WA 261/2011 BEFORE HON’BLE THE CHIEF JUSTICE(ACTING) MR A.K.GOEL HON’BLE MR JUSTICE UJJAL BHUYAN JUDGMENT AND ORDER(ORAL) [Goel,C J(Actg.)] :- This appeal has been preferred against the judgment and order dated 1.7.2011 passed by the learned Single Judge in Writ Petition( C) No. 2358/2011 dismissing the writ petition of the appellant against the order of the learned Foreigners Tribunal, Morigaon declaring the appellant as foreigner under secti on 2(a) of the Foreigners Act, 1946. 2. On a reference made to the Foreigners Tribunal under the provisions of F oreigners( Tribunal) Order, 1964, notice was issued to the appellant, but he den ied the allegation of his being foreigner and submitted that his parents Hazara t Ali and Aiton Nessa had already died. His father was a voter in the voters’ li st of 1965 and the voters’ list of 1970 and he himself was a voter in voters’ li st of 1997. 3. The State led evidence comprising inter alia of PW 2, Shri Prafulla Ch. Bora, who stated that on the enquiry conducted, he found that the appellant ha d migrated from village & P.S. Lakhai, District- Syllet of Bangladesh after 25.3 .1971 and he settled on government land at Naramari Reserve. This allegation was supported by P.W. 1, Pitkan Bardaloi, the local Goanburah. The appellant who was examined himself as O.PW 1 stated that his parents had died and they had co me from village Goraimari under Laharigahat police station and he had studied at Solmari High school. He proved the School certificate, Ext.Ka. He also proved E xts Kha and Ga, voters’ lists of 1965 and 1977. 4. After appreciating the evidence on record, the Tribunal concluded that t he appellant was not an Indian citizen as he was not able to establish his linka ge with his alleged parents. The finding recorded is as under : I have carefully perused the records and heard argument from both sid es. Also I have carefully scrutinized the documents exhibited. It appears from t he exhibited documents namely Ext. Ka, Kha, Ga and Gha that there are discrepanc ies in the name of the father and O.P. No.1(since deceased) of the contesting O .P. As per Ext. Ka, the School Certificate issued by the Headmaster, Solmari Hig h School Md. Ajijur Rahman was the son of Md. Hazarat Ali, but Ext Kha and Ga sh ow that one Harjat Ali was the voter as per voter lists, 1965 and 1970, but the name of the father of said Harjat Ali was shown differently. In Ext. Kha, Harjat Ali was shown as S/O- Asamuddin and in Ext. Ga, said Harjat Ali was shown as S/ O-Hasan. There is a difference in rrespect of age of the voter Harjat Ali in Ex t. Kha and Ga also. Similarly, Aiton Nessa (O.P. No.2) was shown as W/O-Jabed A li and her age was shown as 40(forty) years in Ext. Ga, the voter list, 1970. Si milarly, Ext. Gha, the voter list, 1997 shows the name of one Ajibur Rahman, S/O - Hazarat Ali, aged 26 years, but as per records and the W/S submitted by O.P. N o.3, it was Ajijur Rahman, not Ajibur Rahman. Hence, it can not be said that the voter Ajibur Rahman of ext. Gha and the contesting O.P., Ajijur Rahman was the one and the same person. Similarly, it can not be ascertained from Ext. Kha and Ga that Harjat Ali was the father of the contesting O.Pl., Ajijur Rahman. Accord ing to the evidence of O.P. W.1, the name of his father was Hazarat Ali, not Har jat. These discrepant documents submitted by the O.P. could not establish the r elationship with his father. It was held by the Hon’ble High Court in W.P.( C) N o.190/2009- State Vs. Md. Abdul Kuddus that filing of some documents and pickin g up any name from such documents, so as to establish relationship with the said person as father or mother or even grand-father or grand-mother does not establ ish Indian Citizenship of a foreigner. Discrepancy in the name of the O.P. & hi s father with the name in the documents filed by him can not be taken as legal e vidence to confer Indian Citizenships. The School Certificate (Ext.Ka) in the name of the contesting O.P. can not confer his Indian Citizenship when he failed to establish linkage with his father and mother. Aggrieved by the above, the appellant filed writ petition in this Court. After p erusal of the materials on record, the learned Single Judge upheld the view take n by the learned Tribunal and dismissed the writ petition . The relevant discuss ion is as under : The analysis of evidence by the learned Tribunal has been noted above . One interesting feature of the case is that the petitioner although has claim ed to have read upto Class-VIII in the particular School but while accepting the notice from the Tribunal, he put his LTI, meaning thereby he is illiterate. Bu t on the other hand in the written statement filed by him, he put his signature in Assamese. On comparison of his signatures appearing in the documents pertain ing to the proceeding, such as, appearance slip, vakalatnama, written statement etc., prima facie, it appears that the signatures are all different. Be that as it may, this aspect of the matter need not detain us. In the written statement filed by the petitioner, the aforesaid fact of his father Hazarat Ali being an Indian citizen on the strength of 1965 voter lis t was stated. It was also stated that both his parents, namely, Hazarat Ali and Aitun Nessa, expired during the pendency of the proceeding. It was also stated t hat the name of the petitioner appeared in the voter list of 1997. The written s tatement was filed on 20.4.2007 and thus the same came to be filed after long 6( six) years on initiation of the proceeding. In support of the said stand in the written statement, the petitioner ex hibited the purported School Certificate Ext.Ka , which is undated. There is a lso no indication as to who had issued the Certificate and on which date. On th e fact of it, the said certificate is unbelievable. The particular portion of the Certificate wherein Ext.-Ka is marked is removed and pasted with white pap er on the back. Coupled with this the petitioner also did not choose to examine the author of the said Certificate to prove the same. The 1965 voter list of No.84 Lahorigahat Constituency (Certified copy) ( Ext-Kha) contains the name of one Harjat Ali S/O Asamuddin and thus no way rel ates to the father of the petitioner, whose name is Hazarat Ali. Likewise, the 1 970 certified copy of the voter list (Ext.Ga) of the same constituency contains the name of one Harjat Ali S/o. Hasan. Interestingly, in this voter list, Aitun Nessa, whom the petitioner claims to be his mother is indicated as wife of Zabed Ali and thus, no way relates to Hazarat Ali or even Harjat Ali. Ext.Gha, 1997 voter list contains the name of one Ajibur Rahman and thus no way relates to Ajijur Rahman i.e., the petitioner. In any case solely on the basis of 1997 voter list, the petitioner cannot claim to be an Indian citizen, by birth. As regards the residential certificate on which the petitioner has place d reliance, the said certificate even if considered on its face value, cannot e stablish that the petitioner is an Indian citizen, by birth. The said certificat es only certify that the petitioner is an inhabitant of the particular localit y. They do not certify that the petitioner is an Indian citizen, by birth. There is another aspect of the matter. As pointed out by the Apex Court in LIC of India Vs. Ram Pal Singh Bisen, reported in (2010) 4 SCC 491 that mere admission of a document in evidence does not amount to its proof. In other word s, mere making of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law. In the instant case, the petitio ner merely exhibited the aforementioned documents without proving the contents and/or establishing the link with the persons named in the said exhibits. The petitioner has claimed that the name of his father is Hazrat Ali and mother is Aitun Nessa. The name of the petitioner is Ajijur Rahman. Accoridng t o the petitioner, the name of his grand father is Asamuddin @ Hasan, but intere stingly, the same very petitioner accepted his grand father as Jan Ali Sheikh in the proceeding before the Tribunal. The notice from the Tribunal was issued t o Hazarat Ali as S/o Jan Ali Sheikh and the said notice was accepted by the peti tioner himself. It was never contended before the Tribunal that the name of his grand father is not Jan Ali Sheikh but Asamuddin or Hasan. The petitioner claims the name of his mother as Aitun Nessa and thus, na turally, said Aitun Nessa should be the wife of his father Hazarat Ali but in th e voter list( Ext-Ga) on which the petitioner placed reliance, she is shown to be the wife of Zabed Ali and not Hazarat Ali. In the voter list of 1997 on which the petitioner placed reliance (Ext.Gha), the name of the person concerned is Ajibur Rahman and not Ajijur Rahman. Inspite of the aforesaid revelation as per the own showing of the petiti oner, he claims to be an Indian citizen, by birth. As has been recorded in the findings of the Tribunal, the PW-2 in his deposition fully established the case of the prosecution including exhibition of documents pertaining to the enquiry a nd the report thereof. Although, he was cross examined, nothing contradictory co uld be extracted. As against the evidence adduced in support of the reference fu rnishing complete materials, the only question put to him on behalf of the petit ioner was as to whether he had taken the statement of the persons concerned to which his reply was in the affirmative. No other question was put to him excep t the suggestion that he did not visit the proceedees and ask for the documents. He also denied the suggestion that the proceedees are not illegal Bangadeshi mi grant. PW-1 in his deposition stated that he had accompanied the PW-2 when he v isited the place of the proceedees and that they could not produce any document in support of their claim of Indian citizenship. This witness was not cross exa mined by the petitioner, although he was given opportunity to do so. As against the aforesaid evidence adduced on behalf of the prosecution, the petitioner in his deposition narrated the story in the written statement. In his cross examination, he identified his grand father as Asamuddin. He also s tated that no evidence was adduced to prove death of his parents. Later on, he s aid that he had furnished certificate of death as given by the Panchayat. Irrespective of the aforesaid materials, I have considered the mater fro m the view point of all the above aspects of the matter. Even if it is held tha t the names of the parents of the petitioner appeared in the voters list of 1965 and 1970 respectively, but considering their age in 1965 and 1970, which is 35, 38 and 40 respectively, their names ought to have appeared in earlier and later voter lists but there is no explanation as to why their names did not appear i n any one list other than the 1965 and 1970. While the name of the purported fat her of the petitioner appeared in the voter list of 1965 and 1970 with the recor ding of age as 35 and d38 years respectively, the name of the purported mother of the petitioner appeared only in the voter list of 1970, recording her age as 40 years. But as noted above, the said purported mother, namely, Aitun Nessa , was indicted as wife of Zabed Ali and not Hazarat Ali. If the voter list of 1997 purportedly containing the name of the petitio ner is also accepted, which apart from the fact that the person named therein is Ajibur Rahman and not the petitioner i.e. Ajijur Rahman, but there is no expl anation as to why his name did not appear in any of the voter list prior to 1997 or thereafter, in view of the fact that said Ajibur Rahman was shown as 26 year s of age in the voter list of 1997. From the above and from whatever angle the matter is looked into, there cannot be a second opinion that the petitioner and his parents are foreign nati onals i.e. illegal Bangladeshi migrants who entered into Assam after the cut off date i.e. 25.3.1971. In that view of the matter, the impugned judgment and orde r dated 2-5/4/2011 passed by the Foreigners Tribunal (1st) Morigoan in FT Case ' NO.646/2006, is hereby upheld and the writ petition is dismissed. 5. We have the learned counsel for the parties. 6. Sri HRA Choudhury, Senior Advocate for the appellant submitted that the certificate given by the local Gaonburah and the School certificate establish that his parents were Indian citizen prior to 1970. He further submitted that t his Court in the case of in Moslem Mondal & Ors vs. Union of India and Ors,l 2 010(2) GLT 1, in paragraph 37 held that the civil Court jurisdiction on the issu e of citizenship is not barred and the jurisdiction of Foreigners Tribunal was limited to give opinion on which further action could be taken by the concern ed authority. 7. The learned counsel for the State of Assam, supports the findings of the learned Tribunal as well as the learned Single Judge and submitted the Tribunal as well as the learned Single Judge had recorded the finding based on evidence and held that the Certificate issued by the Gaonburah and the School Certificat e were neither authentic nor sufficient to hold that the appellant was an In dian citizen. Similarly, the voter list claimed to be of his father had no rele vance as there was contradictions in the names found therein and the father’s and grand father’s names given by the appellant. It was further submitted that the question whether the civil Court had jurisdiction or not did not arise befo re us. The Tribunal has also not gone beyond giving opinion on the reference mad e. 8. We have given our anxious consideration to the submissions of the learne d counsel for the parties. The issue before us is as to whether the finding r ecorded by the Tribunal and upheld by the learned Single Judge of this Court r equires any interference by us. 9. As noticed by the Hon’ble Supreme Court in Sarbananda Sonowal vs. Union of India and another, (2005 ) 5 SSC 665, the Bangladeshi nationals illegally m igrating to Assam could cause serious prejudice to the integrity of the NE R egion. Referring to historical events in this regard, following the Assam accor d, the Hon’ble Supreme Court observed that there is good and sound reason for p lacing the burden of proof on the person concerned who claims to be a citizen o f India. He always has to give evidence of his date of birth, place of birth, n ames of his parents, their place of birth and citizenship. Sometimes the place o f birth of his grand parents may also be relevant under section 6-A(1)(d) of the Citizenship Act. The Illegal Migrants(Determination) Tribunal Act,1983 was enacted to de al with the situation of influx of foreigners to the North eastern region of the country. It was observed by the Hon’ble Supreme Court that illegal migration b y Bangladeshi nationals was akin to external aggression and could cause intern al disturbances and it was the duty of the Union of India to take measures for protection of the State from such external aggression and internal disturbances under Article 355 of the Constitution. These observations of the Hon’ble Supreme Court have to be kept in mind while dealing with the issue. 11. Undoubtedly, the order of the Tribunal seriously affects the right of the appellant to claim that he is a Indian citizen. In view of seriousness of the consequences, we have heard the matter at length and carefully perused th e evidence on record. The School Certificate which the appellant has produced, has been found to be unacceptable as neither it indicates any date nor the iden tity of the person who issued it. The voters’ list in respect of Sri Hazarat Ali claimed to be the father of the appellant has also been rejected on the ground that while according to the appellant, before the Tribunal, the name of his gra nd father was Jan Ali Sheikh, in the writ petition, he declared the name of his grand-father as Asamuddin @ Hasan. In the voters’ lists, the name of father Haz arat Ali is mentioned to be Hasan. These serious infirmities could not be expla ined by the appellant so as to make out a ground for interference. 12. We , thus find no ground to interfere with the view taken by the Tribu nal and upheld by the learned Single Judge. 13. As regards, the judgment of this Court in Muslem Mondal & Ors( Supra), against which, a review petition is stated to be pending consideration before Fu ll Bench, we are of the view that no benefit can accrue to the appellant from the said judgment. The question whether the civil Court has jurisdiction or not is not a question before us. It is also not shown that the Tribunal has gone be yond giving its opinion. 14. For the above reasons, we do not find any merit in the appeal. The ap peal is accordingly dismissed. No costs.