1. Writ petition under Article 226 challenging Foreigners Tribunal finding that petitioner was an illegal migrant; reference under IMDT Act transferred to Foreigners Act, 1946 proceedings. (Para 2 , 3 , 4 , 5 , 6 , 9 )
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2018 Supreme(Gau) 1762
THE GAUHATI HIGH COURT, (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
UJJAL BHUYAN, NELSON SAILO, JJ.
Musstt. Rabiya Khatun, W/o. Nabar Ali, D/o. Kordush Ali - Petitioner
Versus
The Union of India, Rep. By The Secretary To The Govt. Of India, Ministry Of Home Affairs and Ors. – Respondents
WP(C) 4986 of 2016
Decided On : 09-02-2018
Advocates Appeared:
For the Petitioner: Mr. M.H. Talukdar
For the Respondent: Asstt.S.G.I.
For the Petitioner: Mr. M.H. Talukdar
For the Respondent: Asstt.S.G.I.
Under Section 9 of the Foreigners Act, 1946, the burden of proving citizenship lies with the claimant. A writ court exercising supervisory jurisdiction under Article 226 will not disturb findings of fact unless they are perverse or violate natural justice or prescribed procedure.
Headnote:(A) Constitution of India - Article 226 - Foreigners Act, 1946 - Section 9 - Foreigners (Tribunals) Order, 1964 - Challenge against order declaring person to be a foreigner - Burden of proof - Validity of evidence. (Paras 2, 7, 11, 19)
(B) Writ Jurisdiction - Scope of interference - Court exercising jurisdiction under Article 226 of the Constitution of India acts in a supervisory capacity and not as an appellate court - It will not ordinarily interfere with findings of fact unless there is a violation of the principles of natural justice, non-conformity with prescribed procedure, or perversity. (Para 7)
(C) Burden of Proof - Under Section 9 of the Foreigners Act, 1946, the burden is on the person claiming not to be a foreigner to prove their citizenship. (Paras 11, 19)
Facts of the case:
The petitioner challenged an order passed by a Foreigners Tribunal declaring her to be a foreigner who entered India illegally after 25.3.1971. The petitioner claimed citizenship by birth, asserting that her father was a voter in 1966 and 1970 and that her own name appeared in voters lists of 1997 and 2013. She additionally submitted a PAN card to establish her identity and relationship with her father.
Findings of Court:
The court found that the petitioner failed to prove she was the daughter of the individual mentioned in the 1966 and 1970 voters lists. The PAN card was deemed unreliable as it was not proved by the issuing authority and the petitioner was not an income tax payee, making the obtainment of the document unusual given her background.
Issues: Whether the writ court should interfere with the Tribunal's finding of fact and whether the petitioner had discharged the burden of proof to establish her citizenship under Section 9 of the Foreigners Act, 1946.
Ratio Decidendi: Supervisory jurisdiction under Article 226 does not permit interference with findings of fact lacking perversity or procedural illegality. Since the burden of proof under Section 9 of the Foreigners Act, 1946 lies with the claimant, the failure to provide corroborated documentary evidence linking the petitioner to a citizen parent renders the claim of citizenship unsustainable.
Result: Writ petition is found to be devoid of merit and is accordingly dismissed.
Legal Category Hierarchy
- constitutional law
- administrative law
- practice and procedure
Table of Contents
2. Petitioner claimed citizenship by birth relying on voters-list entries and parentage, and adduced evidence; State alleged illegal migration. (Para 6 , 10 , 13 )
3. Writ petition dismissed; Foreigners Tribunal order upheld; interim order vacated; registry directed to communicate and do the needful. (Para 19 , 20 , 21 , 22 )
4. What is the standard of judicial review by a writ court of a Foreigners Tribunal's finding of fact?
Writ jurisdiction is supervisory, not appellate; findings of fact are not disturbed absent natural-justice violations, procedural non-compliance, or perversity. Re-examination of the record disclosed no such defect. (Para 7 , 8 )
5. Who bears the burden of proving citizenship in a Foreigners Tribunal reference under the Foreigners Act, 1946?
The person alleged to be a foreigner bears the burden under Section 9 of the Foreigners Act, 1946 to prove that he or she is not a foreigner; failure to discharge that burden permits a finding that the person is a foreigner. (Para 11 , 12 )
6. Can voters-list entries of a claimed relative establish a claimant's citizenship before a Foreigners Tribunal?
No. Voters-list entries showing the claimant's father as a voter do not, without a connecting document proving the claimant's relationship to that voter, establish that the claimant is an Indian citizen. (Para 14 , 15 , 16 )
7. What is the evidentiary value of an unproved PAN card in a Foreigners Tribunal proceeding?
A PAN card is not trustworthy where the holder has not filed income-tax returns, no income-tax official proved it, and its stated date of birth was omitted from the claimant's pleadings; it cannot establish parentage or citizenship. (Para 17 , 18 )
JUDGMENT :
Ujjal Bhuyan, J.
Heard Mr. AR Sikdar, learned counsel for the petitioner and Mr. G Pegu, learned Government Advocate, Assam.
2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 19.7.2016 passed by the Foreigners Tribunal, Bongaigaon No.2 at Abhayapuri in BNGN/FT/ Case 1538 of 2007 ( State of Assam –vs- Musstt. Rabiya Khatun ) declaring the petitioner to be foreigner who had illegally entered into India (Assam) from Bangladesh after 25.3.1971.
3. This Court by order dated 9.9.2016 had issued notice while requisitioning the case record and passed an interim order to the effect that petitioner should be allowed to remain on bail subject to her appearance before the Superintendent of Police (Border), Bongaigaon and furnishing of adequate surety.
4. It is seen that initially reference was made by the Superintendent of Police (Border), Bongaigaon under the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) with the allegation that petitioner was an illegal migrant as defined under the said Act. Be it stated that under Section-3 (1) (C) of the IMDT Act, an illegal migrant was defined as a foreigner who had unauthorizedly entered into India after 25.3.1971.
5. IMDT Act was declared unconstitutional by the Supreme Court in the case of Sarbananda Sonowal –vs- Union of India , (2005) 5 SCC 665, with the further direction that all the references which were pending before the Tribunals constituted under the IMDT Act should be transferred to the Tribunals constituted under the Foreigners Act, 1946 read with the Foreigners (Tribunals) Order, 1964. Accordingly, the related reference was transferred to the Foreigners’ Tribunal and after creation of additional Tribunals, was assigned to the Foreigners Tribunal, Bongaigaon No-2 at Abyayapuri ( Tribunal) where it was re-registered as BNGN/FT/ Case 1538 of 2007.
6. Notice issued by the Tribunal was duly served upon the petitioner whereafter petitioner had appeared before the Tribunal and filed written statement denying the allegation made that she was a foreigner by claiming to be a citizen of India by birth. She also adduced evidence. After hearing the matter, Tribunal passed the order dated 19.7.2016 answering the reference in favour of the State in the above manner.
7. A perusal of the order passed by the Tribunal dated 19.7.2016 would go to show that Tribunal had carefully appreciated whatever evidence were tendered by the petitioner and, thereafter, had rendered the finding that petitioner was an illegal foreigner from Bangladesh belonging to the post 25.03.1971 stream. Such a finding is a finding of fact. Ordinarily, a writ Court exercising jurisdiction under Article 226 of the Constitution of India would not interfere with such a finding of fact because the jurisdiction so exercised is supervisory and not appellate. However, a writ Court certainly would interfere if it is a case of violation of the principles of natural justice or non-conformity with the procedure laid down i.e. the procedure prescribed under the Foreigners (Tribunals) Order, 1964 or if it is a case of perversity. But the same is not the case here.
8. Notwithstanding the same, to reassure ourselves about the correctness or otherwise of the finding arrived at by the Tribunal, we have once again looked into the materials on record.
9. Record discloses that enquiry officer in his report dated 7.1.2005 reported that petitioner was a resident of village Moista under Bajitpur Police Station in the district of Maimensingh, Bangladesh. She had unauthorisedly entered into India after 25.3.1971 due to domestic problem and economic hardship. This report of the enquiry officer was accepted by higher authorities and after it was cleared by the Screening Committee, reference was made by the Superintendent of Police (Border).
10. In her written statement, petitioner stated that she was a citizen of India by birth and was a permanent resident of village-Mulbar
