Rafiqul Islam vs Union Of India And 3 Ors.

(Prasanta Kumar Deka, J )

Heard Mr. AR Sikdar, learned counsel for the petitioner as well as Ms. P Baruah, learned counsel for the respondent No. 1. Also heard Mr. UK

Nair, learned Senior Counsel assisted by Mr. A Kalita, learned counsel for the respondents No. 2 to 4.

Order dated 21.06.2016 is under challenge in this writ petition by the petitioner which was passed by the learned Member, Foreigners’ Tribunal

No. 4, Kamrup (R) in HFT Case No. 233/2015 (new) arising out of IMDT Enquiry No. 763/2003. The Superintendent of Police (Border), Kamrup

vide IMDT Enquiry No. 763/2003 referred for the opinion against the petitioner as to whether the petitioner is an illegal migrant or not. Subsequently, it

was transferred to the present tribunal and the same was registered as HFT Case No. 233/2015 (new) in the said tribunal. On receipt of notice, the

petitioner entered appearance and filed his written statement along with various documents. In order to prove that the petitioner is not an illegal

migrant nor a foreigner, the petitioner pleaded that the name of his grandfather was Soinuddin Sheikh, son of Khoru whose name was recorded in the

NRC of 1951 of village Tekelifuta under Mouza Pub-Somoria in the district of Kamrup. His grandfather Soinuddin Sheikh was issued Annual Khiraj

Patta No. 65 of village Tekelifuta under Mouza Pub-Somoria in the district of Kamrup. The names of grandmother Tamshi Nessa and paternal uncle

Kurpan Ali appeared in the voter lists of 1966 and 1970 under 55 No. Chhaygaon LAC of village Tekelifuta. The father of the petitioner Late

Taijuddin alias Taijuddin Ahmed shifted to village Ratanpur (Bangalpara) from village Tekelifuta for his livelihood and he got married with Rejia

Khatun of village Bangalpara in the district of Kamrup. The name of his father appeared in the voter list of 1989 of village Bangalpara and the name

of the petitioner along with his parents appeared in the voter list of 1997 of village Bangalpara under 55 No. Hajo LAC. The name of the petitioner

also appeared in the voter list of 2005 of village Bangalpara and though the name of his father was Taijuddin but in the voter list of 2005 his name

appeared as Taijuddin Ahmed. It is further pleaded that the actual name of his grandfather was Soinuddin but wrongly recorded as Sonu Sheikh in the

NRC list of 1951. However, the said Soinuddin alias Sonu Sheikh is the one and same person and to that effect, the petitioner submitted an affidavit.

The petitioner in respect of his claim examined 4 (four) witnesses including himself as DW 1, Md. Sukur Ali as DW 2, Md. Sohrab Ali, the

Government Lat Gaonbura of village No. 2, Bangalpara as DW 3 and Rezia Khatun, the mother of the petitioner as DW 4.

The learned Member considered the Exhibit-M which is a NRC slip and rejected the same. As against the deposition of the petitioner as DW 1 that

he is the son of Taijuddin @ Taijuddin Ahmed and grandson of Soinuddin @ Sonu Sheikh and regarding the shifting of his father from village

Tekelifuta to village Ratanpur (Bangalpara) in the year 1969 and the subsequent marriage with the DW 4, Rezia Khatun at village Bangalpara in the

year 1975, the learned Member held that no documents were produced in support of the fact of shifting of his father from village Tekelifuta to village

Bangalpara. Considering the voter list of 1997 of village Bangalpara (Exhibit-C) the learned Member considered the age recorded therein against the

name of his father which is 54 years and arrived at the finding that the father of the petitioner was born in the year 1943 and thereafter in the year

1961 the father of the petitioner got his voting right but the name of the father was not recorded in any of the voter lists starting from the year 1961 till

1997. Considering the evidence of Rezia Khatun, DW 4 the mother of the petitioner, the learned Member appreciated the deposition that her husband

(the father of the petitioner) died about 10 years back from the date of deposition and her husband was known as Taijuddin and her father-in-law was

known as Sonuddin. Considering the evidence of DW 3, Md. Sohrab Ali, the Gaonbura, Bangalpara and the certified copy of Exhibit-G, the Annual

Khiraj Patta in support of the fact that the petitioner is the son of Late Taijuddin and grandson of Late Soinuddin to be a resident of village Bangalpara,

the learned Member disbelieved the contention of the Exhibit-G that Taijuddin @ Taijuddin Ahmed and Soinuddin @ Sonu Sheikh @ Sonuddin are one

and the same person. The Annual Khiraj Patta No. 65 issued in the name of the grandfather of the petitioner was not taken into consideration as the

same was not supported by the rest of the witnesses. However, the learned Member accepted the fact that the said Annual Khiraj Patta Exhibit-G

was issued in the name of Soinuddin Sheikh. The Exhibit-E and Exhibit-F are the voter lists of the year 1966 and 1970 respectively showing the names

of the maternal grandfather and grandmother were not taken into consideration for the purpose of determining the citizenship of the petitioner. The

rest of the exhibits i.e. Exhibit-I and Exhibit-L which are the voter identity cards in the name of Rezia Khatun, DW 4 and the same were not

considered being not supported by the rest of the witnesses in their evidence. Finally, upon such appreciation of the evidence on record the learned

Member affirmed the reference holding the petitioner to be a foreigner of post 25.03.1971.

Mr. Sikdar submits that while passing the impugned order the learned Member failed to appreciate the evidence in the proper perspective. A duty

was cast upon the learned Member in order to invoke Section 30 of the Code of Civil Procedure thereby seeking for discovery from the concerned

officials in order to remove the discrepancies crept into the mind of the learned Member. Having not done so, there is a gross failure while exercising

the jurisdiction in deciding the reference. He further argued that the learned Member went wrong in holding that the petitioner failed to prove the fact

of shifting of his father from village Tekelifuta to village Bangalpara as no documents were produced to that effect. Rather, he submits that the

pleadings are specific and the same are supported by the oral evidence of other witnesses proving the fact that the father of the petitioner shifted from

village Tekelifuta in the year 1969. It is also submitted that the calculation of the age of the father of the petitioner by the learned Member considering

the age recorded in the voter list of the year 1997 and the subsequent findings thereon ought not to have been considered to be fatal in disbelieving the

contention of the petitioner and other witnesses nor mere delayed entry of the name of the father of the petitioner in the voter list cannot be a factor

while deciding the issue before the learned Member. There is specific pleading to the fact that the paternal grandfather of the petitioner died prior to

1966 which was not disputed by the Government counsel and the same is a clear violation while appreciating the material piece of evidence inasmuch

as there was no rebuttal cross examination to that effect. In support of the said contention Mr. Sikdar relies on the case laws of State of Assam &

others vs. Moslem Mondal reported in 2013 (1) GLT 809, Abdul Matali @ Mataleb (Md.) vs. Union of India & others reported in 2015 (2) GLT 617,

P.C. Purushothama Reddiar vs. S. Perumal reported in AIR 1972 SC 608, Oriental Insurance Company Limited vs. Premlata Shukla & others

reported in (2007) 13 SCC 476 and sought for interference of the findings of the learned Member.

Mr. Nair, on the other hand, vehemently opposed the submission of Mr. Sikdar. He submits that the existence of the father of the petitioner prior to

1989 is not at all established. Correcting the calculation of the learned Member, Mr. Nair submits that as at that relevant point of time the voting right

was enjoyed by persons attaining 21 years under such circumstances, at least in the year 1964 the father of the petitioner attained the age for right to

vote and the name of the father ought to have been recorded in the voter list of 1966 along with his alleged father Sonuddin and his elder brother

Kurpan Ali. Such non-recording of the name of the father of the petitioner is itself the missing link which goes against the present petitioner. Referring

to the pleadings in the written statement, Mr. Nair submits that in paragraph 8 of the written statement it was pleaded that the father of the petitioner

was a daily wage labourer and he shifted to Ratanpur (Bangalpara) in the year 1989 for his livelihood from Tekelifuta. Against the said pleading, the

petitioner in his evidence on affidavit as DW 1, stated in paragraph 5 that his father left the house of village Tekelifuta after quarrelling with his eldest

uncle Kurpan Ali as he was not interested in the domestic works. He was interested in singing, dancing and drama. After coming to the village

Bangalpara in the year 1969 he took shelter in the house of the petitioner’s maternal grandfather and started singing, acting and drama

(Yatrapala). Without there being any reference of any other uncles in the pleading, in his evidence on affidavit he stated in paragraph 10 that his

paternal uncle Sukur Ali was residing separately at village Ujanduramari (nearby village of Tekelifuta) and after erosion of river Brahmaputra he

shifted to village No. 2, Bhelkar under Mouza Ramdia, P.S. Hajo. His name appeared in the voter list of 1977 and 79 as the son of Soinuddin of the

said village. The said Sukur Ali adduced his evidence as DW 2 and stated in his evidence on affidavit at paragraph 2 that the father of the petitioner

Taijuddin @ Taijuddin Ahmed is his younger brother who was born and brought up at Tekelifuta. The said Sukur Ali, DW 2, was residing separately at

village Ujanduramari leaving his mother Tamshi Nessa and elder brother Kurpan Ali and his younger brother Taijuddin at village Tekelifuta. Referring

to the voter list of 1977 which is annexed as Annexure-7A in the writ petition and Exhibit-Ka, Mr. Nair pointed out to the name of Sukur Ali at Serial

No. 139, son of Soinuddin and in the Serial No. 140 there is another brother Sunam Mia, son of Soinuddin but the said Sukur Ali in his evidence stated

that he was residing separately at village Ujanduramari leaving his mother Tamshi Nessa, elder brother Kurpan Ali and younger brother Taijuddin but

no reference has been made about the other brother Sunam Mia. Thus, Mr. Nair submits that from the aforesaid contradictions it is clear and apparent

that neither Sukur Ali nor his father Soinuddin is related to the petitioner through his father Taijuddin.

Mr. Nair referring to the evidence of DW 3, Sohrab Ali, the Gaonbura submits that in his evidence on affidavit at paragraph 2 he stated that he

knows the petitioner who is the son of late Taijuddin since his birth. He is the permanent resident of village Bangalpara (Ratanpur) under his Lat and

he was born and brought up in the said village. He further knows Sukur Ali, the DW 2 who is alive and residing at Ujanduramari. He knows Kurpan

Ali and Tamshi Nessa both deceased as the elder brother and mother of Taijuddin. Their names appeared in the voter list of 1967 and 1970 as son and

wife of Soinuddin. But he failed to name the other brother of Sukur Ali. The DW 4, Rezia Khatun, the mother of the petitioner in her evidence on

affidavit submits that she is a resident of village Tapabori under P.S. Hajo in the district of Kamrup. The DW 1, petitioner in his cross examination

stated that his mother cast vote at village Tapabori. On the other hand, the DW 3, the Gaonbura deposed in his cross examination that the mother of

the petitioner is alive and cast her vote at her village i.e. village No. 2, Bangalpara. The DW 4 in her cross examination stated that she cast vote at

village Bangalpara. Referring to the Exhibit-L, the Voter Identity card in the name of DW 4, Mr. Nair submits that the said Voter Identity Card shows

that the said DW 4 is from the village Tapabori. Referring the said contradiction with respect to the place of casting of vote by the DW 4, the mother

of the petitioner, Mr. Nair submits that it is totally unbelievable that the Gaonbura and the son of DW 4 cannot even say the actual place of voting by

the DW 4. Thus, he submits that the petitioner has miserably failed to show the lineage starting from Soinuddin @ Sonuddin and there is no error

apparent on the face of the order passed by the learned Member.

We have considered the submission of the learned counsel. The discrepancies pointed out by Mr. Nair cannot be brushed aside when Section 9 of

the Foreigners’ Act specifically mentions that the burden of proof as to whether any person is/ is not a foreigner lies on such person

notwithstanding anything contained in the Indian Evidence Act, 1872. Section 21 of the Citizenship Rules, 2009 stipulates that the Tribunal constituted

under the Foreigners’ (Tribunals) Order, 1964 having jurisdiction over a district or part thereof in the State of Assam shall have jurisdiction to

decide references received from the registering authority of the district or part thereof. The present proceeding is initiated against the reference to

decide whether the petitioner is an illegal migrant. Order 4 of the Foreigners’ (Tribunals) Orders, 1964 prescribes the powers of a Civil Court

while trying a suit under the Code of Civil Procedure, 1908 and the powers of Judicial Magistrate, First Class under the Code of Criminal Procedure,

1973 in respect of following matters, namely â€" (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring

the discovery and production of any document; (c) issuing commissions for examining any witnesses; (d) directing the proceedee to appear before it in

person; and (e) issuing a warrant of arrest against the proceedee if he/she fails to appear before it.

Mr. Sikdar submits that the learned Member ought to have invoked the jurisdiction under Section 30 of the Code of Civil Procedure which

empowers the Civil Court at any time either of its motion or an application of any party to make such order in all matters relating to the delivery and

answering of interrogatories, the admission of documents and facts and the discovery, inspection, production, impounding and return of documents or

other material objects producible as evidence. Order XI Rule 1 of the Code of Civil Procedure, 1908 (CPC) stipulates that in any suit the plaintiff or

defendant by leave of the Court may deliver interrogatories in writing for examination of the opposite parties stating which of such interrogatories are

required to be answered. From the provisions of the Code of Civil Procedure it is clear that it is the petitioner who was supposed to take the leave of

the Tribunal in the event he wanted to invoke the jurisdiction under Section 30/ Order XI Rule 1 of the CPC. Admittedly, there is no such petition filed

by the present petitioner. Accordingly, the submission of Mr. Sikdar that the learned Member ought to have taken shelter under Section 30 of the CPC

while deciding the issue before it cannot be accepted.

The contention of Mr. Sikdar that once a document is exhibited, the contents therein are also proved. We cannot agree to this submission inasmuch

as once a document is proved it is the duty of the party relying and exhibiting the said documents to prove the contents if there is disputed question of

fact. In the present case in hand, reference was made by the Registering authority thereby disputing the citizenship of the present petitioner and

keeping in view the provision under Section 9 of the Foreigners’ Act, 1946, the petitioner has a bounden duty to establish the contents of the

documents which he exhibited. The DW 3, the Gaonbura issued a certificate and in support of the contents in the said certificate the DW 4 graced the

witness box. But he failed to stick to the examination in chief nor could affirm the contents of the certificate inasmuch as admittedly he is not the

Gaonbura of village Tekelifuta. Rather, he is the Gaonbura of village No. 2, Bangalpara. He cannot even say as to where the mother of the petitioner

cast her vote who is supposed to know as Gaonbura of the said village. There is contradiction to that effect and such contradiction belies the faith

reposed by the learned Member and/ or this court on the DW 3, Sohrab Ali as a Government official. Mr. Sikdar relying Abdul Matali (supra) submits

that it was held by a Coordinate Bench of this court that a doubt, if any, which might arise in the mind of the Tribunal must be answered not like a

common man but like a prudent person who is trained in law. With due respect to the said observation of the Coordinate Bench of this Court in the

present case in hand, it is not the mere doubt which Mr. Nair could place before this court but the contradiction so pointed out by Mr. Nair goes to the

root of the very foundation of the issue to be decided by the Tribunal. The written statement is allowed to be filed informing the stand of the

proceedee. If there is any relevant fact/ facts which are not pleaded in the written statement there are provisions to seek for introduction of the said

relevant facts and a bounden duty is cast upon the Tribunal to be liberal to bring such relevant facts even after filing of the written statement

considering the nature of the proceeding and the burden put on the proceedee as per Section 9 of the Foreigners’ Act, 1946. The name of Sukur

Ali finds no place in the written statement and the introduction of the said person in the evidence of the petitioner itself cast a doubt as to whether the

said person is a family member of the father of the petitioner. Accordingly, the submission of Mr. Sikdar cannot be accepted.

Mr. Sikdar submits that the learned Member ought to have considered the voter list showing the name of the mother, DW 4 of the petitioner.

Against the said submission our view is that as there is no pleading to that effect giving thrust on the lineage of the maternal side the learned Member

had done no wrong. The Patta which was exhibited cannot be considered as on one side of the said patta the same was pasted by another blank

paper. The said side of the patta normally shows the Dag number of the land covered by the said patta. If the patta does not show the land with

proper Dag number under such circumstances, this copy of Chitha also cannot be relied which also shows the Dag number of land.

After the said discussion made hereinabove, we are of the considered opinion that the petitioner has failed to discharge the onus on him to rebut

the issue raised by the reference made by the Registering authority and we do not find any error apparent on the face of the order requiring

interference of the impugned order and as such this writ petition stands dismissed. No costs.

Send back the LCRs.