Judgment & Order (Cav)
S.P. Khaund, J.
1. The petitioner Sohar Ali @Mohammad Sohar Ali is aggrieved by the opinion dated 18.03.2023, passed by the learned Member, Foreigners Tribunal, Bajali, Assam in FT Case No. 842/2017, declaring the petitioner to be a foreigner of Post 25.03.1971 Stream. It is averred that the petitioner was declared a foreigner only on the ground that there is a discrepancy relating to his grandfather’s name which appears as Malek in the voters list of 1997, whereas, in the voters list of 1989, the petitioner's grandfather's name appears as Manek.
2. Heard Shri A.W. Aman, learned counsel for the petitioner and Shri G. Sarma, learned Standing Counsel, Home Department & NRC. Also heard Shri H.K. Hazarika, learned State Counsel, Assam; Shri N. Kalita, learned counsel appearing on instructions of Shri A.I. Ali, learned Standing Counsel, ECI and Shri M.R. Adhikari, learned CGC.
3. It is submitted on behalf of the petitioner that as he did not attend school, he could not furnish any school certificate and the khiraj patta of 1971 is the only document which establishes a link between the petitioner and his parents along with his grandparents. The learned counsel for the petitioner has also submitted that the evidence of the Gaonburha as DW-3 cannot be discarded. The Gaonburha is 92 years old and his evidence establishes the petitioner's lineage to prove that the petitioner is an Indian national. Abdul Gafur as DW-3 has stated that he has been working as Gaonburha since 1981 and the petitioner's father, Naya Mia @ Naya Miya is known to him. After verifying the voters list, he had issued the certificate marked as Exhibit-8. The petitioner's father’s name, Naya Mia @ Naya Miya was enrolled in the voters list of 1965.
4. It is submitted on behalf of the petitioner that there is no law that the Gaonburha has to produce an Identity card to bolster the credibility of his evidence. It is submitted that right from 1965, the petitioner has proved his presence in the same village along with his parents and grandparents. It is further contended that despite observing in para-21 of the impugned opinion that the petitioner could establish his lineage with his parents and he is the son of Indian parents, the learned Tribunal subsequently contradicting its own observation, declared the petitioner to be a foreigner.
5. The petitioner has relied on the decision of the Hon'ble Supreme Court in Sirajul Hoque Vs. The State of Assam & Ors. (2019) 5 SCC 534 and Md. Rahim Ali @ Abdur Rahim Vs The State of Assam reported in 2024 INSC 511.
6. Per contra, the learned Standing Counsel for FT matters has laid stress in his argument that the decision of the learned Tribunal warrants no interference as the petitioner has failed to establish any lineage with his projected parents and grandparents. It is submitted that the petitioner has failed to produce any voters list from 1970 to 1989. The voters list of 1989 is the only linking document and is not sufficient to establish that the petitioner is an Indian national, when there are innumerable discrepancies in the voters list.
7. The learned Tribunal has elaborately discussed about the discrepancies in the voters list. It has been correctly held by the learned Tribunal that the petitioner has not even taken the plea that his grandfather's name and his parent's age were wrongly recorded in the voters list of 1989 and 1997. It is further contended that the petitioner's projected brother, Basharat Ali deposed as DW2 that his father Naya Mia @ Naya Miya died in the year 1997 at the age of 91 years, whereas, the age of Naya Mia @ Naya Miya was recorded as 91 years in the voters list of 1997, and this statement transpires the discrepancies in the age of Naya Mia @ Naya Miya as his name appeared in the voters lists of 1965 and 1970, where his age was shown as 51 and 56 years respectively and his age would not be 91 years in the year 1997, but would be 83 years.
8. It is further contended that the voters list of 1989 reflects that the petitioner's brother, Basharat Ali's age as 20 years, whereas, Exhibit-J reflects that his date of birth is shown as 01.04.1973, and it is not plausible that his name would appear as a voter on 01.03.1989, when he would be only 15 years 11 months old. In support of his submissions on discrepancies in the voters list, the learned Standing Counsel for the FT matters has relied on the decision of this Court in Baseran Bibi Vs. The Union of India, reported in 2018 GLT (1) 372.
9. The learned Standing Counsel has also refuted the submission of the learned counsel for the petitioner that the Gaonburha's evidence has to be considered as credible evidence as the Gaonburha is 92 years old and he has categorically stated that the petitioner is known to him since his childhood. To contradict this submission on behalf of the petitioner, the learned Standing Counsel for FT matters has relied on the decision of this Court in Abdul Kuddus Vs. The Union of India & Ors in WP(C)/1073/2016.
10. The huge gap from 1970 to 1989 has not been properly explained by the petitioner and no documents linking this gap from 1970 to 1989 has been produced by the petitioner. Section 6(A)(2) & (3) of the Citizenship Act, 1955 mandates continuous residence. Section -6 A(2) & (3) reads:
“(2) Subject to the provisions of sub-sections (6) and (7), all persons of Indian origin who came before the 1st day of January, 1966 to Assam from the specified territory (including such of those whose names were included in the electoral rolls used for the purposes of the General Election to the House of the People held in 1967) and who have been ordinarily resident in Assam since the dates of their entry into Assam shall be deemed to be citizens of India as from the 1st day of January, 1966.
(3) Subject to the provisions of sub-sections (6) and (7), every person of Indian origin who―
(a) came to Assam on or after the 1st day of January, 1966 but before the 25th day of March, 1971 from the specified territory; and
(b) has, since the date of his entry into Assam, been ordinarily resident in Assam; and
(c) has been detected to be a foreigner;
shall register himself in accordance with the rules made by the Central Government in this behalf under section 18 with such authority (hereafter in this sub-section referred to as the registering authority) as may be specified in such rules and if his name is included in any electoral roll for any Assembly or Parliamentary constituency in force on the date of such detection, his name shall be deleted therefrom."
11. It is further contended that the Gaonburha's evidence is based only on the voters list of 1965.
12. It is further submitted that the year of birth of the petitioner is 1964, and the discrepancy of 14/15 years is not a negligible discrepancy but a major discrepancy.
13. We have considered the submissions at the Bar with circumspection.
14. The relevant voters lists are extracted herein below:-
15. The petitioner as DW-1 has proved the certified copies of the voters list of 1965 as Exhibit-A, voters list of 1970 as Exhibit-B and voters list of 1989 as Exhibit-C. The petitioner tried to connect the wide gap from 1970 to 1989 by the certificate issued by Gaonburha who is 92 years old. Abdul Gafur is the Gaonburha who deposed as DW3 and he has proved his certificate as Exhibit-H. He has been serving as the Gaonburha since 1981 and he has categorically stated that he has issued the certificate after verifying the voters list of 1965. He has also testified that he knows that the petitioner's father's name is Naya Mia @ Naya Miya. He is cognizant of the fact that the petitioner's father's name is Naya Mia @ Naya Miya. The other document relied upon by the petitioner to establish his lineage with his parents is the annual Khiraj Patta of 1971 which is marked as Exhibit-I. The annual Khiraj Patta depicts that the petitioner's father Naya Mia @ Naya Miya, was issued an annual Patta in the year 1971 for plots of land, under the Kamrup district.
16. Now the question that falls for consideration is that whether the age discrepancies projected by the respondent counsel renders the documents produced by the petitioner suspect and incredible. It is pertinent to mention that this Court cannot be oblivious of the fact that the petitioner has been consistently projecting his place of residence at Barbala Village right from 1965 up to the year 2005 by producing the Voters lists of 1965, 1970, 1989, 1997 and 2005. However, the petitioner’s name appears for the first time in the Voters list of 1989 when he was 29 years old. His name appears only in the Voters lists of 1989 and 2005.
17. The discrepancy in the age of the petitioner's father and mother are apparent. In the voters list of 1965, the petitioner's father's age is shown as 51 years, which indicates that his date of birth would have been 1914. His mother's age is shown as 35 years, which indicates that his mother was 16 years younger than his father. A slight difference in the age appearing in the voters list of 1970 can be ignored, but the wide discrepancy in the age of the petitioner's father in the voters list of 1984 and the age of his mother in the voters list of 1974 cannot be ignored. Instead of 84 years, Naya Miya's age ought to have been 75 years in the voters list of 1989, and his mother's age ought to have been 68 years and not 74 years in the year 1989. Again, the age of Naya Miya is shown as 91 years in the year 1997 and petitioner’s mother's age is shown as 81 years in the same year. The discrepancies surfacing in the age of the petitioner's parents in the voters list of 1989 and 1997 could have been ignored, had there been some documents or at least voters list between 1970 up to 1989.
18. To connect the gap from 1970 to 1989, the petitioner introduced the Gaonbura’s certificate. Assuming the contents of the certificate to be reliable, and assuming that the petitioner, being an illiterate person, could not have produced a school certificate, the petitioner could have easily established his citizenship through evidence which would have seamlessly established his lineage with his parents and grandparents, whose names have been mentioned in the written statement filed by the petitioner. However, the gap from 1970 to 1989 is too wide and the evidence is too few and far between. The annual khiraj patta although marked as Exhibit-I was not accepted by the Tribunal, and rightly so, as the original was not produced. It is true that the petitioner has shown his continuous residence along with his parents in the same village from 1965 up to 2005 but the voters list of 2005 is a photocopy and so is the voters list of 1997. Photocopies cannot be accepted as evidence.
19. On contradictions, Mr. G. Sharma has relied on the decision of this Court in Baseran Bibi (Supra), wherein it has been observed that:-
“30. Net result of the above discussion is that petitioner has failed to establish her linkage to an Indian parent or grand-parent relatable to a period prior to 25.03.1971, which is the cut off date for identification of foreigners in the State of Assam as per section 6A of the Citizenship Act, 1955, as amended. The narrative presented by the petitioner suffers from multiple material contradictions rendering the same highly improbable”.
It has been held by this Court in Abdul Kuddus (Supra) that:-
“15. Exhibit-Ka (1) is a certificate issued by the Gaonburah on 02.08.2010. He certified that A Kuddus was son of late A Kadir and that he was a resident of Botalimari village. Father was voter of Lahorighat constituency. A Kaddus was born in Botalimari village but shifted his residence to village Sarar Pathar village. Though the Gaonburah deposed as DW-2, he did not bring the official register or record to prove the contents of Exhibit-Ka(1). Therefore, the contents of Exhibit-Ka (1) cannot be said to have been proved. It is trite that documentary evidence has to be proved on the basis of the contemporaneous record and not on the basis of personal knowledge through oral testimony. From the document as well as from the deposition of the Gaonburah, what transpires is that the certificate was issued without reference to any official record. However, notwithstanding the same, even if we take the certificate at its face value, what it says is that A Kuddus was a resident of Batalimari village but later on shifted to Sarar Pathar village. This contradicts petitoner’s own narrative that he was a resident of Falihamari Pam village but shifted to Morimusalmangon village because of erosion . Therefore, this certificate is not believable, besides not being proved.”
20. Needless to say that the petitioner has failed to discharge his burden to assert his continuous stay in the country. To sum up, it is held that owing to the discrepancy surfacing in the age of the petitioner's parents, and owing to the failure of the petitioner to establish any connecting document tracing back to 1970 from the year 1989, except the Gaonbura’s certificate, it is held that the petitioner has failed to establish his lineage with his projected parents and grandparents. The Gaonbura’s certificate is not sufficient to establish the petitioner's lineage with his parents, although the Gaonbura, Abdul Gofur as DW-3 has proved his certificate as Exhibit-H. The petitioner’s projected brother Basharat Ali as DW-2 has produced a copy of Annual Khiraj Patta reflecting the name of their father. He has proved his Elector Photo Identity Card as Exhibit-J. His age as certified by the Headmaster of Kaljhar Helenarpam Itarbhita School as on 01.03.1989 was 15 years 11 months, and his date of birth will be 01.04.1973. This contradicts the age reflected in the Voters List of 1989 as 20 years. The documents introduced by DW-2 cannot be accepted as linking documents to establish the petitioner’s lineage with his father.
21. The learned counsel for the petitioner has relied on the decision of the Hon’ble Supreme Court in Sirajul Hoque’s case (Supra). The ratio of the decision in the case of Sirajul Hoque (supra) is not applicable to this case as in the case of Sirajul Hoque, a minor discrepancy relating to only a letter in the name of the Sirajul’s grandfather was projected but, Sirajul could produce sufficient documents to establish his citizenship in this country. Sirajul’s grandfather’s name appears as Kefatullah in the NRC of 1971 whereas in the voters list the letter ‘F’ becomes the letter ‘M’.
22. Reverting back to this case, it is held that the petitioner's name appears for the first time in the voters list of 1989 in the same village and his age is shown as 29 years. Petitioner could have at least produced one voter's list between the years 1970 to 1989. Moreover, the ratio of the decision relied upon by the learned counsel for the petitioner in Rupajan Begum (supra) is not applicable to this case. During the preparation of NRC, certificates issued by the Gram Panchayat Secretary and the Gaonbura were not taken into consideration in relation to women who have shifted their residence after their marriage. Aggrieved by the order of the High Court, the appellant Rupajan Bibi approached the Supreme Court, whereupon it was held that a certificate issued according to the norms by a Gaonbura or a Gram Panchayat President in the approved format cannot be considered to be a private document, not based on contemporaneous record.
23. In this case at hand, there is no shifting of residence of the present petitioner. This is a case where the petitioner tried to prove continuous residency since 1965 up to 2005 in the same village. This is also a case where the Court is not limiting itself only to the documents prior to cut-off year i.e. 1971. Solely on the basis of the Gaonbura’s certificate which is based on the voters list of 1965, the petitioner failed to establish his lineage with his father and to dispel that he is an illegal immigrant from the specified territory.
24. No infirmity is detected in the order passed by the learned Tribunal and therefore, no interference of the order dated 18.03.2023, passed by the learned Member, Foreigners Tribunal, Bajali, Assam in FT Case No. 842/2017 is warranted.
25. The challenge to the impugned opinion fails and resultantly, this writ petition is dismissed. Accordingly, the consequences of the impugned opinion dated 18.03.2023, passed by the learned Member, Foreigners Tribunal, Bajali, Assam in FT Case No. 842/2017, thereby holding the petitioner above-named as a foreigner of post 25.03.1971 stream, shall follow. Interim order stands vacated.
26. There shall be no order as to costs.
27. 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.
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