Dismissed

Khairul Islam and 3 Ors. v. the Union of India and 6 Ors.

Gauhati HC13 Jun 2018WP(C)/5232/2016

Case brief

AI extract

What is this about?

Bench dismissed the petition challenging the Foreigners Tribunal order declaring petitioners illegal foreigners, finding insufficient admissible evidence regarding their father's citizenship status due to contradictory records and untimely voter entries.

What did the court decide?

Writ petition dismissed seeking quashing of Foreigners Tribunal order; interim bail order vacated.

Khairul Islam and 3 Ors. Vs the Union… — Constitutional and Fundamental Rights | Gauhati HC (2018)

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GAHC010173262016

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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) 5232/2016

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1:KHAIRUL ISLAM and 3 ORS.

2: SHIRJAUL ISLAM

3: ASADUL ISLAM

4: FARIDA BEGUM

ALL ARE SON/DAUGHTER OF LT. NURUL ISLAM @ NOOR ISLAM @ NURUL R/O KHANDAPUKHURI THENGKHALI P.S. MIKIRBHETA DIST. MORIGAON ASSAM

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VERSUS

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1:THE UNION OF INDIA and 6 ORS

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TO BE REP. BY THE SECRETARY GOVT. OF INDIA, DEPARTMENT OF HOME AFFAIRS NEW DELHI, INDIA

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2:THE STATE OF ASSAM TO BE REP. BY THE SECRETARY TO THE GOVT. OF ASSAM DEPARTMENT OF HOME DISPUR GUWAHATI -6.

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3:THE SUPERINTENDENT OF POLICE B MORIGAON DIST. MORIGAON ASSAM.

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4:THE SUPERINTENDENT OF POLICE B

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NAGOAN DIST. NAGAON ASSAM.

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5:THE DEPUTY COMMISISONER MORIGOAN DIST. MORIGAON ASSAM.

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6:MD. HAZMAT ALI GOANGURAH KHANDAPUKHURI THENGKHALI S/O LT. MOINA SHEIKH VILL- KHANDAPUKHURI P.O. MIKIRHETA P.S. MIKIRBHETA DIST. MORIGAON ASSAM PIN - 782106.

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7:SAYED NURULLAH KAZI S/O LT. ABDUL KHALEQUE VILL- KHANDAPUKHURI P.O. MIKIRBHETA P.S. MIKIRBHETA DIST. MORIGOAN ASSAM PIN - 782106

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Advocate for the Petitioner : MR.M A I HUSSAIN

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Advocate for the Respondent : GA, ASSAM

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BEFORE

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HONOURABLE MR. JUSTICE UJJAL BHUYAN HONOURABLE MR. JUSTICE NELSON SAILO

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ORDER

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Date : 13-06-2018

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Ujjal Bhuyan, J.

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This case was heard on 15.05.2018 and today is fixed for delivery of order.

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We have heard AR Bhuiya, learned counsel for the petitioners and Mr. J Payeng, learned Special Counsel, Foreigners Tribunal (FT).

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Four petitioners have joined together and have instituted the present proceeding. Petitioner Nos.1, 2 and 3 are the sons of Lt. Nurul Islam @ Noor Islam @ Nurul whereas,

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petitioner No.4 is the daughter of Lt. Nurul Islam @ Noor Islam @ Nurul.

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In this writ petition, petitioners have assailed the legality and correctness of the order dated 20.02.2015, passed by the Foreigners Tribunal No.3, Morigaon in FT (C) Case No.40/2015 (State of Assam Vs. Minuja Khatoon and Ors.), declaring the proceedees to be foreigners who had illegally entered into India (Assam) from Bangladesh after 25.03.1971.

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It may be mentioned that Minuja Khatoon is the mother of the petitioners. She had filed a separate writ petition, being WP(C) No.4012/2016, which was dismissed by this Court vide judgment and order dated 15.05.2018. Thus the order of the Tribunal dated 20.02.2015 in respect of Minuja Khatoon, the mother of the petitioners declaring her to be an illegal foreigner has been affirmed by this Court.

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Notwithstanding the same, we have independently looked into the case of the petitioners as their claims to citizenship of India would be through their father, who, according to them, is Lt. Nurul Islam @ Noor Islam @ Nurul.

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This Court by order dated 07.09.2016 had issued notice while requisitioning the case record and passed an interim order to the effect that petitioners should be allowed to remain on bail subject to their appearance before the Superintendent of Police (Border), Morigaon and furnishing of adequate surety.

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Sri Kamal Ch. Das, Deputy Superintendent of Police (Border), Morigaon has filed an affidavit on behalf of Superintendent of Police (Border), Morigaon, respondent No.3 supporting the order passed by the Tribunal and seeking dismissal of the writ petition.

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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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Record discloses that initially reference was made by the Superintendent of Police (Border), Morigaon on 08.12.2003 before the Illegal Migrants (Determination) Tribunal under Section 8(1) of the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) suspecting the petitioners to be illegal migrants as defined under the said Act i.e., foreigners who had unauthorizedly entered into India after 25.03.1971. The reference was registered as IMDT Case No.559/2003.

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It may be mentioned that in Sarbananda Sonowal Vs. Union of India , reported in (2005) 5 SCC 665 , Supreme Court declared the IMDT Act to be unconstitutional with the further direction that references which were pending before the Tribunals constituted under the IMDT Act should be transferred to the Foreigners Tribunals constituted under the Foreigners Act, 1946 read with the Foreigners (Tribunals) Order, 1964. Resultantly, the related reference came to be assigned to the Foreigners Tribunal No.3^rd , Morigaon (Tribunal) where, it was reregistered as FT(C) Case No.40/2015.

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In their written statement jointly filed on 16.09.2015, it was stated that petitioners were sons and daughter of Lt. Nurul Islam, son of Lt. Abdul Adut. Abdul Adut and Nurul Islam were citizens of India. Therefore, petitioners were citizens of India.

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Proceedee No.1 i.e., Minuja Begum deposed as DW-1. We may not deal with her deposition because that was already dealt with in WP(C) No.4012/2016. Petitioner No.1 Khairul Islam deposed as DW-2. He stated that his father’s name was Nurul Islam though he was also known as Nur Islam. Grandfather was Abdul Adut.

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One Md. Nurul Amin deposed as DW-3. He claimed to be the younger brother of Nurul Islam, paternal uncle of the petitioners. He stated that his brother Nur Islam was an under-matric and that Nurul Islam had expired in the year 1999.

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Proceeding to the exhibits, we find that Exts-1, 2, 3 and 5 relating to Menura Begum (Minuja Begum), have already been dealt with in WP(C) No.4012/2016.

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Ext-4 is a death certificate dated 21.11.2000 certifying that Nurul Islam had died on 10.10.1999.

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Ext-6 is a statement of voter details stated to have been obtained from the State Coordinator, National Register of Citizens (NRC). Here the name of the voter was Nur Islam and he was shown as 28 years of age corresponding to the voting year 1965, thus year of birth being 1937. This Court has held that NRC 1951 was prepared on the basis of the Census Act, 1948. Section 15 of the Census Act clearly says that no person shall have a right to inspect any book, register or record made by the Census Officer in the discharge of his duty and notwithstanding anything to the contrary in the Indian Evidence Act, 1872, any entry in such book, register or record shall not be admissible as evidence in any civil or in any criminal

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proceeding whatsoever. In the light of the above, it was held in Bhanbhasa Sheikh vs. Union of India , reported in ALR 1970 Assam and Nagaland 206 that entry in NRC, 1951 is not admissible in evidence. This view has been affirmed and reiterated by a Division Bench of this Court in Abdul Mazid Vs. Union of India , WP(C) No.6090/2016 , disposed of on 15.03.2018. That apart, this is a computer generated statement without any certification or authentication of a responsible officer of the department which is in violation of Section 65 B (4) of the Indian Evidence Act. Therefore, no reliance can be placed on Ext-6.

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Ext-7 is an admit card of the Board of Secondary Education, Assam admitting Nural Islam (ii) to High School Leaving Certificate Examination, commencing from 14.03.1966. It was stated that his age as on 01.03.1966 was 17 years 6 months. The said certificate was in the name of BD Sarma, Controller of Examination, Board of Secondary Education, Assam (SEBA) but by using seal, the name of BD Sarma was replaced by KC Deka. Be that as it may, from this document it would appear that Nural Islam was born on 01.10.1948.

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There is another admit card issued by SEBA to Nurul Islam, son of Abdul Adud Munshi. Interestingly in both the admit cards there are no dates. Moreover, neither it was pleaded nor testified in evidence as to which school Nurul Islam or Nural Islam had studied and from where he had appeared in the High School Leaving Certificate Examination firstly in 1966 and secondly in 1968. These two certificates therefore do not inspire the confidence of the Court and as such was rightly rejected by the Tribunal. However, we may note that if indeed Nural Islam or Nurul Islam was born on 01.10.1948, he was eligible to be a voter in 1969 when he would have completed 21 years of age. Viewed in this context, the entry in Ext-6 where Nur Islam was shown as 28 years of age in the voting year 1965 does not appear to be correct as he should not have been a voter in 1965.

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Ext-8 is a certified copy extract of the voters list of 1970 in respect of Raha Constituency where one of the voters was Nur Islam, son of A Adut, aged 28 years. If Nur Islam was 28 years of age in 1970, it would mean that he was born sometime in the year 1942 which contradicts the age mentioned in the two admit cards i.e., Exts-7 and 8 (01.10.1948) and contradictory to Ext-6 (1937) as discussed above.

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Ext-9 is a copy of periodic patta where one of the pattadars was Nur Islam. Likewise,

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Ext-10 is a land sale deed dated 01.02.1950 where one of the parties to the sale was Nur Islam.

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These two documents would be of no assistance to the petitioners unless linkage with Nur Islam or Nurul Islam is established. But one interesting fact is that as per admit card, Nurul Islam or Nur Islam was born on 01.10.1948; therefore, in 1950 he would have been only 2 years of age. At the age of 2 years, a person could not have entered into a sale agreement or a sale deed.

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Ext-11 is a certified copy extract of the voters list of 1965 in respect of Raha Constituency where one of the voters was Nur Islam, son of A Adut, aged 28 years. As discussed above, if Nurul Islam was born on 01.10.1948 as per admit card, he would have been 17 years of age in 1965 and, therefore, not eligible to be a voter. On the other hand, if the age of Nur Islam as indicated in Ext-II is accepted, it would mean that Nurul Islam was born sometime in the year 1937 which would be contrary to the date of birth as per the two admit cards. Either way, both cannot be correct.

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The other documents are all relating to the petitioners showing them to be either sons or daughter of Nurul Islam. Likewise, Ext-16 is a copy of Jamabandi of surveyed villages where one of the pattadars was Nurul Islam but his name was struck off from the list of pattadars. In this Jamabandi Khairul Islam, Asadul Islam and Sirajul Islam were shown as pattadars being sons of Lt. Nur Islam.

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Firstly, there is great deal of confusion whether Nurul Islam or Nural Islam or Nur Islam was one and the same person. Even if we ignore the discrepancies in name, the pleadings and evidence relating to Nural Islam, Nurul Islam or Nur Islam suffers from material contradictions rendering the presence of the said person as an Indian citizen highly questionable. Infact, presence of Nurul Islam or Nural Islam or Nur Islam on Indian soil relating to a period prior to 25.03.1971 was not proved. Therefore, linkage of the petitioners with the said person whom they claimed to be their father besides not being proved by adducing any cogent, reliable and admissible evidence, was also made redundant because of the question mark over the status of Nural Islam @ Nural Islam or Nur Islam himself as an Indian citizen.

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In such circumstances, we find no good ground to interfere with the impugned order passed by the Tribunal.

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Consequently, writ petition being devoid of any merit is dismissed.

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Interim order passed earlier stands vacated.

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Registry to send down the LCR forthwith and inform the concerned Foreigners Tribunal, Deputy Commissioner and Superintendent of Police (Border) for necessary follow-up steps.

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A copy of this order be furnished to learned Standing Counsel, Election Commission of India and State Coordinator, NRC.

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JUDGE JUDGE

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Biplab

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Comparing Assistant

Khairul Islam and 3 Ors. v. the Union of India and 6 Ors.

Case brief

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Khairul Islam and 3 Ors. v. the Union of India and 6 Ors.

Case brief

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