Dismissed

Md. Kuddus Ali v. the Union of India and 6 Ors.

Gauhati HC21 May 2018WP(C)/6253/2016

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 bench held the petitioner failed to discharge the burden of proving his citizenship prior to 1971, as his documentary evidence was inadequate and uncorroborated.

What did the court decide?

The writ petition was dismissed; interim bail order was vacated; the petitioners were directed to pursue necessary follow-up steps.

Md. Kuddus Ali Vs the Union of India… — Constitutional and Fundamental Rights | Gauhati HC (2018)

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Page No.# 1/8

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GAHC010119912016

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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) 6253/2016

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1:MD. KUDDUS ALI

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S/O- LT. KULFAT ALI, VILL.- CHARLOK, P.S.- JAMUNAMUKH, DIST.NAGAON NOW HOJAI, 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 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 SHANKARDEV NAGAR ASSAM.

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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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Advocate for the Petitioner : MR.K MIRA

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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 : 21-05-2018

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(Ujjal Bhuyan, J)

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Heard Mr N Islam, learned counsel for the petitioner and Mr U K Nair, learned Senior Special

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Counsel, Foreigners’ Tribunal FT).

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By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of

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order dated 10.08.2016, passed by the Foreigners’ Tribunal, Nagaon Court No. 10^th at Doboka in FT

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(D) Case No. 173 /2015 (State –Vs- Md Kuddus Ali), declaring the petitioner to be a foreigner, who had illegally entered into India (Assam) from Bangladesh after 25.03.1971.

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This Court by order dated 06.10.2016, 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), Hojai, and furnishing of adequate surety.

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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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Before we proceed to examine the rival contentions in the light of the materials on record, it would be apposite to briefly advert to the impugned order passed by the Tribunal dated 10.08.2016.

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A perusal of the impugned order would go to show that Tribunal had considered the pleadings of the petitioner in his written statement, considered his testimony made before the Tribunal and appreciated the six documents exhibited by the petitioner. On appreciation of the evidence tendered by the petitioner, Tribunal came to the conclusion that the narrative of the petitioner was not supported by the evidence and, therefore, disbelieved the version of the petitioner. Thereafter, Tribunal answered the reference in favour of the State by declaring the petitioner to be a foreigner from the specified territory, i.e., present day, Bangladesh of post-24.03.1971 stream vide the order dated 10.08.2016.

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Such a finding returned by the Tribunal based on appreciation of evidence is a finding of fact. Ordinarily, a writ Court would not interfere with such a finding of fact because the jurisdiction exercised by the writ Court under Article 226 of the Constitution of India is supervisory and not appellate. The writ Court will certainly interfere if it is a case of violation of the principles of natural justice; if the procedure laid down under the Foreigners’ (Tribunals) Order, 1964 is not adhered to; or if there is improper or no appreciation of the evidence on record in which event, it would be a case of perversity. Other than the above circumstances, there is hardly any scope for the writ Court to interfere with an order passed by the Tribunal.

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Notwithstanding the same, to re-assure ourselves about the correctness or otherwise of the impugned order passed by the Tribunal, we have once again looked into the materials on record.

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In his written statement, petitioner stated that he was a voter of Jamunamukh constituency in the district of Nagaon in 2005, 2010 and 2014. His father was Kulfat Ali, whose name was enlisted in the voters’ list of Rupohihat constituency for the year 1965. Name of grandfather, Sabed Ali was included in the National Register of Citizens (NRC), 1951.

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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

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–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 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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Petitioner did not mention his date or year of birth. Consequently, there was no disclosure of his

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age in his written statement. He also did not mention the names of his paternal grandmother, mother, brothers and sisters, if any.

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Be that as it may, from whatever were disclosed by the petitioner in the written statement, what is discernible is that according to the petitioner, his grandfather, Sabed Ali was a citizen of India; so also his father Kulfat Ali. Being their grandson and son respectively, petitioner was, therefore, a citizen of India.

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

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Petitioner stated more or less the same thing in his evidence-in-chief, which he filed by way of affidavit. Here also, there was no disclosure of his year or date of birth and consequently his age.

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In his cross-examination, on 08.08.2016, petitioner stated for the first time that he was 60 years of age and referred to his father as Late Kurbat Ali. He stated that he was born at village Mahguri under

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Juria Police Station. While his grandfather was Subed Ali, his grandmother was Late Sarbanu, but he did not see them. While his father was Kurbat Ali, mother was Late Amena Khatun, who had expired when he was a small child. Father had expired in 1983. He had come to Charlok village under Jamunamukh Police Station about 15 (fifteen) years ago. He had married Musstt. Ayesha Khatun about 25 years ago.

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Thus, from the cross-examination, what is discernible is that petitioner was 60 years of age in 2016. This would mean that he was born sometime in the year 1956. If that be so, petitioner had become eligible to cast his vote in 1977, when he had attained 21 years of age. While mother expired when he was a small child, father died in 1983. He had come to Charlok village under Jamunamukh police station about 15 years ago, i.e., in the year 2001. He stated that his younger brother, Md Sayed Ali was the proceedee in FT (D) Case No. 172 of 2015. Petitioner exhibited in all six documents.

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It may be mentioned that by order dated 10.08.2016, Tribunal was of the opinion that Md Sayed Ali had absolutely failed to discharge his mandatory burden to prove that he was an Indian citizen and not a foreigner as envisaged in Section 9 of the Foreigners’ Act, 1946 and was of the opinion that he had illegally entered into India (Assam) from Bangladesh after 25.03.1971. Therefore, he was declared a foreigner of post 25.03.1971 stream. Against that order, Md Sayed Ali filed a writ petition before this Court being WP(C) No. 6774 of 2016, which was dismissed by a Division Bench of this Court on 16.05.2018. If younger brother has been held to be a foreigner, it would be a natural corollary that elder brother would also be a foreigner. Irrespective of that we have independently examined the documents filed by the petitioner.

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Exhibit-1 is a certified copy extract of the voters’ list of 2005 in respect of Jamunamukh constituency where the two voters were Kuddus Ali, son of Kulfat Ali; and Ayesha Khatun, wife of Kuddus Ali.

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Exhibit -2 is a certified copy extract of the voters’ list of 2010 in respect of Jamunamukh constituency, where Kuddus Ali and Ayesha Khatun were the two voters.

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This position continued in Exhibit-3, which was a certified copy extract of the voters’ list of 2014. Though there are discrepancies here and there in the age of the voters, we may overlook the same. However, we may note that in Exhibits- 1, 2 and 3, Kuddus Ali and Ayesha Khatun were residents of village Charlok under Jamunamukh Police Station in the district of Nagaon.

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Exhibit-4 is a certified copy extract of the voters’ list of 1965 in respect of Rupohihat constituency. Here, the two voters were Kulfat Ali, son of Subed Ali, aged 38 years; and Amena Khatun, wife of Kulfat Ali, aged 30 years. They were residents of village Mahguri under Rupohihat Police Station in the district of Nagaon.

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Question is whether Kulfat Ali of Exhibits- 1, 2 and 3, whose name appeared therein as father of Kuddus Ali was the same person as Kulfat Ali of Exhibit – 4. In Exhibits-1, 2 and 3, Kuddus Ali, son of Kulfat Ali was a resident of village-Charlok under Jamunamukh Polcie Station in the district of Nagaon, whereas, Kulfat Ali of Exhibit-4 was a resident of village Mahguri under Rupohihat Police Station, two different addresses altogether!. There is no other voters’ list where Kulfat Ali’s name appeared. According to the petitioner, Kulfat Ali had expired in 1983. Therefore, Kulfat Ali’s name ought to have appeared as a voter in the voters’ lists up to 1983. That apart, we have seen that petitioner became eligible to cast his vote in 1977 and as per his evidence he had come to Charlok village under Jamunamukh Police Station from Mahguri village in 2001. Therefore, there should have been at least one or two voters’ lists from 1977 to 1983 of Kuddus Ali and Kulfat Ali together, but there is no such voters’ list. Since petitioner claimed to have migrated in 2001, his name ought to have appeared in the voters’ list of Rupohihat constituency prior to 2001, but that is also not there. Therefore, it is not possible to co-relate Kuddus Ali of Exhibits- 1, 2 and 3 with Kulfat Ali of Exhibit-4.

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Exhibit-6 is a computer generated statement stated to have been obtained by the petitioner from the office of the State Coordinator of National Registration (NRC), Assam. This statement was in the name of Md Jubed Ali of Mahguri village. In the absence of linkage of Kuddus Ali with Kulfat Ali, Exhibit -5 can be of no assistance to the petitioner. That apart, in the absence of certification or authentication of a responsible officer of the department such a computer generated statement would have no evidentiary value. That apart, this statement has been generated on the basis of NRC, 1951, which was prepared under the Census Act, 1948. As per Section 15 of the Census Act, 1948, record of census are not open to inspection and thus, not admissible in evidence. Therefore, in Bhanbhasa Sheikh –Vs- Union of India , 1970 ALR 206 , a Single Bench of this Court had categorically held that NRC extract produced to prove domicile in India is not admissible in evidence for any purpose. In Abdul Majid –Vs- Union of India , WP(C) No. 6090/2016, disposed of on 15.03.2018, a Division Bench of this Court agreed with the decision rendered in Bhanbhasa Sheikh (supra) . Moreover, this document is being used in the NRC updation exercise, which is presently underway in the State of Assam. NRC updation exercise is at the draft stage. Therefore, at this stage, there is no conclusiveness or finality in Exhibit-5. That apart, according to the petitioner his grandfather was Sabed Ali but this document is in the name of Md Jubed Ali! There is nothing on record to show that Sabed Ali and Jubed Ali is one and the same person.

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This brings us to the last exhibit, i.e., Exhibit-6, which is a certificate dated 18.09.2015, issued by the Gaonburah of Charlok village. This certificate carries serial number 2869 of Book No. 28.

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This certificate was not proved in accordance with law. The Gaonburah, who had issued the certificate did not depose before the Tribunal and also did not produce the contemporaneous record to prove Exhibit-6. In the absence thereof, no reliance can be placed on Exhibit-6. Moreover, from the deposition of Kuddus Ali, we find that according to him, his father Kulfat Ali had expired in 1983 at village Mahguri and in 2001, he had shifted to village Charlok. Therefore, it is not understood as to

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how Gaonburah of Charlok village could have certified that Kuddus Ali was the son of Late Kulfat Ali of Charlok village. Therefore, no reliance can be placed on Exhibit-6.

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Net result of the above discussion is that petitioner was unable to prove his linkage with Kulfat Ali, whom he claimed to be his father reliable 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 6 –A 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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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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Registry to send down the LCR forthwith and inform the concerned Foreigners’ Tribunal, Superintendent of Police (Border) and Deputy Commissioner for taking necessary follow-up steps.

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A copy of this order may also be furnished to learned Standing Counsel, Election Commission of India and State Coordinator, National Register of Citizens (NRC), for doing the needful.

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JUDGE JUDGE

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Comparing Assistant

Md. Kuddus Ali v. the Union of India and 6 Ors.

Case brief

What is this about?

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Md. Kuddus Ali v. the Union of India and 6 Ors.

Case brief

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