Dismissed

Tapsir Ali v. Union of India and 4 Ors.

Gauhati HC11 May 2018WP(C)/7959/2016

Case brief

AI extract

What is this about?

High Court dismissed the writ petition seeking to quash the Foreigners Tribunal order declaring the petitioner a foreigner. The court rejected the plea regarding defective notice and held the petitioner failed to prove his citizenship due to contradictions in evidence and lack of linkage to parents prior to the cut-off date.

What did the court decide?

Writ petition dismissed; interim order vacated; Tribunal order quashed order allowed.

Tapsir Ali Vs Union of India and 4 Ors. — Writ and Judicial Review | Gauhati HC (2018)

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Page No.# 1/7

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GAHC010034402016

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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) 7959/2016

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1:TAPSIR ALI

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S/O LT. ABDUL MATLEB ALI, VILL. SARAPORA, P.O. and P.S. MATIA, DISTGOALPARA, ASSAM

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VERSUS

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1:UNION OF INDIA and 4 ORS.

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REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI-1

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2:THE STATE OF ASSAM

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REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM HOME DEPTT.

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DISPUR

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GHY-6

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3:THE DY. COMMISSIONER GOALPARA P.O. and DIST- GOALPARA ASSAM

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4:THE ERO

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37 GOALPARA EAST LAC P.O. and DIST- GOALPARA ASSAM

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5:THE S.P. B P.O. and DIST- GOALPARA ASSA

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Advocate for the Petitioner : MR.D P CHALIHA

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Advocate for the Respondent :

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

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ORDER

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Date : 11-05-2018

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( Ujjal Bhuyan, J .)

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This case was heard on 24.04.2018 and today is fixed for delivery of order.

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2. We have heard Mr. D.P. Chaliha, learned Senior counsel, assisted by Mr. M. Rana, 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 17.08.2016 passed by the Foreigners Tribunal No.2, Goalpara in FT Case No. 24/G/2014 (Union of India Vs. Tapsir Ali) 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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4. Notice in this case was issued on 05.01.2017. 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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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. Before we proceed to examine the contents of the record, we may briefly note that one of the submissions made by learned Senior counsel for the petitioner was that in the notice issued by the Tribunal to the petitioner, inapplicable portion was not struck off. In other words, petitioner was not informed to which category of foreigner he was suspected to belong; whether he belonged to the 01.01.1966 to 24.03.1971 stream or post 25.03.1971 stream. This has vitiated the impugned proceeding and, therefore, impugned order should be set aside.

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7. Record discloses that Election Commission of India had ordered intensive revision of

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electoral rolls in respect of Goalpara East Assembly 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. Though the name of the petitioner was included in the draft electoral roll, Electoral Registration Officer for the said constituency expressed doubts about the citizenship of the petitioner 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. Thereafter, matter was forwarded to the Superintendent of Police (Border), Goalpara. Superintendent of Police (Border), Goalpara made a reference on 16.05.1998 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.

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8. So this was the basic allegation against the petitioner on the basis of which the reference was made.

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9. However, it appears that no progress was made in the reference by the Illegal Migrants (Determination) Tribunal, Goalpara.

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10. 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. However, we notice that 9 years after such direction, the related reference was transferred to the Foreigners Tribunal No.2, Goalpara (Tribunal) where it was re-registered as FT Case No.24/G/2014. Tribunal thereafter issued notice to the petitioner.

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11. It is true that in the notice issued by the Tribunal to the petitioner, the inapplicable portion was not struck off by the Tribunal.

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11.1. In Ananda Ghosh Vs. Union of India, 2017 (3) GLT 815 , this Court has held that wrong mentioning of the stream of foreigners in the notice contrary to the reference made by the State would not vitiate the ultimate conclusion reached by the Foreigners Tribunal that the proceedee is a foreigner of 25.03.1971 stream. This position was reiterated in Abiran

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Nessa Vs. Union of India, 2017 (4) GLR (NOC) 5 . But here, there was no wrong mentioning; only the inapplicable portion was not struck off.

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11.2. As discussed above, in 1998 itself, initial reference was made against the petitioner under the IMDT Act suspecting him to be an illegal migrant which as per definition in the IMDT Act meant a foreigner of post 25.03.1971 stream. Therefore, there was no confusion at all as to what category of foreigner petitioner was suspected to belong.

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11.3. It is trite that a mistake or irregularity in the notice would not invalidate a proceeding if the proceeding is otherwise valid.

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11.4. That apart, we find that in the written statement filed by the petitioner on 10.07.2014, nowhere it was mentioned or objection was raised that because of non-striking off the inapplicable portion, petitioner was prejudiced. In fact, in paragraph-1 of the written statement, petitioner had categorically denied that he did not enter into India from East Pakistan during 01.01.1966 to 25.03.1971 or from Bangladesh after 25.03.1971.

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11.5. Therefore, this contention of the petitioner has no force and is accordingly rejected.

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12. From the written statement, we find that according to the petitioner, his father was Abdul Matleb Ali @ Abdul Matleb and mother was Haijun Nessa. Both were residents of village Sarapara under Goalpara Police Station in the district of Goalpara. They were enlisted as voters in 1966. Petitioner was born in the same village of Sarapara and he was enrolled as a voter in 1997 but was marked as a doubtful (D) voter.

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13. 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).

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14. Be that as it may, from whatever were disclosed by the petitioner, what is discernible is that according to the petitioner, his parents Abdul Matleb Ali @ Matleb Ali and Haijun Nessa were citizens of India. Being their son, he was, therefore, a citizen of India.

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15. Let us now examine whether petitioner could prove the above fact-in-issue by adducing cogent, reliable and admissible evidence.

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16. In his evidence-in-chief filed by way of affidavit on 11.08.2016, petitioner disclosed his age as 56 years. If the petitioner was 56 years of age in 2016 as per his own declaration, it would mean that he was born sometime in the year 1960. This time he stated that his parents were voters of 1966 and 1970. He further stated that he had 2 brothers and 3 sisters, namely, late Yusuf Ali, Hussain Ali, Sakina Bibi, Safira Bibi and Rahima Bibi. He also stated that his name appeared in the voters list of 1979 and thereafter.

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17. Petitioner also made oral deposition before the Tribunal where he stated that his grandfather was Gendhal Sheikh. He stated that his wife was Abiran Nessa who was his second wife. He admitted that he was marked as a doubtful (D) voter in 1997. Here also, he had reiterated his age as 56 years meaning thereby that he was born sometime in the year 1960.

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18. Proceeding to the exhibits, we find that Ext. A is a certified copy extract of the electoral roll of 1966 in respect of Goalpara East Constituency, Here, the two voters were Matleb Sheikh, son of late Gendhal Sheikh, aged 51 years; and Haijun Nessa, wife of Motleb Sheikh, aged 40 years.

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19. Ext. B is stated to be a certified copy of the voters list extract of Goalpara East constituency for the year 1970. Here also, the two voters were Matleb Sheikh and Haijun Nessa. But interestingly in Ext. B, the age of both Matleb Sheikh and Haijun Nessa were not furnished. Such incomplete copy raises grave doubts about the genuineness of Ext. B because in certified copy of voters list, full particulars of voters are always mentioned. Therefore, nonmentioning of the age of the two voters in Ext. B raises grave doubts about the genuineness of the said document. That apart, in both Exts. A and B the voter was Matleb Sheikh whereas according to the petitioner, his father was Abdul Matleb Ali @ Abdul Matleb!

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20. It is true that under Section 78 of the Indian Evidence Act, 1879, there is presumption as to the genuineness of certified copies, but when such glaring omissions are present coupled with discrepancies in the name of voter, it may be difficult to continue with the presumption more so when it is in the public domain that large number of fake documents including the voters lists are in circulation in the State of Assam in recent times. That apart, even if we presume genuineness of Ext. B, contents thereof would have to be proved with

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reference to the primary evidence on the basis of testimony of the lawful custodian of the primary evidence proving the contents of the secondary evidence from the primary evidence. This was not done. Therefore, Ext. B cannot be accepted as an admissible piece of evidence.

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21. Ext. C is stated to be a certified copy extract of the voters list of 1979 in respect of Goalpara East constituency. Here, out of the 5 voters, name of the petitioner appears and his age was mentioned as 21 years. We have already noticed that as per petitioner’s own declaration of age, he was born in 1960. If that be so, he would have attained the eligibility to exercise his right of franchise only in 1981 when he would have completed 21 years of age. Therefore, his name could not have appeared in the voters list of 1979.

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22. Similar is the position in respect of Ext. D which is an extract of the voters list of 1989. But additionally, here we notice that Matleb Sheikh is absent. On the other hand, Tapsir Ali (petitioner) was mentioned as son of Matleb Ali and not Matleb Sheikh as appearing in Ext. A. Interestingly, Haijun Nessa was shown as 52 years of age in Ext. D (1989). She was 40 years of age in Ext. A (1966). If that be so, then in 1989, she should have been 63 years of age but she was shown as 52 years of age!

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23. The last exhibit is Ext. E where the two voters were Sultan Mamud and Ashiran Nessa. This document has no relevance to the fact-in-issue inasmuch as we are concerned with the linkage of petitioner Tapsir Ali with Abdul Matleb Ali @ Abdul Matleb.

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24. If Exhibits C and D are excluded from consideration for the reasons mentioned above, there is no document on record to show or establish any linkage between Tapsir Ali and Matleb Sheikh or Abdul Matleb Ali @ Abdul Matleb whom the petitioner 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. There is also nothing on record to show that Matleb Sheikh and Abdul Matleb Ali @ Abdul Matleb was one and the same person.

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25. In such circumstances, we are of the view that in addition to not being able to establish any linkage as above, the narrative presented by the petitioner suffers from multiple material contradictions and omissions rendering the same highly improbable. Therefore, it cannot be said that petitioner had discharged his burden under Section 9 of the Foreigners

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Act, 1946 to prove that he was not a foreigner but a citizen of India.

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26. 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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27 . 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. 28. Copies of this order may also be furnished to learned Standing Counsel, Election

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Commission of India and State Coordinator, NRC.

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JUDGE JUDGE

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Comparing Assistant

Tapsir Ali v. Union of India and 4 Ors.

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Tapsir Ali v. Union of India and 4 Ors.

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