Dismissed

Foyzal Hoque v. the Union of India and 4 Ors.

Gauhati HC5 Jun 2018WP(C)/6781/2016

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a writ petition challenging a Foreigners Tribunal order declaring the petitioner a foreigner. The court held the petitioner failed to conclusively prove citizenship through unreliable voter records and an inadmissible, unauthorized State Emblem certificate, thus failing to discharge the burden under Section 9 of the Foreigners' Act.

What did the court decide?

Writ petition dismissed; order impuginating tribuinal declaration upheld; bail order vacated.

Foyzal Hoque Vs the Union of India and 4 Ors. — Civil Procedure and Limitation | Gauhati HC (2018)

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GAHC010121172016

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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) 6781/2016

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1:FOYZAL HOQUE

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S/O. POROSH ALI SHEIKH @ POROSH ALI, VILL. ASHUDUBI, P.O. and P.S. KRISHNAI, DIST. GOALPARA, ASSAM.

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VERSUS

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1:THE UNION OF INDIA and 4 ORS

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

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2:THE STATE OF ASSAM REP. BY THE COMM. and SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY.-06.

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3:THE DY. COMMISSIONER GOALPARA DISTRICT ASSAM.

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4:THE SUPDT. OF POLICE B GOALPARA DIST. GOALPARA ASSAM.

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5:THE OFFICER IN CHARGE KRISHNAI POLICE STATION DIST. GOALPARA ASSAM

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Advocate for the Petitioner : MR.M ALI

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Advocate for the Respondent :

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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 : 05-06-2018

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(Ujjal Bhuyan, J)

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This case was heard on 09.05.2018 and today is fixed for delivery of order(s).

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Heard Mr M U Mahmud, learned counsel for the petitioner and Mr A Kalita, learned Special Counsel, Foreigners’ Tribunal (FT).

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By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 29.08.2016, passed by the Foreigners’ Tribunal No. 2, Goalpara, in FT Case No. 55/K/2016 (Union of India –Vs- Foyzal Hoque ), 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 17.11.2016 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), Goalpara and furnishing of adequate surety.

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Sri Biswajit Goswami, Additional Deputy Commissioner, Goalpara, has filed an affidavit on behalf of Deputy Commissioner, Goalpara, 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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In his written statement filed before the Tribunal on 06.06.2016, petitioner stated that he was born and brought up at village Beldubi, under South Salmara Police Station in the district of Dhubri. His father was Parash Ali Sheikh @ Porosh Ali, who was a voter of South Salmara Constituency in the

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year 1966 as well as in the year 1970. Father was a voter of 1979 as well. Petitioner’s name appeared as a voter for the first time in the year 1989 in respect of Jaleswar Constituency and, thereafter, in 1997. In 2005, he was enrolled as a voter of Dudhnoi constituency, where he was marked as a doubtful (D) voter. In the supporting affidavit, petitioner disclosed his age as 35 years.

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If the petitioner was 35 years of age in 2016, it would mean that he was born sometime in the year 1981. If the petitioner was born in 1981, he could not have been a voter in 1989, when he was 8 years old or in 1997, when he was 16 years old. Therefore, the narrative of the petitioner as disclosed in the written statement is suspect and appears to be highly improbable.

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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 Parash Ali Sheikh @ Porosh Ali was his father and he was a citizen of India. Being the son of Porosh Ali Sheikh @ Porosh Ali, petitioner was, therefore, a citizen of India.

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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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Petitioner filed his evidence-in-chief by way of affidavit on 24.08.2016. Here also, he disclosed his age as 35 years, which would mean that he was born sometime in the year 1981. This would belie his statement that he became a voter in 1989 because at that point of time petitioner was only 8 years of age.

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Petitioner also made oral deposition before the Tribunal, where he stated that his grandfather was Late Bhomor Ali, whereas grandmother was Shahatun Bibi. He stated that he was born at village Beldubi, under South Salmara Police Station but shifted to Ashudubi village about 17 years ago along with his parents. This would mean that petitioner shifted to Ashudubi sometime in 1999 along with his parents. Thus, parents were alive in 1999. He also stated that he had cast his vote 3 to 4 times at

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Beldubi before shifting. In other words, he had cast his vote 3 to 4 times prior to 1999, when he was 18 years old.

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Proceeding to the documents, we find that though the petitioner filed a number of documents those were not proved. As a result, those documents were not exhibited. Nonetheless, for the ends of justice, we have decided to examine the documents filed by the petitioner before the Tribunal.

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Document No. 1 was a certified copy extract of the voters’ list of 1966, in respect of South Salmara constituency. Here, Porosh Ali Sheikh, son of Bhomor Ali, aged 23 years was one of the voters. He was shown as resident of No. 99 Beldubi village. According to the petitioner, Porosh Ali Sheikh was his father.

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Document No. 2 was a certified copy extract of the voters’ list of 1970 in respect of South Salmara Constituency. Here also, one of the voters was Porosh Ali, son of Bhomor Ali, aged 27 years. According to the petitioner, Porosh Ali and Porosh Ali Sheikh was one and the same person and he was his father.

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At this stage we may mention that neither in the written statement nor in the evidence-in-chief, petitioner mentioned the name of his mother.

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Petitioner filed photocopies of some voters’ list, which were neither certified copies nor authenticated. A careful and conjoint reading of Sections 63, 65 (e) and (f) and 74 of the Indian Evidence Act, 1872, would show that in so far voters’ list is concerned, in the absence of the primary evidence, i.e., the original copy of the voters’ list, only certified copy would be admissible in evidence. Therefore, no reliance can be placed on the other copies of voters’ list.

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Petitioner filed one certificate dated 26.05.2016, issued by the Secretary of Beldubi Gaon Panchayat, certifying that Faizal Haque was the son of Late Porosh Ali Sheikh of village Beldubi. This certificate was pressed into service by the petitioner to establish his linkage with Porosh Ali Sheikh,

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who was a voter in 1966, but we are afraid no reliance can be placed on the said document. Firstly, according to the testimony of the petitioner, he had left Beldubi village and shifted to Ashudubi village along with his parents around 1999, because of erosion. In 2016, petitioner was not a resident of village Beldubi. Therefore, it is not understood as to how the Gaon Panchayat Secretary could have issued the above certificate to a person, who was not a resident within his jurisdiction.

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18.1. Secondly, the said certificate was marked as a linkage certificate. In Rupjan Begum –Vs Union of India ; reported in (2018) 1 SCC 579, Supreme Court has noted that Gaon Panchayat Secretaries were authorized to issue linkage certificates to married women, who reside in different village after marriage. Petitioner is Foyzal Hoque. Certainly, he is not a married woman. Therefore, this certificate cannot be used as a linkage certificate in respect of the petitioner.

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18.2. Thirdly, the Secretary of the Gaon Panchayat did not depose before the Tribunal along with the contemporaneous record to prove this certificate as well as the contents thereof. Therefore, this certificate was not proved.

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18.3. Finally, we notice embossing of the State Emblem of India at the top of this certificate. Under Rule 10 (2) of the State Emblem of India (Regulation of Use) Rules, 2007 framed under the State Emblem of India (Prohibition of Use) Act, 2005, Panchayati Raj Institutions, such as, Gaon Panchayats, are expressly prohibited from using the State Emblem of India in any manner whatsoever. As such, the use of the State Emblem of India by the Gaon Panchayat Secretary was totally unauthorized. Such unauthorized use of the State Emblem of India has rendered this certificate inadmissible in evidence.

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18.4. Therefore, the certificate dated 26.05.2016, besides not being proved was also inadmissible in evidence.

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Net result of the above discussion is that petitioner had failed to establish his linkage with Porosh Ali Sheikh or Porosh Ali, whom he claimed to be his father, relatable to a period, prior to 25.03.1971,

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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 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 served upon 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

Foyzal Hoque v. the Union of India and 4 Ors.

Case brief

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Foyzal Hoque v. the Union of India and 4 Ors.

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