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All The Reasonable Opportunity To Prove The Claim Must Be Given To The Person Upon Whom The Burden Under Section 9 Of The Foreigners Act Lies.

Urvi Gupta ,
  07 June 2023       Share Bookmark

Court :
Hon’ble High Court of GAUHATI
Brief :

Citation :
WP(C)/2629/2023

CAUSE TITLE:

Momtaj Begum vs. Union of India 

DATE OF JUDGMENT:

17 May 2023

JUDGE(S):  

HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

HONOURABLE MR. JUSTICE ROBIN PHUKAN

PARTIES:

Petitioner: Momtaj Begum

Respondent: Union of India

SUBJECT:

Under Section 9 of the Foreigners Act, the person must be given all reasonable opportunities to prove that he/she is a citizen of India.

RELEVANT PROVISIONS

9. Burden of proof.—If in any case not falling under section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner or is or is not a foreigner of a particular class or description the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person.

BRIEF FACTS

  • Petitioner was referred to the foreigner’s tribunal to determine whether she entered into the State of Assam from the specified territory on or after 25.03.1971 and a case was registered.
  • During the proceedings, the Petitioner presented a certificate from the Gaon Panchayat dated 18.01.2023 and made a prayer that the said certificate be accepted by claiming that it is a new discovery. This plea of the Petitioner was rejected.

CONTENTIONS OF THE PETITIONER

  • Under section 9 of the Foreigners Act of 1946, the burden of proof is on the Petitioner to prove that she is an Indian citizen. Hence she must be given every opportunity to produce any relevant material which may indicate that she is an Indian citizen.
  • Before the Tribunal, the Petitioner relied on a voters list of village Numberpara Part III under Srijangram Circle in the present Bongaigaon district from 1966. Therein, the name of Abubakkar son of A. Sukur appeared at Sl. No. 3. The petitioner claimed that he was her father and to prove the same, the Certificate form Panchayat was sought to be relied on.

ANALYSIS 

  • The court analysed the scheme of the act and held that to prove the above-mentioned claim, the core requirement would  be to examine person who had issued the certificate to depose before the Tribunal firstly, as to the source of his knowledge and secondly, that as per such knowledge, Abubakkar of the voters’ list of 1966 of village Numberpara Part III is the father of the petitioner.
  • The court further observed that such deposition can also be made by any other person having such knowledge and such knowledge may flow either from any public
  • record that may be maintained by the person including the Gaon Panchayat Secretary or it is to his personal knowledge and if it is personal knowledge, the circumstance under which the personal knowledge had been acquired also would have to be explained.

CONCLUSION

To enable the Petitioner to discharge the burden under section 9 of the Act, the Hon’ble High Court allowed the Petitioner to produce any person to depose before the Tribunal and directed that such person would be allowed to depose. Once the deposition is made, such person may be cross-examined by the state.

 
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