Dismissed

Giyas Uddin v. Union of India and 4 Ors.

Gauhati HC7 Jun 2018WP(C)/7567/2016

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a writ petition seeking to quash an order declaring the petitioner a foreigner. The court found the petitioner failed to prove citizenship under the Foreigners Act, 1946, due to suspicious discrepancies in voter lists and inadequate evidence.

What did the court decide?

Writ petition dismissed; interim order not to deport vacated; case remitted for follow-up steps.

Giyas Uddin Vs Union of India and 4 Ors. — Constitutional and Fundamental Rights | Gauhati HC (2018)

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GAHC010032912016

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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) 7567/2016

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1:GIYAS UDDIN

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S/O. BAHAR ALI, R/O. VILL. ASHUDUBI, P.O. and P.S. KRISHNAI, DIST. GOALPARA, ASSAM.

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VERSUS

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1:UNION OF INDIA and 4 ORS.

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REP. BY THE SECRETARY OF THE MINISTRY OF HOME AFFAIRS, GOVT. OF ASSAM, 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 DEPTT. DISPUR GUWAHATI-6.

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3:THE DEPUTY COMMISSIONER GOALPARA DIST. ASSAM.

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4:THE SUPERINTENDENT 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 U MAHMUD

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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 : 07-06-2018

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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 H Das, learned counsel for the petitioner and Mr J Payeng, 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 16.08.2016, passed by the Foreigners’ Tribunal No. 2, Goalpara, in FT (2) Case No. 57/K/2016 ( Union of India –Vs- Md Giyasuddin), declaring the petitioner to be a foreigner, who had illegally entered into India (Assam) from Bangladesh after 25.03.1971.

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Following the aforesaid order passed by the Tribunal on 16.08.2016, petitioner was taken into custody.

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This Court by order dated 20.12.2016 had issued notice while requisitioning the case record and passed an interim order to the effect that petitioner should not be deported from India until further order(s).

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An affidavit has been filed by Sri Biswajit Goswami, Additional Deputy Commissioner, Goalpara, on behalf of the Deputy Commissioner, Goalpara, respondent No. 3, supporting the impugned 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 under the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) by the Superintendent of Police (Border), Goalpara, suspecting the petitioner to be an illegal migrant as defined under the said Act, i.e., a foreigner, who had unauthorizedly entered into India after 25.03.1971.

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IMDT Act was declared unconstitutional by the Supreme Court in Sarbananda Sonowal –VsUnion of India; (2005) 5 SCC 665, with the further direction that those 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. Resultantly, the related reference came to be assigned to the Foreigners’ Tribunal No. 2, Goalpara (Tribunal), where it was re-registered as Case No. FT (2) 57/K/2016.

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In his written statement filed before the Tribunal on 13.06.2016, petitioner stated that he was born and brought up at village- Kathuri under Lakhipur Police Station in the district of Goalpara. His grandfather was a voter of Goalpara West Constituency in 1966 and 1970. Father became a voter of Jaleswar Constituency in 1979, 1989 and 1997. Petitioner’s name was entered in the voters’ list of Dudhnoi constituency in 2005, but he was marked as a doubtful (D) voter. In the supporting affidavit, he identified himself as son of Bahar Ali and aged about 31 years.

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This was all that the petitioner stated in his written statement, which by any account was wholly inadequate to establish the identity of the petitioner 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 (supra), 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

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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 even disclose the names of his grandfather and father. Though he disclosed his father’s name as Bahar Ali in the supporting affidavit, but according to the petitioner, father became a voter from 1979 onwards. Though he stated that his grandfather was a voter in 1966 and 1970, there was no disclosure as to the names of his grandfather and grandmother. Mother’s name was also not disclosed; so also that of his brothers and sisters, if any.

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Petitioner filed his evidence-in-chief by way of affidavit on 11.08.2016. This time, he disclosed the names of his grandfather and grandmother as Joynal Abedin and Bhanu Nessa. But again, there was no disclosure as to the name of his mother. So, we do not know as to who is the mother of the petitioner.

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Petitioner also made oral deposition before the Tribunal. This time, he stated that they were two brothers, i.e., himself and Zakir Hussain; and three sisters, i.e., Phulchand Bewa, Asma Khatun and Goleja Khatun. He also disclosed the name of his wife as Saleha Khatun.

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Though petitioner relied upon a number of documents, none of these documents were proved and exhibited. Notwithstanding the same, we have looked into those documents.

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Document No. 1 is a certified copy extract of the voters’ list of 1966 in respect of Goalpara West constituency. Here, the two voters were Joynal Abedin and Bhanu Nessa, who were residents of Kathuri village under Lakhipur Police Station.

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Document No. 2 is stated to be a certified copy extract of the voters’ list of 1970, in respect of Goalpara West constituency, where the three voters were Joynal Abedin, Bhanu Nessa and Badshah. They were shown as aged about 4, 3 and 2 years respectively. On the face of it, this document does not at all inspire the confidence of the Court and does not appear to be genuine.

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Document No. 3 is stated to be a certified copy extract of the voters’ list of 1979, in respect of Jaleswar constituency, where the voters were Joynal Abedin, Bhanu Nessa, Badshah, Ayful and Bahar Ali. They were shown as residents of Kathuri village.

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Document No. 4 is stated to be a certified copy extract of the voters’ list of 1989, in respect of Jaleswar constituency, where the voters were Bahar Ali, Rahela Khatun, wife of Bahar Ali, Bahadur Ali, Faziron Nessa and Habibur Rahman. If we compare document No. 3 and document No. 4, we will notice significant discrepancies in the age of the voters and also the omission of Joynal Abedin and Bhanu Nessa from the voters’ list of 1989.

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Document No. 5 is stated to be a certified copy extract of the voters’ list of 1997, in respect of Jaleswar constituency. Here, the two voters were Bahar Ali and Rahela Khatun, wife of Bahar Ali, and they were residents of village Kathuri. If we compare document No. 4 with document No. 5, we will notice significant discrepancies in the age of the two voters, Bahar Ali and Rahela Khatun.

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Petitioner introduced a voter identity card, where the elector’s name was mentioned as Giyasuddin and the relation’s name was mentioned as Bahar Ali. But this document was not proved.

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Thus, the narrative presented by the petitioner is not at all convincing and appears to be very suspicious. In such circumstances, we are not at all inclined to accept the version of the petitioner.

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At this stage, we may mention that petitioner subsequently filed extracts of voters’ list of 2005, 2011 and 2015, where the voters were Bahar Ali, Johura Khatun, wife of Bahar Ali, and Giyasuddin, son of Bahar Ali, all residents of Kathuri village. Firstly, in the previous voters’ lists the wife of Bahar

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Ali was Rahela Khatun. Now, it becomes Johura Khatun. That apart, in 2005 voters’ list of Dudhnoi constitutency, Bahar Ali, Jahura Khatun, Giyasuddin and Sahera Khatun were marked as doubtful (D) voters. They were shown as residents of Ashudubi village. If that be so, then, certified copies of the voters’ list of the above three voters, i.e., Bahar Ali, Jahura Khatun and Giyasuddin could not have been issued post 2005, that too, as residents of Kathuri village.

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In such circumstances, the narrative presented by the petitioner appears to be wholly improbable besides being suspicious and on that basis, it cannot be said that petitioner had discharged his burden under Section 9 of the Foreigners’ Act, 1946, to prove that he was not a foreigner, but a citizen of India. Neither his brother nor his sisters came forward to depose before the Tribunal in his favour.

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Therefore, 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

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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

Giyas Uddin v. Union of India and 4 Ors.

Case brief

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Giyas Uddin v. Union of India and 4 Ors.

Case brief

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