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2025 Supreme(Online)(Gau) 6508
KALYAN RAI SURANA, SUSMITA PHUKAN KHAUND, JJ
JIBAN ALI – Appellant
Versus
THE UNION OF INDIA AND ORS – Respondent
WP(C)/1916/2025
For the Appellants/Petitioners: MR A ALI, MS. M KHATUN, MS K TAYE
For the Respondents: DY.S.G.I., SC, NRC, SC, F.T, SC, ECI, GA, ASSAM
The petitioner's failure to prove citizenship under the Foreigners Act led to the dismissal of the writ petition, affirming the burden of proof lies with the individual seeking recognition.
Headnote:(A) Constitution of India - Article 226 - Foreigners Act, 1946 - Writ petition challenging the opinion of the Foreigners Tribunal declaring the petitioner as an illegal migrant - Petitioner failed to prove citizenship with credible evidence post cut-off date 25.03.1971 - Ex parte proceedings were correctly upheld as no material facts disclosed. (Paras 2, 11, 17, 19)
(B) Burden of Proof - Under the Foreigners Act, the burden lies on the petitioner to prove their citizenship - Failure to produce sufficient evidence leads to dismissal of the writ petition. (Paras 11, 18)
Facts of the case:
The petitioner, Jiban Ali, contested a Foreigners Tribunal's opinion that declared him as an illegal migrant. Citing various documents, he attempted to prove his identity but ultimately failed to establish continuity of citizenship prior to the critical cut-off date.
Findings of Court:
The Tribunal found insufficient and inconclusive evidence to substantiate the petitioner’s citizenship claim, affirming that the decision was correctly made based on the presented facts.
Issues: The core issues revolved around the admissibility and validity of evidence presented to prove citizenship and compliance with legal requirements.
Ratio Decidendi: The court ruled that the petitioner did not adequately demonstrate citizenship under the burden of proof required, considering that mere documentation without proof cannot establish claims of citizenship.
Result: Writ petition dismissed.
| Table of Content |
|---|
| 1. petitioner contested tribunal's declaration as illegal migrant. (Para 2 , 3) |
| 2. petitioner's familial evidence presented in court. (Para 4 , 5 , 6) |
| 3. tribunal's reliance on legal precedent for document proof. (Para 7 , 8 , 9) |
| 4. tribunal's lack of evidence leading to dismissal. (Para 10 , 11 , 12) |
| 5. writ petition dismissed on proof failure. (Para 18 , 19) |
JUDGMENT AND ORDER
(CAV (K.R. Surana, J)
Heard Mr. A. Ali, learned counsel for the petitioner. Also heard Ms. K. Phukan, learned CGC for the Union of India; Mr. N. Kalita, learned counsel, appearing on behalf of Mr. A.I. Ali, learned standing counsel for the Election Commission of India; Mr. G. Sarma, learned standing counsel for FT, Border mater and NRC; and Mr. P. Sarmah, learned Addl. Senior Govt. advocate.
2) By filing this writ petition under Article 226 of the Constitution of India , the petitioner, namely, Jiban Ali, has challenged the opinion dated th 11.03.2021, passed by the learned Member, Foreigners Tribunal- 5 , Darrang, Mangaldai, in Case No. F.T.(V)1661/2016, thereby declaring him to be an illegal migrant/ foreigner of the stream of post 25.03.1971.
3) In brief, the case of the petitioner is that on receipt of notice from the Foreigners Tribunal, he had filed his written statement on 03.03.2020, but did not adduce any evidence and therefore, the proceeding against the petitioner was decided ex parte. Thereafter, on an application made by the petitioner, the ex parte opinion was vacated. Accordingly, on 17.02.2021, the petitioner had examined himself as DW-1 and he had also examined his projected aunt, namely, Johura Khatun as DW-2.
4) In his oral examination-in-chief, the petitioner had stated that his father is Late Kasem Ali and his mother is Musstt. Jabeda Bewa, grandfather is Late Hasen Ali and grandmother is Late Baljan and great grandfather is Late Mohar Ali. His uncle is Late Akbar Ali of Rongrai Chapori under Lahorighat P.S. of the then Nagaon District. He has no brothers and sisters. His father had three sisters and one of his aunt, Johura Khatun is present in the Court as his witness. His father was eldest and his aunt and his uncle are the youngest. His father expired 20 years back at the age of 60 and his uncle had died prior to his father and he had not seen him. His aunts are alive and except Johura, other two live in Lahorighat. His aunt Johura had married Taleb Ali of Sialmari under Dalgaon P.S. His father married his mother in Lahorighat and then shifted to Nadirpar Village under Dalgaon P.S., where he was born in 1976. His father died in the said village and after four years of his father’s death, he and his mother shifted to Baruapara village under Dalgaon P.S. and after 6/7 years thereafter, he had married Late Abidan Nessa, who expired after 17/18 years of marriage and with her, he has a son, Md. Abdullah, and two daughters, eldest is Asmina, then aged 18 years and Resmina. After his death he had re-married Musstt. Monowara Begum and has three sons, Md. Moinul (14 years), Minul (9 years) and Ainul (5 years).
5) He had further stated that his grandfather, grandmother, father and uncle had casted vote in 1966 and 1970 under 84 Lahorighat LAC (Ext.1 and Ext.2); name of his father appears in NRC voter details of 1966 and 1970 (Ext.3 and Ext.4) of village- Rongrai Chapori; his wife has a ration card (Ext.5); the name of his grandfather, father and uncle appears in land document of 1957-1958, which is a Government land that has been washed away by Brahmaputra (Ext.6). The petitioner has also exhibited the certificate issued by the Gaonburah of Baruapara (Ext.7); Elector Photo Identity Card of his wife (Ext.8) and aunt, Jahura Khatun (Ext.9), showing them as voter of 68 Dalgaon LAC; and his aunt’s, passport issued on 30.04.2014 (Ext.10).
6) The projected aunt of the petitioner, namely, Johura Khatun, had deposed as DW-2. She had stated that the petitioner is her nephew, and the son of Kasem Ali, her elder brother. She has single mother.
