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2018 Supreme(Gau) 1589
IN THE HIGH COURT OF GAUHATI
A.K.GOSWAMI, M.R.PATHAK, JJ.
Jan Nessa - Appellant
Versus
The Union of India and Ors - Respondent
WP(C) 6834 of 2017
Decided On : 11-10-2018
Advocate Appeared:
For the Appellant : R. Dhar
For the Respondent: Asstt. S.G.I.
Headnote:
Civil Procedure Code, 1908 - Section 114 - Foreigners Act, 1946 - Section 9 - Evidence Act - Section 3 - Illegal Migrant - Heard learned Senior counsel assisted by learned counsel for petitioner also heard learned CGC appearing for respondent No - 1 and learned Standing counsel assisted by learned Foreigners Tribunal appearing for respondent Nos-2 to 4 - Challenge in this writ petition is to order passed by learned Member Foreigners Tribunal No - 1 in GFT-(R) Case whereby learned Tribunal opined that petitioner is a Foreigner Illegal Migrant of stream and is liable to be pushed back to specific territory as well as order passed by said Tribunal in Misc Case in GFT-(R) Case rejecting petition filed by petitioner to review said order - We have perused records of Foreigners Tribunal that was called for by Court earlier - Held, Though petitioner stated that she had uncles mother stepmother brothers and sister but she did not adduce evidence of anyone of her family to establish that she is daughter - Honble Supreme Court in case of Union of India and Others vs reported while considering provisions have held that When a question arises whether a person is or is not a foreigner onus of proving that he is not a foreigner is on that person - Apex Court has reiterated said principle of law - Delhi Administration reported and State reported in observing that By reason whenever a question arises whether a person is or is not a foreigner onus of proving that he is not a foreigner lies upon him and hence burden is on procedee to establish that he is a citizen of India in manner claimed by him - Honble Apex Court while laying down law relating to burden of proof has also noticed general rule in leading democracies of world that Where a person claims to be a citizen of a particular country burden is upon him to prove that he is a citizen of that country - Petition stands dismissed.
MANASH RANJAN PATHAK, J.
1. Heard Mr. H R A Choudhury, learned Senior counsel, assisted by Mr. N N Upadhyaya, learned counsel for the petitioner. Also heard Ms. G Sarma, learned CGC, appearing for the respondent No. 1 and Mr. U K Nair, learned Sr. Standing counsel, assisted by Mr. J Payeng, learned Foreigners Tribunal appearing for the respondent Nos. 2 to 4.
2. Challenge in this writ petition is to the order dated 26.07.2017 (29.07.2017), passed by the learned Member, Foreigners Tribunal No. 1, Kamrup (R), Ulubari, Assam in G.F.T.(R) Case No. 171/2017, whereby, the learned Tribunal opined that the petitioner is a Foreigner/Illegal Migrant of 25.03.1971 stream and is liable to be pushed back to the specific territory, as well as the order dated 13.10.2017 passed by the said Tribunal in Misc. Case No. 01/2017 in G.F.T.(R) Case No. 171/2017 rejecting the petition No. 422 of 2017 dated 22.08.2017 filed by the petitioner under Section 114 read with Order 47, Rules 1 and 2 of the Code of Civil Procedure, to review the said order dated 26.07.2017.
3. We have perused the records of the Foreigners Tribunal that was called for by the Court earlier on 13.11.2017.
4. From the records, we have seen that though the Tribunal fixed 26.07.2017 for judgment and the same was made ready, but as the counsel for the petitioner on 26.10.2017 filed an application seeking another date as the petitioner would not be able to appear on that date, as she was suffering from stomach upset, the Tribunal fixed 29.07.2017 for judgment and the impugned judgment was accordingly delivered by the said Tribunal on 29.07.2017.
5. On reference being submitted by the Superintendent of Police (Border), Kamrup, as to whether the petitioner is a foreigner under Foreigners Act, 1946, who had entered into Assam illegally after 25.03.1971 or not, initially B.F.T. Case No. 232/2016 against her was registered and proceeded before the Foreigners Tribunal No. 2, Kamrup, Boko since its inception on 30.06.2016 up to 21.04.2017. Later, as per Government Notification No. PLB-227/2017/3-A dated 19.05.2017, said B.F.T. Case No. 232/2016 was transferred to the Foreigners Tribunal No. 1, Kamrup (R), Ulubari, Guwahati, wherein it was re-registered and renumbered as G.F.T.(R) Case No. 171/2017 and the said matter proceeded in the transferred Tribunal w.e.f. 12.06.2017.
6. On receipt of notice, the petitioner appeared before the Foreigners Tribunal No. 2, Kamrup, Boko on 02.09.2016 and filed her written statement on 31.10.2016. She filed her Evidence-on-Affidavit before the said Tribunal on 08.02.2017 as well as additional Evidence-on-Affidavit on 12.06.2017 and also filed Evidence-on-affidavit of the Government Gaon Burha of Village-Mahchara, District-Barpeta, Assam on 22.03.2017.
7. Petitioner examined herself as witness DW-1 and the Government Gaon Burha of Village -Mahchara as witness DW-2 on her behalf.
8. 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 Late Joynal Ali, son of Barkat Ali, name of her mother is Soleman Nessa, name of her grandmother was Moyna Nessa, name of her step mother is Jahura Khatun. She also stated that names of her grandfather and grandmother were enlisted in the Voter Lists of 1966, 1970 pertaining to No. 54 Chenga LAC, whereas name of her father Joynal Ali was enlisted in the Voter List of 1971 amended (Additional) Voter List of No. 54 Chenga LAC along with her paternal uncles. She also stated that names of her parents Joynal Ali and Soleman Nessa were enlisted in the Voter List of 1985 of No. 47 Chenga LAC. In 1997, her father shifted from Village-Mahchara, P.S. Tarabari, District -Barpeta, Assam to Village-No. 2, Uttar Rangapani, P.S. Nagarbera, District -Kamrup as he had his own cultivable land in that place and his name appeared in the Voter Lists of No. 48 Boko (SC) LAC along with her stepmother Jahura Khatun for the years 1997, 2010, 2013, 2016. She further sta
