Gauhati High Court
WP(C)/2221/2020 on 20 August, 2021
Page No.# 1/20
GAHC010072662020
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WP (C)/2221/2020
Md. Sujab Ali, aged about-31 years
Son of Sayed Ali @ Sayed,
Resident of village- Salmara Part-I,
Post Office and Police Station- South Salmara,
District-Dhubri, Assam.
-------------Petitioner
-VERSUS-
1. Union of India, Represented by the Secretary
to the Govt. of India, Ministry of Home Affair, New
Delhi-1.
2. The Election Commission, India, Represented
by the Chief Election Commission, India, New
Delhi-01.
3. The State of Assam Represented by the
Commissioner & Secretary to the Government of
Assam, Home Department, Dispur, Guwahati-
781006.
4. The State Co-Ordinator, NRC,
Assam, Bhangagarh, Guwahati-5, Pin-781005.
5. The Deputy Commissioner,
Kamrup (M), Guwahati, Assam, Pin-781001.
6. The Commissioner of Police (B), Kamrup (M),
Guwahati.
7. The Officer-in-Charge, Dispur Police Station,
District-Kamrup (M), Assam.
---------------Respondents
Page No.# 2/20
:: BEFORE::
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MR. JUSTICE SOUMITRA SAIKIA
For the Petitioner : Mr. J. Ahmed, learned Counsel.
For the Respondents : Mr. P.S. Bhattacharjee, CGC
Mr. J. Payeng, Standing Counsel, F.T
Ms. L. Devi, Standing Counsel, NRC
Ms. B. Das, Standing Counsel, ECI.
Date of Hearing : 08.04.2021.
Date of Judgment : 20.08.2021
JUDGMENT & ORDER
(N. Kotiswar Singh, J)
This writ petition is preferred by the petitioner-Sujab Ali, being
aggrieved by the Order dated 27.02.2020 passed by F.T Kamrup (M)
2nd Guwahati-3 in F.T. Case No. 1638/2015, by which, on a reference
being made that he entered Assam, illegally without any valid travel
documents after 24th of March, 1971, was answered in the
affirmative in favour of the State and against the petitioner by
declaring him to be a Foreigner of post 25.03.1971 from Bangladesh
and ordered for his detention, deportation and deletion of his name
from all voters lists.
Page No.# 3/20
2. Heard learned Counsel for the parties and perused the records
of the Tribunal.
3. The petitioner's case before the Tribunal is that he is a citizen
of India, having been born on 11.01.1992 in the district of Dhubri in
the village South Salmara, Part-1 and he was educated in the Teltari
Noeagaon L.P. School, village- Teltari, Noeagaon, P.S. South Salmara,
District-Dhubri, Assam. In the written statement filed before the
Tribunal the petitioner projected one Abdul Majid @ Abdul Majid
Sheikh to be his grandfather and Nosiman Nessa to be his
grandmother. His great grandfather was Kasimuddin and his great
grandmother was Goroman Nessa. The petitioner claims that Sayed
Ali was his father and Toyer Bhanu Nessa @ Toyer Bhanu Nessa Bibi,
his mother. The petitioner stated in his Written Statement that his
father was born on 01.01.1958 in village-Isshav Dewangirpara and
started living with his parents there but due to river erosion his
father and his relatives shifted to another place namely, Natinir Alaga
Part-II and later got married to Toyer Bhanu Nessa @ Toyer Bhanu
Nessa Bibi and three children were born to them namely, Tozamul
Hoque @ Tojammel Hoque, Mojammel Hoque and the writ petitioner
namely, Sujab Ali.
The petitioner claims that he is the permanent resident of
village-South Salmara, Part-I, P.S-South Salmara in the district of
South Salmara and is a mason by profession. He denied the claim of
the State made in the reference that he is a foreigner who had
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entered Assam after 25th of March, 1971 from the specified area
namely 'Bangladesh'. The petitioner produced three witnesses in
support of his claim, namely, D.W.1, (the petitioner himself),
Tojammel Hoque, his elder brother as D.W.2 and one Sayed Ali
stated to be his father as D.W.3. One Sukur Ali Deo, the cousin of
the grandfather of the proceedee was also examined as D.W.4. The
petitioner exhibited 39 documents before the Tribunal.
4. The learned counsel for the petitioner submits that inspite of
sufficient evidences laid before the Tribunal both in the form of
documentary and oral evidences, the Foreigners' Tribunal failed to
appreciate the evidences presented and declared the petitioner to be
a foreigner.
The learned counsel for the petitioner strongly urges that the
manner in which the Tribunal came to the conclusion is totally in
conflict with the provisions of law in as much as the relevant
materials and the evidences which were placed before the Tribunal
were not considered in the proper perspective and consequently, the
evidences which are admittedly in support of the statements made
by the proceedee in order to substantiate his claim that he is a
citizen of India, were overlooked. As a consequence of the order, the
petitioner was arrested and he is presently in detention.
5. The learned counsel for the petitioner in support of his
contentions has relied upon the following Judgments:-
Page No.# 5/20
1. WP(C) No. 1818 of 2019, Haidar Ali Vs. The Union of India &
Ors., decided on 30.03.2021.
2. Sirajul Haque Vs. The State of Assam & Ors., 2019 (5) SCC
534, decided on 14.02.2019.
3. The State of Assam & Anr. Vs. Moslem Mandal & Ors., 2013 (1)
GLT-809, decided on 03.01.2013.
4. Bant Singh & Anr. Vs. Niranjan Singh (D) by Lrs. & Anr.,
2008(4) SCC 75, decided on 15.02.2008.
5. Tulsa & Ors. Vs. Durghatiya & Ors., 2008 (4) SCC-520, decided
on 15.01.2008.
6. Dolgobinda Paricha - Vs. Nimai Charan Misra & Ors., 1959 Supl
(2) SCR-814, AIR 1959 SC-914 decided on 27.04.1959.
7. Abdul Matali @ Mataleb (MD)- Vs. Union of India & Ors.,
2015(2) GLT 617, decided on 08.11.2013.
8. Motior Rahman- Vs. Union of India & Ors., 2020 (I) GLT 330,
decided on 26.11.2019.
9. Bhima Tima Dhotrem Vs. The Pioneer Chemical Co., (1968) 70
BOMLR-683 Bom LR decided on 23.06.1967.
6. Per contra, the learned Special counsel Mr. J. Payeng,
appearing for the State strongly opposes the contentions made
by the learned counsel for the petitioner by submitting that Section 9
of the Foreigners Act, 1946 stipulates that the burden of proof lies
on the person against whom the allegation is made that he is a
foreigner. The learned Government counsel submits that the order of
the Foreigners' Tribunal is a very elaborate one which minutely
describes the evidences brought out by the petitioner seeking to
project himself to be an Indian citizen. The learned Government
counsel further submits that the interpretation of Section 9 has been
elaborately dealt with by the Apex Court in the case of Sarbananda
Page No.# 6/20
Sonowal Vs. Union of India & Anr. reported in (2005) 5 SCC
665 and therefore, the same is binding on all including this High
Court. It has been accordingly submitted that the Tribunal having
dealt with the matter in terms of the Judicial pronouncements made
by the Apex Court as well as by this Court in several matters, the
impugned order passed by the Foreigners' Tribunal F.T Kamrup (M)
2nd Guwahati-3 in F.T. Case No. 1638/2015 does not require any
interference by this Court.
7. The petitioner in support of his case exhibited the following
39 documents before the Foreigners' Tribunal:-
"Exhibit-1 : Pan Card in the name of Sayed All S/o Abdul Majid
showing Date of Birth 01.10.1958.
Exhibit-2: Voter ID Card of Sayed All S/o A. Majid.
Exhibit-3 : 1951 NRC copy in the name of Khoeja Sk S/o
Kasimuddin 60 yrs and others of village 301 Isob Dewanir Para,
P.S. South Salmara, Sub-Division-Dhubri.
Exhibit-4: Land Deed in the name of Sayed Ali S/o Abdul Mazid
dated 05.11.1969.
Exhibit-5 : Land Deed In the name of Musstt Toyor Bhan Nessa,
W/o Md. Sayed Ali dated 09.05.1980.
Exhibit-6: School certificate dated 01.09.1989 issued by
Headmaster of 181 No. Dakhin Salmara J.B Prathamik
Vidyalaya in the name of Musstt. Toyab Bhanu Nessa D/o Md Siraj
Uddin Bepari.
Exhibit-7 : Certified Voter list of 1970 of 32 Dakhin Salmara
LAC, H/No. 18, SI. No. 84 contains name of A. Sukur S/o Khanja
28 yrs.
Page No.# 7/20
Exhibit-8 : Certified Voter list of 1977 of 22 Dakhin Salmara LAC,
H/No. 76, SI. No. 237, 238 contains name of A. Sukur S/o Khanja
36 yrs, Sabiran Nessa W/o Sukur 34 yrs.
Exhibit-9 : Certified Voter list of 1985 of 22 Dakhin Salmara LAC,
H/No. 173, SI. No. 305, 306, 307, 308 contains name of Sukur S/o
Khunja 39 yrs, Samran W/o Sukur 35 yrs, Samiyel S/o Sukur 23
yrs, Jarina W/o Khunja 74 yrs.
Exhibit-10 ; Certified Voter list of 1989 of 22 Dakhin Salmara LAC,
H/No. 140, SI. No. 701, 702, 703, 704 contains name of Sukur All
S/o Khuju Dewanl 46 yrs, Samiran Nessa W/o Sukur 36 yrs,
Samiyal Hoque §/o Sukur 25 yrs, Mamtaj Begum W/o Samiyal 27
yrs.
Exhibit-11 : Certified Voter list of 1994 of 22 Dakhin Salmara LAC,
H/No. 10, SI, No. 26, 27, 28, 29 contains name of Sukur Ali S/o
Khuja Dewani 52 yrs, Samiran Nessa W/o Sukur Ali 27 yrs,
Samiyal Hoque S/o Sukur All 27 yrs, Mamata Khatun W/o Samiyal
Hoque 23 yrs,
Exhibit-12 : Certified Voter list of 2005 of 22 Dakhin Salmara LAC,
H/No. 8, SI. No. 19, 20, 21 contains name of Sukur Ali D S/o
Khuinja Sheikh 57 yrs, Samiran Nessa W/o Sukur Ali S 47 yrs,
Abdus Subur S/o Sukur Ali D 27 yrs.
Exhibit-13 : Certified Voter list of 2011 of 22 Dakhin Salmara LAC,
H/No. 8, SI. No. 21, 22, 23 contains name of Sukur Ali D S/o
Khuinja Sheikh 64 yrs, Samiran Nessa W/o Sukur Ali S 54 yrs,
Subur All Ansari S/o Sukur Ali D 32 yrs.
Exhibit-14 : Certified Voter list of 2015 of 22 Dakhin Salmara LAC,
P/No. 140, H/No. 8, SI. No. 20, 21, 22 contains name of Sukur Ali
D S/o Khuinja. Sheikh 66 yrs, Samiran Nessa W/o Sukur Ali D 56
yrs, Subur Ali Ansari S/o Sukur Ali D 34 yrs.
Exhibit-15 : Certified Voter list of 2019 of 22 Dakhin Salmara LAC,
P/No. 175, H/No. 8, Sl. No. 33 22 contains name of Sukur Ali D
S/o Khuinja Sheikh 69 yrs.
Exhibit-16 : Voter ID Card of Sukur Ali Deo S/o Khuinaja Sheikh.
Page No.# 8/20
Exhibit-17 : Certified Voter list of 1979 of 22 Dakhin Salmara LAC,
H/No. 80KA, SI. No. 621, 622 contains name of Soyed Ali S/o
Abdul Majid 30 yrs, Toirbhanu Bibi W/o Sabed 22 yrs.
Exhibit-18 : Certified Voter list of 1985 of 22 Dakhin Salmara LAC,
H/No. 170, SI. No. 297, 298 contains name of Soyed S/o Abdul 35
yrs, Toirbhanu W/o Soyed 30 yrs.
Exhibit-19 ; Certified Voter list of 1989 of 22 Dakhin Salmara LAC,
H/No. 137, Sl. No. 690, 691 contains name of Soyed Ali S/o A
Majid 32 yrs, Toirbhan W/o Soyed Ali 27 yrs.
Exhibit-20 : Certified Voter list of 1994 of 22 Dakhin Salmara LAC,
H/No. 20, SI. No. 45 contains name of Soyed Ali S/o A Majid 35
yrs.
Exhibit-21 : Certified Voter list of 1997 of 22 Dakhin Salmara LAC,
H/No. 247, Sl. No. 643 contains name of Soyed Ali S/o A Majid 41
yrs.
Exhibit-22 : Certified Voter list of 2005 of 22 Dakhin Salmara LAC,
P/No. 104, H/No. 136, Sl. No. 315 contains name of Soyed Ali S/o
A Majid 47 yrs.
Exhibit-23 : Certified Voter list of 2011 of 22 Dakhin Salmara LAC,
P/No. 140, H/No. 136, SI. No, 319 contains name of Soyed Ali S/o
A. Majid 54 yrs.
Exhibit-24 : Certified Voter list of 2015 of 22 Dakhin Salmara LAC,
P/No. 140, H/No. 136, SI. No. 316 contains name of Soyed Ali S/o
A. Majid 56 yrs.
Exhibit-25 : Certified Voter list of 2019 of 22 Dakhin Salmara LAC,
P/No. 175, H/No. 136, Sl. No. 426 contains name of Soyed Ali S/o
A. Majid 59 yrs.
Exhibit-26 : Certified Voter list of 2002 of 22 Dakhin Salmara LAC,
H/No. 49, contains name of Tojammel Hoque S/o Sayed Ali 22 yrs.
Exhibit-27 : Certified Voter list of 2005 of 22 Dakhin Salmara LAC,
P/No. 89, H/No. 271, contains name of Tojammel Hoque S/o
Sayed Ali 25 yrs.
Exhibit -28 : Certified Voter list of 2011 of 22 Dakhin Salmara
LAC, P/No. 123, H/No. 271, SI No. 641, 642, 643 contains name
Page No.# 9/20
of Tojammel Hoque S/o Sayed Ali 32 yrs, Sujab Ali S/o Sayed Ali
24 yrs, Sahera Khatun W/o Sujab Ali 22 yrs.
Exhibit-29 : Certified Voter list of 2015 of 22 Dakhin Salmara LAC,
P/No. 123, H/No. 271, SI No. 694, 695, 696, 697 contains --
name of Tojammel Hoque S/o Sayed Ali 34 yrs, Sujab Ali S/o
Sayed Ali 26 yrs, Begum Moklesa Khatun W/q Tojammel Hoque 25
yrs, Sahera Khatun W/o Sujab Ali 24 yrs.
Exhibit-30 : Certified Voter list of 2019 of 22 Dakhin Salmara LAC,
P/No. 154, H/No. 271, SI No. 750, 751, 752, 753 contains name
of Tojammel Hoque S/o Sayed Ali 37 yrs, Sujab Ali S/o Sayed Ali
29 yrs, Begum Moklesa Khatun W/o Tojammel Hoque 28 yrs,
Sahera Khatun W/o Sujab Ali 27 yrs.
Exhibit-31 : Voter ID Card of Tojammel Hoque S/o Sayed Ali.
Exhibit-32 : HSLC examination Admit Card of Year 1997 issued by
Controller of Examination, SEBA, Assam, Guwahati-781921 in the
name of Tozammel Hoque S/o Md Soyed All.
Exhibit-33 : Certified Voter list of 2011 of 22 Dakhin Salmara
LAC, P/No. 123, H/No. 271, SI No. 641, 642, 643 contains name
of Tojammel Hoque S/o Sayed Ali 32 yrs, Sujab Ali S/o Sayed Ali
24 yrs, Sahera Khatun W/o Sujab All 22 yrs.
Exhibit-34 : Certified Voter list of 2015 of 22 Dakhin Salmara LAC,
P/No. 123, H/No. 271, SI No. 694, 695, 696, 697 contains name
of Tojammel Hoque S/o Sayed All 34 yrs, Sujab Ali S/o Sayed Ali
26 yrs, Begum Moklesa Khatun W/o Tojammel Hoque 25 yrs,
Sahera Khatun W/o Sujab Ali 24 yrs.
Exhibit-35 : Certified Voter list of 2019 of 22 Dakhin Salmara LAC,
P/No. 154, H/No. 271, SI No. 750, 751, 752, 753 contains name
of Tojammel Hoque S/o Sayed Ali 37 yrs, Sujab Ali S/o Sayed Ali
29 yrs, Begum -Moklesa Khatun W/o Tojammel Hoque 28 yrs,
Sahera Khatun W/o Sujab Ali 27 yrs.
Exhibit-36 : Resident Certificate dated 07.11.2019 issued by
Gaonbura of S/Salmara Pt-I in the name of Sujab Ali S/o Sayed Ali
of village South Salmara Pt-I, Dist. South Salmara Mankachar.
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Exhibit-37 : Draft NRC published on 30™ July 2018 containing
name of Md Tojammel Hoque S/o Sayed Ali, Sujab Ali S/o Sayed
Ali and others.
Exhibit-38 : Voter ID Card No. GCL1240977 of Sujab All S/o Sayed
Ali aged 25 yrs issued on 01.10.2013.
Exhibit-39 : School Certificate dated 31.12.2019 issued by Head
Teacher of 835 Asamer Alga L.P School In the name of
Sayed Ali S/o Lt. Abdul Mazid Sheikh stating he completed
education In December 1972."
8. The Tribunal however, held that the various documents
which were exhibited, did not prove the link between the petitioner
and his projected father. The oral evidence adduced by the petitioner
and his three witnesses were also not considered to be sufficient to
establish the link between his father or mother to support his
contentions that they were present in India prior to 24 th of March,
1971.
9. The learned Tribunal in so far as Exhibit 6: School Certificate,
Exhibit 32: HSLC examination Admit Card, Exhibit 36: Resident
Certificate dated 07.11.2019 and Exhibit 39: School Certificate dated
31.12.2019 showing the name of Sayed Ali, are concerned, held that
these are not admissible in evidence as the same were not proved
by examining the competent authority, who issued the certificates.
In so far as Exhibit 1: PAN Card and Exhibit 2: Voter ID Card of
petitioner and Exhibit 3: 1951 NRC copy showing the name of
Khoeja Sheikh, son of Kasimuddin projected to be the great
Page No.# 11/20
grandfather of the petitioner, are concerned, these were considered
to be not admissible in evidence on the basis of several orders and
judgments of this Court.
10. The judgments referred to by the petitioner, namely,
Haidar Ali Vs Union of India (supra) delivered by this Court
pertains to appreciation of evidences. However, the facts of the
present case are distinguishable from the facts involved in the said
case, as such not applicable to the present case. The case of
Sirajul Haque (supra) relied upon by the learned counsel for the
petitioner is in respect of minor discrepancies which may be noticed
in the Voter's List. In the facts of the present case, Sirajul Hoque
(supra) will not come to the aid of the petitioner. In Moslem
Mandal (supra) rendered by Full Bench of this Court, it was held
that the principles of appreciation of evidence and the burden of
proof will have to be applied on the facts in each and every case. In
so far as Bant Singh (supra) is concerned, the learned counsel for
the petitioner relies on the Judgment to support his contention that
the oral evidences adduced by the petitioner were not considered by
the Tribunal. In so far as the judgments of the Apex Court in Tulsa
(supra) and Dolgobinda Paricha (supra) are concerned, the same
pertain to appreciation of oral evidences by courts.
The learned counsel for the petitioner relied on Dolgobinda
Paricha (supra) to submit that all oral evidence must be considered
in terms of Section 50 of the Evidence Act. In the context of the
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present proceedings, though the evidence of the relatives of the
proceedee namely, the father, the elder brother and the grandfather
of his cousin were adduced before the Tribunal, the Tribunal failed to
consider such evidences adduced by the petitioner. The decision in
Dolgobinda Paricha (supra) has been followed in Bant Singh
and Another reported in 2008 (4) SCC 75. The judgment of this
Court in Abdul Matali @ Mataleb (supra) pressed into service by
the petitioner, has in the meanwhile been distinguished in a
subsequent Division Bench decision of this Court on facts. Similarly,
the judgment of this Court in Motiur Rahman Vs Union of India
(supra) will have to be understood in light of the facts of the case
which were in consideration before the Court. The Bombay High
Court judgment relied upon by the petitioner pertains to the
interpretation of Section 67 and Section 59 of the Evidence Act.
While there can be no quarrel with the proposition laid by the
Bombay High Court, the same will have to be understood in the
context of the facts of this case in the present proceedings.
11. Having examined the order impugned in the present
proceedings, it is seen that although the petitioner had exhibited as
many as 39 documents, the Foreigners' Tribunal held that Exhibit 4:
Land Deed in the name of Sayed Ali S/o- Abdul Mazid dated
05.11.1969, i.e. his father and Exhibit 5: Land Deed in the name of
Musstt. Toyer Bhan Nessa, W/o- Md. Sayed Ali dated 09.05.1980 i.e.
his mother, Exhibit 6: School Certificate dated 01.09.1989 issued by
Headmaster of 181 No. Dakhin Salmara J.B. Prathamik Vidyalaya in
Page No.# 13/20
the name of Musstt. Toyab Bhanu Nessa, D/o Md. Siraj Uddin Bepari,
Exhibit 32: HSLC examination Admit Card for the year 1997 issued
by Controller of Examination, SEBA, Assam, Guwahati-781021 in the
name of Tozammel Hoque S/o- Md. Sayed Ali, (who is projected to
be the elder brother of the petitioner/proceedee), Exhibit 36:
Residential Certificate dated 07.11.2019 issued by the Gaonburah of
South Salmara Part-I in the name of Sujab Ali, S/o- Sayed Ali and
Exhibit 39: School Certificate dated 31.12.2019 issued by Head
Teacher of 835 Asamer Alga L.P. School in the name of Sayed Ali,
S/o-Lt. Abdul Mazid Sheikh; do not establish the necessary link
between the petitioner and his projected father namely, Sayed Ali or
his mother namely, Musstt. Toyer Bhan Nessa.
The Tribunal also held that the linkage through his grandfather
or great grandfather also could not be established by the petitioner
through the documents exhibited. The Voters lists for the year 2011,
2015 and 2019 which have been exhibited before the Tribunal reflect
the name of the petitioner. The age of the petitioner as pleaded
before the Foreigners' Tribunal was 28 years in 2020. As such his
birth will be in the year 1992, and therefore, he became a major in
the year 2010. However, the Tribunal disbelieved the Voters List of
2011 (Exhibit 28), Voters List of 2015 (Exhibit 29) and Voters List of
2019 (Exhibit 30) which reflect the name of the petitioner along with
his projected brother, his wife and his sister-in-law. The Tribunal
disbelieved the Voters Lists projecting his father or his mother and
refused to accept the contention of the petitioner that he had been
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able to establish the linkage between his projected father or his
mother.
12. The Tribunal while referring to all the 39 exhibits has not
described as to why the Voters Lists or the other documents
including the land documents projected were not accepted by the
Tribunal. The Tribunal did not give reasons as to why the exhibits are
not admissible in evidence. What is also noticed is that the oral
evidences by four (4) witnesses produced by the petitioner including
himself have been disbelieved without giving any reasons.
13. This Court in the full Bench Judgment of State of Assam
& Anr -Vs- Moslem Mandal & Ors., 2013 (I) GLT 809 in para
77 and 78 had specifically laid down that the evidence adduced
before the Tribunal will have to be considered and analyzed to come
to a finding that the same are not sufficient for establishing the link
sought to be established by any proceedee. The relevant paragraphs
of the judgment extracted below:-
"77. According to Phipson, who is considered to be an authority
on the Law of Evidence, the phrase, 'burden of proof', has three
meanings, namely, (i) the persuasive burden, the burden of proof
as a matter of law and pleading the burden of establishing a case,
whether by preponderance of evidence or beyond a reasonable
doubt; (ii) the evidential burden, the burden of proof in the sense
of adducing evidence; and (iii) the burden of establishing the
admissibility of evidence. While persuasive burden i.e. onus
probandi never shifts and is always stable, the evidential burden
may shift constantly, according as one scale of evidence or other
preponderates. Onus probandi rests upon the party, who would
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fail if no evidence at all is adduced. The general principle of
burden of proof that he who invokes the aid of law should be the
first to prove his case may be affected by statutory provision, e.g.
in a case where the matters within the knowledge of the person
against whom a proceeding is initiated, like the proceeding under
the provisions of the 1946 Act, as it will not only be difficult but
also impossible for the State, at whose instance reference is made
to the Tribunal, to first lead evidence on the question as to
whether a person against whom such proceeding is initiated is a
foreigner or not. The provision of Section 9 of the 1946 Act is,
therefore, in accordance with the underlying policy of Section 106
of the Evidence Act, which provides that when any fact is
especially within the knowledge of any person, the burden of
proving that fact is upon him. In a proceeding before the Tribunal
under the provisions of the 1946 Act, the provisions of Section
101 of the Evidence Act is not at all applicable, an exception
having been carved out by Section 9 of the said Act. Even in a
proceeding where the provisions of Sections 101 and 106 of the
Evidence Act are applicable, the burden of proving any fact which
is especially within the knowledge of any person, is upon such
person, by virtue of Section 106 of the Evidence Act, which is an
exception to Section 101 i.e. the general rule of the burden of
proof in such proceeding.
78. In a proceeding under the Foreigners Act, 1946 read with
1964 Order the issue is whether the proceedee is a foreigner. It
being a fact especially within the knowledge of the proceedee,
the burden of proving that he is a citizen is, therefore, upon him,
because of Section 9 of the 1946 Act and it is, therefore, his
obligation to provide enough evidence to establish that he is not
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a foreigner. In an ex-parte proceeding before the Tribunal
constituted under the provisions of 1964 Order the said position
would not be changed as the burden of proving that the
proceedee is not a foreigner continues to be upon the proceedee,
which cannot shift and when the proceedee does not adduce any
evidence to discharge such burden, the Tribunal has no
alternative but to opine the proceedee as a foreigner, having
regard to the main grounds on which the reference has been
initiated and the notice having been issued to the proceedee.
Unlike in a suit in the Civil Court, where the Court may require
the plaintiff to adduce evidence to prove his case even in an ex-
parte proceeding, as the burden of proof lies on the plaintiff in
view of Section 101 of the Evidence Act, in a proceeding before
the Tribunal under the provisions of 1946 Act read with 1964
Order, the same is not required, meaning thereby that the State
is not required to adduce evidence in an ex-parte proceeding, as
the burden lies on the proceedee to prove to the satisfaction of
the Tribunal that he is not a foreigner, in view of the provisions
contained in Section 9 of the 1946 Act."
14. It is also noticed that the land documents, copies of
which were produced by the petitioner before the Tribunal, are seen
have been accepted as exhibits from the LCR. What is not evident
from the recital of the impugned order of the Foreigners' Tribunal, is
whether these documents were presented before the Tribunal in the
manner and the procedure laid down under the Indian Evidence Act,
1872 in order to substantiate the claim of the petitioner. What is
available in the LCR are photocopies from the certified copies of the
land documents. As per provisions of the Evidence Act unless the
Page No.# 17/20
documents presented before the court satisfy the procedure laid
down under the Evidence Act, the same will not be admissible.
However, no such findings are discernable from the recital of the
impugned order nor has it been disclosed in the pleadings that the
documents presented before the Tribunal are public documents and
therefore, the requirements of the provisions of the Evidence Act
had been satisfied. Such a plea has not been taken specifically nor
has it been dealt with by the Tribunal inspite of the documents being
admitted to evidence. If the documents satisfy the requirements of
law, then the same will have to be accepted by the Tribunal and
then the same have to be analyzed to see whether these support the
linkage the petitioner has sought to establish.
15. The impugned order of the Tribunal also does not refer to
the evidences adduced on behalf of the proceedee/petitioner. As has
been held by the Apex Court in Dolgobinda Paricha (supra) in
respect of Section 50 of the Evidence Act that there are three
essential requirements to Section 50 of the Evidence Act namely, (1)
there must be a case where the court has to form an opinion as to
the relationship of one person to another; (2) in such a case, the
opinion expressed by conduct as to the existence of such
relationship is a relevant fact; (3) but the person whose opinion
expressed by conduct is relevant must be a person who as a
member of the family or otherwise has special means of knowledge
on the particular subject of relationship; in other words, the person
must fulfill the condition laid down in the later part of the section .
The Apex Court held that 'opinion' means something more
Page No.# 18/20
than mere retelling of gossip or of hearsay; it means judgment or
belief, that is, a belief or a conviction resulting from what one thinks
on a particular question. The Apex Court further held that the true
scope and effect of Section 50 of the Evidence Act has been
correctly and succinctly put in Chandu Lal Agarwala Vs Khalilar
Rahman reported in ILR (1942) 2 Cal 299, 309, in the
following words,
"It is only 'opinion as expressed by conduct' which is
made relevant. This is how the conduct comes in. The offered
item of evidence is 'the conduct', but what is made admissible
in evidence is 'the opinion', the opinion as expressed by such
conduct. The offered item of evidence thus only moves the
court to an intermediate decision: its immediate effect is only
to move the court to see if this conduct establishes any
'opinion' of the person, whose conduct is in evidence, as to
the relationship in question. In order to enable the court to
infer 'the opinion', the conduct must be of a tenor which
cannot well be supposed to have been willed without the inner
existence of the 'opinion'.
When the conduct is of such a tenor, the court only gets
to a relevant piece of evidence, namely, the opinion of a
person. It still remains for the court to weigh such evidence
and come to its own opinion as to the factum probandum-- as
to the relationship in question."
16. Under the circumstances, we find that the documents
exhibited and the oral evidences adduced by the petitioner before
Page No.# 19/20
the Tribunal have not been considered by the Tribunal, and no
reasons are discernible in the impugned order so as to enable this
Court to appreciate the basis of rejection of these evidences by the
Tribunal. Under the circumstances we are constrained to interfere
with the impugned order dated 27.02.2020 passed by F.T Kamrup
(M) 2nd Guwahati-3 in F.T. Case No. 1638/2015 and remand the
matter back to the Tribunal to hear the same again and arrive at a
judicious finding on the basis of proper evaluation and appreciation
of the evidences presented before the Foreigners' Tribunal.
17. Accordingly, the impugned order dated: 27.02.2020 is
interfered with, set aside and quashed.
18. It is submitted before this Court that the petitioner is in
detention since 27.02.2020. In view of the interference of the
impugned order, the petitioner be released forthwith from his
detention. However, since the matter has been remanded back for a
fresh hearing before the Tribunal, and as the citizenship of the
petitioner has come under a cloud, the petitioner will appear before
the Deputy Commissioner of Police (B), Guwahati and furnish a bail
bond of Rs.5000/- (Rupees five thousand) only pursuant to which he
shall be permitted to remain on bail during the hearing of the matter
afresh. At the time of executing the bail bond, the Deputy
Commissioner of Police (B), Guwahati shall take photograph the
petitioner and also record the biometrics of the iris of both the eyes
of the petitioner as well as the fingerprints of both the hands of the
petitioner.
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19. The matter is accordingly, remanded to the Tribunal for
fresh consideration as directed above.
It is expected that the matter be expeditiously heard and a
fresh opinion be rendered on the evidences adduced before the
Tribunal in accordance with law.
20. The petitioner on being released on bail shall appear before
Foreigners' Tribunal on or before 20th September, 2021 without fail.
In the event, the petitioner fails to appear before the Tribunal as
directed, the Deputy Commissioner of Police (B), Guwahati will
cancel the bail and keep him under detention until such further
order as may be passed by the Tribunal.
21. Writ petition is accordingly allowed to the extent indicated
above.
22. Remit the LCR forthwith.
JUDGE JUDGE
Comparing Assistant
