Oral Evidence Can't Prove Citizenship Without Documentary Linkage: Gauhati High Court Dismisses Challenge To Foreigners' Tribunal Opinion
The Gauhati High Court dismissed a writ petition challenging a Foreigners' Tribunal opinion, holding that the petitioner had “miserably failed” to prove that he is a citizen of India and born out of bona fide citizens, and finding no perversity or error on the face of the record in the Tribunal's decision declaring him a foreigner
A division bench comprising Justice Kalyan Rai Surana and Justice Anjan Moni Kalita, presiding over the case, observed, “Under the circumstances, as the petitioner has failed to demonstrate that he could be connected to the voters whose names appeared in the voters list of 1966 (Ext.A.), petitioner has miserably failed to prove that he is a citizen of India and born out of bona fide citizens.”
“Accordingly, the impugned opinion rendered by the learned Tribunal is not found to be vitiated by any error on the face of the record and the impugned opinion cannot be held to be perverse on the ground of consideration of any extraneous materials or vitiated due to incorrect appreciation of the oral and documentary evidence filed in the case. Moreover, the family, as projected by the petitioner is demolished by the contents of Annexure-20 to this writ petition, as referred hereinbefore,” the bench added.
The petition arose from the opinion passed by Foreigners' Tribunal, Kamrup (Metro), Guwahati in 2018 whereby the petitioner was declared a foreigner on the finding that he had failed to discharge his burden of proving Indian citizenship by birth through genuine Indian parents.
As per the factual matrix of the case, before the Tribunal, the petitioner claimed to be the son of Md. Kalachan Ali. He relied on a 1966 voters' list showing Abdul Hamid and Kadbhanu Nesa as his projected grandparents, a 1993 voters' list showing Kalachan Ali as his father, NRC legacy data recording Abdul Hamid as his grandfather, and EPICs of himself and his projected father. He also filed self-declaratory affidavits claiming variations in spellings of names. His projected father was examined as DW-2, and another witness was examined as DW-3 to support the claim that Abdul Hamid was also known as Hamid Ali.
The Tribunal rejected the documents and held that the petitioner failed to establish linkage with his projected father and grandfather, and consequently failed to prove citizenship by birth.
Before the High Court, the petitioner sought remand of the matter on the ground that additional documents had been annexed with the writ petition to establish linkage, including reference to land revenue records of 1952.
The State opposed interference, contending that the petitioner could not connect himself with his projected ancestors and that documents not exhibited before the Tribunal could not be appreciated in writ jurisdiction.
At the outset, the Court reiterated the settled position (Asia Khatoon-vs- The Union of India and 3 Ors., WP (C) 4020/2017) that, “the Court is not required to appreciate the documents annexed to the writ petition unless those are exhibited before the learned Tribunal.”
Further, the Court noted that in the evidence-on-affidavit filed by the petitioner, there was “no positive statement regarding the name of his projected father and grandfather”, and observed that although the petitioner projected the existence of his grandmother till 2016, he had “no personal knowledge about the name of his grandfather, for which he relies on documents alone, which is quite strange.”
The Court further examined the draft consolidated NRC list dated 30.07.2018 and found that it contradicted the petitioner's own projection of his grandparents. It opined, “Therefore, the projection of the petitioner before the learned Tribunal that his grandfather is Abdul Hamid and that his grandmother is Kadbhanu Nesa cannot be accepted at its face value being contrary to the petitioner's own document annexed as Annexure-20 to the writ petition.”
The Court also noted, “it appears that the petitioner has obtained the certified copy of the voters list of 1966 and is trying to connect the said voters as his projected father and grandfather, which prima facie cannot be accepted in view of the contents of Annexure-20 to the writ petition.”
While clarifying that this examination of the consolidated NRC list was confined to the unique facts of the case, the Court stated that it was “not intended to be treated as a precedent in any other cases.”
Ultimately, the Court concluded that the Tribunal's opinion did not warrant interference, and resultantly, the writ petition was dismissed.
Case Title: Kurban Ali v Union of India & Ors.
Case Number: WP(C) No. 1616 of 2019