2021 Supreme(Gau) 19

IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
N. KOTISWAR SINGH, MANISH CHOUDHURY, JJ.
Haidar Ali S/o Harmuz Ali – Petitioner
Versus
Union of India to be Rep. by Secretary to the Home Department, New Delhi – Respondent
W.P. (C) No. 1818 of 2019
Decided On : 30-03-2021

Point of Law: Illegal immigrant - Declaration as foreigner - petitioner's father and his grandfather were in-possession of certain property in Assam before 1971 - corroborating evidences to show that the petitioner is a descendant of persons who were already living in Assam prior to 1971 and 1966 - Hence petitioner declared as Indian Citizen.

Headnote:

Code of Criminal Procedure, 1973 - Section 313 - Foreigners Act, 1946 - Sections 9, 2 - Code of Civil Procedure, 1908 - Order XLI Rule 27, Order VIII Rule 2, Order VIII Rule 9 - Evidence Act - Section 106 - Illegal Migration - Challenging the order passed by the learned Member, Foreigners' Tribunal-III, in F.T. Case opining the petitioner as an illegal migrant and consequently declared the petitioner as a foreigner u/s 2(a) of the Foreigners Act, 1946 - Tribunal, on consideration of evidence and materials on record, however, held that the petitioner had failed to discharge his burden of proving that he is an Indian as required under Section 9 of Foreigners Act, 1946 and accordingly, declared him to be a foreigner under Section 2(a) of the Foreigners Act, 1946.

Finding of the Court:

Petitioner has already explained that their parents and grandparents subsequently shifted from Village - Accordingly, the name of the petitioner's father appeared in the voters lists of 1989 and 1997 in the same new village at Karagari Nonke Block No. 12, though their names are found in the voters list of 1971 of Nalirpam village, that is, prior to their shifting. The names of the petitioner and petitioner's father Harmuz Ali are found in the voters list 2005 in the same village of Karagari Nonke 12 No. Block - Petitioner has already explained that their parents and grandparents subsequently shifted from Village Nalirpam to Village Karagari Nonke Block No. 12 in the written statement - Accordingly, the name of the petitioner's father appeared in the voters lists of 1989 and 1997 in the same new village at Karagari - Nonke Block No. 12, though their names are found in the voters list of 1971 of Nalirpam village, that is, prior to their shifting - The names of the petitioner and petitioner's father Harmuz Ali are found in the voters list 2005 in the same village of Karagari Nonke 12 No. Block - As far as the other document, namely, transfer certificate issued by the Principal of Kayakuchi Higher Secondary School, Kayakuchi, Barpeta in favour of the father of the petitioner is concerned, the same has been proved with the examination of the concerned authority of the school, i.e. the In-Charge Principal of the School who was acquainted with the records and signature of the Principal - Court have also noted that the Gaonbura had himself testified before the Tribunal who had issued the certificates showing that the petitioner is the son of Harmuz Ali and resident of Village: Kawaimari 12 No. Block and Harmuz Ali is the son of Nadu Miya and both were residents of the said village - Those documents have not been also challenged - Court have also seen the revenue records, i.e. Jamabandi and revenue receipts produced before the Court which were also compared by the Tribunal with the originals, where the names of the petitioner's father and his grandfather were shown - These revenue records relate to the period of 1966-1971 - Tribunal did not reject these documents but merely made an observation that these documents do not create the title - Court is of the view that even if these documents do not create title, these certainly indicate that the petitioner's father and his grandfather were in-possession of certain property in Assam before 1971 and this can be considered to be corroborating evidences to show that the petitioner is a descendant of persons who were already living in Assam prior to 1971 and 1966 - Court is of the firm opinion that the petitioner has been able to prove that his father was Harmuz Ali and his grandfather was Nadu Miya - Documents clearly show the linkage of the petitioner with his father Harmuz Ali and grandfather, Nadu Miya and accordingly, Court have no hesitation to hold that the petitioner is an Indian citizen and not a foreigner.

Result: Petition Allowed.