Dismissed

Atar Ali v. the Union of India and 6 Ors.

Gauhati HC10 May 2019WP(C)/2853/2019

Case brief

AI extract

What is this about?

In a writ petition challenging a Foreigners Tribunal order declaring the petitioner a post-1971 foreigner, the High Court examined whether the petitioner established citizenship linkage with his projected father. Finding no perversity in the Tribunal's refusal to accept documentary and oral evidence, the High Court dismissed the petition. Be aware: the requested subjects do not fit well, as this c

What did the court decide?

No order as to costs. State authorities to take action. Case records to be sent back to the Tribunal.

Atar Ali Vs the Union of India and 6 Ors. — Pension and Retirement Benefits | Gauhati HC (2019)

¶1

Page No.# 1/8

¶2

GAHC010092992019

¶3

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

¶4

Case No. : WP(C) 2853/2019

¶5

1:ATAR ALI

¶6

S/O- LT INSAN ALI, R/O- VILL- SALMARA, P.O. DOMORIA, P.S. TAMULPUR, DIST- BAKSA, BTAD, ASSAM, PIN- 781368

¶7

VERSUS

¶8

1:THE UNION OF INDIA AND 6 ORS.

¶9

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

¶10

2:THE ELECTION COMMISSIONER OF INDIA NEW DELHI-1

¶11

3:THE STATE OF ASSAM REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY-6

¶12

4:THE ASSAM CO-ORDINATOR OF NRC BHANGAGARH ASSAM GHY-5

¶13

5:THE DY. COMMISSIONER BAKSA BTAD ASSAM PIN- 781367

¶14

Page No.# 2/8

¶15

6:THE SUPERINTENDENT OF POLICE (B) BAKSA BTAD ASSAM PIN- 781367 7:THE OFFICER-IN-CHARGE TAMULPUR P.S. DIST- BAKSA BTAD ASSAM PIN- 78136

¶16

Advocate for the Petitioner : MR. M U MAHMUD

¶17

Advocate for the Respondent : ASSTT.S.G.I.

¶18

BEFORE

¶19

HONOURABLE MR. JUSTICE MANOJIT BHUYAN HONOURABLE MR. JUSTICE MANISH CHOUDHURY

¶20

ORDER

¶21

Date : 10-05-2019 (Manish Choudhury,J)

¶22

Heard Mr. M. U. Mahmud, learned counsel for the petitioner as well as Mr. A. Kalita, learned counsel representing respondent Nos. 3 and 5 to 7. Also heard Ms. B. Das, learned counsel representing respondent No. 2 and Ms. U. Das, learned counsel for respondent No. 4. None, however, appears for respondent No.1.

¶23

The petitioner assails the order / opinion dated 21.01.2019 passed by the Foreigners Tribunal, Baksa, Tamulpur in F.T. Case No. 17/BAKSA/2018, declaring the petitioner to be a foreigner of post 24.03.1971 stream, having illegally entered into the territory of India from the specified territory without any valid document.

¶24

Page No.# 3/8

¶25

The primary issue for determination is as to whether the petitioner, Atar Ali, a resident of Village – Salmara, Police Station – Tamulpur, District - Baksa, Assam, succeeded to establish his linkage with his projected father, Late Insan Ali. The Tribunal had held that the petitioner as the proceedee, had failed to establish his citizenship by producing cogent and acceptable evidence so as to prove his citizenship as per the mandate required under Section 9 of the Foreigners Act.

¶26

On a reference made by the Superintendent of Police, Border, Baksa, the Tribunal issued notice and on receipt thereof, the petitioner as the proceedee, duly entered appearance and contested the proceeding by filing written statement denying the allegations and later on, by adducing his evidence on affidavit as O.P.W.1 along with documentary evidence. The proceedee also adduced evidence of two other witnesses, O.P.W.2 and O.P.W.3 in support of his claim and the witnesses were duly cross-examined.

¶27

In the written statement, it was, inter-alia, contended that name of his father was Insan Ali, who was a citizen of India by birth and was born at Village – Narayangaon, Police Station – Ghograpar, District – Nalbari and the names of his family were enrolled in the Electoral Roll of 1966 in the then 64 No. Barbhag LAC. It was further stated that Insan Ali migrated from Nalbari district to Kamrup district in the year 1962 – 1963 and since then, his parents along with their family were permanently residing at Village – Salmara, Police Station – Tamulpur, District - Baksa and his father’s name was enrolled in the Electoral Roll of 1979 in the said Village. It also mentioned that the proceedee’s name was not enrolled in any of the voters list. In the written statement, the proceedee declared his age as 40 (forty) years as on 05.09.2018.

¶28

In his evidence on affidavit as O.P.W.1, the proceedee for the purpose of discharging the burden as not being a foreigner and to establish the link with his projected father, Insan Ali, produced and Exhibited:-

¶29

(i) Ext.- 1: Certified copy of Voter List of 1979 of Village - Salmara, Mouza – Kumarikata, Police Station – Tamulpur, under 58 No. Tamulpur LAC, wherein,

¶30

Page No.# 4/8

¶31

sole name of Insan Ali (38 years), son of Duru was enlisted as a voter.

¶32

(ii) Ext.- 2: Certified copy of Jamabandi of Village – Dimilapar, Mouza – Pub Baksa, wherein, the name of Md. Insan Ali was shown as a pattadar on his name being mutated by an order dated 27.02.1970 in a plot of land measuring 2 Bighas along with one Nekbor. No other details in respect of Md. Insan Ali are indicated therein.

¶33

(iii) Ext.- 3: Certified copy of Jamabandi of Village – Hahkata, Mouza – Pub Baksa, wherefrom, it was reflected that names of (a) Md. Sajahan Ali, (b) Atar Ali and (c) Intas Ali, all sons of Lt. Insan Ali, were mutated in place of Insan Ali, son of Hipo Ali, by an order dated 10.08.2015.

¶34

(iv) Ext.- 4: Duplicate Transfer / Leaving Certificate dated 04.09.2018 issued by Head Master, Pub Salmara, L.P. School stating that Md. Atar Ali, son of Md. Insan Ali and Mobina Khatun of Village – Salmara, Police Station – Tamulpur, left the school on 31.10.1987 and as per the school admission register, his age was 10 years 1 month on 01.01.1988.

¶35

(v) Ext.- 5: A certificate issued on 07.11.1976 under Assam Weight and Measurements (Implementation) Act, 1950 in the name of Md. Insan Ali.

¶36

(vi) Ext.- 6: A land revenue paying receipt (torn) dated 13.06.1954 showing the name of Md. Insan Ali, wherefrom, no details of the land in question in respect of which land revenue was paid could be read.

¶37

The proceedee also submitted a photocopy of extract of Electoral Roll of 1966 wherein names of Insan Ali (30 years), son of Hiru Sheikh and Momina Khatun (28 years), wife of Insan were enrolled as voters at Village – Narayanpur, Mouza – Paschim Banbhag, Police Station – Narayanpur under 64 No. Barbhag LAC.

¶38

The photocopy of Electoral Roll of 1966 besides being inadmissible, cannot

¶39

be related to Ext.- 1 as both pertained to two different Legislative Assembly Constituencies. In

¶40

Page No.# 5/8

¶41

the Electoral Roll of 1966, the father of Insan Ali was recorded as Hiru Sheikh whereas in Ext.- 1, the father of Insan Ali was recorded as Duru. That apart, there were discrepancies in respect of age of Insan Ali. The proceedee neither in his written statement nor in his evidence had provided any explanation in that respect. In the written statement as well as in his evidence on affidavit, the proceedee stated that his father migrated in the year 1962 / 1963. If that was so, the name of his projected father should have been shown as a voter at the same place in the year 1966 as well as in the year 1979. Thus, it cannot be accepted that Insan Ali (30 years), son of Hiru Sheikh, Village – Narayanpur, Mouza – Paschim Banbhag, Police Station – Narayanpur under 64 No. Barbhag LAC of the Electoral Roll of 1966 was the same Insan Ali (38 years), son of Duru, Village - Salmara, Mouza – Kumarikata, Police Station – Tamulpur, under 58 No. Tamulpur LAC of the Electoral Roll of 1979. In such situation, the presence of Insan Ali whose name was enrolled as a voter in the Electoral Roll of 1979 on Indian soil could only be traced to the year 1979 onwards.

¶42

Ext.- 2 did not provide any detail of Md. Insan Ali shown therein. The proceedee did not prove his linkage with Insan Ali, appearing in Ext.- 2 by any cogent, acceptable and reliable evidence. Ext.- 3 besides being a document of recent origin i.e. 10.08.2015, showed the name of one Insan Ali, son of Hipo Ali. Insan Ali, whose name appeared in Ext.- 3 is not relatable to Insan Ali, appearing in Ext.- 1 and Ext.- 2. Similarly, Ext.- 6 as well as Ext.- 7, save and accept showing the name, did not provide any detail of Md. Insan Ali. Thus, Ext.-2, Ext.-3, Ext.-6 and Ext.-7 do not establish any kind of linkage between Md. Insan Ali and the proceedee, notwithstanding the fact that those were not proved in accordance with law.

¶43

It is pertinent to note that the proceedee did not exhibit and prove any Electoral Roll before the Tribunal wherein his name was recorded as a voter. In the written statement as well as in his evidence as O.P.W.1, the proceedee declared his age as 40 years in the year 2018. If that is so, his year of birth would be in and around 1978 and the year of his attaining the age of exercising the right of adult suffrage i.e. 18 years would be in and around 1996. In such situation, non-enrollment of the proceedee as a voter has remained inexplicable. The

¶44

Page No.# 6/8

¶45

fact of such inexplicable non-inclusion instead of supporting the case of the procedure, goes against the proceedee.

¶46

In order to establish his linkage with his projected father, Insan Ali, the proceedee also exhibited Ext.-4 i.e. a duplicate school certificate issued on 04.09.2018. The proceedee did not explain the reason behind requirement of obtaining such duplicate copy, without accounting for the failure to produce the original. The proceedee adduced the evidence of O.P.W.3 who deposed that Ext.-4 was issued by him on the basis of attendance register, earlier counter folio of certificate and police report. He deposed that the proceedee’s name appeared in school attendance register at Serial No. 24, Roll No. 24. During his crossexamination, O.P.W.3 stated that there was no admission register of Pub Salmara L.P. School of which he was the Head Master since August, 2013 till first week of 2018. The school amalgamated with another school in July, 2018. The pages of the attendance register for the period prior to October, 1984 were found missing and the details were available from Serial No. 28, Roll No. 26 of Class – II. He further deposed that the proceedee’s name was written at Roll No. 24 of Class – I but there was no serial number and no page number in the attendance register. He deposed that the proceedee’s name could also be seen in March, 1985 at Roll No. 24. O.P.W.3 further stated that though the daily attendance of the students were marked up to serial No. 158 and Roll No. 100, the spaces kept for names of the students were kept blank. In the said register, only the name of the proceedee was written in different months. He further deposed that the register was kept blank intentionally and not properly maintained. O.P.W.3 also exhibited a police report dated 03.09.2018 in respect of Tamulpur Police Station missing entry No. 39/2018 dated 03.09.2018 as Ext.-4(3) in the relevant portion of the attendance register which was marked as Ext.-4(2). This witness further testified that he had written the proceedee’s mother’s name as Momina Khatun as dictated by the proceedee. It was mentioned that one Giasuddin Ahmed (since deceased) was the Head Master at the relevant point of time. In view of the aforesaid testimony of O.P.W.3, the Tribunal did not place any reliance on Ext.-4 as well as on the evidence of O.P.W.3 which, in our considered opinion, rightly so. The very nature of deposition of O.P.W.3 and the document he issued i.e. Ext.-4, based on the attendance register so indicated and

¶47

Page No.# 7/8

¶48

without having any kind of witness, had made the same unreliable and unacceptable. O.P.W.3 was not the Head Master at the relevant point of time and his testimony was entirely based on the attendance register, which itself got discredited and when the foundation got detached, the testimony of O.P.W.3 cannot also be accepted for the purpose of linkage.

¶49

The proceedee also adduced the evidence of one Dwijen Nath Das as O.P.W.2. He stated, in his evidence on affidavit, that he knew proceedee’s father since 1965 without disclosing the name, and the proceedee since his childhood was brought up in the same village at Salmara where O.P.W.2 resided. During his cross-examination, O.P.W.2 deposed that he knew Insan Ali since 1968 but he did not know the names of father and wife of Insan Ali. He knew nothing about the family of the proceedee before 1968. He further mentioned Sajahan Ali (45-50 years), Atab Ali (30-32 years) and Intaj Ali (25-28 years) as the sons of Insan Ali. The proceedee had sought to establish his linkage, in absence of any other reliable and acceptable evidence including documentary evidence, with his projected father, Insan Ali through the oral testimony of O.P.W.2. In absence of reliable and acceptable documentary evidence, the status of citizenship cannot be established on the sole basis of oral testimony, and as such, the evidence of O.P.W.2 cannot be held to be sufficient for the purpose of establishing linkage of the proceedee with his projected father. As had been discussed above, the exact identity of Insan Ali itself was not established as a citizen of India. In view of the above, the Tribunal is, in our considered opinion, not unjustified in its approach to hold that there was failure on the part of the proceedee to establish his status as a citizen of India and to declare him as a foreigner of post 1971 period.

¶50

A perusal of the order / opinion dated 21.01.2019 passed by the Tribunal shows that the Tribunal had carefully appreciated whatever evidence was led by the petitioner before it and, thereafter, had rendered the finding that the petitioner had failed to establish his claim to be a citizen of India by reliable and cogent documentary evidence. Such a finding being a finding of fact, a writ Court exercising jurisdiction under Article 226 of the constitution of India does not, ordinarily, interfere with such finding of fact unless there is perversity because the jurisdiction so exercised is supervisory and not appellate. In view of

¶51

Page No.# 8/8

¶52

the point raised on behalf of the petitioner, the evidence led before the Tribunal by the petitioner is one again revisited only to reassure as to whether there was any perversity in the order / opinion of the Tribunal. There being none, this writ petition is, resultantly, found to be bereft of merit and the same stands accordingly dismissed. There shall be no order as to costs.

¶53

Concerned State authorities to take action accordingly.

¶54

Office to send back the case records to the Tribunal forthwith.

¶55

JUDGE JUDGE

¶56

Comparing Assistant

Atar Ali v. the Union of India and 6 Ors.

Case brief

What is this about?

What did the court decide?

Atar Ali v. the Union of India and 6 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Jahanara Khatun Vs the Union of India and 5 Ors.

Sona Bhanu Nessa @ Sona Bhanu Vs the Union of India and 5 Ors.

Marfat Ali Vs the Union of India and 5 Ors.

Niranjan Paul Vs the Union of India and 7 Ors.

Nabi Hussain and Anr. Vs the Union of India and 5 Ors.

Anita Das @ Anita Ghosh Vs the Union of India and 5 Ors.