Dismissed

Borhan Ali @ Barhan Ali v. the Union of India and 3 Ors.

Gauhati HC8 Jun 2018WP(C)/7669/2016

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging a Foreigners Tribunal order declaring the petitioner a foreigner. The Court found the petitioner failed to prove lineage to a resident of Assam prior to 1971. Reliance on uncertified voter lists, inadmissible NRC certificates, and uncorroborated affidavit evidence was rejected. The burden under Section 9 of the Foreigners Act was not met.

What did the court decide?

Writ petition dismissed; interim bail order vacated.

Borhan Ali @ Barhan Ali Vs the Union of India and 3… — Writ and Judicial Review | Gauhati HC (2018)

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GAHC010123662016

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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) 7669/2016

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1:BORHAN ALI @ BARHAN ALI S/O. HAYAT ALI, R/O. VILL. KHOPNIKUCHI, P.S. HAJO, DIST. KAMRUPRURAL, ASSAM, PIN. 781102.

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VERSUS

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1:THE UNION OF INDIA and 3 ORS.

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REP. BY THE MINISTRY OF HOME AFFAIRS, NEW DELHI.

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2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER and SECRETARY TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GUWAHATI-6.

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3:THE SUPERINTENDENT OF POLICE B KAMRUPRURAL P.O. AMINGAON DIST. KAMRUPRURAL ASSAM PIN. 781031.

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4:THE DEPUTY COMMISSIONER KAMRUPRURAL P.O. AMINGAON DIST. KAMRUPRURAL ASSAM PIN. 781031

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Advocate for the Petitioner : MR.S HOQUE

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Advocate for the Respondent : GA, ASSAM R. 2,3,4

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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 : 08-06-2018

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( Ujjal Bhuyan, J .)

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This case was heard on 10.05.2018 and today is fixed for delivery of order.

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2. We have heard Mr. A.R. Sikdar, learned counsel for the petitioner and Mr. A. Kalita, learned 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 26.10.2016 passed by the Foreigners Tribunal No.4, Kamrup (Rural) at Hajo in H.F.T Case No.395/2015 (State Vs. Md. Borhan 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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4. This Court by order dated 22.12.2016 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), Kamrup 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. Shri Nandan Sharma, Deputy Superintendent of Police (Border), Kamrup has filed an affidavit on behalf of Superintendent of Police (Border), Kamrup (Rural), i.e., respondent No.3 supporting the impugned order passed by the Tribunal and seeks dismissal of the writ petition.

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7. Mr. Sikdar, learned counsel for the petitioner, submits that petitioner had discharged his burden under Section 9 of the Foreigners Act, 1946. Therefore, Tribunal was not justified in answering the reference against the petitioner. Referring to Ext. A Annual Khiraj Patta, he submits that the same was in the name of his grandfather Kosimuddin Kha. This document is of the year 1925-1926. Under Section 90 of the Indian Evidence Act, 1872 (Evidence Act), since this document is more than 30 years old, it must be accepted as a genuine and valid

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document. There was no objection to this document by the State. In this connection, he has placed reliance on a decision of the Supreme Court in Oriental Insurance Co. Ltd Vs. Premlata Shukla, (2007) 13 SCC 476. He further submits that voters list is a public document within the meaning of Section 35 of the Evidence Act and, therefore, admissible in evidence. It is not necessary to call in evidence the author or the persons supplying the information to prove its genuineness. In this connection, Mr. Sikdar has placed reliance on a decision of the Orissa High Court in Ganesh Swain Vs. Nakadi Swain, AIR 1983 Orissa 279.

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8. On the other hand, learned Special Counsel Mr. Kalita submits that burden was on the petitioner to prove his linkage with his projected father and grandfather relatable to a period prior to 25.03.1971 since that 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.

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8.1. In so far reliance placed by learned counsel for the petitioner to Section 90 of the Evidence Act is concerned, he submits that to accept such a document, it is essential that person who seeks benefit of Section 90 must prove production of the document from proper custody. Mere presentation of a document claiming it to be 30 years old or more would not suffice. Moreover, this provision will come into play only if linkage is established with Kosimuddin Kha.

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8.2. In so far decision of the Orissa High Court in Ganesh Swain (supra) is concerned, Mr. Kalita submits that no doubt voters list is a public record within the meaning of Section 35 of the Evidence Act. In case reliance is sought to be placed on such a document, it has to be a certified copy in which event it will be secondary evidence. Any other copy of such a document which is neither primary evidence nor secondary evidence would be inadmissible.

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9. 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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10. In his written statement filed before the Tribunal on 08.01.2016, petitioner stated that his grandfather was Kosimuddin Kha. He possessed a plot of land at village Bangalpara under Borkhetri Mouza in the then district of Kamrup. His father was Hayat Ali whose name was included in the National Register of Citizens (NRC), 1951. Hayat Ali’s name was enlisted in the

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voters list of 1966 in respect of Chenga constituency. Petitioner became a voter in 1970 of the said constituency. His parents were also voters. Petitioner’s name appeared in the voters list of 1997 in respect of Hajo constituency. In the verification column, petitioner disclosed his age as 61 years. If the petitioner was 61 years of age in 2016, it would mean that he was born sometime in the year 1955.

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11. Thus, from the written statement, what is discernible is that according to the petitioner, his grandfather was Kosimuddin Kha and his father was Hayat Ali. They were citizens of India. Being their grandson and son respectively, petitioner was, therefore, a citizen of India.

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12. 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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13. Petitioner has filed his evidence-in-chief by way of affidavit on the same day, i.e., on 08.01.2016 declaring his age as 61 years meaning thereby that he was born sometime in the year 1955. Petitioner stated more or less the same thing as stated in the written statement. Additionally, he clarified that his grandfather’s actual and correct name was Kosimuddin but in various documents, he was mentioned as Kosi Kha or Kosin instead of Kosimuddin. According to him, Kosimuddin, Kosi Kha and Kosin was one and the same person who was his grandfather.

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13.1 Certain questions were put by the Tribunal to the petitioner which were inadvertently marked as cross-examination by the Tribunal. In response to such queries, he stated that he had been casting his vote in Borkhetri constituency since 1970. He was born at village Bagnaputa. His father had expired about 8-10 years ago which would mean between 20062008. He stated that he had three brothers, namely, Rejak Ali, Sorab Ali and Sukur Ali. He also stated that his mother’s name was Ajarjan who had cast her vote. He further stated that in 1970 and twice thereafter, he had cast his vote at Bangalpara village but from 1992 onwards he had been casting vote from Khoponikuchi village as he had shifted to the said village in 1985.

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14. One Abdul Matlib who identified himself as the Gaonburah also filed evidence-in-chief as DW2 in favour of the petitioner. We will advert to the evidence of the Gaonburah when we

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discuss the certificate issued by him.

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15. Proceeding to the exhibits, we find that Ext. A is a copy of annual Khiraj Patta in the name of Kosimuddin Kha which was granted to him in the year 1925/1926 by the Settlement Officer, Kamrup. No other entry in this document is legible. According to the petitioner, this Kosimuddin Kha was his grandfather.

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16. Ext. B is a copy of National Register of Citizens (NRC), 1951 containing the names of Hayat Ali, son of Kosi Kha; and Atakjan, wife of Hayat Ali. This copy of NRC, 1951 was issued by the President of Kamrup District Jamiat-E-Ulema-E-Hind on 31.01.1969.

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16.1. This document is not admissible in evidence. NRC, 1951 was prepared on the basis of the Census Act, 1948. Section 15 of the Census Act says that record of census is neither open to inspection nor admissible in evidence.

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16.2. In Bhanbhasa Sheikh Vs. Union of India, 1970 Assam LR 206, a Single Bench of this Court held that entry in NRC is not admissible in evidence. In that case also, similar certificate was issued by the Tezpur District Jamiat-E-Ulema-E-Hind.

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16.3. As held in Bhanbhasa Sheikh (supra), this is a document issued by a private organization and is, therefore, not a public document. Therefore, such a document issued by a private organization and coupled with the prohibitory mandate of Section 15 of the Census Act, would be inadmissible in evidence. This position has been affirmed by a Division Bench of this Court in Abdul Majid Vs. Union of India, WP(C) No.6090/2016 decided on 15.03.2018.

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17. Ext. C is a photostat copy of a certified copy of voters list of 1966 in respect of Chenga constituency where one of the voters was Hayat Ali, son of Kochi Kha.

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18. Ext. D is an extract of the voters list of 1970 in respect of Chenga constituency (not photocopy of certified copy). Here the voters were:-

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Sl. No. 671 Borhan Ali, son of Hayat, aged 21 years;

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Sl. No.672 Hayat Ali, son of Kashim, aged 42 years;

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Sl. No.673 Atakjan, wife of Hayat, aged 30 years.

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19. Ext. E is a photostat copy of the certified copy of the voters list of 1997 in respect of Hajo constituency where the sole voter was Borhan Ali; son of Hayat Ali, aged 45 years..

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20. All these documents were not proved. They were merely marked as exhibits C, D and E.

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21. At this stage, we may advert to the decision of the Orissa High Court in Ganesh Swain (supra). That was an appeal against a preliminary decree for partition. In the context of that case, reliance was placed on an entry in the voters list. Trial Court did not place any reliance on the voters list on the ground that two of its pages did not bear any seal of the Panchayat office or election office but instead had the seal of the Sadar Police Station without signature. Orissa High Court held that voters list prepared under the Representation of the People Act, 1951 was a public record within the meaning of Section 35 of the Evidence Act and a public document within the meaning of Section 74(1)(iii) of the Evidence Act and was, thus, admissible in evidence. It was, therefore, not necessary to call in evidence the author thereof or the person supplying the information to prove its genuineness.

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21.1. With respect, we are unable to agree with the above observations of the Orissa High Court. It is no doubt true that voters list is a public record within the meaning of Section 35 of the Evidence Act and is a public document within the meaning of Section 74(1)(iii) of the Evidence Act. Section 61 of the Evidence Act says that contents of documents may be proved either by primary or by secondary evidence. This Section does not make any distinction between a public document and a private document. Therefore, when a party seeks to rely upon a document, the contents of the document would have to be proved either by primary or by secondary evidence.

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21.2. What is primary evidence is dealt in Section 62 of the Evidence Act. Primary evidence means the document itself produced for the inspection of the Court. Section 63 deals with secondary evidence. Secondary evidence means and includes certified copies.

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21.3. Ordinarily, a document has to be proved by primary evidence (please see Section 64). But in certain cases enumerated in Section 65 of the Evidence Act, secondary evidence may be given of the existence, condition or contents of a document when the original is a public document within the meaning of Section 74 [Section 65(e)]; when the original is in

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possession or power of any person legally bound to produce it but despite notice under Section 66, such person does not produce it [Section 65(a)]; when the original is a document of which a certified copy is permitted by the Evidence Act or by any other law in force to be given in evidence [Section 65(f)]:, etc. This Section itself mentions that when the original is a public document within the meaning of Section 74 or when the original document is a document of which a certified copy is permitted by law to be given in evidence i.e., clauses (e) and (f), a certified copy of the document but no other kind of secondary evidence is admissible.

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21.4. As noticed above, Section 66 requires giving of notice to the party in possession of the document to produce the same before the Court.

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21.5. That brings us to Section 76 of the Evidence Act. Every Public Officer having custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees therefor together with a certificate written at the foot of such a copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title and shall be sealed whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies.

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21.6. As per Section 77 of the Evidence Act, such certified copies may be produced in proof of contents of the public document or part thereof.

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21.7. Therefore, if a proceedee relies on a voters list, only a certified copy of such voters list or extract thereof would be admissible in evidence. Filing of an unsigned or unauthenticated or uncertified copy of voters list sought to be relied upon as proof of citizenship would not be admissible in evidence. Therefore, we would respectfully disagree with the view taken by the Orissa High Court.

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21.8. There is one more aspect. Though under Section 79 of the Evidence Act, there is presumption as to the genuineness of certified copies provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf, it is in the public domain that citizenship is a contentious issue in so far the State of Assam is concerned. There are 100 Foreigners Tribunals functioning in the State of Assam

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which are mandated under the law to answer references made to them by the referral authority, i.e., concerned Superintendent of Police (Border) as to whether the proceedee is a foreigner or not. Simultaneously, process is on for finalizing or rather updating National Register of Citizens (NRC) in the State of Assam. In both the processes, proceedee or the claimant, as the case may be, primarily rely upon voters lists to prove their citizenship. It is also in public domain that a large number of voters lists have been detected which have been suspected to be not genuine. Therefore, notwithstanding the presumption of genuineness under Section 79, it would be safe for the Tribunals and the Courts to insist on proof of contents of such certified copies by comparing with the primary evidence, i.e., electoral roll in original produced and testified before the Tribunal or the Court by the lawful custodian of such primary evidence i.e., by the concerned Electoral Registration Officer or by his authorized officer or personnel.

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21.9. Thus no reliance can be placed on exhibits C, D and E. Notwithstanding the same, a comparison of the contents of the above documents would reveal the absurdity of the narrative presented by the petitioner. For example, in Ext.D, age difference between Atakjan and Borhan Ali i.e., mother and son was 9 years whereas in Ext.E, Hayat Ali and Atakjan were conspicuous by their absence.

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22. We may now proceed to Ext. G which is a certificate dated 03.01.2016 issued by Abdul Matlib, Gaonburah certifying that Borhan Ali was the son of late Hayat Ali of Bagnaputa village. As per this certificate, though Borhan Ali was born at Bagnaputa village about 25/30 years ago, he had shifted to village Khoponikuchi under Hajo Police Station. This would mean that Borhan Ali had shifted residence from village Bagnaputa to village Khoponikuchi around 1991/1986.

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22.1. Abdul Matlib deposed before the Tribunal and stated that he had issued Ext. G certificate. However, from the deposition, it is evident that he had issued the said certificate as per documents produced by the petitioner. He did not bring any official register to prove the contents of Ext. G. Abdul Matlib was the Gaonburah of Bagnaputa village. According to the certificate itself Borhan Ali had shifted residence from Bagnaputa village to Khoponikuchi village sometime in 1986/1991. Abdul Matlib was not the Gaonburah of Khoponikuchi village. Therefore, he could not have given a certificate to a person who was not a resident of a

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village within his jurisdiction. The facts prior to 1986/1991 relatable to his jurisdiction would have to be proved from the record which the Gaonburah did not produce. A document relied upon in evidence has to be proved from the record and not on the basis of personal knowledge. Therefore, no reliance can be placed on Ext. G.

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23. Ext. H is an affidavit sworn by Borhan Ali on 01.03.2016 stating that Hayat Ali was his father and Kosimuddin Kha was his grandfather. He had also explained the discrepancies in the names of Hayat Ali and Kosimuddin Kha.

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23.1. We are afraid; we can accept such a self-serving, suo moto affidavit of the petitioner as a proof of linkage with a person whom the petitioner claims to be his father. Such an affidavit is neither proof nor evidence within the meaning of Sections 1 and 3 of the Evidence Act and Order 19 Rule 1 of the Code of Civil Procedure.

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24. There is one more document i.e., elector photo identity card marked as Ext.F where the elector was mentioned as Barhan Ali and relation’s name was mentioned as Hayat Ali. This document was neither compared with the original nor proved. Therefore, no reliance can be placed on this document. Besides, merely having such an identity card in the absence of supporting evidence would not be proof of citizenship. This aspect was gone into in Md. Babul Islam Vs. State of Assam, WP(C) No.3547/2016 , decided on 09.05.2018.

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25. Net result of the above discussions is that petitioner had failed to establish his linkage with Hayat Ali 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.

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26. In so far reliance placed on Premalata Shukla (supra) by the learned counsel for the petitioner is concerned, we have considered the said decision but found that the same is not applicable to the facts and circumstances of the case.

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27. In so far objection as to the admissibility of a document is concerned, if a document is per se inadmissible in evidence, non-raising of objection by the State would not render such inadmissible evidence as admissible. However, if this judgment is looked at closely, particularly, paragraphs 14 and 15 thereof, it goes against the petitioner. If a document is proved, contents thereof would have to be taken as proved in its entirety and not in part.

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27.1. Extending this principle, if a proceedee relies on a voters list, he has to rely on the same in its entirety and not in part. He cannot say that he will rely upon that part of the voters list which is favourable to the proceedee but would not rely upon that part of the voters list which goes against him, for example, vital discrepancies in name, residence and age. A document has to be appreciated as a whole; not in bits and pieces.

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28. In so far Section 90 of the Indian Evidence Act is concerned, deliberation on the same is not necessary as the petitioner has failed to establish his linkage with his projected father and grandfather.

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29. That being the position, we are of the unhesitant 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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30. On due consideration, we do not find any merit in the writ petition, which is accordingly dismissed. Interim order passed earlier stands vacated.

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31 . 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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32. 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

Borhan Ali @ Barhan Ali v. the Union of India and 3 Ors.

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Borhan Ali @ Barhan Ali v. the Union of India and 3 Ors.

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