Mahar Uddin Ali vs The Union Of India And 4 Ors
2021 Latest Caselaw 1122 Gua

                                                                      Page No.# 1/16

GAHC010024182017




                        THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                           Case No. : WP(C)/3128/2017

         MAHAR UDDIN ALI
         S/O. LT. INCHU ALI, VILL. NO. 2 GORESWAR, P.O. and P.S. GORESWAR, DIST.
         BAKSA, ASSAM, PIN-781366.



         VERSUS

         THE UNION OF INDIA and 4 ORS.
         REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME
         AFFAIRS, SHASTRI BHAWAN, TILOK MARG, NEW DELHI-110001.

         2:THE STATE OF ASSAM
          REP. BY THE COMM. and SECY. TO THE GOVT. OF ASSAM
          HOME DEPTT.
          DISPUR
          GHY.-06.

         3:THE DY. COMMISSIONER

          BAKSA BTAD
          P.O. and P.S. MUSHALPUR
          DIST. BAKSA BTAD
          ASSAM
          PIN-781343.

         4:THE SUPDT. OF POLICE B

          BAKSA BTAD
          P.S. and P.O. MUSHALPUR
          DIST. BAKSA BTAD
          ASSAM
          PIN-781343.
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            5:THE OFFICER IN CHARGE

             GORESWAR POLICE STATION
             P.O. GORESWAR
             DIST. BAKSA BTAD
             ASSAM
             PIN-781366

Advocate for the Petitioner    : MR.S Z B AKLAS

Advocate for the Respondent : ASSTT.S.G.I.

BEFORE HON'BLE MR. JUSTICE N. KOTISWAR SINGH HON'BLE MR. JUSTICE MANISH CHOUDHURY

Date of hearing & Judgment : 23.03.2021

JUDGMENT AND ORDER (Oral)

[N. Kotiswar Singh, J]

Heard Mr. M.A. Sheikh, learned counsel for the petitioner. Also heard Mr. B. Deka,

learned CGC appearing for respondent No.1; Mr. G. Sarma, learned Special Counsel, F.T.

for respondent Nos.2, 3, 4 & 5.

2. In this petition the petitioner has challenged the opinion dated 10.04.2017 passed

by the learned Foreigners Tribunal, Baksa (BTAD), Tamulpur in F.T. Case Page No.# 3/16

No.126/BAKSA/2016 arising out of Ref. IM(D)T Case No.339/2002.

3. The petitioner was proceeded on a reference being made against him by the

referral authority that the petitioner, Md. Mahar Uddin Ali, aged about 40 years, son of

Late Inchu Ali @ Md. Imus Ali, resident of No.2 Goreswar Village, Police Station Goreswar,

Dist. Baksa (now) earlier under the then district Kamrup Assam, is an illegal entrant to

India (Assam). As per the records, it appears that the reference was made on the basis of

an inquiry conducted by the concerned authorities and finding that the petitioner is

suspected to be an illegal immigrant from Bangladesh.

4. Accordingly, on the basis of the said reference, the Foreigners Tribunal, Baksa at

Tamulpur initiated the proceeding against the petitioner. On being summoned, the

petitioner made appearance before the said Tribunal and submitted his written statement

dated 17.02.2016 claiming that he was born in the year 1977 and his father, late Inchu Ali

@ Md. Imus Ali, S/o- Late Nalu (father) and Tarabenu Nessa (mother) belonged to Village

No.2 Goreswar, Baksa, BTAD, Assam. The petitioner also claimed that his name appeared

in the voters' list of 1977 and one voter identity card was issued by the Election

Commission of India, though in the said identity card his name has been wrongly written

as Nahruddin Ali.

It was claimed that the petitioner has been casting his vote from the year 1997 till

date in Village-Goreswar, Dist. Baksa, BTAD (Assam) under 57 No. Rangia LAC. The

petitioner also submitted other documents, viz., a photo copy of the voters list of 1965

containing his father's name, voters list of the year 1977 in which the name of the

petitioner appeared, a certificate issued by the Gaonburah of Village No.2 Goreswar, Page No.# 4/16

Baksa, BTAD, Assam, and a photo copy of Elector Photo Identity Card. However, the

learned Tribunal was not convinced with the materials and evidences adduced and held

that the petitioner has failed to prove that he is an Indian citizen.

5. Accordingly, the learned Tribunal declared the petitioner a foreigner, who entered

to India after 25.03.1971 without having any valid document and without authority. The

petitioner being aggrieved by the said opinion of the learned Foreigners Tribunal, passed

in F.T. Case No.126/BAKSA/2016, has filed the present writ petition being WP(C)

No.3128/2017.

6. During the pendency of this petition and after the petitioner was declared a

foreigner, the petitioner filed an additional affidavit in this case and annexed a certified

copy of the order dated 29.07.2017 passed by the learned Foreigners Tribunal, Baksa,

Tamulpur in F.T. Case No.351/BAKSA/2016, to bring on record the proceeding initiated

against his brother, namely, Md. Riajuddin Ali. The petitioner claims that the case of Md.

Riajuddin Ali was decided in his favour by the same learned Tribunal vide opinion dated

29.07.2017.

Accordingly, learned counsel for the petitioner submits that the aforesaid finding by

the same Foreigners Tribunal against his own brother will set at rest the issue in his

favour that he is an Indian and not a foreigner, for the reason that the same Tribunal after

considering the evidences and materials on records held that his brother Md. Riajuddin Ali

is not a foreigner.

7. We have perused the certified copy of the order dated 29.07.2017 passed by the Page No.# 5/16

learned Foreigners Tribunal, Baksa, Tamulpur in F.T. Case No.351/BAKSA/2016. From

perusal of the said order, it appears that one Md. Riajuddin Ali, son of one Late Inchu Ali,

resident of Village No.2 Goreswar district Karmup was proceeded before the same

Foreigners Tribunal, Baksa on the basis of a reference made by the Superintendent of

Police (B), Kamrup against the said Md. Riajudin Ali. In the said order dated 29.07.2017 of

the Tribunal, it was also mentioned that the father of Md. Riajuddin Ali is Md. Inchu Ali,

son of S/o- Late Nalu (father) and his mother Tarabenu Nessa and his father's name was

also entered in the voters lists of 1965, 1970 under 66 No. Tamulpur LAC vide serial

No.177 and 168 with House no.70 of Village Goreswar, which were exhibited as Exhibit-1

& 2. From the said order of the Tribunal it is also revealed that the certificate issued by

the Gaon Panchayat was also taken into consideration as well as the family identity card

vide no.76/40 issued by the Goreswar Gaon Panchayat, which were produced in original.

Learned Tribunal after referring to the other documents and evidences on record was

satisfied that there were sufficient trustworthy evidences to prove that the said Md.

Riajuddin Ali, son of Late Inchu Ali is not a foreigner and accordingly, the reference was

answered in the negative by the learned Tribunal, Baksa, Tamulpur and in favour of the

said Md. Riajuddin Ali.

8. From the above what transpires is that though the petitioner, Mahar Uddin Ali, has

been declared to be a foreigner by the learned Foreigners' Tribunal, Baksa vide order

dated 10.04.2017 passed in F.T. Case No.126/BAKSA/2016, soon thereafter, the same

Tribunal vide order dated 29.07.2021 passed in F.T. Case No. 351/BAKSA/2016 also

declared one Md. Riajuddin Ali, son of late Inchu Ali, whom the petitioner claims to be his Page No.# 6/16

elder brother, as an Indian. Thus, a unique situation has arisen here, where the same

Tribunal has declared one brother as a foreigner and another brother as an Indian, if the

claim of the petitioner is to be accepted.

9. We are of the view that such an incongruous position obtaining, however, cannot

be sustained for the reason that two brothers born to the same parents residing in the

same village cannot successively be declared as a foreigner and an Indian respectively by

the same Tribunal, though in separate proceedings, when both are claiming to be Indiasn.

Either both have to be foreigners or Indians as the case may be. However, this is subject

to proof that the said Md. Riajuddin Ali is the elder brother of the present petitioner, Md.

Mahar Uddin Ali.

10. The records relating to the proceeding before the Foreigners Tribunal, Baksa, in F.T.

Case No.351/BAKSA/2016 relate to Md. Riajuddin Ali, who is not before this Court, are not

before this Court As such, merely on the basis of the production of a certified copy of this

order dated 29.07.2017 passed in F.T. Case No.351/BAKSA/2016, this Court cannot arrive

at a conclusive opinion that the said Md. Riajuddin Ali is indeed the elder brother of the

petitioner and therefore, the present petitioner must be also treated to be an Indian.

11. However, we are also of the view that there are sufficient materials mentioned in

the Tribunal's order dated 29.07.2017 which indicate that the names of the parents as

well as residential addresses of both the persons viz, the petitioner herein and Mr.

Riajuddin Ali are similar and as such, if it is proved that the said Mr. Riajuddin Ali is indeed

the elder brother of the present petitioner, the impugned opinion given by the learned

Foreigners' Tribunal in F.T. Case No.126/BAKSA/2016 (reference IMDT Case No.339/2002) Page No.# 7/16

cannot obviously stand. However, as observed above, this is a question of fact which in

our opinion can be best be determined by the learned Tribunal and not by this Court in

exercise of the power of judicial review under Article 226 of the Constitution of India.

Accordingly, we consider it to be a fit case where the learned Tribunal should re-

examine the claim of the petitioner that the said Riajuddin Ali is the elder brother and if it

is found so, the present petitioner also deserves to be declared as an Indian on the

strength of the opinion of the Foreigners' Tribunal in F.T. Case No. 351/BAKSA/2016.

12. Accordingly, we allow this petition by directing the learned Foreigners' Tribunal,

Baksa, Tamulpur to reconsider the claim of the petitioner that he is not a foreigner but an

Indian by taking into consideration the opinion rendered by the Foreigners' Tribunal,

Baksa in F.T. Case no.351/BAKSA/2016 reference in IM(D)T case No.337/2002 whereby

Md. Riajuddin Ali, who the petitioner claims to be his brother, and pass appropriate order

in that regard. As a consequence, since the Foreigners Tribunal, Baksa needs to

reconsider the opinion in F.T. Case No.126/BAKSA/2016 with reference to the petitioner,

the earlier opinion dated 10.04.2017 passed in F.T. Case No.126/BAKSA/2016 by the

learned Foreigners' Tribunal, Baksa is set aside. The learned Tribunal will pass a fresh

opinion by taking into consideration the order passed in F.T. Case no.351/BAKSA/2016 in

accordance with law.

13. It goes without saying that if the learned Foreigners Tribunal finds that the

Foreigners Tribunal in F.T. Case no.351/BAKSA/2016 had indeed passed the opinion on

29.07.2017 declaring the said proceedee Md. Riajuddin Ali to be an Indian and if the

Tribunal after hearing the petitioner also finds that the said Md. Riajuddin Ali is the elder Page No.# 8/16

brother of the petitioner, the Tribunal shall declare the petitioner also as an Indian, for

which the petitioner may be allowed to adduce evidences, oral and documentary, in

support of his claim that he is the brother of Md. Riajuddin Ali.

14. We have issued this direction to the learned Foreigners Tribunal to reconsider the

opinion dated 10.04.2017 regarding the claim of the petitioner on the basis of the

subsequent opinion of the Foreigners Tribunal dated 29.07.2017 for the following reasons.

15. It could have been argued by the State that perhaps the subsequent opinion of the

Foreigners Tribunal dated 29.07.2017 relating to the petitioner's elder brother ought to be

reconsidered in the light of the earlier opinion of the Tribunal date 10.04.2017 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 has attained finality as it was not challenged by the State whereas, the

earlier opinion dated 10.04.2017 has been put to challenge by the petitioner and hence

not yet attained finality, even if rendered earlier.

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

petitioner whereas, the opinion rendered by the Tribunal in the case of Mr. Riajuddin Ali is

favourable to the petitioner. The opinion given by the Tribunal in favour of Md. Riajuddin

Ali was certainly based on certain materials and evidences adduced by the said Mr. Page No.# 9/16

Riajuddin Ali tracing his lineage to the same person and if the same Tribunal could accept

the plea/ evidences produced by Mr. Riajuddin Ali 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

in support of his claim that he too is an Indian and not a foreigner as he is also tracing his

lineage to the same person which, however, it will be subject to the condition that the

present petitioner is able to prove that the aforesaid Md. Riajuddin Ali, the other

proceedee, is indeed his elder brother as claimed by him born to the same biological

parents.

16. When two conflicting opinions are given by the Tribunal on the claim of legacy

traceable to the same person and if these opinions relate to the blood relations as

brothers or sisters, 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 made by the other sibling. Failure on the part of the other sibling to convince the

Tribunal could be 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 even if other sibling does not adduce any evidence except to prove that he is the

brother, 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.

Page No.# 10/16

Thus, the beneficial view must prevail in such a situation, as arisen hereunder.

17. However, before we part with the case, we would like to make certain observations

and directions.

18. From the above what one can observe is that if the contention of the petitioner is

accepted to be correct, there were at least two independent proceedings going on against

the two brothers who were born to the same parents and who are residing in same

village, and these two proceedings had led to two different and conflicting opinions. In

one proceeding, one brother has been declared a foreigner and in another, the other has

been declared an Indian. These two conflicting opinions cannot co-exist for the simple

reason that the two brothers are born to the same parents and as such, they both have

to be either Indians or foreigners as the case may be. In our opinion, the present

paradoxical situation has arisen only because of lack of proper coordination amongst the

various authorities in making the necessary investigation and reference.

19. A proceeding before the Foreigners Tribunal is initiated only when a reference is

made by the referral authority. The referral authority makes the reference only on the

basis of certain investigation carried out by the competent authority under the Foreigners'

Act, 1946 read with the Foreigners (Tribunals) Order, 1964 and other relevant rules and

regulations holding the field. The reference is made, based on the investigation, that a

particular person is an illegal immigrant or a doubtful illegal immigrant. Thus, a reference

can be made only on the basis of the finding arrived at and on conclusion of the

investigation conducted by the investigating authority questioning the citizenship of the

person concerned. If two investigations were carried out against these two brothers, who Page No.# 11/16

are claiming to be staying together in the same village and claiming the same lineage, we

fail to understand why these two investigations were not conducted in a coordinated

manner, so that a common investigating could be carried out, leading to a common

opinion of the investigating authority. If there is a common investigation by the

investigating authority of closely related persons as in the present case, certainly the

referral authority can also make a common reference based on the common finding of the

investigation of different persons but claiming common lineage and parentage whose

citizenship is in doubt. But it appears from the records that two parallel investigations

were conducted oblivious of the similar investigations being carried out in the same family

located in the same village. Resultantly, two separate references were made which we

find to be totally incomprehensible.

20. The situation could have been also averted if the Tribunal had taken up these two

proceedings together as these proceedees relate to the same village and are claiming

same parentage and legacy.

21. Such a situation could have been also avoided if both of the proceedees who had

the knowledge that their own siblings are being proceeded before the same Tribunal and

the said fact had been brought to the notice of the Tribunal. It appears from the records

that the present petitioner did not bring it to the notice of the learned Tribunal that his

claimed own brother Md. Riajuddin Ali, who is residing in the same village, had been also

proceeded against in the same Tribunal.

22. Accordingly, we issue the following directions:

Page No.# 12/16

i) Whenever the investigating authority, acting under the Foreigners Act,

1946 read with the Foreigners (Tribunals) Order, 1964 and relevant laws and

rules and regulations, is making any investigation about the citizenship of

any suspect and if it is found that more than one person who are being

investigated, belong to the same family and/or claim the same parentage

and legacy, the investigating authority should make a common investigation

in respect of these persons, and submit a comprehensive report to the

referral authority. Though, the referral authority can make separate

references in respect of the each of the individual concerned, it should be

connected and consolidated and as far as possible, for proceeding under one

common proceeding, by taking up all these references in respect of different

proceedings together, thus, avoid rendering conflicting opinions in respect of

close relatives/siblings of the same family, who trace their legacy to the

same person.

ii) Wherever separate references have been already made and separate

proceedings are already going on, the proceedees should inform the learned

Tribunal about the pendency of these separate proceedings before the same

Tribunal or before a different Tribunal, so as to avoid such conflicting

opinions.

iii) The learned Tribunal also, as far as possible, shall ascertain from the

records, as to the existence of any such different proceeding going on in

respect of sibling or other relatives claiming legacy of the same person(s) Page No.# 13/16

and conduct a joint proceeding, for which the Tribunals also can inquire from

the proceedees concerned as to the knowledge of the existence of any such

proceeding going on before the same Tribunal or any other Tribunal in

respect of their relatives/siblings claiming the same legacy.

iv) Whenever it has been found by the Tribunal that more than one

proceeding is going on before the same Tribunal, relating to close

relatives/siblings claiming common legacy, the Tribunal should amalgamate

these proceedings and a joint and consolidated proceeding should be

conducted.

v) Where the Tribunal finds that more than one proceeding is being carried

out in different Tribunals in respect of proceedees claiming a common legacy,

the Tribunal should bring to the notice of the State to consolidate these

proceedings before a single Tribunal after hearing all the proceedees in this

regard. If necessary, the State Government/proceedees can move this Court

under Article 226 of the Constitution to consolidate these proceedings to be

heard before a single Tribunal so as to avoid multiplicity of proceedings and

conflicting opinions.

23. In this context, we would like to draw attention of the State Government that

because of the extensive use of Information and Communication Technology in Indian

judiciary, case data have been consolidated for effective management, developed National

Judicial Data Grid (NJDG) and Case Management and Information System (CIS) have

been developed. Because of the NJDG and CIS almost all the courts of our country have Page No.# 14/16

been interlinked, enhancing judicial productivity both qualitatively and quantitatively and

these have made the functioning of the Indian judicial system more transparent and

accountable and facilitated easy disseminating of case information to litigants, apart from

making case management better by the courts and also enabling better supervision by

the competent authorities.

Considering the difficulties and problems as encountered in this case and as

discussed above, we are of the view that creating such data base in respect of the

proceedings before the Foreigners Tribunals considering that a large number of cases are

pending before the Foreigners Tribunals functioning in the State, would help better

management and prevent such problems encountered in the present cases.

24. Foreigners Tribunal though, is a quasi judicial body and not a Court in the strict

sense, certainly discharges a very important role in deciding the citizenship of a person

and to some extent discharges functions akin to that of a court. The opinion of the

Tribunal as to the question whether a person is a foreigner or not is almost binding on the

authority which deals with citizenship.

Citizenship is one of the most important rights of a person in the modern society,

on the basis of which one can claim other rights which are guaranteed or conferred under

the legal system and the Constitution. Thus, if a person is declared an Indian, certainly he

can enjoy all the Fundamental Rights and privileges guaranteed under our Constitution,

which will be deprived of, if a person is declared a foreigner. From that perspective,

Foreigners Tribunal though is a quasi judicial body and giving merely an opinion, yet, it

plays a very crucial role in deciding the citizenship of the person concerned having huge Page No.# 15/16

implications on the person concerned.

25. The Hon'ble Supreme Court in Abdul Kuddus Vs. Union of India, (2019) 6

SCC 604 has already held that principle of res-judicata is applicable in a proceeding

before the Foreigners Tribunal. However, it has been brought to the notice of this Court

that, there are instances where proceedings have been reinitiated against the same

person, inspite of the person being already declared an Indian. Thus, initiating a

subsequent investigation and making another reference and initiating a proceeding again

before a Tribunal can be avoided if such data are properly maintained, which will help

detect such unnecessary duplication of efforts.

26. It has been further observed that some of the proceedees though hail originally

from one district go to another district for their livelihoods and are proceeded in a

different district away from their hometowns. Thus, they face serious disadvantages about

gathering evidences and producing witnesses in support of their claim in the remotely

located Tribunals. Maintenance of such proper data can help proper investigation,

reference and proceeding in the appropriate district to avoid such hardships.

27. Accordingly, we deemed it appropriate to direct the State Government to examine

the feasibility of applying Information and Communication Technology to the proceedings

before the Foreigners Tribunals, to maintain and preserve data, to make the functioning

of the Foreigners Tribunal more efficient, transparent and systematic. It has been stated

at the Bar that a large number of cases of more than 1.4 lakhs of suspected illegal

immigrants are pending before the Foreigners Tribunals and many more persons are

being investigated for reference. Thus, use of Information and Communication Page No.# 16/16

Technology will certainly enhance efficacy, help proper management of the huge number

of cases and avoid duplicating and conflicting opinions.

28. With the above observations and directions, the present petition is allowed.

29. Copy of this order be furnished to the Chief Secretary of Assam for doing the

needful in terms of the above observations and directions.

Copy of this order be also circulated to all the Tribunals in the State of Assam for

doing the needful in terms of the observations and directions.

30. LCRs be immediately remitted to the learned Foreigners Tribunal, Baksa.

31. The petitioner will appear before the learned Tribunal, Baksa on or before

11.05.2021.

                                             JUDGE                             JUDGE




Comparing Assistant