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IN THE HIGH COURT OF GAUHATI
SUMAN SHYAM, PARTHIVJYOTI SAIKIA, JJ.
Motior Rahman - Appellant
Versus
Union of India and Ors., Rep. by Secretary to Govt. of India, Ministry of Home Affairs, New Delhi - Respondent
Writ Petition (Civil) No. 3185 of 2017
Decided On : 26-11-2019
Foreigners Act, 1946 – Section 9 – Citizenship Act, 1955 – Section 6(A) – Petitioner was born in India in district of Goalpara – According to petitioner, his father Ahmed Ali had cast his vote along with his family members in year 1966 from village Kantapur on basis of entry of his name in voters list of 1966 – After death of Piarjan Bibi, father of petitioner had re-married Jorimon Nessa, who belonged to Aolatoli village but soon after their marriage, Ahmed Ali had also expired leaving behind petitioner and his elder brothers – After death of his father, petitioner continued to reside at Aolatoli along with their step mother Jorimon Nessa – Petitioner has stated that Jorimon Nessa had cast her vote along with his elder brother Abdul Jalil in year 1985 but petitioner, for first time, had cast his vote in year 1989 – On basis of such plea, petitioner had claimed to be a citizen of India – Held, learned Tribunal has declared petitioner as a foreigner based on some minor discrepancies in recording of age and also for non-mentioning of date of second marriage of father of petitioner – However, such discrepancies, in court opinion, are minor in nature and hence, even if found correct, would not have any material bearing in outcome of this writ petition – Moreover, in decision of Honble Supreme Court rendered in case of Sirajul Hoque Vs. The State of Assam and others in connection with Criminal Appeal No. 267/2019 arising out of SLP(Crl) No. 4500/2018 it has been held that minor discrepancies in recording of names, age and address of family members of proceedee cannot be ground to doubt his case – Writ Petition Allowed
Key Points: - The petitioner claimed Indian citizenship based on his 1966 voter inclusion and family voting participation (!) (!) . - The Foreigners Tribunal rejected the claim citing minor discrepancies in age recording and missing marriage details, failing the burden of proof under Section 9 of the Foreigners Act (!) (!) . - The court held that minor discrepancies in names, age, and address cannot invalidate citizenship claims, per Supreme Court precedent (!) (!) . - Evidence of continuous residence and familial linkage, including brother testimony and voter lists, supported the petitioner's claim (!) (!) (!) . - The impugned order was set aside, and the writ petition was allowed based on sufficient evidence of citizenship (!) (!) .
JUDGMENT :
Suman Shyam, J.
Heard Mr. J. Ahmed, learned counsel appearing for the petitioner. We have also heard Mr. J. Payeng, leaned Standing Counsel, Foreigners Tribunal, appearing for the respondent nos. 2, 3, 4 and 5. None has appeared for the respondent no.1.
2. In this writ petition, the order dated 29/03/2017 passed by the learned Member, Foreigners Tribunal (4th), Goalpara, Assam, in FT Case No. 427/2016, corresponding to ERO Case No. 627 88/ 38 declaring the petitioner as a foreigner, has been put under challenge.
3. The case projected by the petitioner in the written statement, reduced to its essence, is as follows :-
4. In support of his aforesaid claim, the petitioner had examined two witnesses and had produced certified copies of the electoral roll of 1966, 1970 and 1989 as evidence to show that the name of his father was included in the voters' list of 1966 and 1970 and thereafter, the petitioner's name was also included in the electoral roll of 1989. That apart, the petitioner has produced Xerox copies of the electoral roll of 1985 as well as those of 1997, 2011 and 2014 in support of his claim that he has been continuously residing in India since birth and had also exercised his voting rights as per entry of his name in the voters' list. The petitioner had examined his brother Abdul Jalil as DW-2, who had deposed before the Tribunal that the petitioner is the younger son of late Ahmed Ali and Piarjan Bibi and that he was born in village Kantapur in the district of Goalpara.
5. The learned Foreigner's Tribunal, upon consideration of the materials available on record, rejected the claim of the petitioner, inter-alia holding that the Xerox copies of the electoral rolls submitted by the petitioner pertaining to the year 1985, 1997, 2005, 2011 and 2014 were not admissible in the eye of law. The learned Tribunal has rejected the voter's list of 1966 on the ground that names of the father and mother of the petitioner had been marked with highlighter. That apart, the learned Tribunal has also held that there is no proof as regard the date and place of birth of the petitioner and that in the certified copies of the voters' list of 1989, the names of the petitioner's father and mother is not mentioned. The learned Tribunal has also observed that the name of step mother of the petitioner has not been mentioned in any other voters' list before or after 1985. The learned Tribunal had also taken note of the fact that there were discrepancies in the address claimed by the petitioner, inasmuch as the name of his step mother Jorimon Baidhawa was recorded in the voters' list of 1985 from village Aolatoli (Meserbhita) wherein the age of the step mother of the petitioner has been shown as 51 years but her name was not recorded in any other voters' list before the year 1985. The learned Tribunal has also held that the petitioner was included in the list of 'D' voters during the period from 2005 and therefore, the claim of the petitioner of being an Indian c
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