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2010 DIGILAW 263 (GAU)

Abdus Samad v. Union of India

2010-04-20

R.S.GARG, RANJAN GOGOI

body2010
JUDGMENT R.S. Garg, C.J. 1. Heard Mr. M.U. Mahmud, learned Counsel for the Appellant-writ Petitioner on the question of admission. 2. The Petitioner being aggrieved by the order dated 25.2.2010 passed by a learned Single Judge of this Court in Abdus Samad v. Union of India and 4 Ors. WP(C) No. 5425 of 2008 whereunder the order dated 17.9.2008 passed by the learned Member, Foreigners Tribunal, Goalpara in F.T. Case No. 941(G)/2008 has been confirmed has come to this Court with a submission that not only the learned Tribunal but even the learned Single Judge failed in not appreciating that the evidence put forth by the present Appellant before the learned Tribunal was sufficient to prove that his father's name was recorded in the voters' list of 1966 and that he had a Panchayat certificate in his favour. Therefore, placing reliance upon this evidence so also the oral testimony of the Petitioner and his two witnesses the learned Tribunal should have held that the Petitioner who is a disabled person to the extent of 80% is an Indian national. 3. Mr. Mahmud, learned Counsel for the Appellant-writ Petitioner, after taking us through the order passed by the learned Tribunal, firstly, submitted that the learned Tribunal was unjustified in not relying upon the certificate issued by the Panchayat observing that the same was inadmissible in evidence. His further submission is that the father's name of the Appellant has been enrolled in the voters list of 1966 and that Section 6A of the Citizenship Act provides that if the name of one of the parents is recorded in the voters list then such person has to be deemed to be an Indian national. Learned Counsel for the Appellant has also submitted that the learned Single Judge also committed the identical mistake and erred in not relying upon the evidence led by the present Appellant. 4. We have gone through the orders passed by the learned Tribunal so also by the learned Single Judge. 5. Insofar as the certificate issued by the Gaon Panchayat is concerned, assuming we hold that to be admissible in evidence then also the Appellant-writ Petitioner had to prove his linkage with his alleged father, namely, Md. Ali Sheikh. 4. We have gone through the orders passed by the learned Tribunal so also by the learned Single Judge. 5. Insofar as the certificate issued by the Gaon Panchayat is concerned, assuming we hold that to be admissible in evidence then also the Appellant-writ Petitioner had to prove his linkage with his alleged father, namely, Md. Ali Sheikh. In the year 2005 when the matter was taken up by the learned Tribunal the Appellant was shown to be around 45 years meaning thereby that he was born somewhere in the year 1960 or so. He must have attained majority somewhere in between 1978-80 and must have exercised his right of franchise immediately after 1980. The Appellant-writ Petitioner is relying upon an order whereunder his name was deleted from the voters list but unfortunately he has failed to file/produce any such voters list. 6. In a case where a Panchayat issues a certificate in favour of a person then production of such certificate itself would not be sufficient proof of the contents of the document. It is also to be noted that certain documents are deemed to be proved on simple production. A certificate of residence or of paternity are not such documents which are deemed to be proved on their production. Production of such document, in our opinion, was not sufficient proof of proving the linkage between the Appellant-writ Petitioner and Md. Ali Sheikh. 7. Insofar as the voters list of 1966 is concerned, it only says that Md. Ali Sheikh was a resident of a particular village. The learned Counsel for the Appellant has condemned the order passed by the learned Tribunal on the ground that contrary to the requirement of Section 6A of the Citizenship Act the learned Tribunal has pressed upon the mother's name of the Appellant-writ Petitioner. After going through the findings recorded by the learned Tribunal we are unable to concede to the argument. The learned Tribunal did not refer to the question of the mother's name to reject the 1966 voters list but, in fact, it was impressing upon the fact that if father was the voter of a particular village or in a particular Legislative Assembly Constituency then declaration of mother's name by the Appellant would have provided solid and positive foundation in favour of the Appellant-writ Petitioner's claim. 8. 8. It was contended that a Tribunal or a court should rely upon the quality evidence instead of harping upon the quantity. True it is that the quality evidence is always to be relied upon. The question still would be whether the evidence led by the Appellant is sufficient to lead to the irresistible conclusion that the Appellant-writ Petitioner is a national of India. 9. Above is not the only flaw in the matter of the Appellant-writ Petitioner's case, the learned Tribunal has found that the present Appellant in his evidence-in-chief did not state as to how he became permanent resident within 39 No. Joleswar L.A.C. whereas the Respondent has stated that the house of his father was under 31 No. Mancachar L.A.C. If that evidence is also not available on the record then we have to hole that the learned Tribunal was absolutely justified in recording the finding against the interest of the Appellant. 10. Apart from all those discussion in the order passed by the learned Tribunal, the learned Single Judge has examined all the evidence threadbare and after taking into consideration the totality of the circumstances has approved the findings recorded by the learned Tribunal. 11. The question that a particular person is an Indian national or not basically is a question of fact. If the fact finding Tribunal has found that the Appellant-writ Petitioner is not an Indian national and the High Court in its jurisdiction under Article 226 of the Constitution after taking into consideration the entire evidence has affirmed the evidence then we do not think that in our appellate jurisdiction there is any scope for any interference. 12. We find no reason to interfere with the order passed by the learned Single Judge. The appeal is dismissed. Appeal dismissed