Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 1240 (GAU)

AFIA BEGUM D/O MD SOLIMUDDIN v. UNION OF INDIA

2018-08-21

A.K.GOSWAMI, M.R.PATHAK

body2018
JUDGMENT : MANASH RANJAN PATHAK, J. 1. Heard Ms. M Deori, learned counsel for the petitioner. Also heard Mr. A Kalita, learned Special Standing counsel, Foreigners Tribunal appearing for the respondent Nos. 2 to 4 and Ms. G Sarma, learned CGC, appearing for the respondent No. 1. 2. Challenge in this writ petition is to the judgment dated 06.11.2015, passed by learned Member, Foreigners Tribunal, Jorhat in Case No.FTG/D-96/07 whereby, the learned Tribunal opined that the petitioner Afia Begum is a foreigner who entered into India after 24/25th of March, 1971 and directed the authorities concerned to delete her name from the voter list of 96 Khumtai LAC of Golaghat district. 3. We have perused the records of the Foreigners Tribunal that was called for by the Court earlier on 06.09.2016. 4. Initially the said Case No.FTG/D-96/07 proceeded before the Foreigners Tribunal at Golaghat from 09.03.2010 to 04.02.2013 and then it was transferred to Foreigners Tribunal, Jorhat, where the matter proceeded from 21.07.2014. 5. On receipt of notice, though the petitioner appeared before the Foreigners Tribunal at Golaghat, she did not file her written statement before the said Tribunal and after transfer of the said case, the petitioner on receipt of notice, filed her written statement before the Foreigners Tribunal, Jorhat on 14.10.2014. 6. In her written statement, the petitioner stated that she is not a foreigner but, an Indian citizen by birth and that she is the daughter of Md. Salimuddin and Nosiman Nisha and a permanent resident of Borghuli Gaon, P.O.- Hapmari, Police Station - Uluoni, Mouza - Pubthoria, District - Nagaon, Assam. It is also stated that in the year 1998, she got married to Amir Ali and after her marriage for the first time she had cast her vote in the year 2006. She also stated that her grandfather late Altab Ali was a permanent resident of Borghuli Gaon, Nagaon and cast his vote in the year 1965 and her father Md. Salimuudin cast his vote in the year 1971 and that her parents and other family members also cast their votes from the said locality. 7. In support of her claim the petitioner exhibited the following documents: (i) Ext. 1 - Certified copy of 2006 Voter List of 96 Khumtai LAC showing the names of Amir Ali and Afia Begum as voters. (ii) Ext. 7. In support of her claim the petitioner exhibited the following documents: (i) Ext. 1 - Certified copy of 2006 Voter List of 96 Khumtai LAC showing the names of Amir Ali and Afia Begum as voters. (ii) Ext. 2 - Voter List of 1965 voter list of No. 90 Kaliabor LAC reflecting the name of one Altab Ali. (iii) Ext. 3 - Certified copy of 1971 Voter List of No. 90 Kaliabor LAC reflecting the name of one Sulimuddin. (iv) Ext. 4 - Certified copy of 1997 Voter List No. 89 Kaliabor LAC reflecting the name of one Salimuddin and his other family members. (v) Ext. 5 - Certified copy of 2005 Voter List of No. 89 Kaliabor LAC reflecting the names of one Salimuddin and his other family members. (vi) Ext. 6 - Certified copy of 2010 Voter List of No. 89 Kaliabor LAC reflecting the name of one Salimuddin and his other family members. 8. In addition to the above, the petitioner had also placed the certified copies of 2014 Voter List of No. 89 Kaliabor LAC reflecting the name of one Solimuddin and his other family members as well as Photostat copies of Voter Lists of 1965 and 1971 of No. 90 Kaliabor LAC, but those were not exhibited. 9. In her cross examination, the petitioner deposed that her husband is Md. Amir Ali, resident of village - Moukhowa, PS Khumtai of Golaghat District and that her father s name is Md. Salimuddin and mother s name is Musstt. Nesiman Nessa. During her cross examination, she also stated that her father had two wives, one late Rabiya Begum and the other Nasiman Nessa and that her father had no brothers, but had two sisters namely (i) Fatema Begum, (ii) Nurjahan Begum. She also stated that she was born at No.3 Borghuli Gaon, Police Station - Uluoni, District - Nagaon and that late Altab Ali was her grandfather and Aichan Banu was her grandmother. 10. She further deposed that she has four brothers (i) Ramjan Ali (ii) Alam Geer (iii) Jalal Uddin (iv) Abdula Hoque and does not have sister and that her stepmother had 4 sons namely, (i) Lalu Hoque, (ii) Nabi Hoque, (iii) Tajmul Hoque and does not know the name of the 4th one. 10. She further deposed that she has four brothers (i) Ramjan Ali (ii) Alam Geer (iii) Jalal Uddin (iv) Abdula Hoque and does not have sister and that her stepmother had 4 sons namely, (i) Lalu Hoque, (ii) Nabi Hoque, (iii) Tajmul Hoque and does not know the name of the 4th one. She also deposed that her stepmother had 3 daughters (i) Minara Begum (ii) Sultana Begum and does not know the name of the 3rd one. 11. To prove her case, excepting her, the petitioner did not adduce evidence of any other witness. 12. Though petitioner exhibited certified copies of voters lists of 1965 and 1971 and claimed that her father is Md. Solimiddin and grandfather is Altab Ali and that they cast their votes in the year of 1971 and 1965, respectively, but Ext. 2, certified copy of voter list of 1965 of No. 90 Kaliabor LAC pertaining to Village 3rd Borghuli 1st part of Mouza Pubtharia, Block No.65, P.S.- Kaliabor, District- Nagaon reflects the name of one Altab Ali, whereas Ext. 3 certified copy of voter list of 1971 of No. 90 Kaliabor LAC pertaining to Village 3rd Borghuli 1st part of Mouza-Pubtharia, Block No.65, P.S.- Kaliabor, District - Nagaon reflects the name of one Md. Sulimuddin, son of Akto Ali. 13. After 1971, the petitioner by way of Ext.4 placed certified copy of voter list of the year 1997 of No. 89 Kaliabor LAC pertaining to Village 3rd Borghuli 1st part of Mouza - Pubtharia, P.S.- Uluoni reflecting the names of Salimuddin son of Altab, Aichanchan Banu wife of Altab, Nasimon Nessa wife of Salimuddin, Nurjahan Nessa daughter of Antab, Ramjan Ali son of Salimuddin, Alam Geer son of Salimuddin and Majeda Khatuwan wife of Alam Geer. 14. Exts. 5 and 6 exhibited by the petitioner are the certified copies of voter lists of 2005 and 2010 respectively of No. 89 Kaliabor LAC pertaining to Village 3rd Borghuli 1st part of Mouza - Pubtharia, P.S.- Uluoni reflecting the names of Salimuddin son of Altab Ali, Nasimon Nessa wife of Salimuddin, Ramjan Ali son of Salimuddin, Saleman Khatun wife of Ramjan Ali and Lal Mahammad son of Salimuddin. 15. 15. From the perusal of Exhibits - 4, 5 and 6, it can be seen that the mother of the petitioner, Nasimon Nessa was 26 years in the voter list of 1997, whereas in the said voter list her brothers Ramjan Ali and Alam Geer were 25 years and 24 years respectively. Similarly, in the Ext.5, the voter list of 2005 her mother Nasimon Nessa was of 40 years, whereas her brother Ramjan Ali was of 30 years and in Ext. 6, voter list of 2010, her mother Nasimon Nessa was of 40 years and petitioner s bother Ramjan Ali was of 30 years. From those Exhibits - 4, 5 and 6, exhibited by the petitioner, doubt emerges with regard to the age difference between petitioner s mother Nasimon Nessa and her brothers Ramjan Ali and Alam Geer, since in the Ext. 4, voter list of 1997, the difference of age between petitioner s mother Nasimon Nessa and her brothers Ramjan Ali and Alam Geer were only one year and two years respectively, whereas in Exts. 5 and 6, voter lists of 2005 and 2010, age difference between petitioner s mother Nasimon Nessa and her brother Ramjan Ali was of 10 years. 16. It is also seen that Exts. 5 and 6, voter lists of 2005 and 2010 exhibited by the petitioner reflects the name of one Lal Mahammad, son of Salimuddin. But the petitioner is totally silent of said Lal Mahammad as her brother. 17. Considering her age as 24 years as reflected in Ext.1, the certified copy of voter list of 2006 of No. 96 Khumtai LAC pertaining to Block No. 19, Part - Gariya Gaon, Voting Centre - Moukhowa LP School, reflecting petitioner s husband name Amir Ali as well as her name as D Voter, the petitioner was eligible to vote from her 18th year and as such, her name should have been in the voter list of 2000. 18. The petitioner could not place any reliable evidence to establish the linkage either by exhibiting any document or by adducing any evidence that Salimuddin is her father and Nasimon Nessa is her mother. Further, from the Exhibits - 2 and 3, the petitioner also could not link Altab Ali as father of Salimuddin, since from the Exhibit 3, it can be seen that one Md. Further, from the Exhibits - 2 and 3, the petitioner also could not link Altab Ali as father of Salimuddin, since from the Exhibit 3, it can be seen that one Md. Sulimuudin was son of Akto Ali and it is not the case of the petitioner that Altab Ali, Akto Ali and Altab is the same and one person. 19. Exts. 4, 5 and 6 though consist of names of family members of one Salimuddin and others, but, the petitioner could not place anything to relate herself with said Salimuddin and Nasiman Nessa except making a statement that said Salimuddin is her father and Nasiman Nessa is her mother. 20. The Hon ble Supreme Court in the case of Union of India and Others -Vs- Ghaus Mohammad, (1961) AIR SC 1526, while considering the provisions of Section-9 of the Foreigners Act, 1946 have held that When a question arises whether a person is or is not a foreigner, the onus of proving that he is not a foreigner is on that person. 21. The Apex Court has reiterated the said principle of law in Fateh Mohd., son of Nathu -Vs- Delhi Administration, (1963) AIR SC 1035 and Masud Khan -Vs- State of Uttar Pradesh, (1974) 3 SCC 469 , observing that By reason of Section 9 of the 1946 Act whenever a question arises whether a person is or is not a foreigner, the onus of proving that he is not a foreigner lies upon him and hence the burden is on the proceedee to establish that he is a citizen of India in the manner claimed by him. 22. 22. In the case of Sarbananda Sonowal (I) -Vs- Union of India and Another, (2005) 5 SCC 665 , where the question relating to the constitutional validity of the Illegal Migrants (Determination by Tribunals) Act, 1983 was under consideration, the Hon ble Supreme Court while dealing with various enactments made for dealing with the foreigners including the different provisions of the Foreigners Act, 1946 have held that Section 9 of the said 1946 Act casts the burden of proving that a person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, on such person and therefore, when an order made under the 1946 Act is challenged and a question arises whether the person against whom the order has been made is a foreigner or not, the burden of proving that he is not a foreigner is upon such a person. 23. The Hon ble Apex Court while laying down the law relating to the burden of proof has also noticed the general rule in the leading democracies of the world that Where a person claims to be a citizen of a particular country, the burden is upon him to prove that he is a citizen of that country. 24. For the reasons aforesaid, we are of the view that the petitioner failed to prove herself to be an Indian national and as such, the impugned judgment dated 06.11.2015 passed by learned Member, Foreigners Tribunal, Jorhat in Case No.FTG/D-96/07 does not warrant any interference. 25. Accordingly, this writ petition being devoid of any merit and stands dismissed.