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Judgment
N. Kotiswar Singh, J
Heard Mr. Z. Hammad, learned counsel for the petitioners. Also heard Mr. A. Kalita, learned Standing Counsel, Foreigners Tribunal; Mr. B. Deka, learned Central Government Counsel; Ms. B. Das, learned Standing Counsel, Election Commission of India and Mr. K.K. Parasar, learned Standing Counsel, NRC.
In this petition, the petitioners have challenged the opinion rendered by the learned Members, Foreigners Tribunal No. 1, Morigaon in Case no. F.T.(C) 93/2009 arising out of Police Reference I.M.(D)T. Case no. 209/2004 dated 27.02.2004, in which the opinion was rendered on 21.02.2017 by which the present petitioners namely, (i) Md. Rafikul Islam @ Robi Awal, s/o- Lt. Iman Ali; (ii) Musstt. Safia Khatoon (wife); (iii) Md. Saidul Islam; (iv) Md. Ratul Islam; (v) Musstt. Matufa Begum; and (vi) Musstt. Rupsana Begun (all children), of village - Basundhary, P/S- Jagiroad, District- Morigaon have been declared foreigners under Section 2(a) of the Foreigners Act, 1946.
The learned counsel for the petitioners, apart from the submission advanced on the basis of numerous documentary and the oral evidences adduced before the learned Tribunal, has drawn specific attention of this Court to one opinion rendered on 28.10.2016 by the Foreigners Tribunal (1st), Morigaon, Assam in F.T.(C) Case no. 59/2009 arising out of Police Reference I.M.(D)T. Case no. 51/2001, dated 29.01.2001, whereby the procedees namely, (i) Musstt. Hazera Khatun @ Firoja Khatun wife Md. Abdul Kadir; (ii) Md. Abdul Kadir (husband); (iii) Md. Aizul Haque; (iv) Md. Saidul Rahman; (v) Md. Afazuddin; (vi) Musstt. Bulbul Nessa; (vii) Musstt. Mairun Nessa (children); and (viii) Musstt. Noorjahan (daughter-in-law) of village- Basundhari, P/S- Jagiroad, District- Morigaon, Assam were held to be citizens of India by birth under Section 3 of the Indian Citizenship Act, 1955 as amended in 2005.
Learned counsel for the petitioners submits that the aforesaid proceedee no. 2, namely, Md. Abdul Kadir, husband of the first proceedee, Ms. Hazera Khatun, named in the said opinion is the elder brother of the present petitioner no. 1 and though the said opinion of the Tribunal in F.T.(C) Case no. 59/2009 was referred to and relied upon in course of the proceedings in his case, the same was not properly appreciated by the Tribunal, rather it was ignored by observing that the said opinion in F.T.(C) Case no. 59/2009, purportedly in the name of the elder brother of Robi Awal is short of linkage and the discrepancies in the name has not been discussed or corroborated with any oral or documentary evidences. Accordingly, the learned Tribunal on the basis of other evidences did not accept the said opinion rendered by the Tribunal in case of Abdul Kadir and others, holding that it does not inspire confidence of the Tribunal and rather held that the said case is a fit case to be referred to the Screening Committee constituted by the Government to take legal recourse to set aside the order by preferring an appeal before the High Court as mentioned in para-7 and para-10 of the impugned opinion which are reproduced herein below.
"7. During the cross-examination of OP Robi Awal, he has deposed that his father expired in 1983 and have two brothers namely Abdul Kadir and Abu Taleb and all brothers are living together but could not caste vote with their father. He also named his only Paternal Uncle as Samsuddin who stays in Hatipara in Nagaon with his two sons namely Abdul Ali and Joynal Abdin. He also named his grandfather as Kisamuddin but did not meet him in life time. Interestingly, in the voter list of 1965, Ext O the purported name of the father of OP Robi Awal is Iman Ali/S/o Issamuddin. And in the voter list 1977 (Ext P), the name of purported father of OP Robi Awal is shown as Iman Ali S/o Ismail and the age of Iman Ali in 1965 was 45 and in 1977 the age was only 48 meaning thereby the grandfather of the O.P., Robi Awal is a projected person. The Ext. R which is the Order Copy passed in FT(C) 51/2009 purportedly in the name of elder brother of OP Robi Awal namely Abdul Kadir is short of linkage and the discrepancies in name has not been discussed or corroborated with any oral or documentary evidences and there is no linkage of the other brother namely Abu Taleb in any of the cases under reference here as well of Paternal uncle namely Samsuddin.
From the evidences and exhibits of OP Sofia Khatun, it is very clear and transparent that there are certain contradictory facts which would go to show that OP Sofia Khatun has thus terribly failed to discharge her burden of proving that she is not a Foreigner, but an Indian citizen as envisaged in Section 9 of the Foreigners Act, 1946. Here, OP Sofia Khatun have stated in cross examination that her mother Rahimon Nessa to be still alive along with her father Adam Ali but the voters Lists of 1965 and 1977 and 1985 reflects her mother's name as Raimon Nessa. The same name finds place in Gaon Panchayat Certificates issued in her name. But in her oral Cross examination she has named her mother as Rahimon Nessa as it is the actual name which have spontaneously came out from her mouth being her mother and the names figuring in Voters List Gaon panchayat certificate is therefore simply projected. Though she has not named her grandfather, she have named two Paternal Uncles as Kurfan Ali and Mohaad Ali. Assuming her grandfather to be Lokmon Ali since her father Adam Ali is son of Lokman Ali as it transpires from the voter list of 1977, 1970 and 1985, there is no materials to show at any point of time in the voters list the linkage of her paternal uncles or Aunts whose name have been spelt out during cross-examination. Nor the latest voter list of her parents which brother Imradul Islam have been produced before this Tribunal to link up the relationship of the OP Sofia Khatun with the projected father namely Adam Ali whose name figured in the voter list of 1985, 1977, 1970. Moreover, the Written Statement filed by the Opposite Parties is vague and there is no specific pleadings in the W/S filed on 12.05.2016, but subsequently, some changes are brought in the additional W/S filed on 23.08.2016.
In view of the above discussion and appreciation of evidences and materials on record, both DWs failed to discharge the burden of proof as envisaged under Section 9 of the Foreigners Act, 1946 and as such the opposite parties, namely (i) Md. Rafikul Islam @ Robi Awal, s/o- Lt. Iman Ali; (ii) Musstt. Safia Khatoon (wife); (iii) Md. Saidul Islam; (iv) Md. Ratul Islam; (v) Musstt. Matufa Begum; and (vi) Musstt. Rupsana Begun (all children), of village - Basundhary, P/S- Jagiroad, District-Morigaon (Assam) are declared foreigners under Section 2(a) of the Foreigners Act, 1946. Moreover, the documents so exhibited have not also been proved in light of the Apex Court decision rendered in Life Insurance Corporation of India & Anr -vs- Ram Pal Singh Bisen reported in (2010) 4 SCC 291 wherein the Apex Court held that contents of a document cannot be proved merely by filing it in a court unless it is proved in accordance with Law.
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Before parting with the record, and as discussed above, the Order dated 29.01.2016 passed in F.T.(C) 59/2009 in favour of purported brother of OP Robi Awal namely Abdul Kadir and his family members who were earlier declared Indians exhibited as Ext. 'R' dies bit asoure faith of this Tribunal of the said Order having legal sanctity being engulfed with contradictory appreciation of exhibits and lack of relationship linkage as well as name discrepancies which have not been discussed in its true sense and therefore the said Order passed in F.T.(C) 59/2009 is of no help to OP Robi Awal, rather it is a fit case to refer the said F.T.(C) 59/2009 to the Screening Committee constituted by the Government to take legal recourse to set aside the said Order by preferring Appeal before the Hon'ble High Court."
We have been informed at the Bar that the aforesaid opinion rendered by the Tribunal in F.T.(C) Case no. 59/2009 has not been referred to the Screening Committee nor any appeal has been preferred before this Court. From the above, what one can infer is that the said opinion rendered by the Foreigners Tribunal (1st), Morigaon in F.T.(C) Case no. 59/2009 on 28.10.2016 has attained finality. The result is that if said Md. Abdul Kadir, the proceedee no. 2 therein in whose favour the said opinion was rendered by the learned Tribunal, is really the elder brother of the present petitioner no. 1, obviously it would lead to a conflicting situation where two brothers born out of same parents would have different citizenship status, while one would be a foreigner, the other would be an Indian, which would defy logic, as it is not a case of nobody else that any of the brothers had left this country or relinquished citizenship, as the case of both the petitioner no. 1 as well as said Abdul Kadir is that they are both residents and citizens of this country.
We have perused the original records produced before this Court in respect of both the cases i.e. F.T.(C) Case no. 59/2009 as well as F.T.(C) Case no. 93/2009 relating to said Abdul Kadir and others as well as the petitioners in the present case.
In order to examine as to whether there is an element of credibility in the submission advanced by the learned counsel for the petitioners, we have perused the original records and we have noted that one Md. Abdul Kadir who was the proceedee no. 2 in the earlier proceeding in F.T.(C) Case no. 59/2009, had deposed before the Tribunal that he is the son of one Iman Ali resident of village- Basundhari under Jagiroad Police Station. The said Abdul Kadir also deposed that his father's name was initially included in the 1965 voters list as Iman Ali, son of Isamuddin of village-Hatipara, under Rupahihat Police Station, District-Nagaon, Sl No. 340 and House No. 114 is shown. We have also seen that the voters list of 1977 recording the name of Iman Ali as his father which was relied upon by the said Md. Abdul Kadir in the said proceeding has been relied upon by petitioners in this case as well. We have also noticed that in the voters list of 1965, one Iman Ali has been shown at Sl. No. 340 and House No. 114 with the same addresses, referred to above. Thus, it appears that the petitioner no. 1 herein is tracing his legacy from one Iman Ali, son of Isamuddin, who is also the same person to which the aforesaid Md. Abdul Kadir was tracing his legacy in his case.
Accordingly, we are of the view that the petitioner has been able to make out a prima facie case to show certain evidence to link his legacy with the aforesaid same Iman Ali. For this reason, we are of the view that the Tribunal would require to re-examine the matter afresh as regards the claim of the petitioner no. 1 that he is the son of one Iman Ali and the brother of Md. Abdul Kadir and as the said Md. Abdul Kadir has already been declared as Indian by the learned Tribunal in F.T.(C) Case no. 59/2009, the present petitioner No.1 is also entitled to be declared an Indian and not a foreigner.
It appears from the impugned order that while the Tribunal was discussing about the relevance and applicability of the earlier opinion of the same Tribunal (1st), Morigaon in F.T. (C) Case no. 59/2009, the learned Tribunal did not have access to the records of the proceedings in the said earlier case. If the aforesaid records in the F.T.(C) Case no. 59/2009 had been considered by the learned Tribunal in F.T.(C) Case no. 93/2009, perhaps many of the doubts which were in the mind of the learned Tribunal could have been cleared and accordingly, declared the present petitioner No.1 as an Indian as well.
We have not made any observation about the other findings recorded by the learned Tribunal in this case, as the learned Foreigners Tribunal would be required to re-examine and re-appreciate the evidences in the light of the records and evidence already available before the Tribunal in the aforesaid case of F.T.(C) 59/2009.
Accordingly, we remand this matter to the Foreigners Tribunal to re-appreciate the evidences again in the light of the observations we have made above on the basis of the records of F.T.(C) Case no. 59/2009 in which the learned Tribunal had rendered the opinion on 28.10.2016 declaring the proceedees therein including Md. Abdul Kadir an Indian, who the petitioner No.1 claims to be his brother.
We, however, make it clear that on fresh re-consideration, if the petitioner no. 1, Rofikul Islam @ Rabi Awal @ Robbibul Awal @ Rafiul Aoral @ Rabikul Aowal, s/o Late Iman @ Iman Ali, of village- Basundhary, P.S. Jagiroad (Nellie O.P.), District- Morigaon, Assam, the proceedee no. 1 in the F.T.(C) Case no. 93/2009 is able to prove that he is the brother of Md. Abdul Kadir, of village- Basundhary, P.S. Jagiroad, District- Morigaon, who was the proceedee no. 2 in F.T.(C) Case no. 59/2009 before the same Foreigners Tribunal (1st), Morigaon, Assam, in such an event, the present petitioner no. 1 will be entitled to be considered an Indian and not a foreigner. Under the circumstances, the Tribunal will not be required to re-examine other evidences adduced by the petitioners as the inconsistencies observed by the Tribunal would be of no consequence, for, if the petitioner No.1 and the said Md. Abdul Kadir are really biological brothers, there cannot be a case of having different citizenship status of the two brothers.
In this regard, we may like to add that we have disposed a similar case today, viz. W.P. (C) no. 3128/2017 [Mahar Uddin Ali vs. The Union of India and 5 others] allowing similar reliefs and this Court has issued certain directions, which we do not wish to repeat herein.
However, we wish to mention here also that it could have been argued by the State that perhaps the subsequent opinion of the Foreigners Tribunal dated 21.02.2017 ought to be reconsidered in the light of the earlier opinion of the Tribunal date 28.10.2016 declaring the petitioner to be a foreigner, rather than the other way round as directed by us. However, the said contention is not tenable for the reason that the subsequent opinion of the Tribunal dt. 21.02.2017 has already attained finality as it was not challenged by the State whereas the earlier opinion dated 28.10.2016 has been put to challenge by the petitioners. Further, it is the settled position of law that while giving an opinion, the standard of proof to be adopted by the Tribunal is preponderance of probability. Thus, if on appraisal of evidences on records, the proceedee is able to make out a case which is favourable to the one which the State seeks to make out, the Tribunal should lean in favour of the proceedee. In the present case, the impugned opinion is against the present petitioners whereas, the opinion rendered by the Tribunal in the case of Md. Abdul Kadir is favourable to the petitioners. The opinion given by the Tribunal in favour of Md. Abdul Kadir was certainly based on certain materials and evidences adduced by the said Md. Abdul Kadir and if the same Tribunal could accept the plea/evidences produced by the said Md. Abdul Kadir to be sufficient to prove his case that he is not a foreigner, this opinion can certainly be invoked and relied upon by the petitioner no. 1 in support of his claim that he too is an Indian and not a foreigner, subject to the condition that Md. Abdul Kadir is indeed his elder brother as claimed by the petitioner no. 1.
When two conflicting opinions are given by the same Tribunal on the claim of legacy traceable to the same person and if these opinions relate to the blood relations as brothers or sisters, as in the present case, the one favourable to either of the siblings can be applied to the other. The fact that one of the siblings had been successful to prove that he is an Indian and not a foreigner does clearly indicate that there are sufficient cogent materials to support such a claim. Thus, failure on the part of the other sibling to convince the Tribunal can be only because of certain shortcomings in the nature of evidences adduced, which may be attributable to inability to muster sufficient materials/evidences etc.
Standard of proof in such proceeding being preponderance of probability, it can be certainly said that if one of the siblings/blood relations has been able to prove his case that he is an Indian, there cannot be any doubt that the other sibling will be also an Indian. Same view can be taken of the other sibling/blood relations, even without adducing any evidence, as otherwise, it would be against law of nature and common sense that the siblings will have different citizenship status, unless relinquished by any one of them. Thus, the beneficial view must prevail in such a situation, as has arisen herein.
We have noticed, as submitted by the learned counsel for the petitioner no. 2, that in respect of Msstt. Sufia Khatun, who is the wife of petitioner no. 1, Rofikul Islam @ Rabi Awal @ Robbibul Awal @ Rafiul Aoral @ Rabikul Aowal, there was neither any investigation nor reference made by the referral authority. It has been submitted that any proceeding initiated by the Tribunal without there being any reference against the petitioner no. 2 would be illegal. As far as this issue is concerned, learned counsel for the State has also fairly acknowledged that unless there is a reference, the Tribunal could not have jurisdiction to proceed against any person questioning the citizenship. In the present case, we have noted that there was no such investigation or reference made by the referral authority in respect of the petitioner no. 2, the wife of the petitioner no. 1. Accordingly, we set aside the observations, findings and opinion rendered by the learned Tribunal as regards the petitioner no. 2.
As regards the petitioner nos. 3, 4 and 5, the children of the petitioner nos. 1 and 2, their citizenship will be determined as per the finding arrived at by the Tribunal vis-à-vis the parents namely, the petitioner no. 1 and petitioner no. 2. Since, the petitioner No.2's declaration that she is a foreigner has been set aside, she has to be treated as an Indian and as such, in the event, the petitioner No.1 is also declared Indian, all their children, petitioner nos.3, 4 and 5 will also become Indians.
For the forgoing reasons, we allow this petition by setting aside the impugned opinion dated 21.02.2017 passed by the Foreigners Tribunal No. 1, Morigaon in F.T.(C) Case no. 93/2009 for fresh re-consideration, as directed above.
The records of both the cases, F.T.(C) Case no. 93/2009 and F.T.(C) Case no. 59/2009, be transmitted immediately to the Foreigners Tribunal (1st), Morigaon, Assam.
The petitioner no. 1 will appear before the Tribunal on or before 22.04.2021.
The petition stands disposed of accordingly.