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 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...

Gauhati High Court Upholds Order Declaring Assam Man A Foreigner, Says 15 Documents Failed To Prove Citizenship

LIVELAW NEWS NETWORK

This is a premium content
Available exclusively to
Our subscribers

INR 1099+GST

Tags

LIVELAW NEWS NETWORK

Gauhati High Court Upholds Order Declaring Assam Man A Foreigner, Says 15 Documents Failed To Prove Citizenship

LIVELAW NEWS NETWORK

This is a premium content Available exclusively to Our subscribers

INR 1099+GST

Tags

LIVELAW NEWS NETWORK

This is a premium content
Available exclusively to
Our subscribers