IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) WP(C) 3680 of Vs-

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1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) WP(C) 3680 of 2013 Ohed Ali, S/o. Late Abdul Jobbar, Village Uralkata Pathar, P.O. Chahariagaon, P.S.- Moirabari, District- Morigaon, Assam. -Vs- Petitioner. 1. The Union of India, represented by the Ministry of Home Affairs, New Delhi. 2. The State of Assam, represented by the Commissioner and Secretary to the Govt. of Assam, Home Department, Dispur, Guwahati The Superintendent of Police (B), Morigaon, Assam. 4. The Deputy Commissioner, Morigaon, District- Morigaon, Assam. 5. The Officer-in-Charge, Moirabari Police Station, Dist.- Morigaon, Assam. Respondents. BEFORE THE HON BLE MR. JUSTICE B.K. SHARMA For the petitioners : For the respondents : Mr. F.U. Barbhuiya, Adv. Mrs. R. Gogoi, GA, Assam. Mr. M. Bhagabati, CGC. Date of hearing : 21/08/2013. Date of judgement : 13 /09/2013. WP(C) 3680/ CAV Page 1 of 7

2 JUDGEMENT AND ORDER (CAV) This writ petition is directed against the judgment and order passed by the learned Member, Foreigners Tribunal (2 nd ), Morigaon, Assam in Case No. FT(D) Case No133/2011 (Police ref. D/N Case No dated (ERO s reference No. 83/89/126 dated (State of Assam Vs. Ohed Ali) declaring the petitioner to be a foreign national who illegally entered into Assam from Bangladesh after the cut off date I have heard Mr. F.U. Barbhuiya, learned counsel for the petitioners. Also heard Mr. M. Bhagabati, learned CGC and Mrs. R. Gogoi, learned State Counsel. I have also perused the materials on record including the records received from the Tribunal. 3. On receipt of notice from the Tribunal, the petitioner appeared before the Tribunal and filed his written statement, inter alia, contending that he is a citizen of India by birth. The relevant paragraph of the written statement are quoted below :- 4. That, my parents namely Abdul Jabbar and Surjan are enrolled as a legal voter in the voter list of 1965 under 84 No. Laharighat LAC bearing Sl. No. 32, 33, House No-7, part No. under Laharighat P.S. in the Dist. Nagaon, Assam Voter list of 1965 State Assembly No. 84 Laharighat showing the name of my parents enclosed herewith. 5. That, my Grand-father s actual name was Ali Mamud but wrongly written as Alimuddin in the voter list of 1965 along with my father s name. WP(C) 3680/ CAV Page 2 of 7

3 6. That, my parents are legal voter in the voter list of 1970 under 84 No. Laharighat LAC, vide Sl. No.s. 32, 33, House No.7, Part 83 under Mauza Moirabari, P.S. Laharighat, Dist. Nagaon, Assam. 7. That, I am the legal voter in the voter list of 1993 under 83 No. Dhing LAC bearing Sl. No. 703, house No. 289, P. No. 89 under Moirabari Mauza and P.S., Dist. Nagaon, Assam and as such I have casted my vote. 8. That, my father is a permanent resident of Village Uralkata Pather under Moirabari Mauza and as a strong proof I have submitted land documents of my father. 9. That, I am continuously living at Vill. Uralkata Pather under Lengribori Gaon Panchayat of P.S. Moirabari, Dist. Morigaon, Assam, which my elder brother Md. Abdul Azid. 4. In support of the written statement, the petitioner exhibited 1965 voter list (Ext. Ka) ; Ext. Kha affidavit ; Ext. Ga voter list of 1970 ; Ext. Gha voter list of 1993 ; Ext. Ongo certificate of Gaonbura dated ; Ext. Cha certificate of Lengribori Gaon Panchayat ; Ext. Chha NREGA job card ; Ext. Ja illegible copy of sale deed ; Ext. Jha all certified copy of sale deed of 2006 and Ext. Niya copy of Jamabandi. 5. The learned Tribunal in appreciation of the evidence on record including the oral testimony of the witnesses as opined that the petitioner is not an Indian citizen but an illegal migrant. In the proceeding, State proved the ext. 1, 2 and 3 reports by which the petitioner was prima facie found to be a foreign national. Petitioner WP(C) 3680/ CAV Page 3 of 7

4 also examined two witnesses as DW-1 and DW-2. Ext. KA voter list of 1965 contains the name of one A. Jabbar S/o. Alim Uddin, Ext. Kha is an affidavit sworn by the petitioner. However, in cross examination, the petitioner admitted that he did not know the signatures of Ext. Kha affidavit. Moreover, the DW-2 served at Morigaon Court. By exhibiting the said affidavit, the petitioner wanted to convey that Ali Mamud is in fact Alim Uddin. In Ext. Ka & Ga voter list, the name of one A.l Jabbar appears but the name of the petitioner s father as Jabbar only. Other certificates and voter lists are all no consequence as the same are of post 25/03/1971. In paragraph 10 of the impugned judgement and order, the learned Tribunal has held thus :- 10. Though some copies of documents filed by O.Ps side not duly proved. Moreover, O.P s father s name Jabbar as per case record but in Ext. Ka and Ext. Ga recorded as A. Jabbar. Both are different persons. In Ext. Ka it appears that A. jabber is S/O. Alimuddin and in Ext. Ga it appears that A. jabber is S/O. Ali Mamud are also different. The O.P. by filing affidavit wanted to say that Alimuddin is wrongly recorded instead of Ali mahmud but the same is not duly proved and can not be accepted. 6. If the petitioner is a Indian citizen, by birth, he ought to have proved the same easily. What he relied upon is the 1993, 1997 and 2005 voter list. In all the voter list except 1993, he has been identified as D voter. 7. In Sarbananda Sonowal-I Vs. union of India reported in (2005) 5 SCC 665, the Apex Court while discussing the problem being faced by the State of Assam due to illegal migration and their continued presence in the State has been vividly discussed the alarming situation. While striking out the IM(D)T Act, 1983, the Apex WP(C) 3680/ CAV Page 4 of 7

5 Court also dealt with the modality of proving one s Indian citizenship. It has been emphasized that the burden of proof is always on the proceedee as per provisions of Section 9 of the Foreigners Act, In Sarbananda Sonowal-I, the Apex Court dealing with the burden of proof, made the following observation :- 26. There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country. In order to establish one s citizenship, normally he may be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship. Sometimes the place of birth of his grandparents may also be relevant like under Section 6-A(1)(d) of the Citizenship Act. All these facts would be necessarily be within the personal knowledge of the person concerned and hot of the authorities of the State. After he has given evidence on these points, the State authorities can verify the facts and can then lead evidence in rebuttal, if necessary. If the State authorities dispute the claim of citizenship by a person and assert that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the aforesaid points. This is in accordance with the underlying policy of Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. 8. Moreover, mere exhibiting some documents, one cannot establish his Indian citizenship. Even in case of production of certified copies of the documents, something more is required as per the Law of Evidence. As has been held by the Apex Court in (2010) 4 SCC 491 (LIC of India Vs. Ram Pal Singh Bisen), even admission of a document in evidence does not amount to its proof, in other words, mere making of exhibit of a document does not dispense with its proof, which is required to be done in accordance with law. It was the duty of the petitioners to have proved the documents in accordance with law. Under the Law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of WP(C) 3680/ CAV Page 5 of 7

6 documents may amounts to admission of contents but not its truth. Thus, the documents (Photocopies) having not been produced and marked as required under the Evidence Act, cannot be relied upon by the Court. Contents of the document cannot be proved by merely filing in a Court. 9. Needless to say that the High Court exercising its power of judicial review under Article 226 of the Constitution of India cannot sit on appeal over the finding of facts recorded by the Court/Tribunal. It is only when the Court/ Tribunal exercise a jurisdiction without being empowered or in excess of it or fails to exercise the vested jurisdiction or acts illegally, the Writ Court exercising its jurisdiction can interfere with the same. The High Court can interfere with the order of the Tribunal exercising its writ jurisdiction only if it is proved that it is a case of no evidence at all or there is error apparent on the face of the record. The power of judicial review under Article 226 of the Constitution is limited only to correction of errors apparent on the face of the records and does not need long drawn out process of reasons on points whether there may be conceivably two views. In the instant case, I do not find any infirmity in the impugned judgement and order requiring any interference of this Court exercising its power of judicial review under Article 226 of the Constitution of India. 10. The writ petition is dismissed. There shall be no order as to costs. 11. Let copies of this judgement be sent to SP(B), Mirogaon and the Deputy Commissioner, Morigaon for taking further course of action towards detention of the petitioners in the detention camp for his deportation to his country of origin and for deletion of his name from the voter list. Copies of this order shall also be sent to the Union Govt. in the Ministry of Home and so also to the State Government in the Home Department for their necessary follow up action in terms of this judgement and order. Another copy be WP(C) 3680/ CAV Page 6 of 7

7 furnished to Mrs. R. Gogoi, the learned State Counsel for her follow up action. 12. Registry shall send down the case records to the Tribunal along with a copy of this judgement and order. List after one month for furnishing report by the respondents, more particularly, the SP(B), Morigaon and Deputy Commissioner, Morigaon regarding action taken in term of this judgement and order. JUDGE Sukhamay WP(C) 3680/ CAV Page 7 of 7