Dismissed

Kitabuddin v. State of Assam and 3 Ors.

Gauhati HC10 May 2018WP(C)/7664/2016

Case brief

AI extract

What is this about?

Writ petition seeking quashing of an order by the Foreigners Tribunal declaring the petitioner a foreigner who illegally entered India after 1971. The High Court held the petitioner failed to prove citizenship under Section 9 of the Foreigners Act, 1946, and dismissed the petition.

What did the court decide?

Writ petition dismissed; order of Foreigners Tribunal upheld; interim order vacated.

Kitabuddin Vs State of Assam and 3 Ors. — Constitutional and Fundamental Rights | Gauhati HC (2018)

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Page No.# 1/6

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GAHC010235192016

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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) 7664/2016

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1:KITABUDDIN

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S/O KADER ALI, VILL. DHAIGAON, P.S. DUDHNOI, DIST- GOALPARA, ASSAM, PIN-783124

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VERSUS

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1:STATE OF ASSAM.

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

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2:THE DY. COMMISSIONER GOALPARA P.O. and P.S. GOALPARA ASSAM PIN- 783121

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3:THE SUPERINTENDENT OF POLICE B GOALPARA P.O. and P.S. GOALPARA ASSAM PIN- 783121

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4:THE UNION OF INDIA REP. BY THE SECY. TO THE GOVT. OF INDIA MINISTRY OF HOME AFFAIRS NEW DELHI-

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Advocate for the Petitioner : MR.D SARMA

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Advocate for the Respondent : GA, ASSAM

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BEFORE HONBLE MR. JUSTICE UJJAL BHUYAN HON BLE MR. JUSTICE NELSON SAILO

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Date : 10-05-2018

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( Ujjal Bhuyan, J .) O R D E R

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

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2 . By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 19.12.2015 passed by the Foreigners Tribunal No.1, Goalpara in FT Case No. 251/G/2006 (Union of India Vs. Kitabuddin) declaring the petitioner to be a foreigner, who had illegally entered into India (Assam) from the specified territory i.e., present day Bangladesh on or after 25.03.1971.

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3. Notice in this case was issued on 22.12.2016. While requisitioning the case record, an interim order was passed 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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4. One Anowar Hussain, Deputy Superintendent of Police (Border), Goalpara has filed an affidavit on 20.06.2017 on behalf of Superintendent of Police (Border), Goalpara, respondent No.3. In the said affidavit, respondent No.3 has supported the order passed by the Tribunal and has sought for dismissal of the writ petition.

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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 initially, Superintendent of Police (Border), Goalpara had made the reference to the Illegal Migrants (Determination) Tribunal, Goalpara on 19.09.1998 under Section 8(1) of the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) suspecting the petitioner to be an illegal migrant. Be it stated that under Section 3(1)(C) of the IMDT Act, an illegal migrant was defined as a foreigner who had illegally entered into India after 25.03.1971. However, record discloses that there was no progress of the reference at all before the Illegal Migrants (Determination) Tribunal, Goalpara.

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7. In Sarbananda Sonowal Vs. Union of India, (2005) 5 SCC 665, Supreme Court declared the IMDT Act as unconstitutional with the direction that 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. Thereafter, the related reference was transferred to the then Foreigners Tribunal, Goalpara.

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8. On 10.09.2009, because of consistent default of the petitioner, the then Foreigners Tribunal, Goalpara had answered the reference in favour of the State by declaring the petitioner to be an illegal migrant by an ex parte order.

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9. It appears that an application was filed 6 years thereafter in the year 2015 for setting aside the ex parte order dated 10.09.2009 on the ground of illness. The then learned Member, Foreigners Tribunal No.1, Goalpara (Tribunal) mechanically recalled the ex parte order dated 10.09.2009 vide order dated 30.09.2015 whereafter the reference was re-heard.

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10. In his written statement filed before the Tribunal, petitioner stated that he was born and brought up at village Bolla under Dudhnoi Police Station in the district of Goalpara. Grandfather, grandmother and uncle of the petitioner were enrolled as voters in 1970 in respect of Dudhnoi constituency but interestingly names of grandfather, grandmother and uncle were not disclosed. Petitioner’s name was enlisted as a voter of Dudhnoi constituency in 1997. It was mentioned that petitioner’s name was Kitabuddin but he was also known as Kitabuddin Sheikh.

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11. 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 (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

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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

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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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12. From whatever was disclosed by the petitioner in his written statement, what is discernible is that he claimed to be a citizen of India because his grandfather and grandmother were voters of 1970 but without disclosing their names. In fact, father’s name was also not disclosed.

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13. Petitioner filed evidence-in-chief by way of affidavit on 17.12.2015 where he disclosed his age as 43 years which would mean that he was born sometime in the year 1972. In this evidence-in-chief, petitioner disclosed the name of his grandfather as Jiaruddin Sheikh and grandmother as Malati Bibi. He also disclosed his father’s name as Abdul Kader @ Kader Ali.

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14. Petitioner was subjected to cross-examination. From his cross-examination, what is relevant to note is that according to the petitioner, his mother Kobjan Nessa was still alive. Petitioner had 7 brothers and 1 sister and all of them were living together at Dhaigaon. He stated that in 1997, he had cast his vote.

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15. Pausing here for a moment, we find that according to the petitioner, his mother was Kobjan Nessa, who was alive. He further stated that he had 7 brothers and 1 sister. Interestingly, none of the brothers and sisters or for that matter the mother came to depose before the Tribunal where petitioner was facing a proceeding relating to his citizenship. Such conduct of the mother, brothers and sister, if indeed they were so related, was contrary to normal human behaviour.

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16. Proceeding to the exhibits, we find that Ext. A is a certified copy extract of the voters list of 1961. This document is completely torn and was rightly discarded by the Tribunal. In this document, two names are visible, namely, Jiaruddin Sheikh and Malati Nessa.

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17. Ext. B is a certified copy extract of the voters list of 1970 in respect of Dudhnoi constituency. This exhibit contains names of 6 voters including Jiaruddin Sheikh, Malati Nessa

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and Abdul Kader.

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18. We have noticed that according to the petitioner, Jiaruddin was his grandfather and Abdul Kader @ Kader Ali was his father.

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19. These were the only two documents which were exhibited by the petitioner before the Tribunal. Even if we accept these two documents at their face value, there is nothing on record to establish linkage of the petitioner with either Abdul Kader or Jiaruddin Sheikh of Ext. B, whom the petitioner claimed to be his father and grandfather.

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20. At this stage, we may mention that petitioner had filed photocopies of voters list extracts of 1989, 1997, 2005 and 2007. These documents were only photocopies of voters lists; neither the original nor the certified copies. Therefore, such documents have got no evidentiary value. Even then, we have considered these documents but instead of coming to the aid of the petitioner, these documents have only added to the improbability of the narrative presented by the petitioner.

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21. In the voters list of 1997, names of Kader Ali, Kobjan Nessa and Kitabuddin appear. While Kader Ali was 48 years of age, Kobjan Nessa was 36 years of age but Kitabuddin was 28 years of age. According to the petitioner, Kobjan was his mother. From this document, we find that age difference between Kobjan Nessa and Kitabuddin was only 8 years. In other words, if this document is accepted at its face value, it would mean that Kobjan Nessa was 8 years of age when she had given birth to Kitabuddin which is an impossibility.

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22. In such circumstances, we are of the view that 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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23. Resultantly, we do not find any merit in the writ petition to warrant interference with the impugned order passed by the Tribunal. Consequently, writ petition is dismissed. Interim order passed earlier stands vacated.

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

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25. 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

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Comparing Assistant

Kitabuddin v. State of Assam and 3 Ors.

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Kitabuddin v. State of Assam and 3 Ors.

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