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2020 Supreme(Gau) 308
IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
PRASANTA KUMAR DEKA, PARTHIVJYOTI SAIKIA, JJ.
Farida Khatun d/o. Lt. Alal Uddin, W/o. Samsul Hoque – Appellant
Versus
The Union of India And Ors – Respondents
WP(C) 1455 of 2020
Decided on : 10-06-2020
Advocate Appeared:
For the Petitioner: MR. S BHUYAN
The burden of proof on the proceedee to establish citizenship under Section 9 of the Foreigners Act, 1946, and the importance of considering all relevant evidence to avoid the violation of the principle of natural justice.
Headnote:
Foreigners Act - Citizenship - 9 of the Foreigners Act, 1946 - The court discussed the interpretation of Section 9 of the Foreigners Act, 1946 and the burden of proof on the proceedee to establish citizenship. The court emphasized the importance of considering all relevant evidence and the violation of the principle of natural justice in failing to discuss evidence on record. The court set aside the impugned opinion and remanded the case with a direction to consider the evidence on record and pass an opinion as per the law.
Fact of the Case:
The petitioner filed a writ petition challenging the common opinion of the Foreigners' Tribunal, which held that the petitioner failed to prove her Indian citizenship under Section 9 of the Foreigners Act, 1946.
Finding of the Court:
The court found that the Tribunal failed to discuss the evidence on record and violated the principle of natural justice, leading to an error apparent on the face of the impugned opinion.
Issues: The issues revolved around the burden of proof on the proceedee to establish citizenship, the consideration of all relevant evidence, and the violation of the principle of natural justice in failing to discuss evidence on record.
Ratio Decidendi: The court emphasized the importance of considering all relevant evidence and the violation of the principle of natural justice in failing to discuss evidence on record, leading to an error apparent on the face of the impugned opinion.
Final Decision: The court allowed the writ petition, set aside the impugned opinion, and remanded the case with a direction to consider the evidence on record and pass an opinion as per the law.
ORDER :
P.K.Deka. J
Heard Mr. S. Bhuyan, learned counsel for the petitioner. Also heard Mr. A. Kalita, the learned Standing Counsel for the State, Foreigners Tribunal, Ms. B. Das, the learned counsel for the Election Commission of India and Ms. G. Hazarika, on behalf of the learned Asstt. S. G. I. and NRC.
2. F. T. Case No. 222/15 & F. T. Case No. 27/16, were decided by a common opinion dated 03.04.2019, by the learned Member, Foreigners’ Tribunal, 4th, Nagaon at Juria against two separate references by the SP(Border) Nagaon, which were against the petitioner. The said common opinion is under challenge in this writ petition.
3. On receipt of the notice, the petitioner filed her written statement and adduced evidence including herself as DW/OPW No. 1, her elder brother Gias Uddin as DW/OPW No. 2 and one Samsul Hoque, Headmaster as DW/OPW No. 3. In the written statement it is stated that the petitioner was born and brought up in the village Dhupaguri, Mouza-Batadrava, P.S.-Dhing, Dist-Nagaon, Assam and when she attained the age of puberty she was married to Md. Samsul Hoque resident of village Mahguri, Mouza and P.S.-Juria, District – Nagaon, Assam. After marriage, she was residing with her husband. The name of the father was Late Alal Uddin and the name of the mother was Jamena Khatun. Both were Indian nationals and their names were recorded in various voter lists of No. 86 Dhing LAC including the voter list of the year 1971. The parents died about 12 years ago. She is the only daughter and have five brothers whose names are mentioned in the written statement. The petitioner filed her evidence-in-chief by way of affidavit supporting the claim so made in the written statement and exhibited the following documents as recorded in the impugned opinion:-
“(5) Ext ‘1’ is the certified copy of voter list of 1970, 86 No. Dhing Assam Legislative Assembly wherein Sl. No. 489, House No. 113, Taleb Husen, S/O Ismail, age 55, in Sl. No. 490, House No. 113, Jamila Khatoon, W/O Jamaluddin, age 24 are voters.
(6) Ext ‘2’ is the certified copy of voter list of 1971, 86 Dhing Assam Legislative Assembly wherein Sl. No. 639, House No. 113, Alal, S/O Tale Husen, age 26 is sole voter.
(7) Ext. ‘3’ is the certified copy of voter list of 1975, 84 No. Batadrava Assam Legislative Assembly wherein Sl. No. 704, House No. 113, Jalal Uddin, S/O Taleb, age 28, in Sl. No. 705, House No.- 113, Halal S/O Taleb, age 26, in Sl. No. 706, House No. 113, Jamela Khatoon, W/O Halal, age 29 are voters.
(8) Ext. ‘4’ is certificate issued by the Headmaster, Dhupaguri J.B.School dtd. 20/02/2015 countersigned by Block Ele. Edn. Officer, Batadrava, Nagaon, Assam certified that “Mussa Farida Khatoon, D/O Alal Uddin, Vill-Dhupguri, P.S. Dhing was reading in Dhupaguri J.B.L.P. School. She has completed her education on 31/12/1991. She has passed class I. according to admission register her date of birth is 02/05/1983.
(9) Ext. ‘5’ is Jamabandi for surveyed villages of vill Nagaon/Nagaon/Dhing/Batadrava/Lat. No.3/Dhupguri gaon where Forida Khatoon D/O Lt. Alal Uddin is a pattadar.
(10) Ext. ‘6’ is Govt. Gaonburha certificate of Dhupaguri Gaon Dhakai Basti, Nagaon (Assam) certified that “Mussa Forida Khatoon D/O Lt. Alal Uddin, vill-Dhupguri gaon, P.O-Dhupguri, P.S. Dhing, Mouza-Batadrava, Dist- Nagaon (Assam). The above mentioned person is known to me well. She is an inhabitant of the said village. She got married with Md. Samsul Hoque of village Mahguri”.
4. The Tribunal considered two documents out of the above six documents exhibited after identifying the documents only for establishing the lineage between the petitioner and Alal Uddin, the projected father. The Tribunal discussed the said two documents as follows:-
“(14) The linkage documents marks ext ‘4’ is school certificate which is issued by Dhupaguri J.B.L.P.School. The proceedee also called for school headmaster with school record. During the query of school document the school headmaster deposed that he do not bring the school
