Judgment & Order (Cav)

S.P. Khaund, J.

Factual Matrix :-

1. The petitioners are aggrieved by the judgment and order dated 15.09.2018 passed by the Member, Foreigners Tribunal (2nd), Morigaon, Assam, in connection with FT Case No. 251/2012, Police Reference FT Case No. 458/2008.

2. The Union of India represented by the Secretary to the Government of India, Department of Home Affairs, the Election Commission of India, the State of Assam represented by the Commissioner & Secretary to the Government of Assam, Department of Home, the Deputy Commissioner, Morigaon, the Superintendent of Police (B), Morigaon and the State Coordinator, NRC, are arrayed as respondents No. 1 to 6 respectively.

3. The petitioners are Rahim Uddin, Husnara Begum, Maksidul Islam @ Muksidul Mamin and Roksana Begum Begum. The petitioner No. 1, Rahim Uddin is the husband of petitioner No. 2, Husnara Begum and their children are petitioner No. 3 Maksidul Islam @ Muksidul Mamin and the petitioner No. 4 Roksana Begum.

4. Earlier the petitioner No. 1 on being aggrieved by the order passed by the Tribunal dated 16.03.2016 in F.T. Case No. 251/2012, preferred a writ petition before this Court, which was registered as WP(C)/5539/2016. This Court vide order dated 18.04.2018 in WP(C) No. 5539/2016, remanded the matter back to the Tribunal for a fresh opinion. After the matter was remanded back, evidence was again adduced by the petitioner and finally, vide order dated 15.09.2018, the petitioner No. 1 Rahimuddin was declared to be a foreigner of post 1971 stream and his children namely Md. Maksidul Islam and Roksana Begum, were also declared to be a foreigners of post 1971 stream, after drawing a lineage from their father Md. Rahimuddin and it was ordered that action may be taken as per law.

Arguments for the petitioner :-

5. It is contended that the allegations of illegally immigrating into India was only against the petitioner No. 1 and not against his wife or others related to him. Initially, vide order dated 08.08.2008 in F.T. Case No. 458/2008, a reference was made against the petitioner No. 1, but in F.T. Case No. 251/2012 vide order dated 15.09.2018, the Foreigners Tribunal, 2nd Morigaon, passed an order, relying on the decision of this Court in Aktara Khatun-Vs-State of Assam & Ors. reported in 2017 (2) GLT 974, that the Superintendent of Police (Border), Morigaon, may draw reference against other family members of Md. Rahimuddin (petitioner No. 1).

6. It is contended that the learned Tribunal has failed to appreciate the exhibited documents and has erroneously held that Exhibit-A was issued during the proceeding in the year 2014. The learned Tribunal failed to appreciate the voters’ list of 2014 (Exhibit-C) by discarding the same as a document after 1971. The learned Tribunal has failed to appreciate the certified copies of voters’ lists of 1966 and 1970 (Exhibits-E and D) relating to the father and grandfather of petitioner No. 1, by deciding that the exhibits were not proved with the original Electoral Roll by examining the official who had issued the certified copy.

7. It is contended that the learned Tribunal has failed to appreciate that the certified copy is a secondary piece of evidence and the same may be taken into consideration. Similarly, the Tribunal has failed to appreciate the certified copy of the jamabandi (Exhibits-F, G & H) relating to the father, grandfather and great-grandfather of the petitioner No. 1 stating that the petitioner No. 1 did not introduce the name of his father, grandfather and greatgrandfather when the written statement was submitted. In this context, the petitioners have relied on the decision of the Hon’ble Supreme Court in Appaiya-versus-Andimuthu Thangapaddi and others reported in (2023) 0 Supreme SC 974.

8. It is submitted that the petitioner No. 1 has disclosed in his written statement that he is the son of Saitullah and the voters’ lists of 1966 and 1970 relating to his father Saitullah clearly reflects that the petitioner’s father Saitullah is son of Sahar Ali. This has been rejected by the learned Tribunal erroneously, despite the fact that his grandfather Sahar Ali’s name has surfaced in the voters’ list.

9. After rejecting the written statement, the learned Tribunal has erroneously failed to appreciate the evidence of DW-1 and DW-2.

10. The learned Tribunal has not accepted Exhibits – I, J, K, L, M, N and O, which are voters’ lists of 1975, 1985, 1997, 2005, 2010 and 2018 and legacy data as well as copy of the jamabandi, respectively.

11. This exhibits were not accepted by the Tribunal as according to the opinion of the Tribunal, the documents have not been exhibited by the petitioner No. 1. It is further submitted that based on the finding, the learned Tribunal has erroneously declared the petitioner No. 1’s children as foreigners, who entered into India after 1971.

12. The remaining part of the submissions on behalf of the petitioners will be discussed at the appropriate stage.

Arguments for the Respondents:-

13. Learned standing counsel for the F.T. Matters, Mr. G. Sharma has submitted that the written statement is vague. It has been held by the Hon'ble Supreme Court in Sarbananda Sonowal vs. The Union of India reported in 2005 (5) SCC 665, that:-

                   “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 necessarily be within the personal knowledge of the person concerned and not 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.“

14. It is submitted that as per Section 106 of the Indian Evidence Act, 1872 that the burden of proving facts, especially within knowledge of any person is upon the person. The respondent has also relied on the decision of this Court in Rashminara Begum vs. The Union of India reported in 2017 (4) GLT 346, wherein it has been held that:-

                   “Written statement is the basic statement of defence of a proceedee before the Foreigners Tribunal. Keeping in mind the mandate of Section 9 of the Foreigners Act.1946, it is incumbent upon the proceedee to disclose at the first instance itself i.e., in his written statement all relevant facts specially within his knowledge having a material bearing on his claim to citizenship of India Material facts pleaded in the written statement are thereafter required to be proved by adducing cogent and reliable evidence It is also trite that a party cannot traverse beyond the pleadings made in the written statement.”

15. It is submitted that the petitioner No. 1 has not mentioned the names of his parents or his date of birth in his written statement. His date of birth ought to have been mentioned in his written statement. This contributes to the lack of continuity to trace back the petitioner No. 1's lineage to the voters list of 1966 and 1970. Without any continuity, suddenly the voters list of 2014 cannot be taken into consideration to establish the linkage of the petitioner No. 1 with his parents. It is further submitted that there is no infirmity in the opinion and the decision of the learned Tribunal does not warrant any interference.

Decision of the Tribunal:-

16. It is true that learned Tribunal has acknowledged the certified copies of the voters list of 1975, 1985, 1997, 2005, 2010 and 2018 and a copy of NRC details and the certified copy of the Jamabandi and it has been held by the Tribunal that those documents which were submitted during the continuation of the proceedings on 12.07.2018, were not marked as exhibits and therefore those documents were not endorsed by the Tribunal. The Tribunal has held that the petitioner No. 1 could not prove that his parents were genuine Indian citizens, rather it was found that the petitioner No. 1 entered into India (Assam), from a specified territory, i.e. Bangladesh, on or after 25.03.1971.

17. It was held by the Tribunal that the voters list of 2014 marked as Exhibit-C reflects the petitioner No. 1's age as 38 years, but the petitioner No. 1 ought to have produced voters list prior to 2014 as he was as old as 38 years in the year 2014. Although Exhibit-H is a copy of the Jamabandi which reflects the name of his grandfather, Saharuddin as well as his father, Mohammad Saitullah, yet as the petitioner No. 1 has not disclosed the name of his father and grandfather in the written statement. The evidence introduced anew cannot be accepted.

18. It has been held by the learned Tribunal that it remains doubtful whether the document Exhibit-H, at all relates to the father of the petitioner No. 1 as the petitioner No. 1 has not stated that Saitullah is his father and Saharuddin is his grandfather in his written statement. The Exhibit-G, a certified copy of the Jamabandi was also not accepted as the petitioner No. 1 has not mentioned the name of his grandfather in his pleadings, i.e. in W.S. The Exhibit-F, a certified Copy of the Jamabandi of the year 1931, has also not been accepted by the Tribunal as the petitioner No. 1 did not mention his grandfather's or great-grandfather's name in his W.S. The learned Tribunal has not accepted Exhibit-E and Exhibit-D which are certified copies of the voters’ lists reflecting the name of Saitullah projected as the petitioner No. 1’s father.

19. It was held by the Tribunal that the relevant entries in the voters lists have not been proved from the original electoral roll and by examining the official who had issued the certified copy. The learned Tribunal has relied on the decision of this Court in WP(C) No. 3728/2016, in the case of Nasiruddin vs. The Union Of India and Ors . The Exhibit-B, certificate issued by the Gaon Panchayat, President/Secretary was also not accepted as evidence as the State emblem was embossed on the certificate.

20. The Gaonburha certificate marked as Exhibit-A which reflects that the petitioner No. 1 is the son of Late Saitullah of village-Balidunga Pam, P.O. & P.S.-Bhuragaon, in the district of Morigaon, Assam, was also not accepted by the Tribunal as the Gaonburha was not examined as a witness.

Analysis, Reasons and Decision:-

21. Heard Md. S. Huda, learned counsel for the petitioners; Ms. S. Baruah, learned CGC; Mr. G. Sarma, learned standing counsel for the FT matters and NRC; Mr. H. Kuli, learned counsel on behalf of Mr. A.I. Ali, learned Standing counsel for the ECI and Mr. P. Sarmah, learned Additional Senior Govt. Advocate for the State respondent.

22. We have given our thoughtful consideration to the submissions at the Bar with circumspection. Although this Court does not agree with the opinion of the Tribunal relating to the voters lists of 1966 and 1970, yet the opinion of the Tribunal relating to the other exhibits requires no interference. Indeed, the petitioner No. 1 has exhibited a Gaonburha’s certificate to establish his linkage with his father but on failure to examine the Gaonburha by the petitioner No. 1, he has failed to prove the contents of the certificate issued by the Gaonburha, which is marked as Exhibit-A. It is true that the certificate issued and marked as Exhibit-B cannot be accepted as the State Emblem has been embossed in the certificate.

23. As ready reference, the voters lists of 1966, 1970 and 2014 are extracted here in below:-

                  

                  

                  

24. The name of Sahetulla appears in voters list of 1966 and 1970 as son of Sahar and the names of Rahim Uddin and his wife appears in the voters list of 2014 in the same village, Balidunga Pam, Circle-Bhuragaon. These are certified copies of the voters lists. It is true that the name of the petitioner No. 1's father, Sahetulla, appears in the voters list as son of Sahar, but as the petitioner No. 1 has not mentioned his grandfather's name in his written statement, the linkage of petitioner No. 1 with his grandfather as well as his father could not be proved.

25. The voters list of 2014 reflects that the petitioner No. 1 was 38 years old in the year 2014. The petitioner No. 1 ought to have exhibited earlier voters lists as his name would have appeared in the voters lists from the age of 21. The petitioner No. 1 has thus failed to establish any linkage stretching from the voters list of 1970 to the voters list of 2014. It is also submitted on behalf of the petitioner No. 1 that when the list of documents was submitted, the list was marked as exhibits as follows:-

                   Ext. A is the Gaonbura Certificate.

                   Ext. B is the Gaonbura Certificate.

                   Ext. C is the certified copy of voter list of 2014.

                   Ext. D is the certified copy of voter list of 1970.

                   Ext. E is the certified copy of voter list of 1966.

                   Ext. F is the certified copy of Jamabandi.

                   Ext. G is the copy of Jamabandi.

26. The learned counsel for the petitioners has prayed to remand back the matter and allow the documents to be marked in accordance with the list and to prove the same as exhibits for the interest of justice.

27. This argument of the learned counsel for the petitioners holds no water. Even if the case is remanded back and the prayer of the petitioners, is allowed to mark the documents as exhibits, this will not improve the case of the petitioners as the petitioner No. 1 has failed to exhibit any document which could be relied upon to establish the linkage of the petitioner No. 1 with his parents as well as with his grandparents. The Tribunal has recorded sound reasonings, rejecting the documents which were not even exhibited or proved before the Tribunal.

28. This Court has also relied on the decision of the Hon’ble Supreme Court in Sarbananda Sonowal (supra) wherein it has been held that it is cast upon the petitioner to discharge his burden which is in accordance with the underlying provisions of Section 106 of the Indian Evidence Act, 1872 (Evidence Act for short), which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The petitioners have failed to discharge their burden and the evidence adduced by the petitioner No. 1 cannot be held to be cogent, reliable and admissible evidence.

29. In the light of the decision of this Court in Rashminara Begum (supra), it is held that the pleadings and the evidence of the petitioner No. 1 was not sufficient to prove the petitioners’ citizenship. The petitioner No. 1 has not mentioned his date of birth, his place of birth, names of his siblings, names of his grandparents, apart from submitting documents which are not even admissible in evidence. Although in the copy of the jamabandi which dates back to 1931 reflects the name of the petitioner No. 1's great-grandfather, yet the petitioner No. 1's failure to disclose the names of his grandfather and great-grandfather led to the inadmissibility of such documents. It was incumbent upon the petitioner No. 1 to disclose at the first instance through the written statement all the relevant facts especially within his knowledge which the petitioner No. 1 has failed.

30. The learned Tribunal has correctly rejected the jamabandi marked as Exhibit – G and H as these exhibits reflect the names of Ahetullah, son of Saharuddin and also the name of Saharuddin but these documents depict that the mutation orders were passed in the year 1981 and 1977.

31. Moreover it would be apt to reiterate that the petitioner No. 1 has not disclosed the name of his grandfather as Saharuddin or Sahar in his written statement. The President/Secretary of Balidunga Gaon Pachayat, was not examined as a witness and the petitioner No. 1 has failed to examine the Gaonburah of Balidunga as witness to prove Exhibit - A and Exhibit - B. The petitioner No. 1 has thus failed to establish his linkage with his father or grandfather with the help of Exhibit - A and Exhibit - B.

32. No perversity is detected in the decision of the learned Tribunal. The documents which were not marked as exhibits also cannot be considered through this writ petition as the petitioners have failed to establish their lineage with their projected father, grandfather and father-in-law.

                   O R D E R

33. The challenge to the impugned opinion fails and resultantly, this writ petition is dismissed. Accordingly, the consequences of the impugned order dated 15.09.2018 passed by the Member, Foreigners Tribunal (2nd), Morigaon, Assam, in connection with FT Case No. 251/2012, Police Reference FT Case No. 458/2008, thereby holding the petitioner abovenamed as a foreigner of post 25.03.1971 stream, shall follow.

34. There shall be no order as to costs.

35. The Registry shall send back the Tribunal’s record along with a copy of this judgment and order, to be made a part of the record by the learned Tribunal for future reference.