AMINUR ALI @ AMINOOR ISLAM S/O LT. KHUDU SHEIKH v. UNION OF INDIA
2018-12-04
MANOJIT BHUYAN, NANI TAGIA
body2018
DigiLaw.ai
ORDER : NANI TAGIA, J. 1. Heard Mr. DP Chaliha, learned Senior Counsel for the petitioner as well as Ms. G. Sarmah, learned counsel for respondent No.1; Mr. U.K. Nair, learned Senior Special Standing Counsel, Foreigners’ Tribunal for respondent Nos. 2, 5, 6, 7 & 8; Ms. N. Upadhyay, learned counsel for respondent No.3 and Ms. U. Das, learned counsel for respondent No.4. 2. By this petition, under Article 226 of the Constitution of India, the petitioner has challenged the legality and validity of the order dated 29.06.2018 passed by the learned Member, Foreigners’ Tribunal No.4th, Kamrup (M), Assam in F.T. Case No. 784/2017 whereby the petitioner/opposite party has been held to be a foreigner, who had entered the State of Assam (India) Post 25.03.1971. 3. Reference case against the petitioner was initially initiated by Senior Supdt. of Police (B), Guwahati vide case No. 635/2006 dated 27.04.2007 expressing doubt about the nationality of the proceedee, namely, Md. Aminoor Islam, S/o Md. Khudu Seikh, village-Amerbitha, PS & Dist.-Dhubri, Assam, presently residing at C/o Mr. BK Jain, SIBT Site (High Tech), ASTC Kathabari, PS-Fatasil Ambari, Dist. Kamrup, Assam, under the Foreigners’ Act, 1946, asking for an opinion as to whether the proceedee is an illegal migrant or foreigner. 4. There after, reference stood transferred to Foreigners’ Tribunal, No.4th, Kamrup (M), Assam and new F.T. Case No.-FT(G-4) 784/2017 was registered. Notice was accordingly issued to the proceedee. 5. Upon receipt of Notice, the proceedee/opposite party filed his written statement as well as evidence on affidavit. In the written statement, the petitioner/opposite party stated that he is a citizen of India by birth and a permanent resident of village-Amerbhitha Chot Bashjani, PO-Dhubri, PS-Dhubri, Assam. He further stated that he completed HSLC examination in the year 2008 from SEBA, he is the son of Md. Khadu Sheikh and grandson of Amatullah Sheikh, and they are all citizens of India. 6. In support of his case, the petitioner/opposite party has exhibited 8 exhibits before the learned Tribunal, which are as follows: “Ext.1 is the HSLC Admit Card of the petitioner. Ext.2 is the NRC of 1951, wherein, the name of Khudu Sheikh appears as son of Ashatullah Sheikh.
6. In support of his case, the petitioner/opposite party has exhibited 8 exhibits before the learned Tribunal, which are as follows: “Ext.1 is the HSLC Admit Card of the petitioner. Ext.2 is the NRC of 1951, wherein, the name of Khudu Sheikh appears as son of Ashatullah Sheikh. Ext.3 is the Voter List of 1966, , wherein, the name of Khudu Sheikh is shown as son of Amatullah Sheikh along with 3 others, namely, Khudu Sheikh, Khanju, Kasiran Bewa, Surmati Bewa and all of whose father is shown to be Amatullah. Ext.4 is the Electoral Voter Identity Card in the name of Amatullah Sheikh; Ext.5 is the Electoral Voter Identity Card in the name of Khadu Sheikh; Ext.6 is the Final Khatian dated 19.08.1961 wherein the names of Khadu Sheikh, Khunju Sheikh, Kasimuddin (all sons of Late Amatullah, Pagili-Bibi daughter of Haldi, Basual Bibi daughter of Maibuddi and Fulmamud Sheikh son of Late Sumuddi) are seen; Ext.7 is the period Khiraj Patta dated 09.12.2014 which reflects the name of Khudu Sheikh; and Ext. 8 is the land revenue paying receipt.” 7. From perusal of the aforesaid Ext.1 to Ext.8, we find that Ext.1 which is the HSLC Admit Card of the petitioner and Ext.4, which is an Electoral Voter Identity Card of the writ petitioner/opposite party, are the only two documents which links the petitioner with his projected father Md. Khudu Sheikh. Mr. DP Chaliha, learned Senior Counsel for the petitioner by relying on Ext.1 submits that Ext.1, which is HSLC Admit Card clearly mentions that the petitioner is the son of Md. Khudu Sheikh and Amena Bibi. The said certificate issued by the Controller of Examination, SEBA, having been produced in original and exhibited as Ext.1, is the primary document under the Indian Evidence Act, which need not be further proved and the same ought to have been accepted in evidence by the learned Tribunal. The said document having clearly reflected that the petitioner is the son of Md. Khudu Sheikh and Amena Bibi, it must be held that the petitioner has been able to establish linkage with his projected father, namely, Khudu Sheikh. 8. On the other hand, Mr. UK Nair, learned Senior Special Standing Counsel, Foreigners’ Tribunal, submits that on the basis of Ext.1, which is only an Admit Card of HSLC, it cannot be said that the petitioner is the son of Md. Khudu Sheik.
8. On the other hand, Mr. UK Nair, learned Senior Special Standing Counsel, Foreigners’ Tribunal, submits that on the basis of Ext.1, which is only an Admit Card of HSLC, it cannot be said that the petitioner is the son of Md. Khudu Sheik. He further stated that there is no mention of Amena Bibi in any of the exhibited Voter Lists, therefore, it is submitted that Ext.1 by which petitioner seeks to establish linkage with his projected father, is not free from doubt and accordingly, cannot be relied and acted upon. 9. Rival submissions advanced at the bar have received due consideration of this Court. On perusal of Ext.1 i.e., HSLC Admit Card of the petitioner, it is found that the date of birth of the petitioner has been recorded as May 20, 1989. If the petitioner was born on 1989, he becomes eligible to cast his Vote in the year, 2007. Therefore, the name of the petitioner should have appeared in the Voter Lists of 2007 and onwards. From the evidence adduced by the petitioner/opposite, we find that the petitioner started casting his Vote from the year 2012. We also find that in the writ petition, the petitioner has annexed the death certificate of his father as Annexure-6, which was issued by the Registrar of Birth and Death, Dharmasala Block PHC on 13.01.2016, wherein, it has been shown that Khudu Sheikh died on 16.08.2014. The father of the petitioner, therefore, was alive till the year 2014. If that be so, there ought to have been a Voter Lists of the petitioner together with his father during any of the year between 2007 to 2014. However, no such Voter List has been exhibited before the learned Tribunal. 10. The fact that Ext.1 is only an Admit Card of HSLC of the petitioner as distinguished from a School Certificate and also that the name of Amena Bibi, the mother of the petitioner, finds mentioned in said Admit Card although the same was not mentioned in the written statement filed by the petitioner/opposite party and that no Voter List of the petitioner together with his father in between 2007 to 2014 has been exhibited before the learned Tribunal, makes the circumstances suspicious that the writ petitioner/opposite party is the son of his projected father Late Khudu Sheikh.
The evidence on record does not inspire confidence of this Court to believe that the petitioner is the son of Khudu Sheikh. 11. Besides Ext.1, Ext.4 is the only other document through which the petitioner/opposite party seeks to establish linkage with his projected father. 12. We have perused Ext.4 and found that it is an Electoral Voter Identity Card issued to Aminur Ali, son of Late Khudu Sheikh of village -Chot Bashjani, PO-Dhubri, Sub-Division-Dhubri, Dist. Dhubri, Assam, issued by the Electoral Registration Officer on 01.10.2013. 13. Insofar as Ext.4, the Electoral Identity Card is concerned, besides not being proved, it is a post 25.03.1971 document. Merely adducing such an Identity Card in absence of any other supporting document, the same could not be a proof of citizenship. 14. Apart from aforesaid Ext.1 and Ext.4, we find no other documents or evidence by which the petitioner/opposite party can establish linkage with his projected father Late Khudu Sheikh. 15. For the reasons discussed above, we find no infirmity in the impugned order dated 29.06.2018 passed by the learned Member, Foreigners’ Tribunal No. 4th, Kamrup (M), Guwahati, in F.T. Case No. 784/2017. 16. The writ petition lacks merit and the same stands dismissed without any order as to cost. 17. Registry to send back the case records to the concerned Tribunal forthwith.