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2017 Supreme(Gau) 266
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
UJJAL BHUYAN & PARAN KUMAR PHUKAN, JJ.
Mustt Abiran Nessa – Appellant
Versus
The Union of India & Others – Respondents
W.A. No. 200 of 2016
Decided On : 27-03-2017
For the Appellants : Mr. H.R.A. Choudhury, Mr. A. Ali and Mr. G. Pegu.
The burden of proof to establish Indian citizenship lies with the individual, and wrong mentioning of legal provisions would not invalidate an order if it can be traced to a valid source.
Headnote:
Foreigner - Citizenship - Section 6A of the Citizenship Act, 1955 - Summary of Acts and Sections: The court discussed the provisions of Section 6A of the Citizenship Act, 1955, and emphasized that wrong mentioning of the foreigners stream as classified under Section 6A would not vitiate the proceeding or the consequential order passed by the Tribunal if materials on record disclose that the noticee actually belongs to the stream of foreigners. The court highlighted that non-mentioning or wrong mentioning of a provision would not invalidate an order if such an order can be traced to a valid source.
Fact of the Case:
The appellant was declared a foreigner of the post 1971 stream by the Foreigners Tribunal, which was affirmed by the learned Single Judge. The appellant contested that she could not have been declared a foreigner of the post 1971 stream when she was charged with belonging to the 01.01.1966 to 25.03.1971 stream.
Finding of the Court:
The court found that the appellant failed to prove her Indian citizenship and discharge her burden under Section 9 of the Foreigners Act, 1946. The court affirmed the decision of the Tribunal and the learned Single Judge, dismissing the writ appeal.
Issues: The primary issue was the discrepancy in the stream of foreigners the appellant belonged to and the failure of the appellant to prove her Indian citizenship.
Ratio Decidendi: The court held that wrong mentioning of the foreigners stream as classified under Section 6A of the Citizenship Act, 1955, would not vitiate the proceeding if materials on record disclose that the noticee actually belongs to the stream of foreigners. The court also emphasized that the appellant failed to discharge her burden to prove her Indian citizenship.
Final Decision: The writ appeal was dismissed, affirming the decision of the Tribunal and the learned Single Judge.
1. This case was heard on 20.03.2017 and today is fixed for delivery of order.
2. We have heard Mr. H.R.A. Choudhury, learned Senior counsel assisted by Mr. A. Ali, learned counsel for the appellant and Mr. G. Pegu, learned Govt. Advocate, Assam.
3. This appeal is directed against the judgment and order dated 29.07.2015 passed by the learned Single Judge dismissing WP (C) No. 2205/2014 filed by the appellant as writ petitioner against the order dated 25.04.2013 passed by the Foreigners Tribunal (3rd), Darrang, Mangaldoi in FT (3) Case No. 686/2012 declaring the appellant to be a foreigner of the post 1971 stream.
4. It is seen that notice issued by the Tribunal was served upon the appellant whereafter appellant had entered appearance before the Tribunal and had filed written statement denying the allegation of being a foreigner and contending that she was a citizen of India by birth. She also examined herself and two other witnesses. She also exhibited three documents. After hearing the matter and on perusal of the materials on record, Tribunal passed the order dated 25.04.2013 declaring the appellant to be a foreigner of post 1971 stream.
5. Aggrieved by the aforesaid order dated 25.04.2013, appellant preferred the related WP (C) No. 2205/2014 before this Court.
6. Primary contention of the appellant before the learned Single Judge was that in the notice issued by the Tribunal to the petitioner, it was stated that appellant was alleged to be a foreigner belonging to the 01.01.1966 to 25.03.1971 stream. Therefore, the Tribunal could not have declared the appellant to be a foreigner of post 1971 stream being beyond the allegation brought to the notice of the appellant by way of the notice. Learned Single Judge did not accept the contention of the appellant and held that as per materials on record, appellant was suspected to be a foreigner of post 1971 stream. Learned Single Judge additionally noted that though Tribunal had recorded the age of the appellant as 35 years on the date of order, she was 52 years of age when the enquiry was conducted against her by the police. Be that as it may, learned Single Judge did not find any justification to overturn the order of the Tribunal. Accordingly, vide order dated 29.07.2015, writ petition was dismissed by the learned Single Judge.
7. Hence, this appeal.
8. Before us also, it is the primary contention of the appellant that when she was charged of being a foreigner belonging to the 01.01.1966 to 25.03.1971 stream, she could not have been declared to be a foreigner belonging to the post 25.03.1971 stream.
9. It is true that in the notice issued by the Tribunal to the appellant on 23.09.2011, it was stated that as per reference made by the Superintendent of Police, Darrang, appellant was alleged to be a foreigner belonging to the 01.01.1966 to 25.03.1971 stream. However, the Tribunal, on going through the evidence and other materials on record, returned a finding that appellant was a foreigner belonging to the post 1971 stream. Learned Single Judge had examined the record wherefrom he noticed that as per materials on record, appellant was suspected to be a foreigner belonging to the post 1971 stream. Therefore, the reference made was to that effect but the Tribunal mistakenly mentioned that the appellant was alleged to be a foreigner belonging to the 01.01.1966 to 25.03.1971 stream. That apart, learned Single Judge opined that the said discrepancy perhaps had occurred because of absence of prescribed format. Referring to the written statement filed by the appellant, learned Single Judge observed that appellant had nowhere claimed that she was a foreigner belonging to the 01.01.1966 to 25.03.1971 stream.
10. Thus, materials on record, as found by the learned Single Judge, disclosed that appellant was a foreigner who had illegally entered into India (Assam) from the specified territory after 25.03.1971. The reference was also made accordingly.
11. It is trite that non-mentioning or wrong ment
