Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Gau) 549

IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
N. Kotiswar Singh, Lanusungkum Jamir, JJ.
Monir Uddin Ahmed, Son Of Late Abbas Ali @ Abbas Ali Talukdar and ors. - Petitioners
Versus
The Union Of India, Rep. By The Secretary To The Govt Of India, Ministry Of Home Affairs, Shastri Bhawan, New Delhi and ors. – Respondents
WP(C)/2131 of 2018
Decided On : 17-08-2022

Advocate Appeared:
For the Petitioner:Ms. R. Choudhury, Ms. P. Sarmah, Advocates
For the Respondent:Asstt. S.G.I., Mr. G. Sarma, SC, Mr. A.I. Ali, SC, Mr. A. Bhuyan, SC, Ms. K. Phukan, Govt. Adv., Assam. Ms. L. Devi, SC, Advocates.

Point of Law : Supreme Court made an observation that in order to establish citizenship, normally, a person may be required to give evidence of (i) his date of birth, (ii) place of birth, (iii) name of his parents, (iv) their place of birth and citizenship, as these facts would necessarily be within personal knowledge of person concerned and not of authorities of State.

Headnote:
Indian Evidence Act, 1872 – Section 74, 79, 4, 35 – Assam Land and Revenue Regulation, 1886 – Regulation 41(2) – Foreigner/illegal immigrant - Petitioners, certified copy is a public document inasmuch as it was issued by a public authority and it is admissible in evidence without examining revenue authority - Court want to reiterate that standard of proof, which is required on part of proceedee to establish his claim of citizenship, is preponderance of probability and not proof beyond reasonable doubt, which has been reiterated by Full Bench of this Court (Para 44).
Findings of the Court :
Court are of view that proceedee has been able to adduce sufficient and cogent oral and documentary evidences in support of his claim that he is an Indian and not a foreigner on basis of pre-ponderance of probability - Oral and documentary evidences adduced, do certainly indicate that proceedee, is in all probability an Indian citizen which has not been shaken by State in any manner, nor State has adduced any evidence to suggest other alternative view that proceedee is a foreigner.
Result : Petition allowed.

JUDGMENT :

N. Kotiswar Singh, J.

Heard Ms. R. Choudhury, learned counsel for the petitioners. Also heard Ms. L. Devi, learned counsel appearing on behalf of Mr. R.K.D. Choudhury, learned ASGI for respondent No.1; Mr. G. Sarma, learned Standing Counsel, Foreigners Tribunal appearing for respondent Nos.2 & 4; Ms. K. Phukan, learned Govt. Advocate, Assam appearing for respondent No.3; Mr. A.I. Ali, learned Standing Counsel, ECI appearing for respondent No.5 and Ms. L. Devi also appears for respondent No.6 as the learned Standing Counsel, NRC.

2. The present petition was filed by Abbas Ali @ Abbas Ali Talukdar, son of late Eusub Ali @ Eusub Ali Talukdar who was the original proceedee in Case No.BNGN/FT-2/APR/546/2016 before the Foreigners Tribunal, Bongaigaon No.2, Abhayapuri, challenging the impugned opinion dated 06.03.2018 rendered by the learned Tribunal in the aforesaid case declaring him to be a foreigner/illegal immigrant of post 25.03.1971 from Bangladesh. However, the aforesaid proceedee Abbas Ali Talukdar died during the pendency of this petition on 25.03.2019. Thereafter, in view of the order dated 06.12.2019 passed by this Court in I.A.(Civil) No.3956/2016, the legal heirs of the aforesaid proceedee Abbas Ali, namely, (Monir Uddin Ahmed, (2) Mujjamil Hoque, (3) Nurul Hoque and (4) Ajmina Parbin were substituted in place of Abbas Ali @ Abbas Ali Talukdar who was earlier shown as the writ petitioner in this petition, to pursue the claim of the proceedee.

3. Before we examine the contentions and the response of the State, we would like to examine the findings arrived at by the learned Tribunal.

4. From the impugned order dated 06.03.2018 passed by the learned Tribunal, it appears that the proceedee, after receiving notice from the Tribunal, had filed as many as 15 documents, as follows:

i.	Photocopy of NRC of 1951	Annexure-1
ii.	Voter list of 1966	Exhibit-1
iii.	Voter List of 1970	Exhibit-2
iv.	Voter List of 1985	Exhibit-3
v.	Voter List of 1989	Exhibit-4
vi.	Voter List of 1997	Exhibit-5
vii.	Voter List of 2005	Exhibit-6
viii.	Voter List of 2014	Exhibit-7
ix.	Voter List of 2008	Exhibit-8
x.	Voter List of 2011	Exhibit-9
xi.	Voter List of 2017	Exhibit-10
xii.	Bank Pass book	Annexure2
xiii.	Kabinnama	Exhibit-11
xiv.	Jamabandi	Exhibit-12
xv.	Affidavit	Exhibit-13

5. Learned Tribunal on consideration of the aforesaid two annexures, (Annexure-1 and Annexure-2) and thirteen exhibits (Exhibit 1 to Exhibit 13) submitted by the aforesaid proceedee, Abbas Ali Talukdar made the following observations:

(a) Referring to photocopy of the NRC 1951 (Annexure-1), it was held that it is not legally admissible and acceptable in the eyes of law.

(b) As regards Exhibit Nos. 1, 2 & 3, which are the voters lists of 1966, 1970 and 1985, the learned Tribunal held that persons whose names were recorded in the Exhibit 1 and Exhibit 2 with the proceedee’s projected father and mother did not appear in the Exhibit 3, i.e. the voter list of 1985.

(c) Further, the learned Tribunal observed that there have been certain discrepancies in the age of the persons whose names were recorded in aforesaid voters lists. It was observed that in the voters list of 1970 (Exhibit 2), Eusub Ali was shown as 39 years old and as such, he would be 54 years old in 1985. However, in Exhibit-3 (voters list of 1985), Eusub Ali Talukdar has been shown to be 61 years old.

(d) The learned Tribunal observed that the name and age of the projected father of the proceedee mentioned in Exhibits 2 & 3 do not match. Accordingly, the learned Tribunal held that the proceedee had not been able to prove that Eusub Ali and Eusub Ali Talukdar refer to the one and the same person.

(e) Further, the learned Tribunal observed that in the voters list of 1989 (Exhibit-4)

Click Here to Read the rest of this document

2022 Supreme(Gau) 549

Cases Referred (19)