Dismissed

Md. Kabir Ahmed v. the Union of India and 7 Ors.

Gauhati HC21 May 2018WP(C)/5860/2016

Case brief

AI extract

What is this about?

Gauhati High Court dismissed a writ petition challenging a Foreigners Tribunal order declaring the petitioner a post-1971 illegal foreigner. The Court held that the petitioner failed to discharge his burden of proof under the Foreigners Act, rejecting all produced documents including a birth certificate, school records with improper State Emblem usage, and voters lists for failing to meet legal ev

What did the court decide?

Petition dismissed; interim order passed earlier stands vacated.

Md. Kabir Ahmed Vs the Union of India and 7… — Pension and Retirement Benefits | Gauhati HC (2018)

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GAHC010118922016

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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) 5860/2016

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1:MD. KABIR AHMED

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S/O- MD. BATAN MIYA, VILL.- MARJONG PATHER, P.S.- MURAJHAR, NAGAON NOW HOJAI, ASSAM.

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VERSUS

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1:THE UNION OF INDIA

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TO BE REP. BY SECY. TO THE GOVT. OF INDIA, HOME DEPTT., NORTH BLOCK, NEW DELHI.

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2:STATE OF ASSAM

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TO BE REP. BY COMMISSIONER and SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY- 6.

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3:ADDL. DIRECTOR GENERAL OF POLICE ASSAM BORDER BHANGAGARH GHY- 5.

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4:DY. COMMISSIONER

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NAGAON ASSAM.

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5:DY. COMMISSIONER HOJAI SHANKARDEVNAGAR.

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6:SUPERINTENDENT OF POLICE BORDER NAGAON ASSAM.

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7:SUPERINTENDENT OF POLICE BORDER HOJAI ASSAM.

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8:OFFICER-IN-CHARGE MORAJHAR POLICE STATION P.O. and P.S.- MORAJHAR HOJAI ASSAM

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Advocate for the Petitioner : MS.L WAJEEDA

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

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BEFORE

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

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Date : 21-05-2018

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( Ujjal Bhuyan, J .)

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O R D E R

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This case was heard on 26.04.2018 and today is fixed for delivery of order.

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2. We have heard Mr. N. Islam, 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 29.04.2016 passed by the Foreigners Tribunal, Nagaon Court No.7^th at Lanka in FT/L/Case No.38/2015 (State Vs. Kabir Ahmed) 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. This Court by order dated 05.10.2016 had issued notice while requisitioning the case record and passed an interim to the effect that petitioner should be allowed to remain on bail subject to his appearance before the Superintendent of Police (Border), Hojai and furnishing of adequate surety.

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5. 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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6. Record discloses that reference was made by the Superintendent of Police (Border), Nagaon suspecting the petitioner Kabir Ahmed, son of Baten Mia, to be an illegal foreigner of post 25.03.1971 stream. The reference was made on 05.01.2011. It was registered before the then Foreigners Tribunal, Hojai as Case No. FT/H/1487/2012 on 14.12.2012 issuing notice to the proceedee (petitioner) fixing 03.06.2013 for appearance and filing of written statement. However, order-sheet does not disclose any order passed thereafter by the then Foreigners Tribunal, Hojai. For more than 2 ½ years, there was complete standstill. It was only after creation of additional Tribunals that the reference was assigned to the newly constituted Foreigners Tribunal, Nagaon Court No.7^th at Lanka (Tribunal) on 26.08.2015 that the reference gathered momentum. Before the Tribunal, the reference was re-registered as FT/L/Case No.38/2015.

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7. In his written statement filed before the Tribunal, petitioner stated that he was born at village Marjong Pathar where he used to permanently reside. His parents were citizens of India. He was born on 30.11.1975 and had studied in Marjong Pathar Primary School. Parents were voters in 1966 and 1970. Petitioner became a voter in 2010.

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8. 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 Vs. Union of India, (2005) 5 SCC 665, 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

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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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9. In so far written statement is concerned, petitioner did not even mention the names of his parents though he contended that they were citizens of India. He also did not mention the names of his paternal grandparents, brothers and sisters, if any. Thus crucial material facts were not pleaded because of which adverse inference may be drawn against the petitioner.

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

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11. 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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12. Petitioner filed his evidence-in-chief by way of affidavit on 05.10.2015. In this affidavit, he disclosed his father’s name as Botu Mia but there was no disclosure of his mother’s name. In his cross-examination, he mentioned that his mother was late Jayatun Bibi and paternal grandfather’s name was late Ansar Ali.

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13. Proceeding to the exhibits, we find that Ext.1 is a birth certificate dated 19.03.2009 issued by the Registrar, Births and Deaths, Lanka. As per this certificate, Md. Kabir Ahmed (petitioner) was born on 30.11.1975 to Jaytun Bibi and Batu Mia. The certificate was issued on the basis of information taken from the original record of birth maintained by Lanka PHC. Registration of birth was made on 04.12.1995, i.e., after 20 years and date of issue was 19.03.2009, 14 years after registration.

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13.1. This Court in Safiur Rahman Vs. Union of India, 2017 (5) GLT 836, has held that a birth certificate to show linkage with father and date of birth will have to be proved in accordance with law keeping in mind the provisions contained in the Registration of Births and Deaths Act, 1969 and the Assam Registration of Births and Deaths Rules, 1999; otherwise, it will have no probative value.

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13.2. As per Section 8 of the Registration of Births and Deaths Act, 1969, it is the duty of all

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persons to furnish information to the Registrar about births and deaths in the family. As per Section 13(1), any birth of which information is given to the Registrar after expiry of the period specified but within 30 days of its occurrence, shall be registered on payment of such late fee as may be prescribed. Sub-Section (2) thereof provides that any birth or death of which detailed information is given to the Registrar after 30 days but within one year of its occurrence shall be registered only with the written permission of the prescribed authority on payment of the prescribed fee and production of an affidavit. Under Sub-Section (3), any birth or death which has not been registered within one year of its occurrence, shall be registered only on an order made by the Magistrate of the First Class after verifying the occurrence of birth or death and on payment of prescribed fee.

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13.3. As noticed above, date of birth of Md. Kabir Ahmed was recorded in Ext.1 as 30.11.1975. Date of registration is 04.12.1995, i.e., after 20 years and date of issue is 19.03.2009, i.e., after 14 years.

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13.4. Author of the said certificate did not testify before the Tribunal by producing the original record of Lanka PHC to prove the contents of the said certificate. In Safiur Rahman (supra), this Court has held that a certificate sought to be relied upon by a proceedee will have to be proved in accordance with law keeping in mind the provisions contained in the Registration of Births and Deaths Act, 1969, otherwise it will have no probative value.

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13.5. Therefore, Ext.1 certificate has got no evidentiary value and no reliance can be placed thereon.

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14. Ext.2 is a certificate dated 02.05.2000 issued by the Head Teacher of Jalolia Primary School certifying that Md. Kabir Ahmed, son of late Md. Batu Mia had studied in the said school up-to 31.12.1985. On 31.12.1985 he was 10 years 1 month old. Therefore, as per this certificate, Md. Kabir Ahmed was the son of late Batu Mia and he was 10 years 1 month old on 31.12.1985 which would mean that he was born on 30.11.1975.

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14.1. This document cannot be accepted as a valid piece of evidence for more than one reason. Firstly, the State Emblem of India is embossed at the top of this certificate with the motto ”Satyameva Jayate” written in a distorted manner contrary to the statutory format. As per Rule 10(2) and Schedule-1 of the State Emblem of India (Regulation of Use) Rules, 2007

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framed under Section 11 of the State Emblem of India (Prohibition of Improper Use) Act, 2005, Head Teacher of a primary school is not authorized to use the State Emblem of India in any manner. Therefore, such unauthorized use of the State Emblem of India would render Ext.2 inadmissible in evidence. Moreover, as noticed above, motto “Satyameva Jayate” was written in the certificate in a crescent format whereas statute prescribes that it has to be written in bold and straight Devanagari script below the profile of the Lion capital. Such distorted use of the State Emblem is a clear take away that this document may not be genuine, in addition to being inadmissible in evidence.

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14.2. That apart, this certificate was issued 15 years after petitioner had left the school which again raises legitimate concern about the bona fides of this document. Moreover, the Head Teacher of the school did not depose before the Tribunal along with the school admission register to prove Ext.2 and its contents. It is a settled position in law that date of birth recorded in school certificate or school register would have no evidentiary value unless person who made the entry or who gave the information relating to the date of birth is examined. Therefore, Ext.2 besides not being proved is also inadmissible in evidence.

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15. Exhibits 3, 4 and 5 are voters lists extracts of Batu Mia whereas Ext.6 is a voters list of Kabir.

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16. Ext.7 is a copy of jamabandi where the petitioner was recorded as a pattadar following order of the revenue authority dated 01.07.2001.

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17. Ext.8 is an Elector Photo Identity Card in the name of Kabir Ahmed with the relation’s name mentioned as Batu Mia.

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18. Ext.9 is a photo copy of Ration Card issued in the name of Kabir Ahmed by Borbali Cooperative Society Ltd. Bereft of linkage with Batu Mia, this document would be of no assistance to the petitioner and cannot be relied upon to prove one’s citizenship.

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19. Ext.10 is an affidavit sworn by the petitioner on 05.10.2015 stating that he was the son of Batu Mia. Such a self-serving suo moto affidavit is neither proof nor evidence as per Sections 1 and 3 of the Indian Evidence Act, 1872 read with Order 19 Rule 1 of the Code of Civil Procedure, 1908.

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20. The last exhibit is Ext.11. It is a certificate dated 03.06.2015 issued by the President

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and Secretary of Choudhury Bazar Gaon Panchayat certifying that Kabir Ahmed was the son of Batu Mia. This certificate also has the State Emblem of India embossed at the top but without the motto “Satyameva Jayate” written below it. This again is a clear take away that this document also may not be genuine. That apart, under Rule 10(2) of the State Emblem of India (Regulation of Use) Rules, 2007, Panchayati Raj Institutions like Gaon Panchayats are expressly debarred from using the State Emblem of India in any manner. Therefore, such unauthorized use of the State Emblem of India, that too in a distorted manner, is a clear take away that this document may not be genuine, besides being not admissible in evidence.

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20.1. That apart, in Rupjan Begum Vs. Union of India, (2018) 1 SCC 578 , Supreme Court has held that certificate of a Gaon Panchayat Secretary is a link document meant for married women to show linkage with her parents. Here, Kabir Ahmed is not a married woman. Therefore, this certificate cannot be treated as a link document. In Rupjan Begum (supra), Supreme Court has clarified that such a document by itself is no proof of citizenship. It has to be verified at two stages. At the first stage, there has to be verification as to the genuineness of the document and at the second stage authenticity of the contents would have to be verified. There is nothing on record to show that such a verification exercise was carried out. As a matter of fact, neither the President nor the Secretary of the Gaon Panchayat deposed before the Tribunal by producing contemporaneous record to prove Ext.11 as well as contents thereof. Therefore, Ext.11 was not proved, besides being inadmissible in evidence.

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21. Net result of the above discussion is that petitioner had failed to establish his linkage with Batu Mia whom he claimed to be his father relatable to a period prior to 25.03.1971 which is the cut-off date for identification of foreigners in the State of Assam as per Section 6A of the Citizenship Act, 1955, as amended. Thus, 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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22. 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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23 . Registry to send down the LCR and inform the concerned Foreigners Tribunal,

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Superintendent of Police (B) and Deputy Commissioner for taking necessary follow-up steps.

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

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JUDGE JUDGE