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2018 Supreme(Gau) 1215
IN THE HIGH COURT OF GAUHATI
A.K.GOSWAMI, M.R.PATHAK, JJ.
AFIA BEGUM D/O MD SOLIMUDDIN - Appellant
Versus
UNION OF INDIA AND 3 ORS - Respondent
Writ Petition (Civil) No. 4779 of 2016
Decided on : 21-08-2018
Advocate Appeared:
Md M H Choudhury, Adv., G. Sarma, Adv.
The burden of proof lies on the individual claiming citizenship, as per Section 9 of the Foreigners Act, 1946, and established legal principles.
Headnote:
Foreigners - Nationality - Foreigners Act, 1946, Illegal Migrants (Determination by Tribunals) Act, 1983 - Section 9 of the Foreigners Act, 1946, Burden of Proof - The court discussed the burden of proof on the proceedee to establish their citizenship and referenced key legal provisions from the Foreigners Act, 1946 and the Illegal Migrants (Determination by Tribunals) Act, 1983. The court emphasized the onus of proving one's nationality and the burden of proof in cases where a person claims to be a citizen of a particular country.
Fact of the Case:
The petitioner challenged a judgment by the Foreigners Tribunal declaring her as a foreigner and directing the deletion of her name from the voter list. She claimed to be an Indian citizen by birth and provided various documents to support her claim.
Finding of the Court:
The court found that the petitioner failed to prove herself as an Indian national and upheld the judgment of the Foreigners Tribunal.
Issues: The main issue was whether the petitioner could establish her Indian nationality and refute the claim of being a foreigner.
Ratio Decidendi: The court emphasized the burden of proof on the proceedee to establish their citizenship, citing Section 9 of the Foreigners Act, 1946 and relevant case law. It held that the petitioner failed to meet this burden.
Final Decision: The writ petition was dismissed as devoid of merit.
MANASH RANJAN PATHAK, J.
1. Heard Ms. M Deori, learned counsel for the petitioner. Also heard Mr. A Kalita, learned Special Standing counsel, Foreigners Tribunal appearing for the respondent Nos. 2 to 4 and Ms. G Sarma, learned CGC, appearing for the respondent No. 1.
2. Challenge in this writ petition is to the judgment dated 06.11.2015, passed by learned Member, Foreigners Tribunal, Jorhat in Case No.FTG/D-96/07 whereby, the learned Tribunal opined that the petitioner Afia Begum is a foreigner who entered into India after 24/25th of March, 1971 and directed the authorities concerned to delete her name from the voter list of 96 Khumtai LAC of Golaghat district.
3. We have perused the records of the Foreigners Tribunal that was called for by the Court earlier on 06.09.2016.
4. Initially the said Case No.FTG/D-96/07 proceeded before the Foreigners Tribunal at Golaghat from 09.03.2010 to 04.02.2013 and then it was transferred to Foreigners Tribunal, Jorhat, where the matter proceeded from 21.07.2014.
5. On receipt of notice, though the petitioner appeared before the Foreigners Tribunal at Golaghat, she did not file her written statement before the said Tribunal and after transfer of the said case, the petitioner on receipt of notice, filed her written statement before the Foreigners Tribunal, Jorhat on 14.10.2014.
6. In her written statement, the petitioner stated that she is not a foreigner but, an Indian citizen by birth and that she is the daughter of Md. Salimuddin and Nosiman Nisha and a permanent resident of Borghuli Gaon, P.O.- Hapmari, Police Station - Uluoni, Mouza - Pubthoria, District - Nagaon, Assam. It is also stated that in the year 1998, she got married to Amir Ali and after her marriage for the first time she had cast her vote in the year 2006. She also stated that her grandfather late Altab Ali was a permanent resident of Borghuli Gaon, Nagaon and cast his vote in the year 1965 and her father Md. Salimuudin cast his vote in the year 1971 and that her parents and other family members also cast their votes from the said locality.
7. In support of her claim the petitioner exhibited the following documents:
(i) Ext. 1 - Certified copy of 2006 Voter List of 96 Khumtai LAC showing the names of Amir Ali and Afia Begum as voters.
(ii) Ext. 2 - Voter List of 1965 voter list of No. 90 Kaliabor LAC reflecting the name of one Altab Ali.
(iii) Ext. 3 - Certified copy of 1971 Voter List of No. 90 Kaliabor LAC reflecting the name of one Sulimuddin.
(iv) Ext. 4 - Certified copy of 1997 Voter List No. 89 Kaliabor LAC reflecting the name of one Salimuddin and his other family members.
(v) Ext. 5 - Certified copy of 2005 Voter List of No. 89 Kaliabor LAC reflecting the names of one Salimuddin and his other family members.
(vi) Ext. 6 - Certified copy of 2010 Voter List of No. 89 Kaliabor LAC reflecting the name of one Salimuddin and his other family members.
8. In addition to the above, the petitioner had also placed the certified copies of 2014 Voter List of No. 89 Kaliabor LAC reflecting the name of one Solimuddin and his other family members as well as Photostat copies of Voter Lists of 1965 and 1971 of No. 90 Kaliabor LAC, but those were not exhibited.
9. In her cross examination, the petitioner deposed that her husband is Md. Amir Ali, resident of village - Moukhowa, PS Khumtai of Golaghat District and that her father s name is Md. Salimuddin and mother s name is Musstt. Nesiman Nessa. During her cross examination, she also stated that her father had two wives, one late Rabiya Begum and the other Nasiman Nessa and that her father had no brothers, but had two sisters namely (i) Fatema Begum, (ii) Nurjahan Begum. She also stated that she was born at No.3 Borghuli Gaon, Police Station - Uluoni, District - Nagaon and that late Altab Ali was her grandfather and Aichan Banu was her grandmother.
10. She further deposed that she has four brothers (i) Ramjan Ali (ii) Alam Geer (iii) Jalal Uddin (iv) Abdula Hoque and does not have sister and
