Dismissed

Jalaluddin v. Union of India and 5 Ors.

Gauhati HC11 Jun 2018WP(C)/7677/2016

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed two writ petitions challenging Foreigners Tribunal orders declaring a husband and wife as illegal immigrants. Finding the respondents failed to prove citizenship prior to March 25, 1971, the Court upheld their deportation orders.

What did the court decide?

Writ petitions dismissed; orders of Foreigners Tribunals upholding foreigner status affirmed; interim bail orders vacated.

Jalaluddin Vs Union of India and 5 Ors. — Writ and Judicial Review | Gauhati HC (2018)

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Page No.# 1/11

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GAHC010033332016

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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) 7677/2016

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1:JALALUDDIN S/O. LT. MUNTAJ ALI @ MOMTAJ ALI @ MUNTAJAL, VILL. BHAJAKHAITY GAON, MOUZA- MOIRABARI, P.S. BHELOWGURI, DIST. MORIGAON, ASSAM.

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VERSUS

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1:UNION OF INDIA and 5 ORS.

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REP. BY THE COMM. and SECY. TO THE GOVT. OF INDIA, HOME DEPTT., NEW DELHI, INDIA.

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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. 3:THE ELECTORAL REGISTRATION OFFICER MORIGAON DIST. MORIGAON ASSAM.

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4:THE DY. COMMISSIONER MORIGAON DIST. MORIGAON ASSAM.

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5:THE SUPDT. OF POLICE B MORIGAON DIST. MORIGAON ASSAM.

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6:THE OFFICER IN CHARGE BHELOWGURI POLICE STATION P.O. DOLOIGAON P.S. BHELOWGURI DIST. MORIGAON ASSAM PIN-782126

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Advocate for the Petitioner : MR.R A CHOUDHURY

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Advocate for the Respondent :

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Linked Case : WP(C) 7698/2016

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1:LAILIYA KHATUN @ LAILYA KHATUN D/O LT. IDDRISH ALI W/O JALALUDDIN VILL- BHOJAKHAITI GAON MOUZA- MOIRABARI P.S. BHELOWGURI DIST. MORIGAON ASSAM.

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VERSUS

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1:UNION OF INDIA and 5 ORS.

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REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF INDIA HOME DEPARTMENT NEW DELHI- 1 INDIA.

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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 DEPARTMENT DISPUR GUWAHATI-6.

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3:THE ELECTORAL REGISTRATION OFFICER MORIGAON DIST. MORIGAON ASSAM.

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4:THE DEPUTY COMMISSIONER MORIGAON DIST. MORIGAON ASSAM

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5:THE SUPERINTENDENT OF POLICE B MORIGAON DIST. MORIGAON ASSAM.

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6:THE OFFICER-IN-CHARGE BHELOWGURI POLICE STATION P.O. DOLOIGAON P.S. BHELOWGURI DIST.MORIGAON ASSAM PIN - 782126.

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Advocate for the Petitioner : MR. E AHMED 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 : 11-06-2018

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Ujjal Bhuyan, J.

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This order will dispose of both WP(C) Nos.7677 and 7698/2016, which were heard together on 10.05.2018 and today is fixed for delivery of order.

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We have heard Mr. Z Hammad, learned counsel for the petitioners and Mr. A Kalita, learned Special Counsel, Foreigners Tribunal (FT).

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Petitioner in WP(C) No.7677/2016 is Jalaluddin, the husband, whereas petitioner in WP(C) No.7698/2016 is Lailiya Khatun @ Lailya Khatun, the wife.

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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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WP(C) No.7677/2016

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Challenge made in this writ petition is to the legality and correctness of the order dated 31.10.2016, passed by the Foreigners Tribunal-5^th , Morigaon in Case No. FT(D) 104/2015 (new number) (State Vs. Jalaluddin), 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 22.12.2016 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), Morigaon and furnishing of adequate surety.

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Record discloses that Election Commission of India had ordered intensive revision of electoral roll in respect of Dhing Constituency in the State of Assam with reference to 01.01.1997 as the qualifying date. In this connection, a house to house enumeration was carried out during the period from 16.01.1997 to 15.04.1997. Though the name of the petitioner was included in the draft electoral roll of the said Constituency published on 24.07.1997, Electoral Registration Officer for the said Constituency expressed doubts about the citizenship of the said person and got the matter verified by an on the spot local verification. On consideration of the report of such verification, Electoral Registration Officer recorded reasonable doubt that petitioner was not a citizen of India.

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Following the same, Superintendent of Police (Border), Morigaon made reference under Section 8(1) of the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) to the then Illegal Migrants (Determination) Tribunal, Nagaon 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. The reference was made on 20.06.1998.

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IMDT Act was declared unconstitutional by the Supreme Court in Sarbananda Sonowal Vs. Union of India , reported in (2005) 5 SCC 665 with the further direction that references which were pending before the Tribunals constituted under the IMDT Act should be transferred to the Foreigners Tribunals constituted under the Foreigners Act, 1946 read with the Foreigners (Tribunals) Order, 1964. Consequently, the related reference was transferred to the Foreigners Tribunal No.2, Morigaon where it was registered as FT(D) Case

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No.784/2012.

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After creation of additional Tribunals in the year 2015, the related reference came to be assigned to the newly created Foreigners Tribunal No.5^th , Morigaon (Tribunal) where it was re-registered as FT(D) Case No.104/2015.

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In his written statement filed before the Tribunal on 31.01.2015, petitioner Md. Jalaluddin stated that he was born at village-Bhajakhaity Pathar under Moirabari Police Station in the district of Morigaon. When he was 6/7 years old, father shifted along with family to Bhajakhaity village where he was brought up. Bhajakhaity Pathar and Bhajakhaity were two different villages. His father was Momtaz Ali @ Muntajali @ Mintajal and grandfather was Golap Jabbar. Names of grandfather and father were included in National Register of Citizens (NRC), 1951. Father became a voter of Lahorighat Constituency in 1965 and 1970. In 1989 father became a voter of Dhing Constituency. Petitioner married Lailiya Khatun. Father had purchased land measuring 2 bighas 5 lechas on 09.01.1968.

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This was all that the petitioner stated in his written statement. Though petitioner did not plead crucial material facts, such as, date or year of birth, names of paternal grandmother, mother etc., from whatever he disclosed what is discernible is that according to the petitioner, his grandfather Golap Jabbar and father Momtaz Ali @ Muntajali @ Mintajal were citizens of India; being their grandson and son respectively, he 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 deposed before the Tribunal as DW-1 on 09.11.2015 where he disclosed his age for the first time as 50 years, which would mean that he was born sometime in the year 1965. Now as per statement made in the written statement when he was 6/7 years of old, the family shifted from Bhajakhaity Pathar village to Bhajakhaity village i.e., in an around 1971/1972. Here he disclosed his mother’s name as Chanbanu. He also stated that his brother’s name was Fakaruddin Islam.

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One Sri Monir Uddin deposed as DW-2 identifying himself as Government Gaonburah. We will consider his evidence when we discuss the certificate issued by him.

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Proceeding to the exhibits, we find that Ext-C is a hand written certificate dated 15.10.1985 issued by an authority which is not at all legible containing the names of eight persons and stating that names of all these persons were included in the NRC of 1951. They were residents of village Bhajakhaity. This Court has already held that NRC, 1951 was prepared on the basis of the Census Act, 1948. Considering the provisions of Section 15 of the Census Act, it has been held that entry in NRC, 1951 does not have any evidentiary value. Notwithstanding the same, we find that the eight persons included Golap Jobbar and Mumtaz Ali, but they were shown as residents of village-Bhajakhaity. We have seen from the evidence of the petitioner that the family had shifted from Bhajakhaity Pathar village to Bhajakhaity village only during 1971/1972. These are two different villages as admitted by the petitioner himself. Therefore, showing Golap Jobbar and Mumtaz Ali as residents of village Bhajakhaity in 1951 is contrary to the evidence of the petitioner himself.

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Ext-D is an extract of the voters list of 1965 in respect of Lahorighat Constituency. Though there is liberal use of whitener in this document, we may overlook the same for the time being. Here two of the voters were Muntajali and Chan Banu. Muntajali was 35 years old and Chan Banu shown as wife of Muntajali was 28 years of age. They were shown as residents of village-Bhajakhaity Pathar. This again contradicts Ext-C as discussed above.

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Ext-E is a certified copy extract of the voters list of 1970 in respect of Lahorighat Constituency. Here also two of the voters were Muntajal and Chanbanu and they were shown as residents of village-Bhajakhaity Pathar.

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Pausing here for a moment, we find that in Ext-D (voters list of 1965), the voter was Muntajali and in Ext-E (voters list of 1970), the voter was Muntajal. Both were voters of Lahorighat Constituency.

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Ext-B is a certified copy extract of the voters list of 1989 in respect of Dhing Constituency. Here the voters were Jalaluddin, son of Momtaz, aged 30 years; Lailiya Khatun, wife of Jalal, aged 24 years; and Fakrul Islam, son of Momtaz, aged 20 years. Firstly, Jalaluddin was shown as son of Momtaz and not son of Muntajali (1965 voters list) or son of Muntajal (1970 voters list). The Constituencies were different. While Constituency of Muntajali or Muntajal was Lahorighat, Constituency of Jalaluddin was Dhing. There is no

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explanation for this. That apart, if Jalaluddin was 30 years of age in 1989, it would mean that he was born sometime in the year 1959, which is contrary to petitioner’s own declaration of his year of birth in his evidence i.e., 1965. Petitioner could not have been born in 1959 as well as in 1965 at one and the same time.

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Ext-F is stated to be a sale deed dated 09.01.1968 between Md. Muntaz Ali, Intaj Ali, Sahed Ali and Md. Jayban Abdul Kha on the one hand and Md. Sunsur Kha on the other hand. This document besides not being proved in accordance with law would be of no relevance unless linkage of the petitioner is established with Muntaj Ali.

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That brings us to Ext-A certificate dated 09.11.2015 issued by the Gaonburah certifying that Md. Jalal Uddin was the son of Lt. Muntaz Ali. This certificate carried Sl. No.1774/2015.

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In his deposition before the Tribunal DW-2 Monir Uddin stated that he was the Gaonburah and that he had issued Ext-A certificate, but on going through the entire evidence of DW-2 it is seen that he had issued Ext-A certificate on the basis of personal knowledge. But interestingly, he did not say and the certificate is also silent since when he knew Md. Jalal Uddin. While DW-2 might have owned up Ext-A certificate that would not ipso facto mean that contents of the certificate were proved. The contents would have to be proved on the basis of the contemporaneous record. Mentioning of Sl. No.1774/2015 in the certificate is indicative that previous certificates were issued by the Gaonburah and that such certificates were issued from certain register. This register was required to be produced before the Tribunal and the contents of the certificate was then required to be proved from the register, but this was not done.

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It is to be borne in mind that the contents of the certificate would have to be proved from the record though the author of the certificate may prove the document through oral evidence. But oral evidence de hors record cannot prove contents. Contents of a document based on record cannot be proved from personal knowledge. Therefore, contents of Ext-A cannot be said to have been proved.

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There is one more aspect which we have noticed. The State Emblem of India is embossed in the middle of the expression Assam Government. Under Rule 10 (2) read with

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the Schedule to the State Emblem of India (Regulation of Use) Rules, 2007 framed by the Central Government in exercise of the powers conferred by Section 11 of the State Emblem of India (Prohibition of Improper Use) Act, 2005, a Gaonburah is not authorized to use the State Emblem of India in any manner. Therefore, embossing of the State Emblem of India in the certificate is unauthorized. Such unauthorized use of the State Emblem of India has rendered Ext-A inadmissible in evidence. Thus Ext-A was not only not proved but also inadmissible in evidence.

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Net result of the above discussion is that petitioner could not establish his linkage with Lt. Muntaj Ali @ Momtaj Ali @ Muntajal 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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WP(C) No.7698/2016

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In this case, the petitioner is Lailiya Khatun @ Laila Khatun, wife of Jalaluddin, petitioner in WP(C) No.7677/2016.

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By order dated 27.10.2016, passed by the Foreigners Tribunal-5^th , Morigaon in Case No. FT(D) No.102/2015 (new number) (State Vs. Lailya Khatun), petitioner was declared to be a foreigner who had illegally entered into India (Assam) after 25.03.1971.

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This Court by order dated 22.12.2016 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 her appearance before the Superintendent of Police (Border), Morigaon and furnishing of adequate surety.

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Reference in the case of the petitioner followed the same trajectory as in the case of Jalaluddin, the husband. Initially the reference was under the IMDT Act whereafter, it was reregistered under the Foreigners Act, 1946.

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Stand of the petitioner Lailiya Khatun in her written statement as well as in her deposition was that she was born at village-Datialbori under Moirabari Police Station in the district of Morigaon and that she had married Jalal Uddin. Her father was Idrish Ali @ Idrish Munchi, whereas grandfather was Ismail Munchi @ Ismail. They were citizens of India as

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their names were included in the NRC 1951 and in the voters lists of 1966 and 1970.

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Ext-D is a certified copy extract of the voters list of 1966 where the two voters were Idrish Ali and Saheron Nessa. They were shown as residents of village-Balidonga Pam.

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Ext-E is a certified copy extract of the voters list of 1970 where Ismail Munchi and Idrish Ali were voters. They were shown as residents of Datialbori village.

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A comparison between Ext-D and Ext-E would reveal that Ismail Munchi was conspicuous by his absence in Ext-D (1966 voters list), whereas Saheron Nessa was conspicuous by her absence in Ext-E (voters list of 1970). While Idrish and Saheron were voters of Balidonga Pam in 1966, Ismail Munchi and Ishahak Ali were voters of Datialbori in 1970, two different villages.

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Ext-F is stated to be a land sale document where one of the parties was Md. Ismail Munchi but this document is also completely illegible. Therefore, no reliance can be placed on such a document.

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That leaves us with EXts-A, B and C.

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Ext-A is a certificate dated 25.11.2014, issued by Monir Uddin, the Gaonburah certifying that Musstt. Lailiya Khatun was the wife of Jalaluddin. The same Monir Uddin had issued Ext-A in the case of Jalaluddin which we have discussed above. Here also, he deposed and tried to prove Ext-A. For the reasons mentioned above for rejecting such certificate in the case of Jalaluddin, this certificate also cannot be accepted as a valid piece of evidence.

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Ext-B is a certificate issued by another Gaonburah, namely, Md. Rafiqul Islam, on 19.07.2014 certifying that Laliya Khatun was the daughter of Idrish Ali. This certificate also was not proved because the author of the certificate did not depose before the Tribunal along with the contemporaneous record to prove the said certificate as well as the contents thereof.

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Notwithstanding the same, we find that this certificate was in the name of Laliya Khatun whereas, according to the petitioner herself, she is Lailiya Khatun @ Lailya Khatun (not Laliya Khatun). But more interestingly, it was mentioned in the said certificate that Laliya Khatun had married “Lt. Jalaluddin, son of Muntaz Ali.” As noticed above, this certificate was

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issued on 19.07.2014 and on that day the author of the said certificate described the husband as “Lt. Jalaluddin.” We have seen from the deliberation of WP(C) No.7677/2016 that Jalaluddin is still alive. Therefore, such a certificate (Ext-B) besides not being proved has no credibility at all.

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This brings us to Ext-C certificate dated 03.03.2013, issued by the President of Borchapori Gaon Panchayat certifying that Lailia Khatun was the wife of Jalaluddin. Even if we accept the contents of this certificate, it does not establish the linkage of the petitioner with Idrish Ali whom she claimed to be her father. That apart, this certificate was not proved as the President of the Gaon Panchayat did not depose before the Tribunal along with the contemporaneous record to prove Ext-C and its contents. Moreover, we find the State Emblem of India is embossed at the top of the certificate. Under Rule 10 (2) read with the Schedule to the State Emblem of India (Regulation of Use) Rules, 2007 framed by the Central Government in exercise of the powers conferred by Section 11 of the State Emblem of India (Prohibition of Improper Use) Act, 2005, Panchayati Raj Institutions, such as, Gaon Panchayats are expressly prohibited from using the State Emblem of India in any manner whatsoever. Therefore, use of the State Emblem of India by the President of the Gaon Panchayat was wholly unauthorized. Such unauthorized use of the State Emblem of India has rendered this document inadmissible in evidence.

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Net result of the above discussion is that petitioner had failed to establish her linkage with Idrish Ali whom she claimed to be her 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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Thus from the above, it is evident that both the petitioners have failed to discharge their burden under Section 9 of the Foreigners Act, 1946 to prove that they are not foreigners but citizens of India.

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In such circumstances, we do not find any merit in both the writ petitions. Accordingly, the two writ petitions are dismissed.

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Interim orders passed earlier stand vacated.

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Registry to send down the LCRs forthwith and inform the concerned Foreigners

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Tribunal, Deputy Commissioner and Superintendent of Police (Border) for necessary follow-up steps.

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Copy of this order may also be furnished to the learned Standing Counsel, Election Commission of India and State Coordinator, NRC.

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JUDGE JUDGE

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Biplab

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Comparing Assistant

Jalaluddin v. Union of India and 5 Ors.

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What is this about?

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Jalaluddin v. Union of India and 5 Ors.

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