Dismissed

Nasir Uddin v. the Union of India and 3 Ors.

Gauhati HC5 Apr 2018WP(C)/3728/2016

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed the writ petition seeking quashing of the Foreigners Tribunal's declaration. The court held the petitioner failed to prove his citizenship or lineage due to irreconcilable birth date discrepancies and flawed documentary evidence, including improper use of the State Emblem.

What did the court decide?

Writ petition dismissed; interim bail vacated; consequential orders issued for registry follow-up.

Nasir Uddin Vs the Union of India and… — Constitutional and Fundamental Rights | Gauhati HC (2018)

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Page No.# 1/9

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GAHC010018842016

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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) 3728/2016

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NASIR UDDIN

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S/O JALAL SK. @ JAJAJ UDDIN SK. VILL- FULKUMARI P.O. KHUDAIMARI P.S. GAURIPUR DIST. DHUBRI, ASSAM.

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VERSUS

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1:THE UNION OF INDIA and 3 ORS

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REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI-1.

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2:THE STATE OF ASSAM

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REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT

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DISPUR, GUWAHATI-6.

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3:THE DEPUTY COMMISSIONER

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DHUBRI, DIST. DHUBRI ASSAM.

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4:THE SUPERINTENDENT OF POLICE B DHUBRI, DIST. DHUBRI ASSAM .

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Advocate for the Petitioner : MR. M. MONDAL,

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MR. S. ISLAM

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Advocate for the Respondent : ASSTT. S.G.I.,

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MR. J. PAYENG, SPECIAL COUNSEL, FT.

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Page No.# 2/9

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BEFORE HON'BLE MR. JUSTICE UJJAL BHUYAN HON BLE MR. JUSTICE AJIT BORTHAKUR

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ORDER

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Date : 05-04-2018

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(Ujjal Bhuyan, J)

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Heard Mr. S. Islam, learned counsel for the petitioner and Mr. J. Payeng, learned Special Counsel, Foreigners Tribunal (FT).

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2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 17.10.2015 passed by the Foreigners Tribunal No.5, Dhubri in Case No. FT-5/G/11/2015 (Union of India Vs Nasiruddin) declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from Bangladesh after 25.03.1971.

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3. This Court by order dated 23.06.2016 had issued notice while requisitioning the case record and passed an interim order to the effect that petitioner should be allowed to remain on bail subject to his appearance before the Superintendent of Police (Border), Dhubri and furnishing of adequate surety.

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4. Learned counsel for the petitioner submits that Tribunal gave undue importance to the age discrepancy of the petitioner particularly in the voters list of 1993 where he was wrongly shown as 25 years of age to disbelieve the entire version of the petitioner which is not justified. He also submits that petitioner is an illiterate person and therefore he wrongly mentioned his age as 47 years in his evidence-in-chief filed by way of affidavit on 29.09.2015 which corresponds to his age in the 1993 voters list. Highlighting the age discrepancy between the petitioner and his children, Tribunal took a narrow and pedantic approach to answer the reference against the petitioner. According to him, petitioner could successfully prove his relationship with his father Jalal Uddin Sk who could be traced to a period prior to

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Page No.# 3/9

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25.03.1971. Therefore, petitioner had discharged his burden under Section 9 of the Foreigners Act, 1946 and in such circumstances, Tribunal ought to have answered the reference in favour of the petitioner.

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5. On the other hand, Mr. Payeng, learned Special Counsel submits that a discrepancy here and there is understandable but if there is a pattern to such discrepancy and the entire narrative is marred by material contradictions, then certainly the view taken by the Tribunal to disbelieve the version of the petitioner cannot be faulted. He submits that the crucial linkage of the petitioner with Jalal Uddin Sk was not proved on the basis of cogent, reliable and admissible evidence. Therefore, there is no error or infirmity in the finding returned by the Tribunal and no interference is called for.

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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. A perusal of the record reveals certain disturbing features. We find that the reference was initially made by the Superintendent of Police (Border), Dhubri under Section 8 (1) of the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) suspecting the petitioner to be an illegal migrant.

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8. Be it stated that under Section 3 (1) (c) of the IMDT Act, an illegal migrant was defined as a foreigner who had unauthorizedly entered into India after 25.03.1971. This reference was registered by the IMDT Tribunal, Dhubri on 25.05.1999 as IMDT Case No. 9401/D/1999. But from 25.05.1999 to 25.07.2005 for more than 6 years not a single order was passed by the IMDT Tribunal.

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9. In the meanwhile, the 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 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 . Thereafter the related reference was transferred to the then Foreigners Tribunal, Dhubri on 25.07.2005. From

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Page No.# 4/9

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25.07.2005 till 07.08.2015 for long 10 years not a single order was passed by the then Foreigners Tribunal, Dhubri. This is a most unfortunate reflection in the way the IMDT Tribunals and thereafter the Foreigners Tribunals functioned in the State of Assam. It is not for nothing that the Supreme Court in the Sarbananda Sonowal (II) case i.e. Sarbananda Sonowal Vs Union of India reported in (2007) 1 SCC 174 had adversely commented upon that there was lack of political will to expel illegal migrants from the State of Assam. It was only after creation of additional Tribunals in the year 2015 that the related reference was assigned to the Foreigners Tribunal 5^th , Dhubri (Tribunal) that the reference gathered momentum. Notice was issued on 11.08.2015.

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10. In response to notice, petitioner entered appearance before the Tribunal and filed written statement. In his written statement, petitioner stated that he was born at village Maspara under Bilasipara Police Station in the district of Dhubri. His father was Jalal Uddin @ Jalal Uddin Sk @ Jalal Sk @ Jalal @ Lt. Jalal Uddin Sk and his grandfather was Lt. Kapat @ Kashad. He also stated that he had landed property at village Fulkumari under Gauripur Police Station in the district of Dhubri. His name was entered in the voters list of 2015 in respect of Gauripur Constituency. Prior to that in 1993, he was a voter of Bilasipara West Constituency. Parents, namely, Jalal Uddin Sk and Akhiron Bibi were voters in 1966. Father’s name was included in the National Register of Citizens (NRC, 1951).

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11. Thus from the written statement though it was evident that petitioner had omitted several materials facts, such as, his date or year of birth and consequently his age, nonetheless from whatever was stated what is discernible is that according to the petitioner, his father Jalal Uddin @ Jalal Uddin Sk etc. was a citizen of India and he being the son of Jalal Uddin @ Jalal Uddin Sk etc. was therefore a citizen of India.

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12. Let us now examine as to whether petitioner could prove the above facts in issue by adducing cogent, reliable and admissible evidence. We take up fact in issue No. 2 first, i.e. whether petitioner, namely, Nasiruddin was the son of Jalal Uddin @ Jalal Uddin Sk

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because unless this relationship is proved it may not be necessary to delve into an examination of the citizenship status of Jalal Uddin @ Jalal Uddin Sk whom the petitioner claims to be his father.

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13. Petitioner filed his evidence-in-chief by way of affidavit on 29.09.2015 where he stated more or less the same thing as pleaded in the written statement. Additionally, petitioner disclosed his age as 47 years. Declaration of age by the petitioner was on oath before the Notary Public on being identified by a learned Advocate. If the petitioner was 47 years of age in 2015 as per his own declaration, it would mean that he was born sometime in the year 1968 (2015-47=1968). However, in the affidavit sworn in support of the writ petition on 16.06.2016 petitioner disclosed his age as 61 years which would mean that he was born sometime in the year 1955 (2016-61=1955). There is considerable discrepancy in the two years of birth of the petitioner, both declared by the petitioner himself on oath. Petitioner could not have been born in 1955 and in 1968 at one and the same time.

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14. Having noticed the initial discrepancy in age as above, we may also mention that certain questions were put to the petitioner by the Tribunal. In response thereto, petitioner stated that he did not know when his father died but he was very small at that point of time. He had two brothers and four sisters, namely, Akbaruddin, Sakaruddin, Jamirun, Omiran, Tamirun and Jamina. He further stated that he had married Jainara when he was 30 years of age. He had one son and three daughters. Son was Jainur and he was 30 years of age.

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15. Pausing here for a moment, we find that son Jainur was 30 years of age in 2015 which could mean that he was born in 1985. According to the petitioner himself he had married Jainara when he was 30 year of age. Now if we take the age of the petitioner as per his evidence-in-chief, we find that he was born in 1968 and he was 30 years of age in 1998. If he had married Jainara when he was 30 years of age in 1998, question of his son Jainur being 30 years of age in 2015 would not arise because that makes his year of birth 1985. He could not have been born in 1985 when his parents got married in 1998!

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Page No.# 6/9

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16. Leaving aside this absurdity for a moment, we may proceed to the documents filed by the petitioner. We find that petitioner had filed altogether six documents which were marked as Exts. 1 to 6. It is trite that mere filing of a document or marking of a document as exhibit does not amount to proof. The document as well as the contents of the document would have to be proved by adducing admissible evidence having relevance. That apart, truthfulness of the contents would also have to be proved.

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17. Ext. 1 is a certificate dated 25.08.2015 issued by the Secretary and President of Maspara-Sonkosh Gaon Panchayat certifying that Nasiruddin was the son of Jalal Uddin, an inhabitant of village Maspara in the district of Dhubri. The state emblem is embossed at the top (middle) of this certificate. The State Emblem of India (Regulation of Use) Rules, 2007 has been framed by the Central Government in exercise of powers conferred by Section 11 of the State Emblem of India ( Prohibition of Improper Use ) Act , 2005 . This Act was enacted by the Parliament to prohibit improper use of the state emblem of India. Section 3 specifically prohibits improper use of the state emblem.�It says that notwithstanding anything contained in any other law for the time being in force, no person shall use the emblem or any colourable imitation thereof in any manner which tends to create an impression that it relates to the Government or that it is an official document of the Central Government or the State Government, without the previous permission or authorisation. This section starts with a non-obstante clause meaning thereby that it has overriding effect over all the laws for the time being in force. Rule 5 provides that use of the official emblem is restricted to the authorities specified in Schedule-I. Rule 10 makes the restriction more specific. It says that no person, including former Ministers, former Members of Parliament, former Members of Legislative Assemblies, former Judges and retired Government officials (other than those authorized under the Rules) shall use the emblem in any manner. Sub-Rule (2) of Rule 10 clearly provides that no Commission or Committee, Public Sector Undertaking, Bank, Municipal Council, Panchayati Raj Institution, Non-Governmental Organization, University (other than those authorized under the Rules) shall use the emblem in any manner. Schedule-I to the Rules contains a list of constitutional and statutory authorities, ministries

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and departments of the Central Government, State Governments or Union Territory Administrations and other Government functionaries which may use the emblem.

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18. Therefore, Ext-1 certificate dated 26.08.2015 issued by the Secretary and President of Maspara-Sonkosh Gaon Panchayat where the state emblem of India is embossed at the top may not be accepted as a valid and acceptable document. Such improper use of the state emblem of India by itself renders this document in-admissible in evidence. That apart, we have noticed that the initial reference against the petitioner was made way back in the year 1999. This certificate was obtained 16 years thereafter in the year 2015. Such belated issuance of the certificate by itself will lead to legitimate doubts regarding the bonafides of such a certificate. Besides this, there is inherent contradiction in the certificate itself. Petitioner was shown as inhabitant of village Maspara in the year 2015 whereas in Ext-3 (extract of voters list of 2015) to which we will advert to shortly, Nasir Uddin is shown as resident of village 104 Fulkumari.

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19. Be that as it may, an important aspect is that the authors of the certificate did not testify before the Tribunal to prove not only Ext-1 but also the contents thereof. It was incumbent upon the authors of the certificate to have appeared before the Tribunal alongwith the contemporaneous record to prove Ext.1 and its contents. Failure to do so has rendered this document wholly redundant, besides being inadmissible.

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20. In the recent decision Rupjan Begum Vs Union of India reported in (2018) 1 SCC 579, Supreme Court has clearly held that such a certificate by the Gaon Panchayat Secretary is no proof of citizenship. It merely acknowledges shifting of residence of a married woman from one place to another. Here the petitioner is not a married woman but one Nasir Uddin. Supreme Court has further held that such a certificate has to be verified at two stages. The first stage of verification would be authenticity of the certificate itself and the second stage would be verification of the authenticity of the contents which process of verification is bound to be an exhaustive process in the course of which the source of information of all the

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facts and details recorded in the certificate will have to be ascertained. There is nothing on record to show that such verification had taken place. Viewed in the above context, under no circumstances Ext.1 can be taken into consideration.

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21. If this exhibit is excluded from consideration, there are only two documents which are indicative of a semblance of relationship between Nasir Uddin and Jalal Uddin Sk or Jalal. These two documents are Ext-3 and Ext. 4. Ext. 3 is a photostat copy of an extract of voters list of 2015, in respect of Gauripur Constituency. Here Nasir Uddin was shown as son of Jalal Sk and aged 59 years but interestingly, he was shown as a resident of village No. 104 Fulkumari which is contradictory to his residence as per Ext-1 (Maspara). Again, if Nasir Uddin was 59 years of age in 2015, it would mean that he was born sometime in the year 1956 which is contradictory to his own declaration of age in the evidence before the Tribunal (1968) and in the affidavit before this Court (1955). The same position is reiterated in Ext-4 which is an extract of voters list of 1993. But here Nasir Uddin was 20 years of age which would mean that he was born sometime in the year 1973, again a different year of birth. A discrepancy here and there is understandable but a person cannot have so many years of birth. That apart, Ext.3 was a voters list of Gauripur Constituency whereas Ext. 4 was of Bilasipara West Constituency with Nasiruddin shown as a resident of village No. 261 Mirarkuti, a different village altogether. But most importantly both exhibits 3 & 4 are photo copies (Ext.4 is photocopy of certified copy). Therefore, admissibility of such documents is questionable. In so far Ext.4 is concerned, no doubt certified copy is secondary evidence but contents of such secondary evidence would have to be proved by comparing with the primary evidence and on the basis of testimony of the lawful custodian of the primary evidence. Viewed in the above context, both Exts. 3 & 4 cannot be said to have been proved. Moreover, material inconsistencies as noticed above have marred whatever little credibility these two documents had.

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22. Therefore, crucial question of petitioner Nasir Uddin being the son of Jalal Uddin @ Jalal Uddin Sk @ Jalal etc. could not be established by the petitioner by adducing cogent, reliable and admissible evidence. Therefore, petitioner failed to prove this fact in issue. If this

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is the position, then it may not be necessary for us to examine fact in issue No. 2 i.e. whether Jalal Uddin @ Jalal Uddin Sk @ Jalal was a citizen of India or not.

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23. Resultantly, we are of the view 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.

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24. Writ petition is devoid of merit and is according dismissed.

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25. Interim order passed earlier stands vacated.

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26. 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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27. 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

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JUDGE

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Comparing Assistant

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aparna

Nasir Uddin v. the Union of India and 3 Ors.

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Nasir Uddin v. the Union of India and 3 Ors.

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