Dismissed

Saramala Bibi @ Musstt Samela Bibi v. the Union of India and 3 Ors.

Gauhati HC13 Mar 2018WP(C)/7886/2017

Case brief

AI extract

What is this about?

High Court bench dismissed a writ petition challenging a Foreigners Tribunal order declaring the petitioner a foreigner. The Court held the petitioner failed to prove Indian citizenship under Section 9 of the Foreigners Act due to discrepancies in evidence and lack of documentation, upholding the Tribunal's view.

What did the court decide?

Writ petition dismissed; interim order vacated. No case for interference with the Tribunal's order found.

Saramala Bibi @ Musstt Samela Bibi Vs… — Constitutional and Fundamental Rights | Gauhati HC (2018)

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GAHC010205532017

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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) 7886/2017

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1:SARAMALA BIBI @ MUSSTT SAMELA BIBI

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D/O LT. SURAP ALI SK. @ SORHAB ALI W/O RAHAM ALI MONDAL @ RAHAM ALI VILL- CHECHAPANI P.O. MAGURMARI, P.S. KOKRAJAHR, DIST. KOKRAJHAR, ASSAM, PIN - 783370.

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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, GOVT. OF INDIA, NEW DELHI1.

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2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GUWAHATI-6.

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3:THE SUPERINTENDENT OF POICE B KOKRAJHAR DSIT. KOKRAJHAR ASSAM PIN - 783370.

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4:THE DEPUTY COMMISSIONER KOKRAJHAR DIST. KOKRAJHAR ASSAM PIN - 78337

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Advocate for the Petitioner : MR.A S CHOUDHURY

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Advocate for the Respondent : GA, ASSAMR2-4

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BEFORE HON'BLE MR. JUSTICE UJJAL BHUYAN HON BLE MR. JUSTICE AJIT BORTHAKUR

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ORDER

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Date : 13-03-2018

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( Ujjal Bhuyan, J )

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Heard Mr. A. Hussain, learned counsel for the petitioner and Mr. A. Kalita, learned Special Counsel, FT.

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2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 20.09.2017 passed by the Foreigners Tribunal, Kokrajhar in Case No.K/FT/676/2006 (Union of India Vs. Mustt. Samela Bibi @ Saramala Bibi) declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from the specified territory, i.e., Bangladesh on or after 25.03.1971.

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

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4. This Court by order dated 18.12.2017 had issued notice while requisitioning the case record. An interim order was passed to the effect that petitioner should not be deported from India until further orders.

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5. Submissions made by learned counsel for the parties have received the due consideration of the Court. Also perused the materials on record, including the record requisitioned from the Tribunal.

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6. Record discloses that as per the report of the Enquiry Officer dated 20.05.2000, during the enquiry, suspect (petitioner) could not produce any document in support of her nationality. Therefore, he was prima facie of the view that suspect (petitioner) was an illegal migrant who had entered into India after 25.03.1971. Enquiry was conducted under the Illegal Migrants (Determination by Tribunals) Rules, 1984 (IMDT Rules) which were framed under the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act). As per the system in place at that point of time, the report of the Enquiry Officer was scrutinised by the Screening Committee and after it was approved by the Screening Committee, Superintendent

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of Police (Border), Kokrajhar made the reference under Section 8(1) of the IMDT Act before the IMD Tribunal, Kokrajhar 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 unauthorisedly entered into India after 25.03.1971. The reference was registered on 22.01.2001 as IMDT Case No.KTL 1775/2001.

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7. It is most distressing to note that from 22.01.2001 to 28.07.2005, not a single order was passed by the IMD Tribunal. In the meanwhile, IMDT Act was declared unconstitutional by the Supreme Court in Sarbananda Sonowal -Vs- Union of India, (2005) 5 SCC 665 following which the references which were pending before the Tribunals were transferred to the Tribunals constituted under the Foreigners Act, 1946 read with the Foreigners (Tribunals) Order, 1964. It was then that an order was passed by the IMD Tribunal, Kokrajhar on 28.07.2005 transferring the reference to the Foreigners Tribunal. Unfortunately, thereafter also, there was no progress at all in the reference. It was only after the reference was made by the Superintendent of Police (Border), Kokrajhar that Case No.K/FT/676/2006 was registered by the Tribunal and notice was issued to the petitioner on 26.05.2017 whereafter proceedings gained momentum.

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8. In her written statement, petitioner stated that name of her deceased father was included in the voters list of 1953 of Dhubri constituency as well as of 1966. She stated that she had married Md. Rahman Ali and after marriage, she was permanently residing at village Kamlachara (Chechapani) under Kokrajhar Police Station. In the verification column, she identified herself as daughter of Sakur Ali.

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9 . This was all that the petitioner stated in her written statement which were wholly inadequate to establish her 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 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 of the person concerned and not of the authorities of the State.

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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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10 . In the written statement, petitioner did not mention her date or year of birth. Consequently her age on the date of filing the written statement remained undisclosed. She also did not mention the place of her birth. Though she identified herself as the daughter of Sakur Ali, she neither mentioned the names of her mother nor of her paternal grandparents, not to speak of her brothers and sisters.

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11. Petitioner stated more or less the same thing in her evidence-in-chief which she filed by way of affidavit. Here also, in the introductory paragraph, she did not disclose her age. In her cross-examination recorded on 15.09.2017, she disclosed her age for the first time as 50 years which would mean that she was born sometime in the year 1967. She disclosed her parents name as late Md. Sareb Ali Sheikh and late Marijan Bibi. However, in her written statement, petitioner had mentioned in the verification column that she was the daughter of late Sakur Ali but here she mentioned her father’s name as Sareb Ali Sheikh, a completely different name. While in her written statement she was silent regarding the identity of her mother, here she mentioned her mother’s name as late Marijan Bibi. In her crossexamination, she stated that she had no certified copy of voters list of her parents and that she had no landed documents of her father. She could not say the names of her grandfather and grandmother or whether they were still alive or not.

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12. Petitioner did not exhibit any documents. There is one photocopy of the voters list of 1953 in respect of Barpeta constituency where one of the voters was Sukur Sheikh, son of Ismail. Petitioner also filed another Photostat copy of voters list of 1966 in respect of Barpeta constituency where one of the voters was Sukur Ali Sheikh, son of Ismail.

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13. There are two photocopies of periodic khiraj patta (land document) where one of the pattaholders was Sorhab Ali Sheikh, son of Ismail Sheikh. Therefore, the question naturally would arise as to whether Sukur Ali Sheikh or Sukur Sheikh was the same person as Sorhab Ali or Sorhab Ali Sheikh? We do not know as there is no explanation in this regard.

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14. Lastly, there is one photocopy of elector photo identity card where the elector’s name was mentioned as Saramala Bibi and relation’s name was mentioned as Rahem.

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15. None of these documents were proved and consequently were accepted. Even then also, on the basis of these documents, no linkage can be drawn or established between Saramala Bibi and Sareb Ali Sheikh or Sakur Ali. Therefore, it is evident that petitioner had failed to discharge her burden under Section 9 of the Foreigners Act, 1946 to prove that she was not a foreigner but a citizen of India. In such circumstances, we do not find any error or infirmity in the view taken by the Tribunal. No case for interference is made out.

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16. Consequently, we do not find any merit in the writ petition which is accordingly dismissed. Interim order passed earlier stands vacated.

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17. Registry to send down the LCR forthwith and also inform the concerned Foreigners Tribunal, Superintendent of Police (B) and Deputy Commissioner for taking immediate followup steps.

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18. Copies of this order may also be forwarded to learned Standing counsel, Election Commission of India and State Coordinator, NRC.

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JUDGE JUDGE

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Comparing Assistant

Saramala Bibi @ Musstt Samela Bibi v. the Union of India and 3 Ors.

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Saramala Bibi @ Musstt Samela Bibi v. the Union of India and 3 Ors.

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