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2019 DIGILAW 876 (GAU)

Abdul Rahman v. Union Of India

2019-08-06

KALYAN RAI SURANA, MANOJIT BHUYAN

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JUDGMENT : A.K. Goswami, J. Heard Mr. M.H Mazarbhuiyan, learned counsel for the petitioner. Also heard Ms. G. Hazarika, learned CGC appearing for the Union of India and Mr. A. Kalita, learned Govt. Advocate appearing for the State respondents No.2 to 5. 2. By this writ petition filed under Article 226 of the Constitution of India, the petitioner has assailed the opinion dated 26.07.2017 rendered by the learned Member, Foreigners Tribunal - 5th Morigaon, in Case No. F.T.(C) 190/2016 (New)/F.T.(C) 1502/2012 (Old) and I.M.(D.) T. Case No. 1/2000, declaring the petitioner to be a foreigner. 3. On receipt of reference from the Superintendent of Police (B), Morigaon, against 7 (seven) persons suspected to be illegal immigrants, IM(D)T Case No. 1/2000 dated 17.01.2000 was registered against (1) the petitioner, (2) Musstt. Jamila Khatun, (3) Saidul Islam, (4) Jamir Uddin, (5) Sanbanu, (6) Bimala Khatun, and (7) Musstt. Sukurjan, alleging therein that there is no evidence that Abdul Rahman had entered into India before 25.03.1971. The said case was re-registered before the Foreigners Tribunal-5th, Morigaon as Case No. F.T.(C) 1502/2012 and again renumbered as F.T.(C) 190/2016. In connection with the said proceeding, the petitioner had filed his written statement on 17.08.2016 and additional written statement on 03.03.2017. The petitioner had examined 3 (three) witnesses, i.e. himself as DW-1, Saidul Islam @ Saidur Islam as DW-2 and Md. Habibur Rahman as DW-3. The State did not examine any witnesses. 4. In his written statement, the petitioner had stated that he was born and brought-up at Village-Sagunbahi under P.S. Moirabari, in the district of Morigaon and on attaining age of majority, he had got his name entered in the voter’s list and he had cast his vote in the year 1979 and 2010. He had relied on the certificate issued by the local Gaonbura and Hatimuriya Gaon Panchayat. He had stated that the name of his father - Abdul Goni, son of Dengu appeared in the voter’s list for the year 1965 and 1970. He had also stated that his name was Abdul Rahman and his father’s name was Abdul Goni, which was written in short as Aa Rahman and Aa Goni respectively and that Abdul Rahman @ Aa Rahman were one and same person and that Abdul Goni @ Aa Goni respectively were also one and same person. He had also stated that his name was Abdul Rahman and his father’s name was Abdul Goni, which was written in short as Aa Rahman and Aa Goni respectively and that Abdul Rahman @ Aa Rahman were one and same person and that Abdul Goni @ Aa Goni respectively were also one and same person. The additional written statement was filed on 03.03.2017 by Sahdul Islam @ Sahidul Islam, wherein he had introduced a statement that Abdul Goni, his grand-father had land in Sagunbahi Pathar Kisamat, for which he had relied in the copy of draft chitha of 1968-69. 5. From a perusal of the case records, it is seen that the following documents were exhibited by the petitioner, viz., Voter’s list of 2010 containing the names of Aa: Rahman, Jamila Khatun, Jamir Uddin, Sahera Khatun, Bimala Khatun (Ext.A), Voter’s list of 1989 containing the names of Aa Rahman, Jamila Khatun, Saidul Islam (Ext.B), Voters list of 1979 containing the names of Ahmmad Ali, Aa Rahman (Ext.C), Voters list of 1970 containing the name of Aa Goni, son of Dengu (Ext.D), Voters list of 1965 containing the name of Aa Goni, son of Dengu, (Ext.E), Land revenue paid receipt for Bengali year 1414 to 1422 (equivalent to English calendar year 14th April, 2007 to 13th April, 2015) dated 03.09.2016 (Ext.F), Certified copy of Sale Deed dated 29.03.1996, Certificate by Sarkari Gaonbura dated 23.06.2016 (Ext.G), Certificate dated 30.07.2016 by President Hatimuria Gaon Panchayat (Ext.I), Affidavit sworn on 17.11.2016 by Md. Abdul Rahman (Ext.J), Death Certificate dated 01.03.2017 in respect of Late Jamila Khatun (died on 20.11.2013), daughter of Chiraj Ali and Sahera Khatun (Ext.K), Death Certificate dated 01.03.2017 in respect of Late Jamila Khatun (died on 05.07.2009), daughter of Jabir Sekh and Jainab Bibi (Ext.L), Voter’s list of 2005 containing the name of Saidur Rahman (Ext.M), Voter’s list of 2005 containing the names of Aa: Rahman, Jamila Khatun, Jamir Uddin, Bimala Khatun [Ext.M(1), Voter’s list of 1997 containing the names of Abdur Rahman, Jamila Khatun, Saidur Islam, Jamir Uddin (Ext.N), Certified copy of jamabandi of 2B-3K-09L mutated in the name of Ahmmad Ali, Habijuddin, son of Aa: Goni, Saidul Islam, Bimala Khatun, father- Aa Rahman Khairan Nessa, husband Late Haidar Ali by order dated 07.10.2006 in the chitha (Ext.O), Certified copy of jamabandi showing 1B-2K-10L land mutated in the name of Aa: Rahman and Jamila Khatun [Ext.P and P(1)], Certified copy of chitha of 1968-69 containing name of Aa: Goni, father Dengu (Ext.Q), Certified copy of chitha of 1957-58 containing name of Aa: Goni, father Dengu (Ext.R), Certificate from Sarkari Gaonbura [Ext.S(1) to Ext.S(5)], Certified copy of Electoral Roll of 1966 containing the name of Chiraj Ali, son of Sani Sekh (Ext.T), Sale Deed dated 19.03.1951 in favour of Chiraj Ali, father Sania Sekh (Ext.U). Thus, from the above, it is seen that the petitioner had not proved documents annexed to this writ petition as Annexure-1 (Voters list of 1965-66), Annexure 5(B) (voters list of 1985). 6. The learned Tribunal had asked questions to the DW-1, however, he could not state the names of his grand-father or his wife, i.e. the second proceedee. 7. The learned Tribunal had placed the documents so produced in two sets, one which pertains to the period prior to 25.03.1971 and the other which pertain to the period after 25.03.1971. The learned Tribunal formed an opinion that if on 18.11.2016, when the petitioner had deposed as DW-1, he had stated that he was 65 years old, as such, his estimated year of birth would be 1951 and he would have acquired voting rights for the first time in the year 1972. Moreover, the mother of the petitioner had died in the year 2009. Moreover, the mother of the petitioner had died in the year 2009. Thus, the first set of documents were disbelieved because of two factors, firstly, that there was no document which links the petitioner with his purported mother, namely, Jamila Khatun between the period from 1972 to 2008 and secondly, because in his cross examination, the petitioner could not give the name of his paternal grand-father or his own wife. Accordingly, the learned Tribunal had held that the Exhibits No.D, E, Q, and R were not the documents of the petitioner’s own father. 8. At this juncture, it would be pertinent to merely mention herein that the learned tribunal by disbelieving the certified copy of the electoral roll of 1966 containing the name of Chiraj Ali, son of Sani Sekh (Ext.T), and Sale Deed dated 19.03.1951 in favour of Chiraj Ali, father Sania Sekh (Ext.U), inter-alia, held that Jamila Khatun, wife of the petitioner was a foreigner and consequently, the son and the grand-children of the petitioner, i.e. proceedees No. 3 to 6 were also declared to be foreigners. However, as that part of the opinion has not been assailed by the concerned proceedees, the Court sees no reason to examine the correctness of that part of the opinion rendered by the learned Tribunal. 9. On examining the point of determination as framed by the learned tribunal as to whether the proceedee is a foreigner, it is seen that in terms of Section 9 of the Foreigners Act, 1946 read with Section 106 of the Evidence Act, 1872 the burden is upon the proceedee to prove whether he is or not a foreigner. However, as the petitioner could not say the name of his wife or his paternal grand-father at the time of his cross examination, this Court does not find any infirmity with the finding recorded by the learned tribunal. It is not the case of the petitioner that he had raised any dispute before the learned tribunal that his cross examination had been wrongly recorded. The post 25.03.1971 documents are not the conclusive proof that the petitioner had entered into Assam on or before 25.03.1971, as such, there is no scope of examining such documents with a view to find out whether the petitioner had entered into Assam prior to 25.03.1971. The post 25.03.1971 documents are not the conclusive proof that the petitioner had entered into Assam on or before 25.03.1971, as such, there is no scope of examining such documents with a view to find out whether the petitioner had entered into Assam prior to 25.03.1971. The Sarkari Gaonbura was not examined, as such, the petitioner had failed to prove the certificates [Ext.S(1) to Ext.S(5)] issued by him. Hence, as the petitioner has not been able to prove any document which linked him with his own father or his own wife, there is no infirmity in the finding recorded by the learned tribunal, as such, it is not open to this Court to substitute its own view with the opinion rendered by the learned Tribunal, which is ordinarily the last authority on facts. 10. Although in the proceedings before the learned Tribunal, the proceedees had examined three witnesses, as morefully indicated in paragraph 4 above, the Court has not considered the evidence of DW-2 and DW-3 for examining the case of the petitioner herein. In this regard, it would be pertinent to mention herein that the petitioner had submitted his written statement on 17.08.2016, which is exclusively signed by him. It is not stated therein that the said written statement was filed in respect of all the proceedees. In the said written statement, the petitioner herein had not made any statement regarding the proceedees No.3 to 6 or about any existing relationship with them. The proceedee No.3, namely, Saidul Islam @ Sahedur Rahman, who is the son of the petitioner herein had filed a separate additional written statement, which is solely signed by him alone, where although he had made a statement in respect of his relationship with other proceedees, but it is nowhere stated therein that the said additional written statement was filed on behalf of the other proceedees. Hence, in so far as the evidence of DW-2 and DW-3 is concerned, the same cannot be read in favour of the petitioner as their evidence would be construed to be beyond the pleadings of the petitioner herein. This view has been taken because the other proceedees No.3 to 6 have not joined in his appeal, nor they are arrayed as proforma respondents herein. 11. This view has been taken because the other proceedees No.3 to 6 have not joined in his appeal, nor they are arrayed as proforma respondents herein. 11. Therefore, having not found any perversity in the appreciation of the evidence on record by the learned Tribunal, this writ petition being without merits, thus, fails and the same is dismissed, leaving the parties to bear their own cost. 12. Let a copy of this order be sent to the learned Tribunal along with the case records.