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Family migrates from WB, son declared foreigner in Assam! Gauhati HC upholds Tinsukia FT’s order, does not accept land documents as proof

06, Mar 2020 | CJP Team

Even as the poor, the unlettered and the dispossessed worry about proving their citizenship in the absence of having proper documents, it turns out even when one has them there is no guarantee that they will be able to prove their case. Munindra Biswas learnt this the hard way.

Now that the final NRC has been published, and 19,06,657 people have been excluded from the final list, CJP’s campaign has become even more focused. Our objective now, is to help these excluded people defend their citizenship before Foreigners’ Tribunals. For this we have already started conducting a series of workshops to train paralegals to assist people at FTs. We will also be publishing a multi-media training manual containing simplified aspects of legal procedure, evidentiary rules, and judicial precedents that will ensure the appeals filed against the NRC exclusions in the FTs are comprehensive and sound, both in fact and in law. This will assist our paralegals, lawyers and the wider community in Assam to negotiate this tortuous process. For this we need your continued support. Please donate now to help us help Assam.

Biswas is a resident of Margherita Town, in the District of Tinsukia, Assam. Biswas’s family hails from West Bengal, but moved to Assam in 1965. In his written statement Biswas submitted that his grandfather Lt. Durga Charan Biswas hailed from the district of Nadia, West Bengal. His father Lt. Indra Mohan Biswas was born there and later migrated to Assam in the year 1965 and started to reside at Kolpara, Ledo in the district of Tinsukia, Assam.

Biswas’s father had purchased land in the year 1970. While filing the written statement before the Tribunal, the petitioner also filed a Registered Sale Deed. The petitioner also filed a copy of Electoral Photo Identity Card. He also filed voter list of 1997 containing his own name. The complete list of documents submitted is as follows:

  1. Exhibit-1 is the voter lists of 1997 bearing the name of the petitioner;
  2. Exhibit-2 is the Electoral Photo Identity Card (EPIC) of the petitioner;
  3. Exhibit-3 is the Registered Sale Deed of 1964;
  4. Exhibit-4 is the Sale Deed dated 23.04.1970;
  5. Exhibit-5 is the Revenue Receipt of the year 1971.

However, the Tinsukia Foreigners’ Tribunal (FT) held that Exhibits 3 and 4 were not proved in the manner as required by law. Since no voter lists prior to 1997 could be furnished by the petitioner, the FT held that the petitioner failed to prove that his parents entered into Assam prior to January 1, 1966. The FT declared Biswas a foreigner who had entered after 1971.

When the matter went to the Gauhati High Court, Biswas’s land documents weren’t enough to convince the court. In its order the HC said, “We have carefully gone through the judgment of the Tribunal. Sale Deeds are private documents, therefore, they must be proved in accordance with law. In the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal reported in (2003) 8 SSC 745, the Supreme Court has reiterated the legal position that marking of documents as exhibits and their proof are two different legal concepts. Mere production and marking of a document as exhibits cannot be held to be due proof of its contents. Its execution has to be proved by admissible evidence i.e., by the evidence of those persons who can vouch safe for the truth of the facts in issue.

The Gauhati HC further said, “Regarding Electoral Photo Identity Card this court in the case of Md. Babul Islam Vs. State of Assam [WP(C) No. 3547 of 2016] has held that Electoral Photo Identity Card is not a proof of citizenship. The petitioner herein has failed to file voter lists prior to 1997, thereby the petitioner failed to prove that he has been staying in Assam prior to 25.03.1971. We find that the Tribunal has correctly appreciated the evidence placed before it and arrived at a correct finding. There is no perversity in the decision of the Tribunal.”

The entire order may be read below.

Recent similar instance of documents being rejected

This case comes close at the heels of a similar case of Sahera Khatun who had submitted as many as 12 documents to prove her citizenship, and was still declared foreigner by an FT and the decision was upheld by the Gauhati HC.  These included seven voters lists that contained names of her grandparents, parents and siblings along with her own. She also submitted a copy of her school leaving certificate from Omkar Sarkar School in Khatara. This certificate gave her date of birth as February 2, 1978. She also submitted certificates issued by two Gaon Burahs from Laruajan and Kanhara villages. Additionally, her mother and brother also gave oral evidence. But the court did not accept her school leaving certificate as valid because the headmaster was not called to testify to prove its authenticity. Further, the oral testimonies of her family were held to be inadequate and Sahera was declared foreigner.

Related:

School headmaster’s testimony missing, Assam woman declared foreigner 

CJP in Action: Two men released from detention camp after CJP intervention 

Mere absence after filing documents not justification for FT order against proceedee: Gauhati HC 

(Feature Image – Hindustan Times)

 

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