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2021 DIGILAW 248 (GAU)

Nagar Ali @ Md Nazar Ali v. Union Of India

2021-03-12

M.R.PATHAK, SOUMITRA SAIKIA

body2021
JUDGMENT Soumitra Saikia, J. - Heard Mr. M. A. Choudhury, learned counsel appearing on behalf of Mr H. Ahmed, learned counsel appearing for the petitioner. Also heard Mr. P.S. Lahkar, learned Central Government counsel for the respondent No. 1, Mr U.K. Nair, learned senior counsel representing the State for the respondent Nos. 2, 3, 6 and 7, Ms. N. Upadhyay, learned standing counsel, Election Commission of India for the respondent No. 4 and Ms. L. Devi, learned standing counsel, NRC for the respondent No. 5. 2. By way of this writ petition, the petitioner has challenged the opinion dated 28-05-2019 rendered by the Member, Foreigners Tribunal Bongaigaon No. 2, Abhayapuri in F.T. Case No. BNGN/FT-2/APR/164/17. By the said opinion the Member, Foreigners' Tribunal Bongaigaon No. 2 answered the reference made by the Superintendent of Police, (Border) Bongiagaon in affirmative and opined and declared that the petitioner Nagar Ali is a foreigner/illegal migrant who had entered Assam on or after 25-03-1971. 3. To discharge the burden as required under section 9 of the Foreigners' Act 1946 to prove that the petitioner is not a foreigner, the petitioner projected one Ayen Sheikh @ Ayen Ulla @ Ayan as his grandfather, one Abdur Rahman Sheikh @ Abdur Rahman @ A. Rahman as his father and one Sarbhanu Bibi as his mother. The petitioner upon receipt of notice issued by the Tribunal regarding the reference appeared and duly contested the case by filing the written statement and examined 2 (two) witnesses. 4. To substantiate his claims the petitioner exhibited the following documents: (i) Exhibit-A is the copy of the draft NRC of 1951 of village Shiyalerbhita, P.SSouth Salmara, Mouza-4, House no. 26 (Ka), Serial no. in house:2, District Goalpara, Sub-Division- Dhubri. The petitioner claims that Exhibit A- the draft NRC of 1951 records his projected father's name as "A. Rahman" son of "Md. Ayen Sheikh" aged 21 years. (ii) Exhibit-B is the extract of the voter list of 1960 in the name of his projected father as 'Abdur Rahman' son of Ayen Ulla of village- Shiyaler-Bhita, P.S.- South Salmara, P.O- Hamidabad, District-Goalpara, Sub-Division-Dhubri, aged 30 years. (iii) Exhibit-C is the extract of the voter list of 1966 showing the name of his projected father Abdur Rahman Sheikh aged about 35 years son of Ayan and Sharbhanu Bibi aged 25 years, wife of Abdur Rahman, village- Shiyaler Bhita, P.OHamidabad. P.S.- South Salmara, District-Goalpara, Sub-Division-Dhubri. (iii) Exhibit-C is the extract of the voter list of 1966 showing the name of his projected father Abdur Rahman Sheikh aged about 35 years son of Ayan and Sharbhanu Bibi aged 25 years, wife of Abdur Rahman, village- Shiyaler Bhita, P.OHamidabad. P.S.- South Salmara, District-Goalpara, Sub-Division-Dhubri. (iv) Exhibit-D is the extract of the voter list of 1970 showing the name of his projected father as Abdur Rahman Sheikh son of Ayan and Sharbhanu Bibi wife of Abdur Rahman of village- Shiyaler Bhita, P.O- Hamidabad. P.S.- South Salmara, DistrictGoalpara, Sub-Division-Dhubri. Ages of both projected parents are not reflected. (v) Exhibit-E is the extract of the voter list of 1985 showing the name of his projected wife Nurbhan Nessa, aged 21 years, as wife of Nagar Ali of village- (155) Ambari, P.S- Abhayapuri, District- Goalpara, Sub-Division- Uttar Salmara. (vi) Exhibit-F is the extract of the voter list of 1997 showing the name of the petitioner, aged 35 years, as son of A. Rahman and his projected wife Nurbhanu Khatun aged 30 years of village- 155 Ambari, P.S- Abhayapuri, District- Goalpara, Sub-DivisionNorth Salmara. (vii) Exhibit-G is the extract of the voter list of 2016 showing the name of the petitioner aged 52 years as son of A. Rahman, his projected wife as Nurbhanu Khatun and his 3 (three) sons. (viii) Exhibit-H is the Electoral Voter I.D. submitted by the petitioner as Nagar Ali, son of A. Rahman. The petitioner examined 2 (two) witnesses namely, the petitioner himself as DW 1 and one Piyar Ali son of Tenu Fakir as DW 2 who is projected as the petitioner's maternal uncle. 5. In addition to the above exhibits the petitioner also submitted the extract of voter list of 2010 showing the name of the petitioner as son of A. Rahman, his wife Nurbhanu Khatun and son Noor Bokta of village 155 Ambari, P.S- Abhayapuri, District- Bongaigaon, Sub-DivisionNorth Salmara. A sale deed registered on 04-01-2010 in the office of the Sub-Registrar, Abhayapuri vide Deed No. 17/2010 was also submitted by the petitioner to project that he had purchased a plot of land measuring 01 Katha and 05 Lechas at village Ambari, under Srigangram Revenue Circle in the District of Bongaigaon, Assam. 6. In his written statement the petitioner denied the allegation that he is a foreigner and not a citizen of India. 6. In his written statement the petitioner denied the allegation that he is a foreigner and not a citizen of India. He stated that name of his projected father is Abdur Rahman @ A. Rahman @ Abdur Rahman Sheikh. The petitioner states that 'Abdur Rahman' @ 'Abdur Rahman Sheikh' @ A. Rahman are one and same person who is the father of the petitioner. Similarly Ayen Sheikh @Ayen Ulla @ Ayan are one and the same person who is the projected grandfather of the petitioner. It is stated by the petitioner that the complete name of his father Abdur Rahman Seikh. The name of the grandfather of the petitioner is Ayen Sheikh @ Ayen Ullah @ Ayan. The name of the projected mother of the petitioner is Sarbhanu Bibi. The petitioner stated that he was born about 55 years ago in the village Shiyaler-Bhita under South Salmara Police Station in the the then district Goalpara (now Dhubri District) in the state of Assam. Names of his parents are included in the NRC of 1951, voter list of 1960, 1966 and 1970. The petitioner states that his mother expired about 30 years ago when the petitioner was about 20 years old and his father expired about 36 years ago when the petitioner was about 22 years old. The petitioner further states that there about 35 years ago the petitioner shifted to village Ambari under Abhayapuri Police Station in the district of Bongaigaon (erstwhile Goalpara district) and since then the petitioner has been residing there permanently. The petitioner further states that his projected wife Nurbhanu Nessa's name appears in the Electoral Roll of 1985 from village Ambari under Abhayapuri Police Station. The petitioner's name however appears in Electoral Roll in the years 1997, 2010 and 2016 along with his wife other family members. The further case of the petitioner as projected in the written statement is that the petitioner had purchased land measuring 01K 05L of village Ambari under Srijangram revenue circle in the district of Bongaigaon, Assam through registered Sale Deed on 04-01-2010 and the Sale Deed was duly registered in the office of Sub-Registrar, Abhayapuri vide Deed No. 17/2010 wherein the name of the petitioner was written as Md. Nagar Ali son of Abdur Rahman as the purchaser of land. 7. Nagar Ali son of Abdur Rahman as the purchaser of land. 7. On these facts, the learned counsel appearing for the petitioner submits that the impugned order dated 28-05-2019 passed by Foreigners Tribunal Bongaigaon No. 2 is erroneous and bad in law inasmuch as, the Tribunal failed to exercise the proper jurisdiction and did not appreciate the evidences adduced before the Tribunal. The learned counsel for the petitioner submits that minor discrepancies which may have been reflected in the voter lists cannot be a ground to disbelieve the evidences adduced by the petitioner before the Tribunal. The learned counsel for the petitioner relied on the judgment of Abdul Matali @ Mataleb -vs Union of India, (2015) 2 GauLT 617 para 10 and Sirajul Hoque -vs- State of Assam & Ors, (2019) 5 SCC 534 to support the case of the petitioner that discrepancies in the name appearing in certain documents cannot be ground to disbelieve such documents produced. 8. The learned counsel appearing for the State strongly contended that the contentions raised by the petitioner are unfounded and there is no infirmity in the order passed by the Tribunal and accordingly this writ petition should be dismissed as being devoid of any merit. The learned State counsel submits that the Tribunal has correctly appreciated the evidence adduced before the Tribunal and upon due consideration of the same, the opinion/order dated 28-05-2019 impugned in the present proceeding was delivered. The learned counsel relied upon a case of 'Basiran Bibi' rendered by a Division Bench of this Court on 25-08-2017 and reported in 2018 (1) GLT 372, to contend that this Court disagreed with the views of a Coordinate Bench of this Court in the case of Abdul Matali @ Mataleb (Supra) that it did not lay down any law and that the decision was confined only to the facts and circumstances of that case. This Court in this judgment held that a voter's list when exhibited before the Tribunal will have to be appreciated as a whole and not in part. It cannot be insisted that the portions of the voter's list which are in favour should be accepted and portions going against should be overlooked. 9. The Tribunal records pertaining to case F.T. Case No. BNGN/FT-2/APR/164/17 was called for and received and duly perused. The learned counsel for the parties were heard extensively. 10. It cannot be insisted that the portions of the voter's list which are in favour should be accepted and portions going against should be overlooked. 9. The Tribunal records pertaining to case F.T. Case No. BNGN/FT-2/APR/164/17 was called for and received and duly perused. The learned counsel for the parties were heard extensively. 10. The petitioner's projected case is that he was born about 58 years ago in the village Siyaler Bhita under South Salmara Police Station in the then district Goalpara (now Dhubri district, Assam). The written statement is seen to be filed in April, 2017. Therefore the year of birth of the petitioner approximately is 1959. So therefore if 1959 is considered to be the year of birth of the petitioner, he attained majority at the age of 21 in the year 1980. The petitioner in his written statement claims to have shifted to the village Ambari in the year 2010 because of erosion. Exhibit A to Exhibit E are documents exhibited to show the names of his projected father, mother and grandfather. Even in Exhibit F i.e. extract of the voter list of 1997, only the name of the petitioner's wife is shown recorded. The petitioner in his written statements stated that his name was included in the voter's list of 2010 and 2016 along with the names of wife and other family members. But his written statement are completely silent as to why his name was not reflected in a single voter list since the time he had attained majority i.e. from the year 1980 onwards till 2010. There is no plausible explanation and/or any evidence adduced before the Tribunal as to why name of the petitioner was not included in any voter's list during the entire period. 11. Even in his evidence adduced before the Tribunal the petitioner deposed that "I cannot say in which year I came to village Ambari. I cannot say how old I was when my name appeared in the voter list for the first time. I don't know the age of Piar Ali who has come to adduce evidence for me." 12. 11. Even in his evidence adduced before the Tribunal the petitioner deposed that "I cannot say in which year I came to village Ambari. I cannot say how old I was when my name appeared in the voter list for the first time. I don't know the age of Piar Ali who has come to adduce evidence for me." 12. In the evidence adduced by Piar Ali as DW 2 who is projected to be the younger brother of the projected mother of the petitioner i.e. the maternal uncle of the petitioner, the DW 2 submitted the voter list of 1966 projecting the name of his father as Tenu Fakir, son of Kalimuddin and his mother as Batasi Nessa wife of Tenu of house no. 89 of village-Kabaitari (NON-KAD), PS- South Salmara, LAC- 32 South Salmara, District Goalpara. DW 2 also relied on voter list of 1985 showing his name as Piar Ali son of Tenu Fakir of house No. 9 village 142 Kabaitari (NON-KAD), LAC-39 Jaleswar, P.S- South Salmara, District Dhubri. However, in his evidence he admitted that the name of the mother of the petitioner and his name did not appear together in any voter list. He, further, deposed that his father's name and his name was also not recorded in any voter's list. 13. Coming to the Sale Deed which was submitted before the Tribunal whereby the petitioner contended that he had purchased a plot of land measuring 01K 05L in village Ambari under Srijangram revenue circle through the Sale Deed registered on 04-01-2010 vide Deed No. 17/2010. The Sale Deed is a document which reveals that 1K 05L plot of land has been purchased by one Nagar Ali, son of Abdur Rahman. However, except for the voter list of 1960 none of the documents relied upon or presented before the Tribunal reflected any consistency in the name of the projected father and projected grandfather of the petitioner to come to a definitive conclusion that the petitioner Nagar Ali projected to be the son of A. Rahman @ Abdur Rahman @ Abdur Rahman Sheikh and the person named in the Sale Deed relied upon, are one and the same. In order to avail the benefit of the Sale Deed to establish the linkage between the petitioner and his projected father and grandfather, the petitioner ought to have produced documents/evidences showing the mutation of the name of the petitioner by way of executive order under the Land Revenue Regulation. Even the relevant Revenue paying receipts of the land in question has not been exhibited. In order to claim the benefit of linkage on the basis of any land documents, such evidences ought to have been exhibited by the petitioner before the Tribunal, as they are exclusively within the knowledge of the petitioner. In the absence of such supporting evidences forthcoming from the petitioner, mere reliance on a sale deed exhibited will not be sufficient to establish the linkage of the petitioner with his projected father Late Ayan Shiekh @ Ayen Ulla @ Ayan. 14. In the NRC details of 1951 name of the projected father of the petitioner is recorded as A. Rahman son of Md. Ayen Sheikh. In voter list of 1960 name of the projected father is recorded as Abdur Rahman son of Ayen Ullah. In the voter list of 1966 name of the projected father is shown as Abdur Rahman Sheikh son of Ayan. In the voter list of 1970 name of the projected father is shown as Abdur Rahman son of Ayan. In his written statement the petitioner states that his mother expired about 30 years ago i.e. 1979 and his father expired about 36 years ago i.e. approximately 1981. The last voter list showing the name of projected father and mother is the voter list of 1970. The petitioner did not adduce any evidence as to why the names of his projected parents were reflected in the voter list for the year 1972 and 1978 nor has he made any statement as to why the name of projected parents are not reflected in the voter list of 1972 and 1978; if it is to be accepted that the petitioner's mother and father expired about 38 years and 36 years ago respectively i.e. 1979 and 1981 respectively. 15. 15. Upon due consideration of the evidences adduced before the Tribunal and the pleadings available on record it is seen that the petitioner has not been able to discharge the burden under section 9 of the Foreigners Act 1946 to substantiate his claims that he was born in the village Shiyaler-Bhita and has been a citizen of India since his birth. The continuation necessary to establish linkage by the petitioner with his projected father and mother is not complete. As discussed above, the name of his late father and late grandfather are differently recorded in the various voter list that has been produced before the Tribunal. There is also no explanation as to why the petitioner who had attained majority approximately in the year 1980 his name does not have recorded till the voter list of 2010. Such a long gap without there being any plausible explanation will certainly arise genuine suspicion to the veracity of the claim made by the petitioner regarding the citizenship. The sale deed produced before the Tribunal also does not effectively help the petitioner in establishing the linkage with this late father and/or late grandfather. The evidence adduced by the DW2 in favour of the petitioner also does not establish the petitioner's linkage, inasmuch as, DW 2 categorically stated in his evidence that there is no document/voter list available showing that the names of DW 2 with his father or with his mother of the petitioner who is projected to be the elder sister of the DW2. 16. Referring to the judgments relied upon by the petitioner, there is no quarrel with the ratio laid down by this Court in the case of Abdul Matali @ Mataleb (supra) as well as judgment of the Apex Court rendered in Sirajul Haque (Supra), that minor discrepancies should not be allowed to be viewed with suspicion in the claim of citizenship of the petitioner. The ratio laid down by these judgments do not ensure any benefit to the petitioner in view of the facts stated and the evidences adduced by the petitioner in the present proceedings. The ratio laid down by these judgments do not ensure any benefit to the petitioner in view of the facts stated and the evidences adduced by the petitioner in the present proceedings. As discussed above the evidences adduced before the Tribunal to establish the linkage of the petitioner with his late parents are not sufficient, in view of the absence of any explanation by the petitioner either in his written statements or evidences adduced before the Tribunal as to why the name of the petitioner is not recorded in the voter list from 1980-81 (i.e. the year he attained the age of majority) till 2010. 17. In view of the above discussion, this Court is not persuaded to return any finding that the order dated 28-05-2019 passed by the Member, Foreigners' Tribunal, Bongaigaon No. 2, Abhayapuri in F.T. Case No. BNGN/FT-2/APR/164/17, impugned in the present proceeding is erroneous or that any evidences adduced by the petitioner have not been duly considered/appreciated by the Tribunal. The petitioner has failed to discharge his burden under section 9 of the Foreigners' Act 1946 to prove that he is a citizen of India and not an illegal migrant as opined by the Tribunal. Accordingly, we hold that there is no infirmity in the impugned order of the Tribunal answering the reference in affirmative and declaring that the petitioner to be a foreigner/illegal migrant of the post 25-03-1971. 18. This writ petition is found to be devoid of any merit and therefore dismissed. No cost. Return the tribunal record.