Gauhati High Court: The Division Bench of N. Kotiswar Singh and Manish Chaudhury, JJ., set aside the impugned order of the Foreign Tribunal whereby the Tribunal had declared the petitioner non-Indian on the ground of him having failed to prove his ancestral linkage with his father’s relatives.
Factual Matrix of the Case
The present petition had been filed challenging the order passed by the Foreigners’ Tribunal, whereby the petitioner was held to be an illegal migrant and consequently, was declared a foreigner under Section 2(a) of the Foreigners Act, 1946. According to the Tribunal, the proceedee-petitioner had failed to mention his links with the other persons mentioned in the voter’s list of 1970 and also links with his father and grandparents Nadu Miya and. Aymona were also held to be not proved.
Noticeably, the petitioner had mentioned the names of his grandparents whose names were reflected in the voter’s list of 1965 with the necessary details, viz., name of the village, house number, mouza, police station etc. However, in the voter’s list of
1970, the names of the grandparents of the petitioner were shown with similar descriptions but along with the names of the other voters.
Analysis and Observations by the Court
Contrary to the view held by the Tribunal, the Bench opined that the non-explanation of the linkage of the petitioner with others whose names were shown along with his grandparents in the voter’s list of 1970 did not affect the credibility or genuineness of the evidence. The fact that Harmuz Ali was the son of Nadu Mia was clearly established by the voters’ lists of 1970, 1971 and 1965. Since the State never questioned the authenticity or genuineness of the voters’ lists of 1965 and 1970 before the Tribunal, these documents had remained unrebutted.
The “fact in issue”, in the instant case was whether the petitioner could trace his ancestry to the said Nadu Miya (grandfather of the petitioner) through Harmuz Ali (father of the petitioner), as Nadu Miya was admittedly an Indian who had been casting his vote since 1966. And the fact in issue was not whether the petitioner had other relatives also.
Therefore, failure to disclose the names of all the members of the family could not weaken the petitioner’s case and render his evidence unreliable, nor reduce the credibility of his evidence, when there are other corroborating evidences. The Bench stated,
“There is no law nor dictum that if the proceedee does not disclose the names of all the other relatives…”
Whether Rules of Written Statement as prescribed in CPC would strictly apply in proceedings before the Foreign Tribunal?
Considering that no document, other than the notice was given to the petitioner while impugning his citizenship; the Bench opined that while “written statement” as understood under the Civil Procedure Code (CPC) is a defence put up by the defendant with reference to and in response to the specific averments and allegations made in the plaint; in the instant case notice was merely issued to the petitioner informing that he was an illegal entrant to the State, in the territory of Assam and India from the specified territory without any other facts and documents being furnished to him. Thus,
“The petitioner was totally in dark as to how he came to be considered to be a foreigner and not an Indian.”
Order 8 Rule 2 of CPC is that all the facts must be specifically pleaded, to avoid taking the opposite parties by surprise. However, in the proceeding under the Foreigners Tribunal, the onus had been squarely put on the petitioner to prove that he is not a foreigner but an Indian. If the petitioner introduces new facts to discharge his onus, it could not be said to take the State by surprise, as the petitioner was merely trying to prove his case and was not responding to any allegation, other than that he was a foreigner. Therefore, the principles contained in the CPC relating to the scope of written statement and limitations placed thereon cannot be strictly applied in the proceedings before the Tribunal.
On the Issue of Adverse Inference
On the issue that whether the withholding of the fact of petitioner’s father having siblings until examination-in-chief would lead to adverse inference; the Bench while relying on the judgment of Supreme Court in Union of India v. Ibrahim Uddin, (2012) 8 SCC 148, said that, production of less evidence could not necessarily lead to rejection of the claim of the petitioner nor would lead to drawing of any adverse inference. In fact,
“A proceedee must be afforded all the opportunities to prove his case and no hyper technical view should be taken to deny introducing new facts or document, so long as these are relevant and bolster the case of the proceedee.”
Findings and Decision
The Bench expressed disbelief on how the Tribunal could come to this conclusion that the petitioner could not establish his link with his father. Since, the voters’ lists of 1965, 1970 as well as subsequent voters list of 1989 onwards were found to be unrebutted which clearly show the linkage of the petitioner’s father, Harmuz Ali with the claimed grandfather, Nadu Miya.
Further, the Bench was of the view that though the Jamabandi and other revenue receipts, as relied on by the petitioner could not create the title, nevertheless, these were corroborating evidences to show that the petitioner’s father and his grandfather were in possession of certain land during the aforesaid period of 1966 to 1971. The Bench opined that even if these documents do not create title, these certainly indicate that the petitioner’s father and his grandfather were in possession of the certain property in Assam before 1971 which was corroborating evidences to show that the petitioner was a descendant of persons who were already living in Assam prior to 1971 and 1966.
The standard of proof in the discharge of the onus by a proceedee under Section 9 of the Foreigners Act is preponderance of probability as had been also reiterated in the Full Bench decision of this Court in State of Assam v. Moslem Mondal, 2013 (1) GLT 809. Therefore,
“What is important to be proved is that the parents and grandparents of the petitioner were residing during 1965 and 1970, which would rule out any allegation that they entered Assam after 01-01-1966 or after 25-03-1971.”
Hence, the fact in issue had been established without any doubt after the voter’s lists of 1965 and 1970 were proved, which corroborate the oral evidence of the petitioner and others. Further, after considering the transfer certificate of Higher Secondary School in favor of the petitioner’s father and admit card of the petitioner issued by the Board of Secondary Education, the Bench held that the documents clearly show the linkage of the petitioner with his father Harmuz Ali and grandfather, Nadu Miya and accordingly, it had been held that the petitioner was an Indian citizen and not a foreigner. Accordingly, the instant petition was disposed of with leaving the question of whether a proceedee before the Foreign Tribunal is entitled to more than mere notice open for consideration in an appropriate case. [Haidar Ali v. Union of India, 2021 SCC OnLine Gau 683, decided on 30-03-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
Appearance before the Court:
For the Petitioner: Adv. M. J. Quadir and Adv. K. Mira
For the Respondents: Adv. A. Gayan, CGC., SC A. Kalita, SC B. Das and SC L. Devi
