High Court
Case Details
WA 22/2010 BEFORE HON’BLE MR. JUSTICE B.P. KATAKEY HON’BLE MRS. JUSTICE ANIMA HAZARIKA
Decision
JUDGMENT AND ORDER (ORAL) [Katakey, J.] This appeal by the proceedees in F.T. 2nd Case No.35/2006 is directed against th e judgment and order dated 12.12.2009 passed by the learned Single Judge in WP(C ) No.4329/2009 dismissing the writ petition by upholding the order dated 07.08.2 009 passed by the learned Member, Foreigners Tribunal 2nd, Silchar, in the said F.T. case opining that the appellants are foreigners, within the meaning of the Foreigners Act, coming to India from the specified territory after 25.03.1971. 2. A proceeding was registered against the appellants, on the basis of the report submitted by the Superintendent of Police(B), Cachar at Silchar alleging that the appellants are foreigners coming to India from the specified territory after 25.03.1971. The said proceeding was registered and numbered as F.T. 2nd Ca se No.35/2006 in the Foreigners Tribunal 2nd, Silchar. On receipt of the notice, the appellants appeared and contested the said proceeding by filing written sta tement contending inter alia that they are citizens of India by birth, that thei r grandfather Abdul Rohim Gaji alias Rahim Mia was an inhabitant of village Lath igram under Udharbond Police Station in the district of Cachar, who used to resi de over the wakf land belonging to a Mosque on payment of the revenue of Rs.100/ - per year, whose name appears in the voters list of 1965. It has further been p leaded that the appellants’ father Usman Ali along with the appellants also resi ded over the said plot of land by paying rent, which was initially taken on rent by their grandfather. 3. While the State has examined three witnesses in order to prove that the appellants are not the Indian citizens, the appellants have examined two witness es, namely, the appellant No.2 and another person, who is his neighbour, to disc harge their burden under Section 9 of the Foreigners Act to prove that they are not foreigners but the Indian citizens. The appellants also proved two documents being the revenue payment receipt issued in favour of Abdul Rohim Gaji on 12.10 .1949 and the voters list of 1965 stated to contain the name of Rohim Mia alias Abdul Rohim Gaji, the grandfather of the appellant Nos.2 to 5 and grandfather-in -law of the appellant No.1. That apart the appellants have also produced a photo copy of an affidavit purportedly executed by Abdul Rohim Gaji on 29.03.1958 decl aring his name as well as the names of his wife and other children along with th eir respective ages. 4. The learned Member, Foreigners Tribunal upon appreciation of the evidenc e adduced by the parties has opined that the appellants are foreigners within th e meaning of the Foreigners Act, they having come to India from the specified te rritory on or after 25.03.1971. Being aggrieved the appellants preferred WP(C) N o.4329/2009, which has also been dismissed by the learned Single Judge vide judg ment and order dated 22.12.2009 by upholding the opinion rendered by the learned Member, Foreigners Tribunal. Hence the present appeal. 5. We have heard Mr. Mondal, learned counsel for the appellants; Mr. M. Bha gabati, learned Central Govt. counsel appearing for the respondent No.1 and Mr. B. Chetri, learned Sr. Govt. Advocate, Assam appearing for the respondent Nos.2 to 4. 6. Referring to the affidavits as well as Ext.-A and Ext.-B i.e. revenue pa ying receipt issued in favour of the appellant Nos.2 to 5’s grandfather and the voters list containing his name, respectively, Mr. Mondal, learned counsel for t he appellants has submitted that it is apparent therefrom as well as from the or al evidence adduced by the witness Nos.1 and 2 examined on behalf of the appella nts that Abdul Rohim Gaji was the grandfather of the appellant Nos.2 to 5 and gr andfather-in-law of appellant No.1, who has been possessing the land belonging t o the wakf since 1949 and whose name has also been enumerated in the voters list of 1965. It has also been submitted that since the appellants could prove their linkage with Abdul Rohim Gaji alias Rohim Mia alias Rohim Ali, the Tribunal oug ht not to have held that the appellants are foreigners coming to India from the specified territory after 25.03.1971. The learned counsel, therefore, submits th at the learned Single Judge consequently ought not to have dismissed the writ pe tition filed by the appellants as they could prove that they are Indian citizens and are in India at least since the month of October, 1949. 7. Per contra, the learned Central Govt. counsel as well as the learned Sta te counsel, supporting the opinion rendered by the learned Member, Foreigners Tr ibunal as well as the judgment and order passed by the learned Single Judge, hav e submitted that on the face of the affidavit, which was purportedly executed by Abdul Rohim Gaji, it appears that the same is fabricated as neither the name of the Court in which the affidavit was sworn has been mentioned nor the affidavit was in the proper form. It has also been submitted that it appears from the aff idavit that the age of Abdul Rohim Gaji in the year 1958 was 65 years and his wi fe’s name was declared to be Jariga Khatun and on the other hand, according to t he appellants themselves in the voters list of 1965 the name of their grandfathe r, namely, Rohim Mia alias Abdul Rohim Gaji appears, whose age, however, was sho wn to be 80, though in 1965 his age, according to the affidavit filed would be 7 2 years. It has also been submitted that it appears from the said voters list th at the name of the wife of Rohim Mia was stated to be Jharna Bibi and not Jariga Khatun as declared by him in the affidavit filed. The learned Central Govt. cou nsel as well as the learned State counsel referring to the Ext.-A revenue paying receipt, have submitted that though the grandfather of the appellant Nos.2 to 5 may have stayed over the land belonging to the wakf in the year 1949, no other document has been proved by the appellants to demonstrate that they are possessi ng the said land and they after the death of their grandfather continued to pay the rent. It has also been submitted that the appellants also could not produce any document containing the name of their father Usman Ali for any period prior to 1989. The learned counsel, therefore, submit that the appeal deserves to be d ismissed. 8. We have considered the submissions advanced by the learned counsel for t he parties and also perused the opinion rendered by the learned Member, Foreigne rs Tribunal, apart from the judgment and order passed by the learned Single Judg e. We have also perused the evidence available on record as adduced by the parti es. 9. The appellants in order to prove that they are the Indian citizens, whic h burden is on them, in view of the Section 9 of the Foreigners Act, has introdu ced three documents, namely, one affidavit stated to be sworn by Abdul Rohim Gaj i; the revenue receipt issued by the Mosque authority on 12.10.1949 in favour of Abdul Rohim Gaji reflecting realization of the revenue of Rs.100/- and the vote rs list of 1965 containing the name of Rohim Mia, apart from the names of his wi fe and other children. 10. In the affidavit sworn by Abdul Rohim Gaji, he declared his age as 65. H e has also declared that his wife’s name is Jariga Khatun, whose age is about 50 years. In the voters list name of one Rohim Mia appears, whose age was recorded as 80 years. If the person who has sworn the affidavit is 65 years old as on 29 .03.1958, his age cannot be 80 years in the year 1965 and hence it is evident th at Rohim Mia whose name appears in the voters list of 1965 is not the same perso n who has sworn the affidavit on 29.03.1958. That apart in the voters list of 19 65 the name of Rohim Ali alias Rohim Mia’s wife was mentioned as Jharna Bibi, th ough his wife’s name as per his declaration in the affidavit is Jariga Khatun. I t, therefore, appears that the voters list, which has been produced by the appel lants in support of their contention that they are Indian citizen cannot be link ed to the appellants and, therefore, no reliance could be placed on the said doc uments for the purpose of recording the finding that the appellants are Indian c itizens. The revenue receipt (Ext.-A), was issued in favour of Abdul Rohim Gaji, the grandfather of the appellant Nos.2 to 5 on 12.10.1949. In the said document the name of Abdul Rohim Gaji was only mentioned and though the appellants have claimed that after his death his father paid the land revenue and thereafter the y are paying, no document, however, could be produced before the Tribunal to dem onstrate payment of such land revenue either by the appellant or by their predec essor-in-interest, namely, Usman Ali. The appellants also could not produce and prove any document containing the name of Usman Ali. It may be that the grandfat her of the appellant Nos.2 to 5 came to India from the specified territory in th e year 1949 and was settled with the land as mentioned in Ext.-A. That does not necessarily mean that the appellants or their predecessor-in-interest Usman Ali also came along with their grandfather in the year 1949 and stayed in Assam, whe n there is no evidence to that effect. The affidavit mentioned above, also can be the basis for declaring that the appellants are Indian citizen, in the absenc e of any other evidence. 11. In view of the aforesaid discussion, we are of the view that the learned Member, Foreigners Tribunal did not commit any illegality in rendering the opin ion and hence the learned Single Judge has rightly dismissed the writ petition f iled by the appellants. 12. ed to send down the records. The writ appeal is, therefore, dismissed. No costs. Registry is direct