IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) WRIT APPEAL NO.322 OF 2015 1. Koddus Ali @ Kuddus Ali S/O Late Fazar Ali 2. Sofia Khatun @ Sibila Khatun W/O Koddus Ali @ Kuddus Ali 3. Md. Moidul Islam @ Mohidul Ali S/O Koddus Ali @ Kuddus Ali 4. Md. Sobikul Islam @ Sofiqul S/O Koddus Ali @ Kuddus Ali All are residence of Village Baihati P.O. Nellie P.S. Jagiroad, District Morigaon, Assam PIN 782 410. -Versus-... Appellants 1. The Union of India, represented by the Ministry of Home Affairs, Govt. Of India, New Delhi 01. 2. The State of Assam, represented by the Chief Secretary to the Govt. Of Assam, Dispur, Guwahati-6 3. The Director General of Police, Assam, Ulubari, Ghy-07
2 4. The Deputy Commissioner, Morigaon, Assam, PIN 782105 5. The Superintendent of Police (B), Morigaon, Assam, PIN - 782105... Respondents P R E S E N T THE HON BLE MR. JUSTICE P.K. SAIKIA THE HON BLE MRS. JUSTICE RUMI KUMARI PHUKAN For the appellants : Mr. M.U. Mondal, Advocate For the respondent : Mr. S.C. Keyal, Asst. SGI Mr. M. Bhagwati, G.A., Assam Date of hearing : 17.11.2015 Date of judgment and & order : 18.12.2015 JUDGMENT & ORDER (CAV) (By Rumi Kumari Phukan, J.) This appeal is directed against the judgment and order dated 29.9.2015 passed by the learned Single Judge in W.P.(C) No.425/2010 whereby the impugned judgment so passed by the learned Member, Foreigners Tribunal (1 st ), Morigaon in F.T. Case No.73/07 on 18.11.2009 has been upheld and the petitioner has been declared as foreigners. 2. We have heard Mr. M.U. Mondal, learned counsel for the appellants. Also heard Mr. S.K. Ceyal, learned Assistant Solicitor General of Writ Appeal No.322 of 2015 Page 2 of 9
3 India representing the Union of India and Mr. M. Bhagwati, learned Government Advocate, Assam. 3. The case of the petitioner is that they have documents such as NRC of 1951, Voter list of 1965, 1970, 2004 etc., but the learned Tribunal has not considered their case. Contention of the petitioners is that after getting notice in connection with F.T. Case No.73/07, they have filed their written statement along with copies of the voter list and NRC etc., but the learned Tribunal vide order dated 18.11.2009 has declared the appellant as Foreigners under Section 2(9) of the Foreigners Act, on minor discrepancy in the documents. Though the appellants preferred writ petition being W.P.(C) No.425/2010 challenging the aforesaid order of the learned Tribunal, but the same was dismissed by the learned Single Judge thereby upholding the order passed by the learned Tribunal. 4. Being aggrieved, with the findings of the aforesaid two forums, the appellants have preferred this appeal on the grounds that the learned Tribunal as well as the learned Single Judge have failed to appreciate the provisions of the evidence Act and the orders are contrary to the provisions of the Evidence Act and the orders are contrary to the materials on record. It has been contended by learned counsel for the appellants that notice upon the appellants were never served by the LVO and ERO and they actually never visited the residence of the appellants and the learned Tribunal has discarded the documents so produced by the appellants and it has been submitted that the appellants have enough documents to prove that they are India citizen, hence, they should be given a chance to prove their case, denial of which by both the Courts, as aforesaid, have denied their fundamental rights to prove the case. Writ Appeal No.322 of 2015 Page 3 of 9
4 5. On the other hand, learned counsels for the respondents have contended that the learned Tribunal as well as the learned Single Judge have appreciated the facts which are available on records and there is nothing to interfere with the findings. 6. We have given our due consideration to the respective submissions of both the learned counsels for the parties and also have gone through the impugned judgments and orders under challenge and also the averments made in the pleadings. 7. The findings recorded by the learned Tribunal in paragraphs- 2 and 3, read as follows :- 2. The prosecution examined three witnesses whereas the O.Ps examined only w itness. The I.O. Shri P.C. Bora, S.I.(B), Dharamtul P.S. deposing as P.W. 3 stated that he enquired about the nationality of the O.Ps named in the presence of the witnesses as per directions of the then S.P.(B) Morigaon issued vide Ext.1 but the O.Ps could not produce any document in support of their nationality inspite of giving sufficient time. He further stated that on enquiry, he found that the O.Ps came illegally from village Kundura, P.S. Sumanganj, Dist. Syllet of Bangladesh after 25.03.1971 and settled at village Baihati on Govt. Land. P.W.3 proved the reports submitted by him after completion of enquiry as Ext.2 and 3 and the then S.P.(B) Shri Rana Bhuyan referred the case to the FT, Nagaon for trial vide Ext.4. PW-3 asserted in cross examination that according to discloser of Abdul Kuddus (O.P.No.1) they were living at Baihati since 18 years. P.W.-1 Shri Majen Knowar, the Govt. Goanbura and PW-2 Shri Abdul Matalib, V.D.P. Secretary supported the Police Officer PW-3 in respect of the entries of the O.Ps in the village. Md. Kuddus Ali, O.P.No.1, the head of the family examined himself as O.P.W.1. He stated that he was born in 1972 at village Mairadhaj and came to Nelli Barpaik Writ Appeal No.322 of 2015 Page 4 of 9
5 after the death of his father and purchased one Katha of land under Dag No.183 at Barpaik village. Supporting the contents of the W/S he deposed that his father Fazar Ali was a voter in the voter list 1970 and he obtained Ration Card from Silchang Samabay Samiti. His father-in-law Asmat Ali was a voter in the voter list 1965. In cross-examination, O.P.W.1 disclosed the name of his father-in-law as Amjat Ali. Contradicting his earlier statement in examination-in-chief, he stated that he married his wife Musstt. Sakina Khatun (O.P.W.2) from Nelli Barpaik village. Although according to the evidence, he and his wife were casting vote since 1990, he could not produce any voter list. 3. I have carefully perused the records in hand and scrutinized the documents submitted by the O.Ps. Also I heard arguments from both sides. The prosecution registered the case against (1) Kuddus Ali S/O Fazar Ali (2) Mustt. Sahila Khatun (wife) (3) Mohidul ali and (4) Safiqul Ali. But on a careful scrutiny of the documents namely voter list 1965-1970. School certificate, photocopy of receipt from Silchang Samabay Samity Limited, Nelli, certificate from Gaonbura and Gaon Panchayat President, Head Master, Nelli Govt. M.V. School etc., it is found that there are so many discrepancies in the name of the O.Ps in the documents. The names of the grand father of O.P. No.1 and 2 were no where mentioned to link up their relationship. The certificates were not proved by producing and examining the issuing authorities. The photocopies of the documents are not admissible in evidence. No voter list in the name of O.P. No.1 and 2 was submitted. It was rightly suggested by the state that the O.Ps submitted irrelevant documents. It was held by the Honourable High Court in W.P.(C) No.190/2009 that Filling of some documents, so as to establish relationship with the said person as father or mother or even grand father or grand mother does not establish Indian citizenship of a foreigner. Writ Appeal No.322 of 2015 Page 5 of 9
6 8. While appreciating the above aspects, the learned Single Judge in its order dated 29.09.2015 has categorically discussed all necessary material aspects of the matter in paragraphs 7, 8, 9 and 10, which is reproduced below :- 7. The documents produced before the Tribunal were all photocopies and the petitioners could not produce the originals. This aspect of the matter has been discussed by the learned Tribunal in its impugned judgment dated 18.11.2009. Mr. Mondal, learned counsel for the petitioner submits that since the documents were compared with the originals, the Tribunal could not have held that the same were not proved as required under the law of evidence. On perusal of the above referred photocopies of the voter list, an endorsement is found as compared with original under the signature of UDA-cum-Accountant, FT-I, Morigaon. Such endorsement could not have been given by UDAcum-Accountant without authorization of the learned Member of the Foreigners Tribunal. In a court proceeding, more particularly in the Foreigners Tribunal, the documents are to be exhibited and proved in original with the endorsement of the Presiding Officer. 8. That apart, mere production of certain documents does not lead to discharge the burden of proof as envisaged under Section 9 of the Foreigners Act, 1946. As has been held by the Apex Court in LIC of India Vs. Ram Pal Singh Bisen, reported in (2010) 4 SCC 491, mere filing of some documents does not amount to its proof. In the said case, the Apex Court has held thus: 31.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 documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the Evidence Act cannot be relied upon Writ Appeal No.322 of 2015 Page 6 of 9
7 by the Court. Contents of the document cannot be proved by merely filing in a court. 9. In the proceeding before the learned Tribunal, the State examined three witnesses. PW-3 in his deposition stated that on enquiry he found that the petitioner came illegally from village- Kundura, P.S. Sumanganj, Dist-Syllet of Bangladesh after 25.3.1971 and settled at Village-Baihati on Government land. He also proved the report submitted by him on completion of the enquiry. The other two prosecution witnesses also supported the version of the PW-3. The petitioner No. 1 as the head of the family examined himself as OPW-1. He in his deposition stated that his father was a voter in 1970 and that he obtained ration card from Silchang Samabay Samiti. He also stated that his father-in-law Asmat Ali was a voter in 1965. However, in the cross examination he disclosed his father-in-law as Amjat Ali. Contradicting his own statement in examination-in-chief he stated that he married his wife Musstt Sakina Khatun from Nelli Barpaik village. Significantly, although according to his evidence, he along with his wife has been casting votes in the election since 1990, he could not produce any voter list containing his name. 10. Although, the petitioners claim Fazor Ali to be the father of the petitioner No. 1, but they measurably failed to establish the linkage. The certificates produced as evidence were also not proved by producing and examining the issuing authority. It has rightly been held by the learned Tribunal that photocopies of documents are not admissible evidence. The petitioners also could not produce any voter list containing their names. Mere filing of some documents so as to project certain names therein as ones father or mother or grandfather or grandmother cannot establish ones Indian citizenship. 9. From the above findings of both the learned Tribunal as well as the learned Single Judge, it is found that both the Courts below have Writ Appeal No.322 of 2015 Page 7 of 9
8 appreciated all the documents so produced by the appellants and how the appellants can claim to have prove their case by filing some photocopies, which is not admissible as per law. 10. There appears no any irregularity on the part of the Tribunal while appreciating the evidence as it rightly refused to accept the documents so produced by the appellants, which is not a valid one. There is also no linkage documents to support the claim of the appellants that one FAzar Ali is the father of appellant No.1. Such findings being appreciated by both the forums as turned down the claim of the appellants to justify them to prefer the appeal. We are of the opinion that the decisions under challenge suffers from no sort of infirmity or any ground to interfere into by way of this appeal. The learned Single Judge has rightly observed that the Court under its writ jurisdiction cannot reappreciate the evidence on the basis of which the learned Tribunal has arrived at the impugned findings, as has been held in the case of State of Assam & Anr. Vs. Moslem Mondal & Ors. Reported in (2013) 1 GLT 809 FB. 11. The contention of the appellants that they have requisite documents to prove their citizenship cannot at all be considered at this stage while they have failed to prove at appropriate time before appropriate forum. Accordingly, we are of the considered opinion that the appeal is devoid of merit and there is no infirmity in the judgment under challenge. 12. Accordingly, the appeal is dismissed. No order as to cost. 13. Send a copy of this judgment to S.P.(B), Morigaon and Deputy Commissioner, Morigaon, in order to take appropriate steps towards deportation of the appellants from India and deletion of their names from the Writ Appeal No.322 of 2015 Page 8 of 9
9 voter list as has been directed in W.P.(C) No.425/2010. A copy of the order be also sent to the Union of India in the Ministry of Home and State Government in the Home Department for necessary follow up action. Further, a copy of this order be also furnished to Mr. S.C. Keyal, learned Assistant Solicitor General of India for the respondents for appropriate action. JUDGE JUDGE ISINGH Writ Appeal No.322 of 2015 Page 9 of 9