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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
N. KOTISWAR SINGH, MALASRI NANDI, JJ.
Hajarat Ali, S/o Late Sagar Ali – Appellant
Versus
The Union Of India – Respondent
WP(C) 7386 of 2017
Decided on : 14.06.2022
Foreigners Act, 1946 - Section 9 - Failed to discharge his burden cast - Illegal migrant of post - Cancelled the identity card - Foreigners Tribunal held that petitioner had failed to discharge his burden cast under Section 9 of Act, 1946 in proving that he is not an illegal immigrant and accordingly, returned reference in favour of State and against petitioner by holding that petitioner is an illegal migrant of post 1971 stream and also cancelled identity card – Challenged - Neither it was suggested to petitioner in course of proceeding or cross-examination of witnesses. In court view, aforesaid conclusion arrived at by learned Tribunal dehorsthe evidence and contrary to evidence - Tribunal had erroneously appreciated evidences on record as discussed above and did not taken into consideration a vital and relevant evidence in form of testimony of elder brother of petitioner, which is evidence of Nurjamal Hoque. (Para 49 and 55)
Finding of the court :
Court unable to understand logic and reasoning adopted by learned Tribunal. If the learned Tribunal held that on perusal of evidence, it is found that the names of petitioner’s parents were recorded in voters lists of 1966 and 1970 from village Kachumara of the then Kamrup district under 54 Chenga LAC and in the voters list of 1985, from village Islampur and even though petitioner had explained same for shifting of village, we fail to understand how learned Tribunal held that the same does not amount to a reasonable explanation – Court fail to understand as to how the learned Tribunal could have come to a conclusion that petitioner is an illegal migrant and to save himself from police, he frequently shifted from one place to another when it was not the case of the State. Neither it was suggested to the petitioner in course of the proceeding or cross-examination of the witnesses. Court conclusion arrived at by learned Tribunal dehors the evidence and contrary to the evidence – Court view that the aforesaid illegalities would be sufficient to vitiate impugned order and accordingly, same is held unsustainable in law.
Result: Petition disposed of
JUDGMENT :
N.Kotiswar Singh, J.
Heard Mr. M.U. Mahmud, learned for the petitioner. Also heard Ms. L. Devi, learned counsel appearing on behalf of Mr. R.K. Dev Choudhury, learned CGC appearing for respondent No.1; Mr. J. Payeng, learned Special Counsel, F.T. appearing for respondent Nos. 2, 4 to 5; and Ms. U. Das, learned State Counsel, Assam, appearing for the respondent no.3.
2. The present petition has been filed challenging the opinion dated 09.11.2017 passed by the Foreigners Tribunal No.1, Goalpara in F.T. Case No.7390/G/2016 by which the Foreigners Tribunal held that the petitioner had failed to discharge his burden cast under Section 9 of the Foreigners Act, 1946 in proving that he is not an illegal immigrant and accordingly, returned the reference in favour of the State and against the petitioner by holding that the petitioner namely, Md. Hajarat Ali son of late Sagar Ali, Vill-Kalpani Chandamari, P.S. & Dist.-Goalpara is an illegal migrant of post 1971 stream and also cancelled the identity card No.o BYK9136996.
3. Upon an inquiry made, the proceeding was initiated against the petitioner in the above referred F.T. case. The petitioner after being duly served summon appeared before the Foreigners Tribunal and filed his written statement and also documents in support of his claim that he is an Indian.
4. The petitioner filed as many as 10 (ten) documents and exhibited the same before the Tribunal. The petitioner also examined himself and his brother in support of his claim.
5. The Tribunal, however, after hearing the parties and considering the evidences on record held that the petitioner had failed to discharge the burden cast upon him under Section 9 of the Foreigners Act that he is not an illegal migrant.
6. The petitioner has relied on the following documents to prove his case:-
2. Voters list of 1970 where the name of the father of the petitioner Shagar Ali as son of Bhadu Mandal along with the grandmother Sabiran Nessa have been shown with the same village under 54 Chenga LAC.
3. Enumerator Slip relating to 1989 showing the name of the petitioner Hajarat Ali and his other members including Nur Jamal Sk, who is brother of the petitioner and DW2. According to the petitioner, the aforesaid enumerator list contains the name of the petitioner and his brother Nur Jamal Sk who had testified before the Tribunal as DW2.
4. Voters list of 1997 relating to 37 No. Goalpara East LAC in which the name of the petitioner appears along with his wife Sirvan Bibi. However, it has been submitted that in this voter list instead of Sagar Ali, the name of Sagar Rahman has been entered.
5. Voter Identity Card issued by the Election Commission of India in the name of Hajarat Ali showing the name of his father as Sagar Ali.
7. Learned counsel for the petitioner has drawn attention of this Court to the written statement filed by the petitioner in which the petitioner has clearly stated the name of his village as Kachumara in paragraph 6 thereof.
8. The petitioner also mentions in the written statement in paragraph 7 thereof the name of the paternal uncle as Akkabor Munchi, Son of Bhadu Sonaru as recorded in the voters list of 1985.
9. Learned counsel for the petitioner also submits that the name of the petitioner’s brother, Nur Jamal Sk has been also mentioned, though, as Nur Jamal Haque, son of late Sagar Rahman in the voters list of 2005 in the same village Kalapani under 37 Goalpara LAC where his name appeared along with his wife.
10. Thus, it has been submitted that the names of the petitioner and his family members including his brother (DW2) appeared in the said voters list of 2005, thus
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