In the High Court of Gauhati Writ Jurisdiction (Civil) Writ Petition no: 4125 of 2019 and 3220 of 2019 Petitioner Idrish Ali Respondents The Union of India and 5 Ors. Date of Judgement 27th February 2020 Bench Hon’ble Mr. Justice Manojit Bhuyan and Hon’ble Mr. Justice Parthivjyoti Saikia
Facts of the Case
The petitioner, Iddarish Ali was issued a notice to prove his citizenship of India by the Foreigners’ Tribunal. In accordance with the same, he appeared and filed his statement in writing claiming that his father’s name is Ali Box Ali, that his grandfather was Lt. Joidor and his paternal uncle was Oli Box. He also claimed that he was a resident of Kairigaon which comes under the Police Station of Sarupather in Golaghat District of Assam, although he was the permanent resident of Moiradhwaj, which is under the Dhing Police Station, in Nagaon district of Assam and due to a flood in the year of 1983, he had to shift to Kairigaon.
According to him his grandfather and father were residents of Moirandhwaj, and he also grew up in that village and in the years of 1985 and 1989 cast vote in the same village. His whole family till the year of 1989 used to cast their votes in the village of Moriandhwaj, but after shifting to Kairigaon, he was categorised as a ‘D’ voter, and has been in that list since 1997.
The petitioner then submitted eleven documents to prove his citizenship, after examining them, the Foreigners’ Tribunal on September 5th, 2018, declared him a foreigner. Aggrieved by the same, the petitioner filed a writ petition.
Issues
- Whether the Foreigners’ Tribunal has made an error in examining the evidence of the petitioner, thus has passed an erroneous order declaring the petitioner as a foreigner?
Arguments advanced
Arguments for the Petitioner
- The petitioner contended that the evidence provided by him were sufficient enough to prove that he was the citizen of India.
- He has provided with eleven documents which included, Village certificate from both his villages stating that he is a resident, voter lists of various years, in which his father and uncle appeared, he and his wife appeared etc.
- The evidence provided by him was satisfactory, but the Foreigner’s tribunal has declared him to be a foreigner due to minor inconsistencies.
Arguments for the Respondents
- The respondent contended that the evidence provided by the petitioner was not sufficient to prove that he is the citizen of India beyond reasonable doubt.
- The evidence provided has inconsistencies as in the case of evidence 6 and 7 which were voter list of 1985, with the name of the petitioner and voter list of 1989 name of petitioner and his wife.
- In the list of 1985, the petitioner appears to be 28 years and is mentioned as the son of Ali Box. The petitioner has admitted that he is of age of 65 years, which means that he was born in the year of 1953. However, his name has not appeared in the list in the year of 1975, by when he would have attained the age to vote.
- Further the list post 1971 have no proper links with the pre cut voter lists, and thus, the voter lists mentioned in evidence number 6 and 7 do not help him in any manner.
- Due to lack of proper evidence to suggest that the petitioner is a citizen of India, and thus, he should be categorised as a foreigner.
Held
The court was of the opinion that the tribunal was erroneous in examining the evidence in exhibit in 6 and 7.
It also pointed out the difference between a court and a tribunal. A tribunal is usually established to dispose the matters in a quick manner and also the rules of evidence which are applicable in the courts, are not strictly applicable to the tribunals.
It used the case of Union of India v. R. Gandhi, (2010) 11 SCC 1, in which the Supreme Court elaborated on the differences between a tribunal and the courts. It was held that
Courts are established by the state for administration of justice, while the tribunals are established by a statute for adjudication for special disputes.
Courts are headed by judges, whereas the tribunals have a judicial member and a member who is a technical member and is thus an expert in the matters adjudged by the tribunal.
The courts are governed by procedural laws like the Code of Civil Procedure, the Indian Evidence Act, however the tribunals have their own procedure and are not restricted to the rules mentioned in the Evidence Act.
Thus, as tribunals are not governed by the strict rules of evidence as mentioned in the Evidence Act, it is not needed that a matter has to be proved beyond any reasonable doubt. The observations of the tribunal regarding the exhibit 6 and 7 is unreasonable and the order passed on such an observation is perverse and thus cannot sustain.
Therefore, the writ petition was allowed, and the order of the tribunal was set aside. The tribunal has been ordered to establish a fresh opinion on exhibit 6 and 7 by looking at them from the correct standpoint.
“The views of the authors are personal“
