Gauhati High Court Upholds Order Declaring Assam Man A Foreigner, Says 15 Documents Failed To Prove Citizenship
The Gauhati High Court has upheld an order of the Foreigners Tribunal declaring a man as a foreigner, observing that despite exhibiting 15 documents he was unable to prove that he is an Indian Citizen as per provisions of Foreigners Act. The court was hearing the petitioner Aminul Hoque's plea challenging a 28.02.2019 opinion passed by the Foreigners Tribunal which held that the petitioner...
The Gauhati High Court has upheld an order of the Foreigners Tribunal declaring a man as a foreigner, observing that despite exhibiting 15 documents he was unable to prove that he is an Indian Citizen as per provisions of Foreigners Act.
The court was hearing the petitioner Aminul Hoque's plea challenging a 28.02.2019 opinion passed by the Foreigners Tribunal which held that the petitioner had failed to discharge his burden under Section 9 of the Foreigners Act to prove that he is not a foreigner but an Indian citizen. For context, Section 9 states that onus of proving that a person is not a foreigner shall notwithstanding anything contained in the Indian Evidence Act, lie upon the person.
A division bench of Justice Kalyan Rai Surana and Justice Shamima Jahan in its order said:
"Thus, though the petitioner had exhibited 15 (fifteen) documents as exhibits, the same does not appear to help the petitioner to establish that he has been able to discharge his burden as required under Section 9 of the Foreigners Act, 1964 to prove that he is not a foreigner but an Indian Citizen".
The petitioner had before the tribunal exhibited over 15 documents to prove his citizenship. Among these were–Computerized copy of 1951 NRC in the name of petitioner's father, along with his grandparents, step grandmother and other family members, Certified copy of voter list of 1966 in the name of petitioner's grandparents and step grandmother, Petitioner's PAN Card, School Certificate, Electors Photo Identity Card (EPIC) of the petitioner.
The petitioner's counsel argued that he is a migrant worker and he has been declared to be a foreigner merely because of some discrepancies in the names of his father and grandfather in certain documents, which is not sustainable in light of the decision of the Supreme Court in Sirajul Hoque v. State of Assam & Ors., (2019).
It was submitted that due to some anomalies in the names and age, the citizenship of a person cannot be taken away. It was submitted that the father of the petitioner had deposed as DW-2, who had admitted that the petitioner was his son and that evidence could not have been disbelieved by the Tribunal. It was submitted that the petitioner had disclosed all material facts in his written statement, which was proved through his deposition, which was not dislodged during cross-examination and therefore, the documentary exhibits could not have been discarded by the learned Tribunal.
It was submitted that NRC, though Computer generated, cannot be disbelieved and was admissible in evidence referring to Shital Krushna Dhake v/s Krushna Dagdu Dhak (2018). Rejecting this argument the court held that the order in Shital Dhake was passed on the facts of the case.
"The said decision in the case of Shital Krushna Dhake (supra), is not an authority on the point that computer generated printout from any official website would constitute an admissible evidence as if the provision of Section 65-B of the Evidence Act, 1872 has been rendered otiose. There are hundreds of orders by this Court, whereby the authorities have been directed to act in accordance with the downloaded copy of the orders passed by this Court, which does not mean that without complying with the statutory requirement of manner and mode of proving an electronic record, the Courts and Tribunals would start accepting such downloaded copies as admissible evidence", the court said.
With respect to reliance on NRC of 1951 the court said that it had been held by the high court in Abdul Mojid @ Mojid Ali v. Union of India that NRC extract produced to prove domicile in India is inadmissible in evidence. Moreover, the court said, NRC of 1951 was prepared under the Census Act 1948 and under Section 15 of the Act, the records of census are not open to inspection nor are they admissible in evidence.
On reliance on voter lists the court said:
"Thus, even after taking into account that the father of Mohiruddin Sheikh @ Mahruddin Sheikh @ Mohiruddin @ Mohir Uddin is shown to be Pasan Ali, but the petitioner has failed to show that all the projected members of the family Pasan Ali or Mohiruddin or Aminul Hoque, the petitioner are not continuously together in all the voters lists of three villages, i.e. Dobakura, Ghugudoba and Hashdoba. It appears that to fill-up the gaps, the defence of the petitioner is structured around the exhibited voter's lists. Without support of any document, it has been pleaded that there was shifting of the family from Dobakura to Ghugudoba and Ghugudoba to Hashdoba. To match with the names in the voter's lists, it has been pleaded that there was mistake in recording of names in voter lists. Therefore, the petitioner has not been able to discharge his burden to prove that Aminul Hoque, whose name appears in the voters list of 2015 (Ext.N) is related to Pasan Ali, whose name appears in the voter list of 1966 (Ext.B) and 1970 (Ext.C) and Mahruddin Sheikh, whose name appears in the voter list of 1979 (Ext..C) of village- Dhobakura".
The court observed that there were no other family members whose names consistently appear in all the exhibited voters' lists. The court referred to sale deed of a plot which Pasan Ali had purportedly purchased at Ghuguduba which Tribunal had not found it reliable and said that the petitioner had made a "vague statement in his written statement and evidence-on-affidavit" that after partition of land his father had shifted to Hashdoba.
"If that be correct then the original sale deed would not be in the custody of the petitioner or his projected father, but it would be in the custody of those persons who had retained the land covered by the sale deed. The petitioner had not produced any land record showing entry to the effect that the projected father of the petitioner had relinquished his share over the property covered by the said sale deed. Therefore, the said sale deed may at best be an evidence of sale, but cannot be a proof that the petitioner had proved his link with the purchaser of the land," the court held.
On petitioner's reliance on PAN Card and EPIC, the court observed that it was well settled that PAN Card and EPIC "are not proof of citizenship".
With respect to exhibition of School certificate issued by the Headmaster of Hashdoba Anchalik High School on 20.10.2017, the court said that the author of the certificate had not come and deposed to support the certificate and the petitioner had not called for the school admission register to prove the entries made in the school certificate. It referred to Supreme Court's decision in Birad Mal Singhvi v. Anand Purohit where it was held the author of the certificate would have to prove the certificate on the basis of school register.
"In this case in hand, the petitioner has not been able to establish that the learned Tribunal had committed any patent error in appreciating the pleadings and evidence on record, or that it considered extraneous materials or that the decision was based on ignorance of law or in disregard to the provisions of law," the court said.
The plea was dismissed.
Case title: AMINUL HOQUE vs THE UNION OF INDIA AND 7 ORS.
Case No. : WP(C)/5471/2019