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2020 Supreme(Gau) 595
IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
MANOJIT BHUYAN, SOUMITRA SAIKIA, JJ.
Fariz @ Forij Ali @ Farjul Hoque @ Farijul Hoque @ Farijal Hoque, S/O- Janik @ Janik Ali @ Janir Uddin @ Manik Uddin @ Janif (Father) And Basiran Nessa (Mother) – appellant
Versus
The State Of Assam And Ors. – respondents
WP(C) 3959 of 2020
Decided on : 09-10-2020
Advocate Appeared:
For the Appellant : MR. R SARMA
For the Respondent: ASSTT.S.G.I.
The burden of proving citizenship under the Foreigners' Act 1946 rests upon the petitioner, and failure to establish crucial aspects may lead to dismissal of the petition.
Headnote:
Foreigners' Act 1946 - Burden of Proof - Sections 9 - The court upheld the opinion of the Foreigners' Tribunal declaring the petitioner as a foreigner, as the petitioner failed to establish linkage to his projected parents as required under section 9 of the Foreigners' Act 1946.
Fact of the Case:
The petitioner contested the opinion of the Foreigners' Tribunal declaring him a foreigner, claiming lineage to his projected parents through various documents. However, the court found that the petitioner failed to establish the crucial aspect of establishing linkage to his projected parents.
Finding of the Court:
The court found no infirmity in the findings and opinion recorded by the Tribunal, and refrained from reviewing the findings of facts reached by the Tribunal.
Issues: The primary issue was the determination of whether the petitioner is a foreigner, with the burden of proving citizenship resting upon the petitioner.
Ratio Decidendi: The petitioner failed to discharge the burden of proving citizenship and establishing linkage to his projected parents as required under section 9 of the Foreigners' Act 1946.
Final Decision: The writ petition was dismissed, without any order as to cost.
JUDGMENT :
(Soumitra Saikia, J)
1. Heard Mr. R. Sarma, learned counsel appearing for the petitioner and Ms. G. Hazarika, learned standing counsel, NRC, Ms. B.Das, learned standing counsel, Election Commission, Mr. A. Kalita, learned standing counsel, Foreigners’ Tribunal appearing for the respondents.
2. By way of this writ petition, the petitioner has assailed the opinion dated 17-01-2009 passed in F.T. Case No. 23 /2016 corresponding to R/Case No. 10787/98, rendered by the Member, Foreigners’ Tribunal No.6, Barpeta, declaring the petitioner to be foreigner/ illegal migrant who had entered Assam on or after 25-03-1971 and thereby answering the reference in affirmative. The opinion was rendered upon the reference being IM(D)T No. 10787/98 forwarded by the Superintendent of Police, Border, Barpeta.
3. To discharge the burden as required under section 9 of the Foreigners’ Act 1946 to prove that the petitioner is not a foreigner, the petitioner projected Janik @Janik Ali @Janir Uddin as his father and Basiran Nessa as his mother. The petitioner contested the case upon receipt of the Notice by appearing before the Tribunal and filing the written statement denying the allegations that he is an illegal migrant in terms of Foreigners’ Act 1946 and the Foreigners’ (Tribunal) order 1964. To substantiate his claim the petitioner exhibited the following documents:
(i) Exhibit-A is the certified copy of the Electoral Roll of 1966 showing the names of Janifuddin son of Jaher and Basiran wife of Janif were projected as the father and mother respectively of the petitioner, of village Kholabanda Nonke, Part No. 108, Mouza-Baguribari, Sub-Division Barpeta under 54 Chenga Legislative Assembly (LAC).
(ii) Exhibit-B is the certified copy of the Electoral Roll of 1970 showing the name of Janiruddin son of Jaher and Basiran Nessa wife of Janir, projected as the father and mother respectively of the petitioner, of village Baghmarachar Nonke, Part No. 51, Mouza-Baghbar, Sub-Division Barpeta under 52 Baghbar Legislative Assembly (LAC).
(iii) Exhibit-C is the certified copy of the Electoral Roll of 1985 to show the name of his projected brother namely Abdul Barek under 45 Baghbar Legislative Asembly.
(iv) Exhibit-D is the certified copy of the Electoral Roll of 1989 showing the name of Janikuddin son of Jaher and Basiran Nessa wife Janik, projected as the father and mother respectively of the petitioner, of village Baghmarachar Nanke, Part No. 45, Mouza-Baghbar, Sub-Division Barpeta under 45 Baghbar Legislative Assembly (LAC).
(v) Exhibit-E is the certified copy of the Electoral Roll of 1997 showing the name of Basiran Nessa wife of Janik, projected as mother of the petitioner, of village Baghmarachar, Part No. 45, Mouza-Baghbar, Sub-Division Barpeta under 45 Baghbar Legislative Assembly (LAC).
(vi) Exhibit-F is the Certificate issued by Gaonburah dated 23-02-2016 of village Baghmarachar certifying the petitioner is the Son of Late Janif Uddin of village No 4 Baghmarachar, Mouza-Baghbar within the district of Barpeta.
(vii) Exhibit-G is an affidavit sworn by the petitioner.
The petitioner also examined 2 (two) witnesses namely, the petitioner himself as DW 1 and the Gaonburah as DW 2.
4. In the written statements filed before the Tribunal, petitioner disclosed that he was born in the village Baghmara Char under Baghbar Mouza. His father’s name was Janiruddin and that it appeared in the Voter’s List of 1970 at serial no. 810, House No. 2, Part No. 51 at village Baghmarachar Nonke under 52 Baghbar Legislative Assembly Constituency. He further stated that his second brother Abdul Barek’s name appeared in the Voter List of 1985 and 1989 at village Baghmarachar Nonke vide serial no. 1011 and 507, House No. 152 and 168, parts nos. 45 & 46 under 45 Baghbar Legislative Assembly Constituency (LAC). His own name had appeared in the Voter’s List of 1989 and 1997. He further stated that his father’s correct name is Janik Ali but in the Voter List of 1970 it was entered as Jan
