Writ petition challenging Foreigners Tribunal order declaring petitioner a foreigner. Court held petitioner failed to discharge burden under Section 9 of Foreigners Act. Tribunal's findings unassailable. Petition dismissed.
Writ petition dismissed; interim bail recalled; case records sent back to Tribunal.
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GAHC010153852017
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 7880/2017
1:MUSSTT. MAYARUN NESSA W/O. MD. NOOR ISLAM, RESIDENT OF VILLAGE- DAKHIN LASKAR PATHAR, P.S. LANKA, DISTRICT- HOJAI, ASSAM.
VERSUS
1:THE UNION OF INDIA and 6 ORS. REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, JAISALMER HOUSE, 26, MANSINGH ROAD, NEW DELHI-110001
2:THE FOREIGNERS TRIBUNAL 7TH NAGAON AT LANKA HOJAI DISTRICT- HOJAI ASSAM.
3:THE STATE OF ASSAM REPRESENTED BY ITS SECRETARY DEPARTMENT OF HOME DISPUR GUWAHATI-6.
4:THE DIRECTOR GENERAL OF POLICE POLICE HEAD QUARTERS ULUBARI GUWAHATI-7 ASSAM. 5:THE SUPERINTENDENT OF POLICE BORDER HOJAI DISTRICT- HOJAI ASSAM.
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LANKA POLICE STATION LANKA DISTRICT- HOJAI ASSAM. 7:THE DEPUTY COMMISSIONER HOJAI DISTRICT- HOJAI ASSAM
Advocate for the Petitioner : MS.A DAS
Advocate for the Respondent : GA, ASSAM
:: BEFORE ::
HON’BLE MR. JUSTICE MANOJIT BHUYAN HON’BLE MR. JUSTICE AJIT BORTHAKUR
O R D E R
07.11.2019
(Manojit Bhuyan, J)
Heard Mr. U. Dutta, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing respondent no.1. Mr. J. Payeng, learned counsel appears for respondent nos.2, 3, 4, 5, 6 and 7.
Petitioner assails order/opinion dated 14.06.2017 passed by the Foreigners’ Tribunal, Nagaon Court No.7th at Lanka, Nagaon in F.T./L/Case No.150/2015, declaring her to be a foreigner, having illegally entered into the territory of India (Assam) after 25.03.1971 without any valid documents.
For the purpose of discharging burden as required under section 9 of the Foreigners Act, 1946 to prove that she is not a foreigner, as many as 6 (six) documents were exhibited, particulars of which may be noticed as under:
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Besides the documents above, the petitioner examined herself as DW-1 and also presented for examination one Md. Abdul Malik, projected as the neighbour of the petitioner, as DW-2.
As indicated above, the petitioner projected one Amir Ali as her grandfather whose name appeared in the Voter List of 1970 at Exhibit-2, of village Kapalipar under 94
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Lumding LAC. Similarly, the petitioner projected one Tarmuj Ali and stated his name appeared in the Voter List of 1989 at Exhibit-3 and the Voter List of 1993 at Exhibit-6, of village Dakshin Laskarpathar under 91 Lumding LAC. However, no voter lists were produced and exhibited reflecting the name of the petitioner by showing relationship with her projected grandfather or father. The petitioner’s name along with her projected husband appeared in the Voter Lists of 1997 and 2010 at Exhibits-4 and 5, of village Dakshin Laskarpathar under 91 Hojai LAC which, however, bore no relevance as her relation is shown with her projected husband and not with the projected grandfather or father. Though the petitioner produced and exhibited the Gaonburah Certificate at Exhibit1 to show linkage with her projected father, however, the said Certificate rendered itself inadmissible in evidence, inasmuch as, the author/issuing authority was not examined to prove the certificate and the contents thereof.
The statement of DW-2 i.e. Md. Abdul Malik who claimed to be the neighbour of the petitioner, cannot be relied upon in the absence of any documents and reliable evidence demonstrating relationship of the petitioner with her projected grandfather or father. The oral testimony of DW-2 is, therefore, without any relevance and does not serve to support the case of the petitioner.
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 her projected father and grandfather.
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
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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.
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.
Interim bail granted vide our order dated 18.12.2017 stands recalled.
Office to send back the case records to the Tribunal forthwith.
A copy of this order be made part of the case records of the Tribunal for future reference.
JUDGE JUDGE
Comparing Assistant
2 issues framed by the court
Whether the petitioner displaced the burden of proof under Section 9 of the Foreigners Act, 1946, by establishing citizenship through documentary evidence.
Whether the High Court could interfere with the Foreigners Tribunal's findings of fact given their supervisory jurisdiction.
1 provisions across 1 enactments
Musstt. Mayarun Nessa
The Union of India
The Foreigners Tribunal 7th Nagaon
The State of Assam
Manojit Bhuyan
Ajit Borthakur
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
