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2019 DIGILAW 1097 (GAU)

Alam Ali v. Union of India

2019-09-24

AJIT BORTHAKUR, MANOJIT BHUYAN

body2019
ORDER : Ajit Borthakur, J. 1. Heard Mr. U. Saikia, learned counsel for the petitioner/proceedee as well as Ms. G. Hazarika, learned counsel for the respondent No. 1. Also heard Mr. A.I. Ali, learned Standing Counsel, Election Commission appearing for the respondent No. 3 and Mr. J. Payeng, learned Standing Counsel for the Foreigners Tribunal appearing for respondent Nos. 2, 5, 6 and 7. Ms. U. Das, learned Standing Counsel, NRC appears for the respondent No. 4. 2. The petitioner assails the opinion, dated 30.10.2018, passed by the Foreigners' Tribunal-5th, Tezpur at Biswanath Chariali in BNC/F.T. Case No. 789/2016 declaring him to be a foreigner, having illegally entered into India(Assam) after 25.03.1971. 3. For the purpose of decision, burden as required under Section 9 of the Foreigners Act, 1946 to prove that he is not a foreigner, the petitioner exhibited as many as 8(eight) documents, the particulars of which may be noticed as under: Ext-A: Registered Sale Deed being No. 386/385, dated 24.02.1971. Ext-B: Certified copy of voter list, 1989 in the name of Md. Musruf Ali, projected grandfather of the petitioner. Ext-C: Certified copy of voter list, 1989 in the name of Manjur Ali, projected father of the petitioner. Ext-D: Original Private School transfer certificate of Proceedee. Ext-E: Original Adhar Card of the Proceedee. Ext-F: Original Ration Card of the Proceedee. Ext-G: Original Certificate of Headman of village Jaipur, Gorakhpur, Uttar Pradesh. Ext-H: Electricity Bill of Proceedee. 4. The petitioner/proceedee examined himself as D.W. 1; Patras Dahanga, Head Master of D.N. Five Star School, Pabhoi Panchali, Biswanath Chariali, Assam as D.W. 2; Aziz AH, S/o. Lt. Suleman Ali, resident of Vill. Sillar, P.O.- Khorawar, P.S.- Khorawar, Dist-Gorakhpur, Uttar Pradesh as D.W. 3 and Antony Topno, VDP Secretary of Vill. No. 1, Diring Pathar and a resident about 1/2 K.M. from the petitioner's residence as D.W. 4. 5. The proceedee projected one Musruf Ali @ Musuru, a resident of Jaipur, Jhagrahwan Tola, Gorakhpur, Uttar Pradesh, as the grandfather, whose name appeared in the voter list of 1965 of the said place. He purchased a plot of land in Village No. 2, Diring Pathar in erstwhile Darrang district (Presently district Biswanath), Assam executing a registered sale deed, dated 24.02.1971, vide Ext. A, where he permanently settled. Accordingly, he entered his name in the voter list of 1989 of the aforesaid Village Diring Pathar vide Ext. He purchased a plot of land in Village No. 2, Diring Pathar in erstwhile Darrang district (Presently district Biswanath), Assam executing a registered sale deed, dated 24.02.1971, vide Ext. A, where he permanently settled. Accordingly, he entered his name in the voter list of 1989 of the aforesaid Village Diring Pathar vide Ext. B showing his age to be 70 years. Although the Proceedee projected one Manjur Ali, son of said Musruf Ali, whose name appears in the voter list of 1989 as his father, he failed to explain the reason as to why the name of Musruf did not appear together with the name of Manjur Ali, in the 1989 voter list. This itself creates a doubt as to their relationship as father and son. D.W. 1, the proceedee, stated that his uncle one Jakir also came with his grandfather Musur @ Musruf from Jaipur, Uttar Pradesh to No. 2 Diring Pathar where both of them settled. However, said Jakir, who is alive, was neither examined nor any document was exhibited showing that said Jakir is the brother of the proceedee's projected father Manjur Ali. 6. Mr. U. Saikia, learned counsel for the petitioner submits that said Jakir has been declared an Indian citizen, but no document in this regard was exhibited. According to P.W. 1, the proceedee, his father Manjur Ali married Kabulan Begum in Uttar Pradesh and she is alive, and his father had 4(four) brothers and 4(four) sisters, among whom, his father was the second issue. Perusal of records shows that in none of the voter lists their names appeared together and the proceedee did not present for examination his said mother Kabulan in the case. D.W. 3, a resident of Village Sillar, under Khorawar Police Station, Uttar Pradesh, stated that he resides at a distance of about 4/5 k.m. from the village of the proceedee in Uttar Pradesh, where his 4(four) uncles also reside. These oral statements have no evidentiary value in absence of any documentary evidence. 7. The proceedee (D.W. 1) and his brother-in-law (D.W. 2) in their evidence, inter-alia, stated that the proceedee's father Manjur Ali enrolled his name in the voter list of 1989 and since the time he was abducted by extremists, about 19/20 years ago, that is, sometime in the year 1996/1997, his whereabouts is not known. 7. The proceedee (D.W. 1) and his brother-in-law (D.W. 2) in their evidence, inter-alia, stated that the proceedee's father Manjur Ali enrolled his name in the voter list of 1989 and since the time he was abducted by extremists, about 19/20 years ago, that is, sometime in the year 1996/1997, his whereabouts is not known. The proceedee, however, has not exhibited any documentary evidence such as police report in this regard to establish the proceedee's lineage to him, who used to reside in Village No. 2 Diring Pathar in Biswanath district, since he shifted from Uttar Pradesh along with his father Musruf, that is, the grandfather of the proceedee before the year 1971. 8. The proceedee further pleaded in the written statement and in his (D.W. 1) evidence that he studied upto class 1 in a school at Pabhoi in Biswanath district. In this regard, D.W. 2, the Headmaster of D.N. Five Star School, a private school, situated at Pabhoi Panchali, Biswanath Chariali, testified as the author of Ext. 'D' school transfer certificate, wherein it is mentioned that the date of birth of the petitioner as per school admission register, is 01.01.1988, but contradicted himself in cross-examination by deposing that the said document was issued based on fees records maintained in the school of the year 1996 and onwards. D.W. 2 deposed that he joined the said school in the year 2001, and that he has not seen the school admission register. He stated that he issued the said Ext. 'D' on request of a person, whom he knows only by face, and that the particulars contained therein viz. father's name, date of birth etc. are based on the information given by the said unnamed person. D.W. 2 even could not say with certainty that the proceedee is the person named in the school fee register and Ext. 'D' certificate. This certificate at Ext. 'D', thus carry no significance as a relevant document in the present context. This document does not establish the proceedee's linkage to his projected father Late Manjur Ali. 9. Turning to the land document Ext. 'D' certificate. This certificate at Ext. 'D', thus carry no significance as a relevant document in the present context. This document does not establish the proceedee's linkage to his projected father Late Manjur Ali. 9. Turning to the land document Ext. A, a registered sale deed, dated 24.02.1971, executed between the purported grandfather of the proceedee Musruf Ali and one Ali Box Sikdar, the buyer and seller respectively in respect of a plot of land in Village No. 2, Diring Pathar, Biswanath Chariali, it appears that both D.W.-1, the proceedee and D.W.-4, the VDP Secretary supported the contents therein and corroborated the plea of stay of the proceedee that his grandfather and father resided on that plot of land. However, no copy of Jamabandi or revenue receipt was exhibited showing that they actually resided there and as such, Ext. 'A' appears to be a mere paper transaction without physical possession thereof. 10. We have also considered Exhibits E, F, G and H, mentioned above, but found those documents most recent ones and they are not duly proved in the proceeding. As such, no reliance can be placed thereon, moreso when his lineage to the projected grandfather and father is not established. 11. In Bijay Das Vs. Union of India & Ors., reported in 2018 (3) GLT 118, this Court held: "17. It is trite that mere filing of written statement and oral testimony in a proceeding under the Foreigners Act, 1946 would not be enough. The fact-in-issue would have to be proved by the proceedee by adducing documentary evidence which are admissible and relevant." 12. Thus, the proceedee's entire case being based on oral testimony without support of authentic documentary evidence, as indicated above, the impugned opinion rendered by the Tribunal does not warrant interference. 13. Resultantly, we do not find any merit in the Writ Petition, which is accordingly dismissed. 14. Registry to send down the case records to the Tribunal forthwith. Copy of this order be retained in the case records of the Tribunal for future reference.