be evident from the endorsement of the Superintendent of Police (Border), Barpeta.
24. Having addressed the two objections as above, we may now briefly examine the case of the appellant. In her written statement, appellant did not even mention the name of her father though she claimed that her father was enrolled as a voter in 1966 as well as in 1970 in respect of Abhayapuri constituency. It was only in her evidence-in-chief that she disclosed for the first time that she was the daughter of late Hasen Ali. Therefore, what was required of the appellant was to prove that Hasen Ali was a citizen of India and she being the daughter of Hasen Ali was a citizen of India.
25. Ext. A and Ext. B related to Hasen Ali whereas Ext. C and Ext. D related to Howah Khatun or Howa, i.e., the appellant who is shown as wife of Khabiruddin or Khabir. The only document which says that appellant is the daughter of Hasen Ali is certificate dated 17.07.2011 issued by the Secretary of Kokila Gaon Panchayat, district Bongaigaon certifying that Howa Khatun was the daughter of late Hasen Ali. Though this document was marked as Ext. G, the same was never proved in accordance with law. It is trite that not only the contents of the documents would have to be proved but the truthfulness thereof would have to be established by tendering of evidence of the author of the certificate with the contemporaneous record. In the instant case, Secretary of Kokila Gaon Panchayat did not depose before the Tribunal to prove the contents of Ext. G as well as truthfulness thereof. As a consequence, appellant could not prove or establish that she was the daughter of Hasen Ali by adducing any admissible, cogent and reliable evidence. What happened to Hasen Ali after 1970 because he was only 51 years of age in 1970, though appellant stated that parents had expired after 1970. If Hasen Ali had expired after 1970 as claimed by the appellant, then on what basis Ext.4 certificate was issued on 17.07.2011 after more than 40 years? In the absence of evidence of the author of the certificate or any explanation, such a certificate lacks credibility and cannot be relied upon. That apart, appellant had described her age in the
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affidavit sworn in support of the writ petition on 05.05.2014 as 57 years which would mean that she was born sometime in the year 1957. If that be so, her name ought to have appeared in the voters list from 1978 onwards but it is not so, which is quite unusual. In such circumstances, view taken by the Tribunal as affirmed by the learned Single Judge cannot be faulted.
26. Thus, we find no merit in the appeal, which is accordingly dismissed. Interim order passed earlier stands vacated.
27 . Registry to send down the LCR forthwith and also inform the concerned Foreigners Tribunal, Superintendent of Police (B) and Deputy Commissioner for taking necessary followup steps.
28 . Copies of this order may also be furnished to learned Standing Counsel, Election Commission of India and State Coordinator, NRC.
JUDGE
JUDGE
Comparing Assistant
3 issues framed by the court
Whether the failure to specify the stream of foreigners in the Tribunal notice, contrary to Section 6A of the Citizenship Act, vitiated the declaration as alien.
Whether the Applicants burden of proof to establish citizenship by birth was discharged despite discrepancies in documentary evidence.
Whether the High Court could decline to disturb the Tribunal and Single Judge findings of fact regarding the applicant's citizenship status.
Colour shows how this judgement treated each authority
Sarbananda Sonowal Vs. Union of IndiaReferred¶24
Sarbananda Sonowal Vs. Union of India, (2005) 5 SCC 665 · Who else cites this
Ananda Ghosh Vs. Union of IndiaFollowed¶21
Ananda Ghosh Vs. Union of India, (2017) 4 GLR 815
Abiran Nessa Vs. Union of IndiaFollowed¶21
Abiran Nessa Vs. Union of India, 2017 (4) GLR (NOC 5),
5 provisions across 4 enactments
Howah Khatun @ Howa
The Union of India
Ujjal Bhuyan
Nelson Sailo
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
