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2018 Supreme(Gau) 546
IN THE HIGH COURT OF GAUHATI
UJJAL BHUYAN, NELSON SAILO, JJ.
In Re : Sumala Khatun @ Salema Khatun And Another
Writ Petition (C) (Suo Moto) No. 17 of 2017 with I.A.(Civil) No. 1308 of 2016 with Writ Petition (C) No. 5369 of 2016
Decided On : 19-04-2018
For the Petitioner: SC, GHC, Mr. S. ISLAM
For the Respondent: MD.B ISLAM
The burden of proof for citizenship under Section 9 of the Foreigners Act, 1946 lies with the proceedees, and consistency in decisions is essential.
Headnote:
Foreigners Act - Citizenship - Section 9 of the Foreigners Act, 1946 - The court set aside the orders dated 08.02.2016 and 20.07.2016 and directed both the mother and the petitioner to appear before the Foreigners Tribunal for rehearing of the references together.
Fact of the Case:
Abdul Ali challenged the order of the Foreigners Tribunal declaring him a foreigner. He claimed that his mother, Sumala Khatun, was declared not a foreigner by the same Tribunal and sought similar treatment.
Finding of the Court:
The court found that the petitioner failed to mention his mother's case in the written statement and did not produce her as a witness. It directed both cases to be reheard together and clarified that the claim to citizenship would be through the petitioner's father.
Issues: The issues revolved around the conflicting orders of the Tribunal, the petitioner's failure to disclose his mother's case, and the determination of citizenship through the father.
Ratio Decidendi: The court emphasized the need for consistency in decisions and directed rehearing of both cases together. It clarified the burden of proof for citizenship under Section 9 of the Foreigners Act, 1946.
Final Decision: Both writ petitions were disposed of, and the mother and the petitioner were directed to appear before the Foreigners Tribunal for rehearing of the references together.
UJJAL BHUYAN, J.
1. Heard Mr. S Islam, learned counsel for the petitioner in WP ( C) No.5369 of 2016 and respondent No.1 in WP (C ) (Suo Moto) 17 of 2017; Mr. A Kalita, learned Special Counsel, Foreigners Tribunal (FT) and Mr. TJ Mahanta, learned senior counsel assisted by Mr. B Bora, learned counsel for the Gauhati High Court.
2. In WP (C) No.5369 /2016, Abdul Ali is the petitioner. He has assailed the legality and correctness of the order dated 20.07.2016 passed by the Foreigners Tribunal No.2, Kamrup at Boko in Case No.BFT 165/2015 (State vs. Abdul Ali) declaring him to be a foreigner.
3. Following the aforesaid order passed by the Tribunal, petitioner was taken into custody.
4. This Court by order dated 07.09.2016 had issued notice while requisitioning case records and passed an interim order to the effect that petitioner should not be deported from India.
5. In the course of the hearing on 17.11.2017, learned counsel for the petitioner relied upon Annexure-13 order dated 08.02.2016 passed by the same Tribunal in Case No. BFT 164/2015 (State vs. Sumala Khatun @ Salema Khatun @ Samela Khatun) declaring her to be not a foreigner. It was contended that Sumala Khatun was the mother of the petitioner and therefore similar order be passed in the case of the petitioner as well. Upon hearing learned counsel for the parties, this Court had passed the following order on 17.11.2017:
"In the course of hearing today, learned counsel for the petitioner submits that mother of the petitioner was declared to be not a foreigner by the same Foreigner Tribunal No. 2 Kamrup at Boko in Case No. BFT 164/2015 (State vs. Sumala Khatun @Salema Khatun @ Samela Khatun) decided on 08.02.2016. Therefore, the same benefit be extended to the petitioner, he contends.
We find that in the written statement petitioner did not mention that his mother was facing a proceeding before the Foreigners Tribunal. As a matter of fact, in the written statement petitioner did not even mention the name of his mother. If indeed Sumala Khatun is the mother of the petitioner, as is now being claimed, petitioner could have apprised the Tribunal about the order dated 08.02.2016 because petitioner's case was decided thereafter on 20.07.2016. We also notice that the petitioner did not produce the said Sumala Khatun before the Tribunal as his witness.
On a query by the Court, learned counsel for the petitioner admitted that both mother and son are living together. If that be so, it is un-believable that the mother will not depose before the Tribunal in favour of the son by placing reliance on the order passed by the Tribunal in her case. However, now that this fact has been brought to the notice of the Court and an apparent ingongruity has been presented before us, we feel that the same is required to be resolved.
In all such identical matters, this Court has directed the Registry to register Suo Moto cases and thereafter, hearing of the matters together.
That being the position, Registry is directed to register a Suo Moto case in respect of order dated 08.02.2016 passed by the Foreigners Tribunal No. 2, Kamrup at Boko in Case No. BFT 164/2015 (State-vs-Sumala Khatun @Salema Khatun @ Samela Khatun) , whereafter the same may be listed before the Court for consideration along with this case."
6. It was thereafter that WP ( C) ( Suo Moto) 17/2017 was registered in which notice was issued on 04.12.2017 pursuant to which Mr. S Islam, learned counsel has entered appearance on behalf of respondent No.1 Sumala Khatun.
7. Having regard to the order passed by us on 17.11.2017, relevant portion of which has been extracted above and on due consideration, we feel that if indeed Sumala Khatun is the mother of the petitioner as has been claimed than we will have two diametrically opposite orders passed by the same Tribunal in the case of the petitioner on the one hand and in the case of respondent No.1 on the other hand. However, we would hasten to add that it is for the petitioner to pr
