Bench dismissed petition challenging Foreigners Tribunal order declaring petitioner a foreigner. Court held petitioner failed to prove citizenship linkage prior to cutoff date; interim deportation stay vacated.
Writ petition dismissed; interim order of stay on deportation vacated.
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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GAHC010018112016
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 3547/2016
1:MD. BABUL ISLAM
S/O LT. ALAL UDDIN, VILL. BHELOUGURI PATHAR, P.O. MODERTOLI, P.S. DOBOKA, DIST- NAGAON, ASSAM
VERSUS
1:THE STATE OF ASSAM AND 4 ORS
REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM, HOME DEPTT., DISPUR, GHY-6
2:THE DIRECTOR GENERAL OF POLICE ASSAM ULUBARI GHY-7
3:THE SUPERINTENDENT OF POLICE B NAGAON DIST- NAGAON ASSAM
4:THE OFFICER IN CHARGE DOBOKA P.S. DIST- NAGAON ASSAM
5:THE UNION OF INDIA REP. BY THE SECY. TO THE GOVT. OF INDIA MINISTRY OF HOME AFFAIRS NEW DELH
Advocate for the Petitioner : MR.B K DAS
Advocate for the Respondent :
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BEFORE HONBLE MR. JUSTICE UJJAL BHUYAN HON BLE MR. JUSTICE NELSON SAILO
JUDGMENT
Date : 09-05-2018
(Ujjal Bhuyan, J)
This case was heard on 19.04.2018 and today is fixed for delivery of order.
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ought to have been shown as son of Eudel Sheikh but it was not so. That apart, Alal Uddin was 65 years of age in 1997 which would mean that he was born sometime in the year 1932 in which event he was eligible to be a voter in 1953. Therefore, in 1966 as well as in 1970, he should have been a voter along with his father Eudel Sheikh. But both Eudel Sheikh and Alal Uddin were conspicuous by their absence in 1966 and 1970 voters lists.
“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.
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.
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.
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 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.”
20.2 In so far Exhibit-7 Elector Photo Identity Card is concerned, besides not being proved, it is a post 25.03.1971 document. Besides, merely producing such an identity card in the absence of supporting evidence would not be proof of citizenship.
20.3. But the crucial point is that even if we take the contents of these documents at their face value, it only shows that Babul Islam was the son of Ala Uddin or related to Alal Uddin. But Alal Uddin’s presence in India is traceable only to Exhibit-3 i.e. 1997. Beyond 1997, the linkage is obfuscated.
cannot be a proof of citizenship.
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the assistance of the petitioner. That apart, as noticed above, this document only links the petitioner with Alal Uddin but Alal Uddin is traceable in India only to 1997 and not beyond.
JUDGE JUDGE
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Comparing Assistant
2 issues framed by the court
Whether the petitioner discharged his burden under Section 9 of the Foreigners Act to prove he was not a foreigner.
Whether the petitioner established linkage with an Indian parent or grandparent relatable to the period prior to 25.03.1971.
Colour shows how this judgement treated each authority
2 provisions across 2 enactments
Md. Babul Islam
State of Assam
Director General of Police Assam
Superintendent of Police Nagaon
Union of India
Ujjal Bhuyan
Nelson Sailo
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
