Dismissed

Mofijuddin v. the Union of India and 6 Ors.

Gauhati HC13 Nov 2019WP(C)/4437/2019

Case brief

AI extract

What is this about?

A writ petition filed by MOFIJUDDIN challenging an order of the Foreigners Tribunal declaring him a foreigner for allegedly entering India after the 1971 cut-off date. The High Court held the petitioner failed to prove citizenship and dismissed the petition without interfering with the Tribunal's findings.

What did the court decide?

The writ petition stands dismissed; without order as to cost; case records sent back to the Tribunal.

Mofijuddin Vs the Union of India and 6 Ors. — Gauhati HC (2019) — LawSathi Research

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GAHC010145292019

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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) 4437/2019

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1:MOFIJUDDIN

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S/O- LATE SAMAR ALI, AND MUSTT SUFURA KHATUN, R/O- VILL NO.2, MATIPARBAT, P.O- DHARAMTUL, P.S- JAGIROAD, PIN- 782412, DISTMORIGAON, ASSAM

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VERSUS

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1:THE UNION OF INDIA AND 6 ORS

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REP. BY THE SECRETARY TO THE GOVT OF INDIA, MIN OF HOME AFFAIRS, NEW DELHI

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2:THE CHIEF ELECTION COMMISSIONER ELECTION COMMISSION OF INDIA ASHOKA ROAD NEW DELHI- 110001

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3:THE STATE OF ASSAM REP. BY ITS SECRETARY GOVT OF ASSAM HOME DEPTT DISPUR GUWAHATI- 06

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4:THE DIRECTOR GENERAL OF POLICE ASSAM ULUBARI GUWAHATI- 781007

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5:THE STATE COORDINATOR OFFICE OF THE STATE COORDINATOR OF NRC ASSAM

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1ST FLOOR ACHYUT PLAZA GS ROAD BHANGAGARH GHY- 05

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6:THE DEPUTY COMMISSIONER MORIGAON DIST- MORIGAON ASSAM 7:THE SUPERINTENDENT OF POLICE(B) MORIGAON DIST- MORIGAON ASSA

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Advocate for the Petitioner : MR. K LAHKAR

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

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BEFORE

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HONOURABLE MR. JUSTICE MANOJIT BHUYAN HONOURABLE MR. JUSTICE AJIT BORTHAKUR

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order

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Date : 13-11-2019

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(Manojit Bhuyan, J)

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Heard Mr. I. Ahmed, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing respondent no.1. Ms. B. Das, learned counsel represents respondent no.2 whereas Mr. J. Payeng, learned counsel represents respondent nos.3, 4, 6 and 7. Ms. A. Verma, learned counsel appears for respondentno.5.

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Petitioner assails opinion dated 20.02.2019 passed by the Foreigners’ Tribunal, Nagaon Court No.(1^st ), Morigaon, Assam in Case No. F.T.(C) 504/2010, declaring him to be a foreigner/illegal migrant, having illegally entered into India (Assam) after 25.03.1971 stream.

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For the purpose of discharging burden as required under section 9 of the Foreigners Act, 1946 to prove that he is not a foreigner, the petitioner exhibited as many as 13 (thirteen) documents, the

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particulars of which may be noticed, as under :

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(i) Exhibit-Ka – Certified copy of Voter List of 1966, in the name of one Safar Ali, projected fatherin-law of the petitioner and one Malekjan, projected mother-in-law of the petitioner of village Shilpukhuri, P.S. Lahorighat, district- Nagaon, under 84 No. Lahorighat LAC.

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(ii) Exhibit-Kha – Certified copy of Voter List of 1970, in the name of one Safar Ali, projected father-in-law of the petitioner and one Malekjan, projected mother-in-law of the petitioner of village Shilpukhuri, P.S. Mikirbheta, Part No.108, district- Nagaon, under 84 No. Batadrava LAC.

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(iii) Exhibit-Ga – Certificate dated 22.09.2016 in the name of Salema Khatun, projected wife of the petitioner.

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(iv) Exhibit-Gha – Certified copy of Voter List of 1977, in the name of one Samar Ali, projected father of the petitioner of village Muladhari, P.S.-Jagiroad, Mouza-Uttarkhola, district- Nagaon, under 79 No. Jagiroad (SC) LAC.

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(v) Exhibit-Unga – Certified copy of Voter List of 1997, in the name of one Samar Ali, projected father of the petitioner of village Mati Parbat/Muladhari/Shilbheta, P.S.-Jagiroad, MouzaUttarkhola, Part No.92, district- Nagaon, under 79 No. Jagiroad (SC) LAC.

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vi) Exhibit-Cha – Certificate dated 01.10.2018 issued by the Gaonburah of Mati Parbat certifying that the petitioner is a resident of Mati Parbat.

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vii) Exhibit-Chha– Certified copy of Voter List of 1997, in the name of petitioner along with his projected wife of village Mati Parbat/Muladhari/Shilbheta, P.S.-Jagiroad, Mouza-Uttarkhola, district- Morigaon, under 79 No. Jagiroad (SC) LAC.

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viii) Exhibit-Ja(1) – Birth Certificate of petitioner’s son Md. Ashad Ali. ix) Exhibit-Ja(2) – Birth Certificate of petitioner’s daughter Amena Khatun x) Exhibit-Ja(3) – Birth Certificate of petitioner’s daughter Narjima Khatun. xi) Exhibit-Ja – Jamabandi in the name of one Md. Sarafat Ali. xii) Exhibit-Niya – Certified copy of Voter List of 1971, in the name of one A. Hekim, projected Grandfather of the petitioner of village Chamaklia Pathar, P.S. Sadar, Mouza- Hatichong, districtNagaon, under 88 No. Nagaon LAC.

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(xiii) Exhibit-Ta – Certificate dated 09.10.2016 issued by the Gaonburah of Mouza-Hatichong, village Samkalia.

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Petitioner examined himself as DW-1. One Md. Subed Ali, projected as cousin of the petitioner’s wife deposed as DW-2, one Md. Haber Rahman, co-villager of Samkalia village deposed as DW-3 and one Md. Suraj Ali, projected as cousin of the petitioner, deposed as DW-4. First and foremost, we would observe that from its very nature the documents at Exhibits-‘Ka’, ‘Kha’, ‘Ga’, ‘Ja(1)’, ‘Ja(2)’, ‘Ja(3)’ and ‘Jha’ are not relevant documents coming to the aid of the petitioner.

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From the available records it is seen that there are primarily six documents by which the petitioner tried to establish linkage to the projected grandfather A.Hekim, through the projected father Samar Ali. To begin with, Exhibit-‘Niya’ is the Voter List of 1971 of village Samkalia Pathar, under 88 Nagaon Legislative Assembly Constituency, showing the name of the projected grandfather A.Hekim, aged 40 years. Exhibits-‘Gha’ and ‘Unga’ are the Voter Lists of 1977 and 1997 pertaining to a different

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village and constituency, being village Muladhari/ Mati Parbat/ Shilbheta, under 79 Jagiroad Legislative Assembly Constituency, wherein the age of the petitioner’s projected father is shown as 48 years in the year 1977 and 80 years in the year 1997. The Exhibit-‘Chha’ is the Voter List of 1997, recording the name of the petitioner as a voter and son of Samar Ali. Two other exhibits, being the Exhibit-‘Cha’ certificate of the Gaonburah of village Mati Parbat and Exhibit-‘Ta’ certificate of the Gaonburah of Samkalia Pathar, both rendered itself as inadmissible in evidence in the absence of the legal testimony of the authors of the said certificates. In other words, neither the issuance of the said two certificates nor its contents stood proved.

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On comparing the Voter List of 1971 with that of the Voter List of 1977, huge discrepancy and absurdity in the age of the projected grandfather vis-a-vis the projected father is discernible. Having regard to the age of the projected grandfather in the Voter List of 1971, recorded as 40 years, his year of birth is 1931. Having regard to the age of the projected father in the Voter List of 1977, recorded as 48 years, his year of birth is 1929. Utter absurdity is in respect of the fact that the projected grandfather appears to be 2 (two) years younger than the projected father. Also, the sudden increase of the age of the projected father to 80 years in the Voter List of 1997 reinforces the fact that under no circumstances Abdul Hekim of the 1971 Voter List can be considered as the father of Samar Ali of the Voter List of 1977. Great doubt appears as to the relationship of the projected grandfather Abdul Hekim with the projected father Samar Ali. Assuming that the petitioner could establish linkage with the projected father Samar Ali, the earliest recorded existence of the projected father can only be traceable from the Voter List of 1977. Surprising to note that the projected father is shown to have cast vote for the very first time only in the year 1977, that too at the ripe age of 48 years. The projected father should have necessarily cast vote along with the projected grandfather in 1971 itself, considering his age in the year 1977. No such voter lists showing both the projected grandfather and the father together as voters/electors were brought on record.

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The evidence of DW-2, being the cousin of the petitioner’s wife as well as the evidence of DW4, being the cousin of the petitioner, aged 24 years, do not lend support to the case of the petitioner for proving citizenship. The co-villager of village Samkalia Pathar, who deposed as DW-3, had stated that he had cast vote along with Abdul Hekim (the projected grandfather). The statement of DW-3 assumes no significance, inasmuch as, in the very first place no linkage/relationship could be established between the projected father and the projected grandfather. Thus, as no link to the projected grandfather could be shown through the projected father, the statement of DW-3 that he had cast vote along with the projected grandfather holds no water. In totality, the evidence of DW-2, DW-3 and DW-4 are without any relevance to come to the aid of the petitioner in proving citizenship.

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As the primary issue in a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 relates to determination as to whether the proceedee is a foreigner or not, the relevant facts being especially within the knowledge of the proceedee, therefore, the burden of proving citizenship absolutely rests upon the proceedee, notwithstanding anything contained in the Evidence Act, 1872. This is mandated under section 9 of the aforesaid Act, 1946. In the instant case and for the reasons recorded above, the petitioner not only failed to discharge the burden but also utterly failed to make proof of the most crucial aspect, that is, in establishing linkage to his projected grandfather of Exhibit-‘Niya’ Voter List of 1971 through the projected father of the Exhibits-‘Gha’ and ‘Unga’ Voter Lists of 1977 and 1997.

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On the available materials, we find that the Tribunal rendered opinion/order upon due appreciation of the entire facts, evidence and documents brought on record. We find no infirmity in the findings and opinion recorded by the Tribunal. We would observe that the certiorari jurisdiction of the writ court being supervisory and not appellate jurisdiction, this Court would refrain from reviewing the findings of facts reached by the Tribunal. No case is made out that the impugned opinion/order was rendered without affording opportunity of hearing or in violation of the principles of natural justice and/or that it suffers from illegality on any ground of having been passed by placing reliance on evidence which is legally impermissible in law and/or that the Tribunal refused to admit admissible evidence and/or that the findings finds no support by any evidence at all. In other words, the petitioner has not been able to make out any case demonstrating any errors apparent on the face of the record to warrant interference of the impugned opinion.

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On the discussions and findings above, we find no merit in the writ petition. Accordingly, the same stands dismissed, however, without any order as to cost.

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

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A copy of this order be made part of the case records of the Tribunal for future reference.

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JUDGE JUDGE

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Comparing Assistant

Mofijuddin v. the Union of India and 6 Ors.

Case brief

What is this about?

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Mofijuddin v. the Union of India and 6 Ors.

Case brief

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