Dismissed

Amzad Ali v. the Union of India and 4 Ors.

Gauhati HC5 Nov 2019WP(C)/7269/2017

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed the writ petition challenging the Foreigner Tribunal's order declaring the petitioner a foreigner. The court held that the petitioner failed to discharge the burden of proof under the Foreigners Act by providing credible evidence establishing linkage to projected parents.

What did the court decide?

The writ petition was dismissed. Interim bail was recalled and case records were sent back to the Tribunal.

Amzad Ali Vs the Union of India and 4… — Constitutional and Fundamental Rights | Gauhati HC (2019)

¶1

Page No.# 1/5

¶2

GAHC010052312017

¶3

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

¶4

Case No. : WP(C) 7269/2017

¶5

1:AMZAD ALI

¶6

S/O. LT. MEGHU SHEIKH @ LT. MEGU SHEIKH, PERMANENT/ PRESENT ADDRESS- VILL. PATAKATA PART-II, P.S. CHUNARI, DIST. GOALPARA, ASSAM. TEMPORARY ADDRESS- VILL. DOMONI, P.S. BARPETA, DIST. BARPETA, ASSAM.

¶7

VERSUS

¶8

1:THE UNION OF INDIA and 4 ORS. REP. BY THE MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, SASTRI BHAWAN, NEW DELHI, PIN-110001.

¶9

2:THE STATE OF ASSAM REP. BY THE COMM. and SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GUWAHATI-6.

¶10

3:THE SUPERINTENDENT OF POLICE B BARPETA P.S. BARPETA DIST. BARPETA ASSAM PIN-781301.

¶11

4:THE OFFICER-IN-CHARGE OF BARPETA ROAD POLICE STATION P.O. BARPETA DIST. BARPETA ASSAM PIN-781301. 5:THE DY. COMMISSIONER BARPETA P.S. BARPETA

¶12

Page No.# 2/5

¶13

DIST. BARPETA ASSAM PIN-781301

¶14

Advocate for the Petitioner : MD. M H CHOUDHURY

¶15

Advocate for the Respondent :

¶16

BEFORE

¶17

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

¶18

ORDER

¶19

Date : 05-11-2019

¶20

Heard M.A. Sheikh, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing respondent no.1. Mr. J. Payeng, learned counsel representing respondent nos. 2, 3, 4 and 5.

¶21

Petitioner assails opinion dated 07.06.2017 passed by the Foreigners’ Tribunal

¶22

(2^nd ), Barpeta in F.T.(2^nd Tribunal) Case No.430/2015, declaring him to be a foreigner of post 25.03.1971 stream. Petitioner also assails the order dated 14.07.2017 dismissing the petition for review of the order dated 07.06.2017.

¶23

For the purpose of discharging burden as required under section 9 of the Foreigners Act, 1946 to prove that petitioner is not a foreigner, as many as 6 (six) documents were exhibited by him, the particulars of which may be noticed, as under :

¶24

(i) Exhibit-A – NRC details of Meghu Sheikh, projected father of the petitioner of 15 Pathakatha village, Sub-Division-Goalpara.

¶25

(ii) Exhibit-B – Copy of Voter List of 1966, in the name of one Meghu Sheikh, projected father of the petitioner and one Khatemon Nessa, projected mother of the petitioner of village Pathakata Pt-I, Mouza-Lakhipurtehsil, Part No.93, Sub-DivisionGoalpara (Sadar), under Goalpara West, 44

¶26

(iii) Exhibit-C - Copy of Voter List of 1970, in the name of one Meghu Sheikh, projected father of the petitioner and one Khatemon Nessa, projected mother of the petitioner of village Pathakata Pt-I, Part No.145, Sub-Division-Goalpara (Sadar), under

¶27

Page No.# 3/5

¶28

Goalpara East/ 44.

¶29

(iv) Exhibit-D – Elector Photo Identity Card of the petitioner.

¶30

(v) Exhibit-E – Family Identity Card in the name of the petitioner issued by the Secretary, South Gobordhana Samabay Samittee Limited.

¶31

vii) Exhibit- F – Certificate dated 10.02.2016 issued by the Secretary, Monkala Shaildhara Gaon Panchayat, certifying that petitioner’s father name is Meghu Sheikh and he is a resident of village- Patakata-II, P.O. and P.S.-Chunari, district-Goalpara .

¶32

Petitioner examined himself as DW-1. One Fayejuddin Sheikh, projected as brother of the petitioner, deposed as DW-2 and one Noor Alam Mia, deposed as DW-3.

¶33

As indicated above, the petitioner projected one Meghu Sheikh as his father and one Khatemon Nessa as his mother, which names appeared in the Exhibits-A, B and C, being the NRC details and Voter Lists of 1966 and 1970 of village Pathakata Pt-I, SubDivision Goalpara (Sadar). The Elector Photo Identity Card at Exhibit-D and Family Identity Card in the name of the petitioner at Exhibit-E, unless proved in accordance with law, are irrelevant documents for proving linkage. The only document brought on record for the purpose of establishing linkage to said Meghu Sheikh was the Exhibit-F Certificate, issued by the Secretary, Monkala Shaildhara Gaon Panchayat. The Secretary deposed as DW-3 for the purpose of proving the Certificate.

¶34

One Fayejuddin Sheikh, aged 47 years in 2017, claiming to be the elder brother of the petitioner, deposed as DW-2. On a bare perusal of the statement of DW-2, the same does not appear to be credible. DW-2 stated that his name appeared in the Voter List of 1997 along with his wife but no voter lists or any documents had been brought on record showing his linkage with the petitioner or the projected parents. Further, DW 2 stated that his father died 13 years back, which would mean in the year 2004, but no voter lists of the projected father are found in the case records for the period between 1970 and 2004, showing his presence as he was alive during that period. DW-2 also stated that his mother died 3 years back, which would mean in the

¶35

Page No.# 4/5

¶36

2014, but no voter lists of the projected mother of the petitioner were also produced or exhibited between 1970 and 2014, showing her presence as she was alive during that period.

¶37

Linkage is sought to be established through the Exhibit-F Certificate. Besides the unauthorized use of the State Emblem, the statement of the author of the Certificate Noor Alam Mia, Secretary of the Monkala Shaildhara Gaon Panchayat covering the village Pathakata, who deposed as DW-3, is not found credible and helpful to the petitioner. DW-3 stated that Exhibit-F Certificate had not been issued on the basis of official record and the same was issued only for the purpose of facilitating the petitioner to open a Bank Account. Moreover, DW-2 has not seen Meghu Sheikh, the projected father of the petitioner. It is seen that at the time of issuance of the Certificate on 10.02.2016, petitioner was 63 years old. Strangely enough, no any voter lists were produced and exhibited in the name of the petitioner, far from showing relationship with the projected parents. The evidence of DW-2 and DW-3, thus, falls short of being considered as cogent, reliable and admissible evidence, so much so, to establish linkage of the petitioner to the projected parents.

¶38

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 as observed 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 parents.

¶39

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

¶40

Page No.# 5/5

¶41

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.

¶42

We find no merit in the present petition. Accordingly, the same stands dismissed, however, without any order as to cost.

¶43

Interim bail granted by this Court on 29.11.2017 stands recalled.

¶44

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

¶45

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

¶46

JUDGE JUDGE

¶47

Comparing Assistant

Amzad Ali v. the Union of India and 4 Ors.

Case brief

What is this about?

What did the court decide?

Amzad Ali v. the Union of India and 4 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

Moriom Nessa @ Moriom Khatun Vs the Union of India and 5 Ors.

Hachna Bibi @ Hasna Bibi Vs the Union of India and 5 Ors.

Najrul Islam Vs the Union of India and 5 Ors.

Smti. Anjali Biswas @ Madhukala Biswas @ Madhukala Mandal @ Madhukala Sundori Vs Union of India and 6 Ors.

Hanufa Bibi @ Hunupa Bibi Vs the Union of India and 3 Ors.

Tara Mia Vs the Union of India and 5 Ors.