Dismissed

Sayed Ali Sheikh @ Soiyed Ali v. the Union of India and 7 Ors.

Gauhati HC8 May 2018WP(C)/2114/2017

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a writ petition seeking quashing of a Foreigners Tribunal order declaring the petitioner a foreigner. The Court held that the petitioner failed to discharge his burden of proof under Section 9 of the Foreigners Act, 1946 due to contradictory evidence and inadmissible documents including unproven voter records and an unreliable PAN card.

What did the court decide?

Writ petition dismissed; interim order staying deportation vacated; registry directed to collect case records for follow-up.

Sayed Ali Sheikh @ Soiyed Ali Vs the… — Constitutional and Fundamental Rights | Gauhati HC (2018)

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GAHC010019142017

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 2114/2017

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1:SAYED ALI SHEIKH @ SOIYED ALI S/O- LATE BAHEJ ALI, VILL- HARBANGA, P.O- TULSIBIL, P.SGOSSAIGAON, DIST- KOKRAJHAR, BTAD, ASSAM, PIN- 783360

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VERSUS

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1:THE UNION OF INDIA and 7 ORS.

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REPRESENTED BY THE MINISTRY OF HOME AFFAIRS, GOVT OF INDIA, NEW DELHI-01

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2:THE STATE OF ASSAM REPRESENTED BY CHIEF SECRETARY TO THE GOVT OF ASSAM DISPUR GHY-06

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3:THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM HOME DEPT. DISPUR GHY-06

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4:THE DIRECTOR GENERAL OF POLICE ASSAM ULUBARI GUWAHATI- 05

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5:THE SUPERINTENDENT OF POLICEB KOKRAJHAR ASSAM PIN- 783370

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6:THE DEPUTY OF COMMISSIONER KOKRAJHAR ASSAM PIN-783370

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7:THE OFFICER-IN-CHARGE GOSSAIGAON POLICE STATION DIST- KOKRAJHAR BTAD ASSAM PIN- 783370 8:THE ELECTOR REGISTRATION OFFICER NO.29 KOKRAJHAR WESTST LAC DIST- KOKRAJHAR ASSAM PIN- 78337

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Advocate for the Petitioner : MD I H KHAN

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Advocate for the Respondent : GA, ASSAM R- 2-7

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BEFORE

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HON'BLE MR. JUSTICE UJJAL BHUYAN HON'BLE MR. JUSTICE NELSON SAILO

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ORDER

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Date : 08-05-2018

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(Ujjal Bhuyan, J)

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This case was heard on 18.04.2018 and today is fixed for delivery of order.

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2. We have heard Mr. M. U. Mondal, learned counsel for the petitioner and Mr. U. K. Nair, learned Senior Special Counsel, Foreigners Tribunal (FT).

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3. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 15.02.2017 passed by the Foreigners Tribunal, Kokrajhar in Case No. K/FT/D/242/2006 (Union of India Vs Md. Sayed Ali Sheikh) declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from Bangladesh after 25.03.1971.

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4. Following the aforesaid order passed by the Tribunal, petitioner was taken into custody.

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5. This Court by order dated 05.05.2017 had issued notice while requisitioning the case record and passed an interim order to the effect that petitioner should not be deported from India until further order(s).

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6. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record, including the record requisitioned from the Tribunal.

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7. Record discloses that Superintendent of Police (Border), Kokrajhar had made a reference to the Illegal Migrants (Determination) Tribunal, Kokrajhar on 30.07.1998 under Section 8 (1) of the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) suspecting the petitioner to be an illegal migrant i.e., a foreigner who had unauthorisedly entered into India after 25.03.1971.

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8. Chairman, Illegal Migrants (Determination) Tribunal, Kokrajhar passed an order dated 04.08.1998 for registration of the reference and to put up the same for necessary order as and when the Tribunal would be duly substituted. This was on 04.08.1998. No order was passed thereafter.

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9. IMDT Act was declared unconstitutional by the Supreme Court in Sarbananda Sonowal Vs Union of India reported in (2005) 5 SCC 665 with the further direction that the references which were pending before the Tribunals constituted under the IMDT Act should be transferred to the Tribunals constituted under the Foreigners Act, 1946 read with the Foreigners (Tribunals) Order, 1964 .

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10. On 29.07.2005, Chairman, Illegal Migrants (Determination) Tribunal, Kokrajhar passed an order to transfer the reference to the Foreigners Tribunal. Ultimately, the reference was placed before the Foreigners Tribunal, Kokrajhar. On 17.08.2009, notice was directed to be issued by the Tribunal. Thus, from 04.08.1998 to 17.08.2009 for more than 11 years there was no progress at all in the reference. Even notice to the petitioner was not issued.

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11. This is not all. After the reference was assigned to the Foreigners Tribunal, Kokrajhar, from 17.08.2009 till 21.12.2015 only notices were issued to the petitioner. Each time notice returned unserved, order was passed to issue fresh notice. This continued for years together. In fact even on 21.12.2015 as the service report returned unserved, notice was directed to be re-issued. Luckily, petitioner appeared thereafter before the Tribunal alongwith his counsel and sought for time to file written statement. Thus, thanks to the petitioner, notice was ultimately served. Had the petitioner not appeared on 21.12.2015, perhaps Tribunal would have continued to issue notice after fresh notice to the petitioner.

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12. From the above, we find that from 04.08.1998 to 17.08.2009 for long 11 years not even notice was issued to the petitioner. From 17.08.2009 to 21.12.2015 that is for a period of over six years, only notices were issued to the petitioner. Thus from 04.08.1998 till 21.12.2015 for long 17 years there was no progress at all in the reference. This is pathetic and is a sorry reflection of how the Tribunals be it the Illegal Migrants (Determination) Tribunal or the Foreigners Tribunal functioned during the said period. The learned Members who manned the Tribunals during that period did not show even an iota of urgency while dealing with the reference.

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13. Be that as it may, after the petitioner entered appearance, the reference gathered momentum.

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14. In his written statement filed before the Tribunal on 30.01.2016 petitioner stated that his father was Bahej Ali, son of Ahatulla, who was a voter in 1953. Petitioner became a voter in 2005. Petitioner referred to one school certificate of No. 1117 Kuwarjhar LP School, Gossaigaon and also to one link certificate issued by the Chairman of Harbhanga Gossaigaon Village Council Development Committee (VCDC). In the verification column, petitioner described himself as son of Late Bahej Ali, resident of village Harbhanga Gossaigaon under Gossaigaon Police Station in the district of Kokrajhar.

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15. This was all that the petitioner stated in his written statement which by any account was wholly inadequate to establish his identity as a citizen of India having regard to the mandate of Section 9 of the Foreigners Act, 1946 as explained by the Supreme Court in paragraph 26 of Sarbananda Sonowal (supra), which is extracted hereunder:-

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“26. There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country. In order to establish one's citizenship, normally he may be required to give evidence of (i) his date of 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-A(1)(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. If the State authorities dispute the claim of citizenship by a person and assert that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the aforesaid points. This is in accordance with the underlying policy of Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”

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16. Petitioner did not mention the date or year of his birth. Consequently, his age on the date of filing the written statement was not disclosed. There was also no disclosure regarding the place of birth of the petitioner. Petitioner did not mention the names of his mother and paternal grandparents, not to speak of his brothers and sisters, if any.

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17. Be that as it may, from whatever was disclosed by the petitioner what is discernible is that according to the petitioner his father Bahej Ali was a citizen of India and he being his son was therefore a citizen of India.

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18. Let us examine as to whether petitioner could prove the above facts in issue by adducing cogent, reliable and admissible evidence.

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19. Petitioner deposed before the Tribunal as his witness on 17.02.2016. This time he disclosed his age as 30 years. If the petitioner was 30 years of age in 2016, it would mean that he was born sometime in the year 1986. In his deposition, he stated that his father was born at village Bhasani Char in the erstwhile Goalpara district and presently Dhubri district. Father shifted from Bhasani Char to Harbhanga Gossaigaon sometime in 1975.

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20. Proceeding to the exhibits, we find that Ext. A is a certified copy extract of the voters list of 1953 in respect of Dhubri Constituency. Here one of the voters was Bahej Ali, son of Ahadulla, aged 32 years.

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21. Ext. B is stated to be a statement of voter details obtained from the office of the State Coordinator, National Register of Citizens (NRC) where the name of the voter was

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mentioned as Bahej Ali and he was shown as 32 years of age in the voting year 1953. Such a statement may not be admissible in evidence for more than one reason but it may not be necessary to enter into this aspect of the matter at this stage.

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22. Ext. F is stated to be a voters list of 1989 in respect of Kokrajhar West Constituency. Here the two voters were Bahej Ali, son of Ahatulla, aged 45 years; and Sobia Khatun, wife of Bahej, aged 30 years. They were shown as residents of Harbhanga Gossaigaon village under Gossaigaon Police Station.

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23. A comparison of Ext. A (1953) and Ext. F (1989) makes interesting reading. In Ext. A, Bahej Ali, son of Ahadullah was aged 32 years and he was a resident of Bhasani Char. Therefore, in 1989 he ought to have been 68 years of age. But in Ext. F (1989) Bahej Ali, son of Ahatulla was only 45 years of age, a significant difference. Moreover, the residence changed from Bhasani Char to Harbhanga Gossaigaon. Therefore, it is quite evident that Bahej Ali of Bhasani Char (1953) and Bahej Ali of Harbhanga Gossaigaon (1989) was not one and the same person.

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24. Petitioner relied upon three documents to establish linkage with Bahej Ali or Bahaj Ali. These three documents were – Ext. C certificate dated 20.11.2015 issued by the Chairman, Harbhanga Gossaigaon Village Council Development Committee (VCDC) certifying that Sayed Ali was the son of Bahaj Ali of Harbhanga Gossaigaon village; Ext. D certificate dated 02.09.1997 issued by the Head Teacher of No. 1117 Kuwarjhar LP School certifying that Md. Sayed Ali was the son of Md. Bahej Uddin Sk and that date of birth of Sayed Ali was 01.01.1974; and Ext. E PAN Card issued by the Income Tax Department in the name of Sayed Ali and Bahaj Ali.

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25. In so far exhibits C & D are concerned, the two documents were not proved by the respective authors. The Chairman of Harbhanga Gossaigaon VCDC did not depose before the Tribunal to prove Ext. C. That apart there is unauthorized use of the State Emblem of India at the top of this certificate. Chairman, VCDC is not authorized to use the State Emblem of India in any manner as per the provisions contained in the State Emblem of India

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(Regulation of Use) Rules, 2007 framed under the State Emblem of India ( Prohibition of Improper Use ) Act , 2005. Such unauthorized use of the State

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Emblem of India has rendered this certificate inadmissible in evidence. Therefore, this document besides not been proved is also inadmissible in evidence.

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26. In so far Ext. D is concerned, here also the State Emblem of India is embossed right at the top. Head Teacher of a primary school is not authorized to use the State Emblem of India in any manner as per the provisions contained in the State Emblem of India

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(Regulation of Use) Rules, 2007 . Such unauthorized use of the State Emblem of India has rendered Ext. D to be inadmissible in evidence. That apart, date of birth mentioned in school certificate would have to be proved on the basis of the school admission register and the testimony based thereon of the competent school authority. But as noticed above, the Head Teacher of the school did not appear before the Tribunal to prove Ext. D. The school admission register was also not produced.

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26.1. In Birad Mal Singhvi vs Anand Purohit reported in 1988 (Supp) SCC 604 Supreme Court held that entries in school certificate or school admission register would have to be proved on the basis of the testimony of the person on whose information the entries were so made. That being the position, Ext. D was neither proved nor was it admissible in evidence.

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27. This brings us to Ext. E which is stated to be an Income Tax PAN Card in the name of Sayed Ali and Bahaj Ali where the date 01.01.1974 was mentioned. There is no record of petitioner either filing Income Tax return or paying Income Tax. In such circumstances, sudden filing of an Income Tax PAN Card would certainly raise legitimate suspicion about the genuineness of the document itself. Besides furnishing of Income Tax PAN Card by itself is no proof of citizenship. In identical situation, this Court in the case of Md. Babul Islam-vs-State of Assam , WP(C) No. 3547/2016 decided on 09.05.2018 has held as under:-

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“20. These documents were not proved in accordance with law. That apart, we have grave doubts about the genuineness of the Income Tax Pan Card having regard to the provisions contained in Section-139 A of the Income Tax Act, 1961 read with Rule 114 of the Income Tax Rules, 1962. While Section 139 A provides for the categories of persons who are required to obtain Pan Card, Rule 114 and Form 49 A lay down the procedure for obtaining Pan Card. Without complying with the legal requirements as per the aforesaid provisions, sudden filing of Pan Card cannot be accepted and relied

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upon. In Mustt. Rabiya Khatun –vs- Union of India, WP ( C) No.4986/2016, decided on 09.02.2018, it was held as under:

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“17. Petitioner introduced Exhibit-5, a PAN card of the Income Tax Department wherein Rabiya Khatun was shown as related to Kurdus Ali and her date of birth was mentioned as 10.9.1974.

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17 A. Tribunal took the view that this PAN card could not be treated as trustworthy document. We concur with the view of the Tribunal for more than one reason. Firstly, petitioner is not an income tax payee. There is no record of filing of return of income tax by the petitioner at any point of time. That apart, petitioner appears to be from agricultural background. Agricultural income is exempt from the purview of the Income Tax Act, 1961. Therefore, obtaining of PAN card by the petitioner appears to be quite unusual.

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17 B. Secondly, this PAN card was not proved by tendering of evidence by the Income tax authority. Had a responsible officer of the income tax department deposed before the Tribunal , it would have been clear as to whether petitioner had indeed made any application for obtaining the PAN card and the particulars of such application. In the absence thereof, no credence can be given to such a PAN card.

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17 C. Thirdly, this PAN card categorically mentioned the date 10.9.1974, which may be presumed to be the date of birth of the card holder. If the date of birth was known to the petitioner, certainly the same should have been mentioned in the written statement as well as in the evidence-in-chief filed by way of affidavit. But that was not done.

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Therefore, this Exhibit-5 cannot be said to be a valid piece of evidence to establish that Kurdus Ali was a citizen of India and that Rabiya Khatun was the daughter of Kurdus Ali and thereby she was a citizen of India.”

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20.1. Again, in Gulbhan Begum –vs- Union of India, WP ( C) No. 583/2017, decided on 27.02.2018, this Court held as under:-

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“13. Exhibit-6 is stated to be a Pan Card issued by the Income Tax Department in the name of the petitioner where another name was mentioned as Kashem Sheikh. A date i.e. 01.10.1970 was mentioned in the said Card bearing Permanent Account No. CIVPB8591E. Petitioner is not an income tax payee. At least there is nothing on record to show filing of income tax return by the petitioner at any point of time. That apart, petitioner and her husband Amir Khari appear to be agriculturist. Under the Income Tax Act, 1961, agriculture is exempt from income tax. Therefore, when such a proceedee suddenly places on record a Pan Card stated to have been issued by the Income Tax Department and relies upon the same as proof of citizenship, it has to be examined with great deal of care, caution and circumspection. The authority which allegedly issued the Income Tax Pan Card in favour of the petitioner was not brought to

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the Tribunal to prove the fact that the petitioner had applied for the Income Tax Pan Card and that Income Tax Department had as a matter of fact issued the Pan Card to the petitioner. In the absence thereof, no reliance can be placed on exhibit-VI as a valid piece of evidence.”

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27.1. Therefore, no reliance can be placed on Ext. E.

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28. Net result of the above discussion is that petitioner had failed to discharge his burden under Section 9 of the Foreigners Act, 1946 to prove that he was not a foreigner but a citizen of India. Thus the narrative presented by the petitioner suffered from material contradictions rendering the same wholly improbable, besides not being proved.

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29. Resultantly, we do not find any merit in the writ petition which is accordingly dismissed. Interim order passed earlier stands vacated.

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30. Registry to send down the LCR forthwith and inform the concerned Foreigners’ Tribunal, Deputy Commissioner and Superintendent of Police (B) for taking necessary followup steps.

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31. Copies of this order may also be furnished to learned Standing Counsel, Election Commission of India and State Coordinator, NRC, Assam.

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JUDGE JUDGE

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Comparing Assistant

Sayed Ali Sheikh @ Soiyed Ali v. the Union of India and 7 Ors.

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Sayed Ali Sheikh @ Soiyed Ali v. the Union of India and 7 Ors.

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