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2018 DIGILAW 876 (GAU)

STATE OF ASSAM v. OHAB ALI

2018-05-29

AJIT BORTHAKUR, UJJAL BHUYAN

body2018
ORDER : UJJAL BHUYAN, J. 1. Heard Mr. U K Nair, learned Senior Special Counsel, Foreigners' Tribunal (FT) and Mr. S C Keyal, learned Assistant Solicitor General of India for the petitioners; We have also heard Ms. B Bhuyan, learned Amicus Curiae for the respondent. 2. This writ petition has been jointly filed by the State of Assam and by the Union of India, assailing the legality and correctness of the order dated 01.11.2016, passed by the Foreigners' Tribunal- 1, Barpeta, in FT Case No. 442 of 2015 (State v. Ohab Ali), declaring the petitioner to be not a foreigner. 3. This Court by order dated 12.05.2017, had issued notice while requisitioning the case record and in the interim, stayed the impugned order dated 01.11.2016. 4. Though notice was issued to the sole respondent, i.e., the proceedee on 19.05.2017, unserved notice was returned back to the Registry on 03.05.2018. It may be mentioned that on 12.07.2017, this Court recorded that the record (LCR) was received from the Tribunal while awaiting service report. On 07.05.2018, this Court observed that notice was issued to the respondent in the same address as in the reference. Notice was issued under registered cover on 19.05.2017 and more than 30 days had elapsed. In such circumstances, presumption was drawn regarding service of notice on the respondent by order dated 07.05.2018. 5. On 22.05.2018, since there was no representation on behalf of the respondent despite service, Ms. B Bhuyan, a learned counsel of this Court was appointed as Amicus Curiae to assist the Court. 6. Mr. Nair, learned Senior Special Counsel, Foreigners' Tribunal, submits that there was no appreciation of evidence tendered by the respondent by the Tribunal. Without any appreciation of evidence, Tribunal had abruptly and unjustly come to the conclusion that respondent was not a foreigner, which finding is contrary to the materials on record. Therefore, impugned order dated 01.11.2016 should be set-aside and the reference should be answered in favour of the State. 7. On the other hand, Ms. B Bhuyan, learned Amicus Curiae supports the order passed by the Tribunal. She submits that respondent had discharged his burden under Section 9 of the Foreigners' Act, 1946 and, therefore, the finding returned by the Tribunal should not be interfered with by the writ Court. 7. On the other hand, Ms. B Bhuyan, learned Amicus Curiae supports the order passed by the Tribunal. She submits that respondent had discharged his burden under Section 9 of the Foreigners' Act, 1946 and, therefore, the finding returned by the Tribunal should not be interfered with by the writ Court. However, her alternative submission is that if the Court finds the finding of the Tribunal to be unsustainable, instead of answering the reference, the matter should be remanded back to the Tribunal for a fresh decision so that the proceedee gets an opportunity to contest the reference on remand. 8. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record, including the record requisitioned from the Tribunal. 9. Record discloses that the reference was made by the Superintendent of Police (Border), Barpeta, suspecting Md Ohab Ali, son of Late Samsher Ali, of village Thekapathar under Barpeta Police Station in the district of Barpeta to be a foreigner, who had illegally entered into India (Assam) from Bangladesh after 25.03.1971. 10. Responding to the notice issued by the Tribunal, respondent had filed written statement on 19.02.2016. According to the respondent, his parents were Shangser Ali and Sona Bhanu who were voters in 1966 and in 1970 in respect of Chenga constituency. Mother continued to remain a voter in 1997 in respect of Sarukhetri constituency. Petitioner was born and brought up at Kharadhara Pathar village under Barpeta Police Station in the district of Barpeta. His name was included in the voters' list of 1997 in respect of Sarukhetri constituency, but he was marked as a doubtful (D) voter. 11. Though the petitioner did not state relevant material facts required to establish his identity 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, (2005) 5 SCC 665 , what is discernible is that according to the petitioner, her father Shangser Ali was, a citizen of India and he being the son of Shangser Ali was, therefore, a citizen of India. 12. Petitioner narrated more or less the same thing in his evidence-in-chief filed by way of affidavit on 05.05.2016. Additionally, he described his age as 50 years, which would mean that he was born sometime in the year 1966. 13. 12. Petitioner narrated more or less the same thing in his evidence-in-chief filed by way of affidavit on 05.05.2016. Additionally, he described his age as 50 years, which would mean that he was born sometime in the year 1966. 13. Though petitioner exhibited a number of documents from Exhibits-A to M, we find that none of these documents were proved in accordance with law. There were simply filed and marked as exhibits. It is trite that mere filing of document or marking of document as exhibit is not enough. Not only the document has to be proved, the contents of the document would also have to be proved; that apart truthfulness of the contents would have to be proved too. 14. The two crucial documents which say that Ahed Ali @ Oheb Ali was the son of Late Shangser Ali are Exhibits-H and Exhibit-I. Exhibit-H is a certificate dated 02.06.2014, issued by one Akmat Ali, Gaonburah, certifying that Ohed Ali was the son of Late Shangser Ali, but Akmat Ali did not appear before the Tribunal along with the contemporaneous record to prove Exhibit-H as well as the contents thereof. Therefore, this exhibit was not proved. That apart, we find that the Gaonburah had embossed the State Emblem of India in Exhibit-H certificate. Under the State Emblem of India (Prohibition of Improper Use) Act, 2005, and the State Emblem of India (Regulation of Use) Rules, 2007, Gaonburah is not authorised to use the State Emblem of India in any manner. Such unauthorised use of the State Emblem of India had rendered Exhibit-H inadmissible in evidence. Similar is the position in respect of Exhibit-I, issued by another Gaonburah, Jahidul Islam Bhuyan on 23.12.2014. For the reasons mentioned above, this exhibit is also inadmissible in evidence. Therefore, these two exhibits besides not being proved were inadmissible in evidence. If these documents are excluded from consideration, there is nothing on record to establish linkage between Ahed Ali @ Oheb Ali or Ohed Ali on the one hand and Shangser Ali on the other hand. 15. Affidavit of respondent dated 31.08.2016, where he identified himself as son of Shangser Ali is neither evidence nor proof as per sections 1 and 3 of the Indian Evidence Act, 1872, read with Order 19, Rule 1 of the Civil Procedure Code, 1908. Such a self serving suo moto affidavit can be of no assistance to the respondent. 15. Affidavit of respondent dated 31.08.2016, where he identified himself as son of Shangser Ali is neither evidence nor proof as per sections 1 and 3 of the Indian Evidence Act, 1872, read with Order 19, Rule 1 of the Civil Procedure Code, 1908. Such a self serving suo moto affidavit can be of no assistance to the respondent. 16. On the other hand, from the impugned order, we find that after narrating the case as projected by the respondent, Tribunal observed that State did not examine any witness and failed to adduce any rebuttable evidence. Therefore, Tribunal answered the reference against the State. We are afraid the approach taken by the Tribunal is contrary to the law laid down by the Full Bench of this Court in State of Assam v. Moslem Mondal, reported in 2013 (1) GLT 809. Under Section 9 of the Foreigners' Act, 1946, burden is on the proceedee to prove that she is not a foreigner, but a citizen of India and this burden never shifts. This burden has to be discharged by the proceedee by adducing evidence which are admissible; which must be proved; and which must have relevance to the facts in issue. By mere filing of documents without examining its admissibility and without the documents being proved or without examining its relevance, it cannot be said that the proceedee had discharged his burden. Question of rebuttal evidence by the State will arise only if the proceedee adduces evidence which are admissible, proved and which have relevance. 17. Having regard to the discussions made above, we are of the unhesitant view that the finding recorded by the Tribunal is not legally sustainable. The same is accordingly set aside. Having set aside the order passed by the Tribunal, we agree with the submissions made by Ms. B Bhuyan, learned Amicus Curiae that it would be appropriate if the matter is remanded back to the Tribunal for a fresh decision in accordance with law. 18. On receipt of record, Tribunal shall issue fresh notice to the respondent and, thereafter, proceed with the reference in accordance with law. Since the impugned order of the Tribunal has been set aside, status of the respondent would be that of a proceedee whose reference is pending before the Foreigners' Tribunal. 19. Before parting with the record, we place on record our appreciation for the useful assistance rendered by Ms. Since the impugned order of the Tribunal has been set aside, status of the respondent would be that of a proceedee whose reference is pending before the Foreigners' Tribunal. 19. Before parting with the record, we place on record our appreciation for the useful assistance rendered by Ms. B Bhuyan, learned Amicus Curiae, who shall be paid her fees by the Assam State Legal Services Authority as per schedule of fees. 20. Writ petition is disposed of. 21. Registry to send down the LCR forthwith and inform the concerned Foreigners' Tribunal, Superintendent of Police (Border) and Deputy Commissioner for taking necessary follow-up steps. 22. A copy of this order may also be furnished to learned Standing Counsel, Election Commission of India and State Coordinator, National Register of Citizens (NRC), for doing the needful.