Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 1247 (GAU)

Sofior Rahman v. Union of India

2017-09-06

PARAN KUMAR PHUKAN, UJJAL BHUYAN

body2017
JUDGMENT : Ujjal Bhuyan, J. Heard Mr. H Hoque, learned counsel for the petitioner and Mr. HK Hazarika, learned Govt. Advocate, Assam. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 16.02.2017, passed by the Foreigners Tribunal, Bongaigaon No. 2, Abhayapuri in Case No. BNGN/FT/3090/2007 (State v. Safiyur Rahman), declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from Bangladesh after 25.03.1971. 3. It is seen that a reference was made by the Superintendent of Police (Border), Bongaigaon suspecting the nationality of the petitioner. Notice issued by the Tribunal was served upon the petitioner where after, petitioner had entered appearance before the Tribunal and filed written statement denying the allegation made that he was a foreigner by claiming to be a citizen of India by birth. Petitioner also adduced evidence, both oral as well as documentary. After hearing the matter, Tribunal passed the order dated 16.02.2017 answering the reference in favour of the State in the above manner. 4. Aggrieved, present writ petition has been filed. 5. This Court by order dated 14.06.2017 had issued notice while requisitioning the case record. An interim order was passed to the effect that petitioner should not be taken into custody and deported from India subject to his appearance before the Superintendent of Police (Border), Bongaigaon and furnishing of adequate surety. 6. Submissions made by learned counsel for the parties have received the due consideration of the Court. Also perused the materials on record, including the record requisitioned from the Tribunal. 7. Since the order of the Tribunal dated 16.02.2017 has been impugned in the present proceeding, it would be apposite to refer to the same at the outset; relevant portion of which is extracted hereunder: - "From record it appears that OP has projected Mokbul Hussain, S/o. Mahar Sheikh as his grand-father and Amiruddin, S/o. Makbul as his father whose name appeared in Exbt-1 and Exbt-2 at village Banghugi under 51 Jania LAC in the district of Kamrup along with Aymona Khatun, W/o. Mokbul, Sairan Nessa and Abdul Motoleb, son of Mokbul. In Exbt-3, OP's name appeared at village Uttar Salmara along with Rabiya Khatun, W/o. Abdul Matlep and Abdul Matlep, S/o. Mokshed Ali. In Exbt-4 and Exbt-5, OP's name appeared with Aysa Khatun at village Durgapur. In Exbt-3, OP's name appeared at village Uttar Salmara along with Rabiya Khatun, W/o. Abdul Matlep and Abdul Matlep, S/o. Mokshed Ali. In Exbt-4 and Exbt-5, OP's name appeared with Aysa Khatun at village Durgapur. Though OP has stated that his father had shifted to village North Salmara and started residing there, but his father's name not appeared in the aforesaid voter list i.e. Exbt-3, 4 and 5 along with OP at village Uttar Salmara under Bongaigaon district. OP has also not stated anything when his father and mother expired. In the evidence-in-chief dated 16.03.2016 though OP stated that his Birth Certificate was in the custody of his uncle, Tota Miya, S/o. Not known, he did not indicate anything regarding the same in his earlier evidence-in-chief inspite of the fact that the said Birth Certificate that has been produced now appears to have been obtained in the year 1995. Moreover, the name of his uncle Tota Miya does not appear either with OP's father or with OP in any of the voter lists or in any other documents submitted by OP. In a query made by this Tribunal, OP has stated that the Birth Certificate has not obtained by himself, he does not know whether any order has been obtained from the office of the concerned DC/SDO; he has not even signed in any application or sworn affidavit to obtain the said Birth Certificate; OP does not know the date and year of birth. OP stated that the birth certificate has been obtained by his uncle. But OP has not examined his said uncle before this Tribunal. I have examined the Birth Certificate (Exbt-6) submitted by OP and found that it does not bear any signature of the Issuing Authority. This Birth Certificate could not be authenticated by the present incumbent concerned who has been examined. He has failed to produce relevant documents to corroborate the fact issued from the office concerned. In view of the facts and circumstances narrated above, the aforesaid birth certificate (Exbt-6) cannot be treated as genuine and trustworthy and therefore not acceptable to determine the national of the opposite party. Exhibit-7 is the voter Identity Card of OP wherein he is shown as son of Amiruddin. In view of the facts and circumstances narrated above, the aforesaid birth certificate (Exbt-6) cannot be treated as genuine and trustworthy and therefore not acceptable to determine the national of the opposite party. Exhibit-7 is the voter Identity Card of OP wherein he is shown as son of Amiruddin. From the aforesaid exhibited documents OP has not able to prove that Amirudddin, S/o. Mokbul whose name appeared in Exbt-1 and 2 is the same Amiruddin, S/o. Not known whose name appeared as father of OP in Exbt-3, 4, 5, 6 & 7 at village North Salmara in the district of Bongaigaon. Thus OP has not able to establish link with his projected father and miserably failed to prove himself to be Indian citizen which is his bounden duty under section 9 of the Foreigners' Act, 1946. On the other hand, as per report of the Investigation Officer (I/O) and subsequently reference made by Superintendent of Police (B), Bongaigaon, OP is a foreigner who had entered into India from Bangladesh illegally after 25th March, 1971. Accordingly, on the evidence on record and report from Investigation Officer and reference made by Superintendent of Police (B) Bongai--gaon, I opine that the Opposite Party namely, Safiyur Rahman, S/o. Lt. Amiruddin Ali, Village-North Salmara Pt-I, PS-Abhayapuri, District-Bongaigaon, Assam is a foreigner, who had entered into India from Bangladesh illegally after 25th March, 1971 and therefore Opposite Party is liable to be deported." 8. On a careful scrutiny of the impugned order passed by the Tribunal, it is evident that Tribunal had appreciated the evidence tendered by the petitioner and thereafter had returned the finding that petitioner was a foreigner who had illegally entered into India (Assam) from Bangladesh after 25.03.1971. 9. This is a finding of fact based on appreciation of evidence. Ordinarily, a writ court would not interfere with such a finding of fact. However to reassure ourselves about the correctness or otherwise of the finding returned by the Tribunal, we have once again looked into the materials on record. 10. During the inquiry preceding the reference, the Inquiry Officer reported that the original residence of the petitioner was at Village-Subondhi Gandha, under Savor Police Station in the district of Dhaka, Bangladesh. He had entered into India through an unauthorized route for better livelihood. Petitioner could not produce any document in support of his Indian nationality though reasonable opportunity was granted to him. He had entered into India through an unauthorized route for better livelihood. Petitioner could not produce any document in support of his Indian nationality though reasonable opportunity was granted to him. Therefore, Inquiry Officer in his report dated 28.08.2007 stated it appeared in a prima-facie manner that petitioner was a foreigner who had entered into India through an unauthorized route after 25.03.1971. Thereafter, Superintendent of Police (Border), Bongaigaon made the reference to the then Foreigners' Tribunal, Bongaigaon on 20.09.2007. The reference was registered as Case No.BNGN/FT/3090/2007 before the then Foreigners' Tribunal, Bongaigaon. After creation of additional Tribunals, the reference was assigned to the Foreigners' Tribunal, Bongaigaon No.2 at Abhayapuri (Tribunal) for opinion. 11. In his written statement filed on 22.2.2014, petitioner stated that his grand-father's name was recorded in the National Register of Citizens (NRC), 1951. His father's name was recorded as a voter in the voters' list of 1966 in respect of Jania Constituency. Petitioner's name was also enlisted as a voter in the voters' lists of 1997 and 2011 in respect of Abhayapuri South Constituency. In the verification column, petitioner identified himself as the son of Lt. Amir Uddin. 12. This is all that the petitioner stated in the written statement. Though he stated that his father's name was recorded as a voter in the voters' list of 1966, name of his father was not mentioned. It is only from the verification column that we can find that the petitioner had described himself as the son of Lt. Amir Uddin. Likewise, petitioner stated that name of his grand-father was included in the NRC, 1951 without mentioning the name of the grand-father. Petitioner did not mention the date or year of his birth and consequently his age at the time of filing the written statement; he also did not disclose the place of his birth. That apart, he did not mention the name of his paternal grand-mother, mother, brothers and sisters. He was also silent regarding his occupational status as well as the place of his residence. 13. Thus by any account, the written statement so filed was wholly inadequate to establish the identity of the petitioner as a citizen of India having regard to the mandate of section 9 of the Foreigners' Act, 1946, as explained by the Supreme Court in paragraph 26 of Sarbananda Sonowal v. Union of India, reported in (2005) 5 SCC 665 . 14. 14. In his evidence-in-chief filed by way of affidavit on 13.11.2015, petitioner disclosed his age as 43 years. He disclosed his grandfather's name as Mokbul Hussain, S/o. Mahar Sheikh, who was also a voter of Jania Constituency in 1966 alongwith his father Amiruddin Sheikh. His grand-father's name appeared in the voters' list of 1970. Petitioner's name appeared as a voter from Abhayapuri South Constituency in 1989, 1997, 2011 and 2015. He exhibited five documents, namely, voters' lists of 1966, 1970, 1989, 1997 and 2011. 15. From this evidence-in-chief filed by way of affidavit, it is seen that petitioner claimed himself to be 43 years of age in 2015. This would mean that he was born some time in the year 1972. 16. Proceeding to the exhibits, we find that Ext-1 is an extract of the voters' list of 1966 in respect of Jania Constituency. This exhibit contained the names of four voters as under- (i) Mokbul Hussain, S/o. Mahar Seikh, aged 70 years, (ii) Aymona Khatun, W/o. Mokbul, aged 60 years, (iii) Amiruddin Seikh, S/o. Mokbul, aged 35 years, (iv) Sajiran Nessa, D/o. Mokbul, aged 24 years. 17. All of them were shown as residents of Village-Banghugi under Baghbar Police Station in the then district of Kamrup. Though petitioner did not disclose the name of his paternal grand-mother either in the written statement or in the evidence-in-chief, it can be deduced from Ext-1 that Aymona Khatun was his paternal grand-mother, as she was shown as wife of Mokbul whom the petitioner claimed to be his grand-father. Though the name of Amir Uddin Seikh appeared as a voter, his wife did not appear as a voter in the said exhibit. 18. The next exhibit i.e., Ext-2 is an extract of the voters' list of 1970 in respect of the same constituency. This exhibit contained names of five voters, namely:- (i) Mokbul Hussain, S/o. Mahar Seikh, aged 74 years, (ii) Aymona Khatun, W/o. Mokbul, aged 64 years, (iii) Amiruddin Seikh, S/o. Mokbul, aged 39 years, (iv) Sajiran Nessa, D/o. of Mokbul, aged 28 years, (v) A. Motaleb, S/o. Mokbul, aged 24 years. 19. Here also, wife of Amiruddin Seikh i.e., mother of the petitioner is conspicuous by her absence. We do not know who is the mother of the petitioner or what is her name as it is not discernible from the two exhibits as discussed above. 19. Here also, wife of Amiruddin Seikh i.e., mother of the petitioner is conspicuous by her absence. We do not know who is the mother of the petitioner or what is her name as it is not discernible from the two exhibits as discussed above. Moreover, petitioner did not disclose the name of his mother either in the written statement or in the evidence-in-chief! 20. Ext-3 is an extract of the voters' list of 1989 in respect of Abhayapuri South Constituency. Here there are three voters, viz: - (i) Abdul Matlep, S/o. Lt. Moksed Ali, aged 45 years, (ii) Rabiya Khatun, W/o. Abdul Matlep, aged 35 years, (iii) Sofiyar Rahman, S/o. Lt. Amiruddin, aged 20 years. 21. All of them were shown as residents of No. 12 Uttar Salmara Pt-I village. 22. In Exts-1 and 2, grand-father-Mokbul Hussain and father-Amiruddin were shown as residents of Village-Banghugi under Baghbar Police Station in the then district of Kamrup whereas, in Ext-3, grand-son/son-Safiyar Rahman became a resident of Village-No. 12 Uttar Salmara under Abhayapuri Police Station in the district of Bongaigaon. While grand-father and father were voters of Jania Constituency, grand-son and son became a voter of Abhayapuri South Constituency. This change of residence and constituency was not explained by the petitioner. That apart, from Ext-3, it is seen that petitioner was 20 years of age in 1989, which would mean that he was bom some time in the year 1969, which is at variance with his year of birth as discernible from the evidence-in-chief (1972). In Ext-2, A. Mataleb was shown as son of Mokbul, aged 24 years, but in Ext-3, the name which appeared was Abdul Matlep, S/o. Lt. Moksed Ali, aged 45 years. There is nothing on record to show that A. Mataleb, S/o. Mokbul of Ext-2 is the same person as Abdul Matlep, S/o. Lt. Moksed Ali of Ext-3. Moreover, what happened to Amiruddin Seikh i.e., father of the petitioner? In Ext-2, he was 39 years of age. Therefore, in the ordinary course, his name ought to have appeared as a voter in Ext-3; because in 1989, he would have been 58 years of age. Petitioner also did not disclose as to when Amiruddin Seikh expired. Though in Ext-3, petitioner was shown as S/o. Lt. Amiruddin, but as in Ext-2, in Ext-3 also, there was no existence of petitioner's mother. 23. Petitioner also did not disclose as to when Amiruddin Seikh expired. Though in Ext-3, petitioner was shown as S/o. Lt. Amiruddin, but as in Ext-2, in Ext-3 also, there was no existence of petitioner's mother. 23. Ext-4 is an extract of the voters' list of 1997 in respect of Abhayapuri South Constituency which included petitioner and Aysha Khatun as voters. Aysha Khatun was shown as wife of Sofiyar Rahman (petitioner), but as already discussed above, neither in his written statement nor in his evidence-in-chief, petitioner disclosed the name of his wife, not to speak of the date or year of marriage. Similar is the position in respect of Ext-5, which is an extract of the voters' list of 2011 in respect of the same constituency. Here petitioner was shown as 40 years of age, which would mean that he was born some time in the year 1971, which again is at variance with the petitioner's disclosure of age in the evidence-in-chief as well as from what is discernible from Ext-3. 24. After tendering evidence as above, petitioner filed additional-evidence-in-chief by way of an affidavit stating that he was bom on 29.08.1970 at Village-South Salmara Pt-I as per birth certificate dated 15.12.1995 of the Health Department, Govt, of Assam. He has been issued Identity Card by the Election Commission of India. Petitioner was also examined by the Tribunal. In his cross-examination, petitioner stated that he did not know whether name of his mother was there in the birth certificate or not. He had obtained the birth certificate about 20 years ago, but he himself did not obtain the same. He did not know whether there was any order from the office of the Deputy Commissioner or Sub-Divisional Officer prior to issuance of the birth certificate. He also stated that he did not know his date or year of birth. His paternal uncle had obtained the birth certificate. For obtaining the birth certificate, he did not put his signature in any paper and also did not swear any affidavit. 25. On notice being issued by the Tribunal, one Dr. Madan Ch. Bharali, Sub-Divisional Medical and Health Officer, Srijangram Public Health Centre appeared and deposed before the Tribunal. He stated that he had joined his present post on 10.06.2015. He did not bring the original of the birth certificate containing the signature of the Chief Registrar. 25. On notice being issued by the Tribunal, one Dr. Madan Ch. Bharali, Sub-Divisional Medical and Health Officer, Srijangram Public Health Centre appeared and deposed before the Tribunal. He stated that he had joined his present post on 10.06.2015. He did not bring the original of the birth certificate containing the signature of the Chief Registrar. As per the birth certificate, date of birth was 29.8.70 and issue date was 20.12.95. He did not know whether any order was issued by the office of the Deputy Commissioner or Sub-Divisional Officer for issuance of birth certificate. In his cross-examination, he admitted that all birth certificates issued in the State of Assam contain the signature of the Chief Registrar, whose office is at Guwahati. He also stated that since the birth certificate was issued in the year 1995 when he was not there in the Srijangram Public Health Centre, he would not be able to say whether there was any order from the office of the Deputy Commissioner or Sub-Divisional Officer for issuance of such birth certificate. 26. Ext-6 is the said birth certificate issued on 20.12.1995. Date of birth was mentioned as 29.08.1970. While the father's name was mentioned as Amir Uddin, there was no mention about the name of the mother. Residence was shown as Uttar Salmara Pt-I village of Bongaigaon district. 27. Tribunal was correct in disbelieving this certificate. Firstly, in 1970, residence of Amiruddin was at Village-Banghugi under Baghbar Police Station in the then district of Kamrup (please see Exts-1 & 2). Therefore, petitioner could not have been born at Uttar Salmara Pt-I village in Bongaigaon district on 29.08.1970. Secondly, there was no Bongaigaon district in 1970. Present day Bongaigaon district was then part of the undivided Goalpara district Thirdly, name of the mother is conspicuous by her absence in the birth certificate, which is a material omission. Without the mother, petitioner could not have been born. Ordinarily, all birth certificates contain the name of the mother. Fourthly, the signature of the Chief Registrar was by way of a prepared seal and it was not a signature by hand. Fifthly, this certificate does not appear to be a valid certificate under the Registration of Births and Deaths Act, 1969, which is an Act to provide for the regulation of registration of births and deaths and for matters connected therewith. Fifthly, this certificate does not appear to be a valid certificate under the Registration of Births and Deaths Act, 1969, which is an Act to provide for the regulation of registration of births and deaths and for matters connected therewith. As per section 8, it is the duty of all persons to furnish information to the Registrar about births and deaths in the family. As per section 13(1), any birth of which information is given to the Registrar after expiry of the period specified, but within 30 days of its occurrence, shall be registered on payment of such late fee as may be prescribed. Sub-section (2) thereof, provides that any birth or death of which delayed information is given to the Registrar after 30 days but within 1 year of its occurrence shall be registered only with the written permission of the prescribed authority on payment of the prescribed fee and production of an affidavit. Under sub-section (3), any birth or death which has not been registered within 1 year of its occurrence, shall be registered only on an order made by a Magistrate of the 1st Class after verifying the correctness of the birth or death and on payment of the prescribed fee. 28. This position has been elaborately laid down in the Assam Registration of Births and Deaths Rules, 1999, which provides that in-formation regarding birth and death shall have to be furnished within 21 days of the occurrence, except in the case of plantations. Rule 9 deals with delayed registration which is in terms of section 13 of the Act. 29. Neither the author of the certificate nor the paternal uncle of the petitioner, who, according to the petitioner, had obtained the certificate and kept it with himself, testified before the Tribunal to prove the contents of the certificate. 30. Therefore, having regard to the discussions made above, we have no doubt in our mind that this certificate has got no evidentiaiy value, besides having grave doubts about its genuineness. 31. A birth certificate sought to be relied upon by a proceedee will have to be proved in accordance with law keeping in mind the provisions contained in the Registration of Births and Deaths Act, 1969 and the Assam Registration of Births and Deaths Rules, 1999, otherwise it will have no probative value. 32. 31. A birth certificate sought to be relied upon by a proceedee will have to be proved in accordance with law keeping in mind the provisions contained in the Registration of Births and Deaths Act, 1969 and the Assam Registration of Births and Deaths Rules, 1999, otherwise it will have no probative value. 32. Ext-7 is an Elector Photo Identity Card where the elector's name was shown as Chafiyar Rahman and the relation's name was shown as Amiruddin. This certificate was issued on 01.10.2013 and the age of Chafiyar Rahman was shown as 41 years. This certificate is neither here nor there and can be of no assistance to the petitioner; because this document is post 25.03.1971. That apart, because of the gross discrepancies noticed above, the very existence of Amiruddin or Amiruddin Sheikh whom the petitioner claimed to be his father is under a cloud. 33. The most interesting aspect of this case is that till the very end, we do not know who is the mother of the petitioner and her existence is not traceable to any of the documents placed on record. 34. In paragraph 26 of Sarbananda Sonowal (supra), Supreme Court has stated that the re is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country. In order to establish one's citizenship, normally, he may be required to give evidence of (i) his date of birth, (ii) place of birth, (iii) name of his parents, (iv) their places of birth and citizenship. 35. Some times, the place of birth of his grandparents may also be relevant. All these facts would necessarily be within the personal knowledge of the person concerned and not of the authorities of the State. 36. Having regard to above, the person concerned i.e., the petitioner in this case was first required to plead the above facts, which are material facts, in the written statement and thereafter to prove those material facts by adducing cogent and reliable evidence, which we are afraid petitioner failed to do. 37. Therefore, net result of the above discussion is that it cannot be said that petitioner had discharged his burden under section 9 of the Foreigners' Act, 1946 to prove that he was not a foreigner but a citizen of India. 37. Therefore, net result of the above discussion is that it cannot be said that petitioner had discharged his burden under section 9 of the Foreigners' Act, 1946 to prove that he was not a foreigner but a citizen of India. The narrative presented by the petitioner suffers from multiple material omissions and contradictions rendering the same totally unbelievable. 38. In such circumstances, we do not find any good ground to interfere with the impugned order passed by the Tribunal. Consequently, we find no merit in the writ petition, which is accordingly dismissed. Interim order passed earlier stands vacated. 39. Registry to send down the LCR forthwith and inform the concerned Foreigners' Tribunal, Deputy Commissioner and Superintendent of Police (Border) for immediate follow-up steps.