Allowed

Suauddin v. the Union of India and 5 Ors.

Gauhati HC26 Apr 2022WP(C)/4041/2018

Case brief

AI extract

What is this about?

The Gauhati High Court allowed a writ petition against an impugned order of the Foreigners Tribunal which declared the petitioner a foreigner. The Court held that the Tribunal erred in ignoring favorable documentary evidence regarding the petitioner's family history. The opinion was set aside, and the case remanded for fresh appreciation of all evidence.

What did the court decide?

The impugned order was set aside, the LCR remitted, and the petition disposed of with the petitioner to appear before the Tribunal on a specified date.

Suauddin Vs the Union of India and 5 Ors. — Writ and Judicial Review | Gauhati HC (2022)

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Page No.# 1/8

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GAHC010131522018

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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)/4041/2018

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SUAUDDIN

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S/O- LATE FAIJUR RAHMAN, R/O- VILL- DAKAHIN NAOBEEL, P.SMURAJHAR,, DIST- HOJAI, ASSAM, PIN- 782435

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VERSUS

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THE UNION OF INDIA AND 5 ORS REP. BY THE SECRETARY TO THE MIN OF HOME AFFAIRS, GOVT OF INDIA, MIN OF HOME AFFAIRS, SHASTRI BHAWAN, TILOK MARG, NEW DELHI- 01 2:THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM DEPTT OF HOME DISPUR GHY- 06

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3:THE DEPUTY COMMISSIONER HOJAI P.O P.S AND DIST- HOJAI ASSAM PIN- 782435 4:THE SUPERINTENDENT OF POLICE(B) HOJAI P.O P.S AND DIST- HOJAI ASSAM PIN- 782435

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5:THE ELECTION COMMISSIONER OF INDIA THROUGH ITS SECRETARY

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NIRBACHAN BHAWAN NEW DELHI- 01

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6:THE STATE COORDINATOR NATIONAL REGISTER OF CITIZENS ASSAM BHANGAGARH GHY- 0

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Advocate for the Petitioner : MR. A R SIKDAR

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

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BEFORE

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HON’BLE MR. JUSTICE N. KOTISWAR SINGH HON’BLE MR. JUSTICE NANI TAGIA

order

(oral)

26-04-2022

[N. Kotiswar Singh, J]

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Heard Mr. A.R. Sikdar, learned counsel for the petitioner. Also heard Ms. L. Devi,

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learned counsel appearing on behalf of Mr. R.K. Dev Choudhury, learned Asstt. SGI, for respondent no.1; Mr. A. Kalita, learned Special Counsel, F.T. appearing for respondent no.4; Mr. A. I. Ali, learned Standing Counsel, ECI, appearing for respondent no.5; Ms. L. Devi,

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learned Standing Counsel, NRC, appearing for respondent no.6 and Ms. U. Das, learned Government Advocate, Assam, appearing for respondent nos.2 & 3.

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In this petition the petitioner has challenged the impugned order dated 28.12.2017

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passed by the Foreigners Tribunal, Nagaon Court No.7^th at Lanka in F.T./L/Case No.729/2016 declaring the petitioner as a foreigner of post 1971 stream.

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Learned counsel for the petitioner has questioned the validity of the opinion on several grounds.

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Firstly, it has been submitted that the Tribunal at the time of considering the case of the proceedee/petitioner herein had ignored the voters lists of 1966 and 1970, which were exhibited as Exhibits-1 & 2 in F.T./L/Case No.729/2016, purportedly on the ground that the part nos. of the villages were not matching in the said two voters lists. Further, the proceedee’s grandmother’s name in both the exhibits were mentioned as Porina Bibi while the petitioner has stated as Farina Bibi. Similarly, the grandfather’s name in Exhibit-2 (1970 voters list) appeared as Saohar Ali Laskar instead of Sanuhar Ali Laskar. Likewise, proceedee’s father’s name appeared as Faijor Rahman in Exhibit-2 (1970 voters list) in place of Faijur Rahman. The Tribunal thus did not place reliance on the aforesaid documents.

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Further, it has been submitted by the learned counsel for the petitioner that the Admit Card, issued by the Secretary, State Board for Elementary Education, Nowgong in the name of Faizur Rahman, the projected father of the petitioner, which was exhibited as Exhibit-10,

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for taking part in the Assam Junior Basic Teachers’ Test Examination held on 25^th & 26^th October, 1966, would prove that the petitioner/proceedee’s father was a teacher at least in the year 1966, but the same was ignored by the Tribunal stating that the petitioner neither stated in his disposition nor in his evidence that his father was a teacher. Further, the Tribunal observed that mere production of the document would not be sufficient and the contents of the document would have to be proved in accordance with law.

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On the other hand, Mr. A. Kalita, learned Special Standing Counsel, F.T., submits that it is not a case that the Tribunal wholly ignored these documents but was merely pointing out

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the discrepancies which made the stand of the petitioner that he is an Indian untenable. Further, there is no explanation as to why the name of the petitioner’s alleged father Faizur Rahman did not appear in the voters lists between 1970 to 1985 and after 1993. It has been also submitted that the age discrepancy of the alleged father of the petitioner is clearly visible from these voters lists. As regards the Admit Card, learned Special Standing Counsel, F.T. submits that it is not understood as to how the Assistant Secretary of the State Board of Elementary Education, Nowgong, could have issued such a certificate and in any event, the said certificate had not been proved in accordance with law including the correctness of the contents and accordingly, the said Admit Card is not admissible as per law.

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Further, it has been submitted that the certificate issued by the Gaonburah was not proved.

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Accordingly, it has been submitted that the petitioner failed to provide all the necessary documentary evidences to link himself with his projected father Faijur Rahman and merely claiming that Faijur Rahman is his father will not relieve him from the burden cast upon him under Section 9 of the Foreigners Act, 1946.

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We have heard learned counsel for the parties and also perused the LCR.

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From the original records when the voters lists of 1966 and 1970 are compared, what we have found is that the name of Faijur Rahman is mentioned in the voters list of 1966 as a son of Sanehor Ali Laskar and Sawhar Ali Laskar in the voters list of 1970 but the name of their village is same as Dakhi Noabill under the same police station i.e. Murazar and MouzaNamati under the same Assam Legislative Assembly Constituency of 1993, Hojai. In our view the difference in the name of the petitioner’s projected father is insignificant considering the

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similarities in other parameters. Further, in 1966 voters list, the village has been show as part no.-98, whereas in the 1970 voters list, it is mentioned as part no.104. In our view, the difference in the part numbers will not be of much significance, there may be a new parts being created.

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In view of the fact that in other respects the particulars are same, we do not consider there is any material discrepancy in the said voters lists of 1966 & 1970. Further, the age difference of the father of the petitioner, namely, Faijur Rahman in the voters list of 1966 and 1970 also does not appear to be of much significance as in the voters list of 1966, the age of Faijur Rahman is shown as 25 years, whereas in the voters list of 1970 the petitioner’s father age is shown as 29 years. As far as the discrepancy in the name of the petitioner’s father is concerned, in 1966 it has been reflected as Faijur Rahman and in voters list of 1970 it has been reflected as Foijor Rahman. However, we have found that the names are under the same serial no.129 of the voters lists of 1966 and 1970 and same house number 39. Accordingly, we are of the view that this discrepancy is also insignificant in nature.

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As regards the authenticity of the Admit Card, we have seen from the original records that the Admit Card was issued to the father of the petitioner with the signature of the Assistant Secretary, State Board for Elementary Education, Nowgong, which is exhibited as Exhibit-10. The Tribunal ignored the same on the ground that the proceedee never stated in his deposition nor in his written statement that his father was a teacher. As submitted by the learned counsel for the petitioner there is a clear reference in para no.6 of the written statement of the petitioner in F.T./L/Case No.729/2016 that the father of the opposite party/proceedee/petitioner was a school teacher. Similarly, it is clearly mentioned in the evidence of the proceedee/petitioner in para-4 that his father was a teacher, who died on

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07.03.2002.

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Having perused the LCR, we have also seen that the Admit Card, which was issued in favour of the petitioner’s father, is the original document and not any photocopy and since, no question was raised by the State as to the genuineness of the said document, we fail to understand how an original document relied by a person to prove his citizenship could be ignored when no such question was raised. From the Admit Card, it is also clearly evident that the Admit Card relates to examination held on 25^th and 26^th October, 1966 and as such, this document is more than 30 years old and as provided under Section 90 of the Indian Evidence Act, 1972, there would be a presumption of the genuineness of the document which has not been contested nor rebutted by the authorities.

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Under such circumstances, we are of the view that the Tribunal would be required to re-examine the issue by ignoring abovementioned discrepancies in the voters lists of 1966 and 1970 and also to take into consideration of the Admit Card issued by the Asstt. Secretary, State Board of Elementary Education, Nowgong, which have been ignored.

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Learned counsel for the petitioner also submits that there is a certified copy of the police report showing the legal heirs of the father of the petitioner, which also has been ignored by the Tribunal on the ground that this cannot be of use as this is not proved as per law.

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We have examined the attested copy of certificate of legal heirs of proceedee’s father which was attested by the Superintendent of Excise, Hojai, Sankardev Nagar. The document is not a certified copy but merely an attested copy.

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Under such circumstances, perhaps the opinion of the Tribunal cannot be faulted with

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as it is merely an attested copy by the Superintendent of Excise, Hojai, Sankardev Nagar, not by any authority of the police.

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Be that as it may, we have found that the Tribunal did not give any importance to the three critical documents i.e. voters lists of 1966 and 1970 and Admit Card issued for the Assam Junior Basic Teachers’ Test Examination by the State Board of elementary Education, Nowgong to the petitioner’s father in the year 1966 and on the basis of other evidences, the Tribunal held that the petitioner has failed to establish the linkage with his projected father, Faijur Rahman.

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We are of the view that the aforesaid 3 (three) documents i.e. the voters lists of 1966 and 1070 and the Admit Card are to be taken into consideration by the Tribunal as these will have relevance while appreciating the remaining evidences. In an event, no single document can be the sole basis for establishing the citizenship of a person. It would be the cumulative effect of all the evidences on the basis of which one has to draw the influence whether the person is a foreigner or not. As a result, if certain important and significant documents have not been considered, it would have adverse effect while appreciating the remaining evidences on record, as the evidences on record take their colour from the other surroundings documents and evidences. The Tribunal has to take into consideration all the relevant evidences together to come to his own conclusion.

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Law is also well settled that if any relevant material or evidence is not considered by any decision making authority, such a conclusion arrived at by the authority will be vitiated.

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Under the circumstances, all the evidences should be reassessed by the Tribunal keeping into consideration the aforesaid 3 (three) documents. i.e. the voter list of 1966 and

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1970 and the Admit Card. The Tribunal would be required to re-appreciate other evidences

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also again and thereafter, come to a conclusion after a holistic appreciation of all the evidences taken together. The evidences should have been assessed conjointly not in isolation of one another.

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For the reasons discussed above, we allow this petition by setting aside the impugned

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opinion dated 28.12.2017 passed by the Foreigners Tribunal, Nagaon Court No.7^th at Lanka in F.T./L/Case No.729/2016. Accordingly, the petitioner will appear before the concerned Tribunal on 30.05.2022 and thereafter, the Tribunal will pass a fresh opinion after hearing the petitioner and also by re-appreciating all the admissible evidences in the light of the observations made above.

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Since the petitioner has already been granted bail by this Court on 21.06.2018, he would continue to remain on bail on similar terms and conditions till the culmination of the proceeding in F.T./L/Case No.729/2016.

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With the above observations and directions, the writ petition stands disposed of.

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Copy of this order be furnished to the Superintendent of Police (Border), Hojai for doing the needful.

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Let the LCR of the Foreigners Tribunal, Nagaon Court No.7^th at Lanka, be remitted forthwith.

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JUDGE JUDGE

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Comparing Assistant

Suauddin v. the Union of India and 5 Ors.

Case brief

What is this about?

What did the court decide?

Suauddin v. the Union of India and 5 Ors.

Case brief

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