Abiran Bibi vs The State Of Assam & Ors on 23 November, 2015

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Gauhati High Court

Abiran Bibi vs The State Of Assam & Ors on 23 November, 2015

Equivalent citations: AIR 2016 (NOC) 382 (GAU.)

1. This writ petition is directed against the order dated 08/06/2012 of the learned Member, Foreigners Tribunal No. 1, Dhubri (Assam) passed in FT Case No. 1021/GPR/08 (Ref. Case No. R/IMDT/1866/98) (State of Assam Vs. Musstt. Abiran Bibi). By the said order, the learned Tribunal, appreciating the evidence on record has declared the petitioner to be a foreigner of post 25/03/1971.

2. We have heard Mr. I. Alam, learned counsel for the petitioner. Also heard Mr. M. Bhagabati, learned State Counsel and so also Ms. G. Sarma, learned counsel representing the Union of India. We have also gone through the entire materials in record including the records received from the Tribunal.

3. As discussed in the impugned judgement and order, there are lot of discrepancies in the contentions raised by the petitioner before the Tribunal to prove that she is not a foreigner. In one place of the written statement, she claimed her grandfather to be one Jahaddi Sk son of Rahman and that of her grandmother as Rekatun Bibi wife of Rehman, although it should have been Jahaddi Sk. According to the petitioner, their names were included in the NRC of 1951. However, in para 5 and 6 of the same very written statement, the petitioner identified her grandfather s Mohiruddin son of Abdur Rehman and her grandmother as Moziron Nessa wife of Mohiruddin.

WP(C) 3502/2012 oral dated 23/11/15 Page 2 of 8

4. From the documents annexed to the writ petition including the purported NRC and the voter list of 1966 and 1977, which are full of contradictions. In the purported NRC, the name of the purported grandfather of the petitioner i.e. Mohiruddin was not be found. Although as recorded in the impugned order, he was about 30 years of age as on 1951. His name should have appeared along with Jahaddi in the NRC of 1951.

5. The petitioner has projected her father as Md. Nayab Ali son of Mohiruddin, however, no linkage could be established with Nayab as the son of Mohiruddin or conversely Mohiruddin's son is Nayab Ali.

6. The learned Tribunal has discussed the entire evidence on record with categorical findings on the basis of the said evidence. It will be appropriate to re- arrange and reproduce the said findings below :-

"(1) In para 4 of her w ritten statem ent, the OP has stated that the nam es of her paternal grandfather Jahaddi Sk s/ o R ahm an and her grandm other Rekatun Bibi w / o Rahm an (it should be Jahaddi Sk) along w ith the nam es of other fam ily m em bers w ere recorded in the NR C of 1951 at village K alapakanichar under Dhubri P.S., w hereas in para 5 and para 6 of the sam e w ritten statem ent she has stated that the nam es of her grandfather M ohiruddin Sk s/ o Abdul R ahm an and her grandm other M ozirun Nessa w / o.

M ohiruddin along w ith other fam ily m em bers are recorded in the voters' lists of 1966 and 1970 at village Chalakura Payestirchar under South Salm ara LAC. This appears to be a quite contradictory statem ent given by the OP because tw o different persons cannot be the grandfather of the OP and tw o different persons can also not be the grandm other of the OP. The nam e of her grandfather m ay be either Jahaddi Sk s/ o. R ahm an or M ohiruddin s/ o. Abdur/ Abdul R ahm an. Likew ise the nam e of her grandm other m ay either be R ekatun Bibi w / o. Jahaddi Sk or M ozirun Nessa w / o. M ohiruddin.

(2) The OP has annexed the copy of NR C and the voters' list of 1966 and 1977 w ith the w ritten statem ent as Annexure C, Annex ure D and Annex ure e. On perusal of Annexure C WP(C) 3502/2012 oral dated 23/11/15 Page 3 of 8 (copy of NR C of 1951) to the w ritten statem ent, it is found that the nam e of one Jabaddi Sk S/ o. R ahm an, Rekatun Bibi w / o Jabaddi Sk and the nam es of their children are m entioned in it. There is no m ention of the nam e of M ohiruddin in Annexure C. In Annex ure D and Annex ure E, the nam es of M ohiruddin Sk s/ o. Abdul Rahm an, M uzirun Nessa Bibi w / o M ohiruddin, Jobadi Sk s/ o. Abdur R ahm an and others are m entioned. In Annexure D, the age of M ohiruddin is show n as 45 years and the age of Jobadi Sk is show n as 60 years in 1966. If in 1966 the age of M ohiruddin w as 45 years, it can w ell be presum ed that he w as of about 30 years of age in the year 1951 but surprisingly his nam e is m issing in the NR C of 1951. It m ay also be presum ed that M ohiruddin and Jabaddi (or Joabdi as it appears in Annexure D and Annex ure E) are brothers, both being sons of Abdur R ahm an or Rahm an. If that be so, even then the nam e of M ohiruddin should have appeared along w ith Jabaddi in the NR C OF 1951.

(3) During her ex am ination on oath, the OP ex hibited the Voters' lists of 1966 and 1970 as Ex.1 and Ex . 2 respectively. She has also exhibited one school certificate (Ex .5) issued by the Head M aster, Am guri Kharballi M E M adrassa, P.O. K algachia in the district of Barpeta. In the said certificate it is certified that M iss Obiran Nessa (the OP) daughter of M d. Nayab Ali an inhabitant of village Sutirpathar, P.O. K algachia, P.S Sarbhog, Dist- Barpeta, Assam , left the Am guri Kharballi M E M adrassa on 31/ 12/ 1995 and that her date of birth is 01.01.1983. There is no docum ent or reliable evidence on record to show that Nayab Ali (father of the OP) is the son of M ohiruddin w hose nam e appears in the voters' list of 1966 and 1970. The OP annexed tw o linkage certificates w ith her w ritten statem ent as Annexure A and Annex ure A(1). Annex ure A is issued by the President of 55 No. K algachia Gaon Panchayat and Annex ure A(1) is issued by Gaonbura of village K harballi, Sutirpathar, Am guri, Barpeta. From the said tw o linkage certificates also it only appears that the OP is the daughter of M d. Nayab Ali but there is nothing to show that M d. Nayab Ali is the son of M ohiruddin. In this regard, there is only one docum ent on record and that is the voters' list of 1985 (Ex .3) w here one Nayab Ali is show n as son of M ohiruddin. In Ex t.3, the age of Nayab Ali is show n as 36 years. If that be so, then said Nayab Ali should have born in the year 1949 w hen the age of his father M ohiruddin, as per calculation m ade on the basis of the age show n in Ex.1 (voters' list of 1966), WP(C) 3502/2012 oral dated 23/11/15 Page 4 of 8 w as only 17 years. Further, had M d. Nayab Ali, father of the OP, been born in 1949, his nam e should have appeared in the voters' list of 1970 or thereafter in any of the voters' lists prior to 1985 but Ex . 3 is the only docum ent on record w hich show s that his nam e first appeared in the voters' list of 1985.

(4) The OP has stated that her father purchased landed property vide a registered sale deed (Ex. 6) but it is found that the property w as purchased only in the year 2002 and there is nothing on record to show that the father or for that m atter the so called grandfather of the OP had landed property either in the district of Barpeta or Dhubri or any other place in Assam prior to 1971. In Ex. 3, the ex tract copy of the voters' list of 1985, there is the only nam e of the father of the OP and there is no nam e of any of his other fam ily m em bers.

(5) W hatever be the case as it m ay, the fact rem ains that there is no cogent evidence on record to show that M ohiruddin Sk w hose nam e appears in the voters' lists of 1966 and 1970 is the grandfather of the OP or that the father of the OP M d. Nayab Ali is the son of aforesaid M ohiruddin. No satisfactory ex planation has been given by the OP as to w hy the nam e of her father did not appear in any of the voters' lists prior to 1985 or as to w hy the nam e of M ohiruddin also did not appear in the NR C of 1951 along w ith the nam e of Jabaddi Sk, if M ohiruddin w as really the brother of Jabaddi or son of R ahm an or Abdur R ahm an and that too w hen he w as about 19 years of age in 1951. If Nayab Ali w as born in 1949 as per voters' list of 1985 (Ex.3), his nam e should also have appeared along w ith the nam e of Jabaddi Sk and M ohiruddin in the NR C of 1951. But the nam e of both M ohiruddin and Nayab Ali are m issing in the NR C of 1951 w hereas the nam es of his / their other so called relatives are recorded there in the NR C. (6) The only conclusion that can be draw n in this case is that the OP could not establish her linkage w ith M ohiruddin w hose nam e appears in the voters' lists of 1966 and 1970 and also she failed to produce any reliable evidence to show that Nayab Ali is the son of aforesaid M ohiruddin. The evidence of OP, being contradictory in nature, is found to be not trustw orthy as already discussed above. In absence of any reliable and cogent evidence on record, it cannot be said for certain that aforesaid Nayab Ali son of WP(C) 3502/2012 oral dated 23/11/15 Page 5 of 8 M ohiruddin, stated to be the father of the OP, w as a genuine citizen of India and had entered the territory of India in betw een 01.01.1966 and 25.03.1971.

(7) Considering the entire m aterial on record and the discussion above, I am of the considered view that the OP has m iserably failed to discharge her burden of prove that she acquired citizenship of India by birth through genuine Indian parents. R ather it appears that the OP entered India w ithout authority subsequent to 25.03.1971 and hence she is term ed to be an illegal m igrant.

7. The learned Tribunal having returned the above findings appreciating the evidence on record, this Court exercising writ jurisdiction cannot re-appreciate the evidence like an appellate authority. The scope, ambit and jurisdiction of the writ Court has been well defined about which discussions have been made in State of Assam Vs. M oslem M ondal and others reported in 2013 (1) GLT 809 . For a ready reference, para 112 and 113 of the said Full Bench decision is quoted below :-

"112. Article 226 of the Constitution confers on the High Court pow er to issue appropriate w rit to any person or authority w ithin its territorial jurisdiction. The Tribunal constituted under the 1946 Act read w ith the 1964 Order, as noticed above, is required to discharge the quasi-judicial function. The High Court, therefore, has the pow er under Article 226 of the Constitution to issue w rit of certiorari quashing the decision of the Tribunal in an appropriate case. The scope of interference w ith the Tribunal's order, in exercise of the jurisdiction under Article 226, how ever, is lim ited. The w rit of certiorari can be issued for correcting errors of jurisdiction, as and w hen the inferior Court or Tribunal acts w ithout jurisdiction or in ex cess of it, or fails to exercise it or if such Court or Tribunal acts illegally in exercise of its undoubted jurisdiction, or w hen it decides w ithout giving an opportunity to the parties to be heard or violates the principles of natural justice. The certiorari jurisdiction of the w rit Court being supervisory and not appellate jurisdiction, the Court cannot review the findings of facts reached by the inferior Court or Tribunal. There is, how ever, an ex ception to the said general proposition, in as m uch as, the w rit of certiorari can be issued and the decision of a Tribunal on a finding of fact WP(C) 3502/2012 oral dated 23/11/15 Page 6 of 8 can be interfered w ith, if in recording such a finding the Tribunal has acted on evidence w hich is legally inadm issible or has refused to adm it adm issible evidence or if the finding is not supported by any evidence at all, because in such cases such error w ould am ount to an error of law apparent on the face of the record. The other errors of fact, how ever grave it m ay be, cannot be corrected by a w rit court. As noticed above, the judicial review of the order passed by the inferior Court or the Tribunal, in exercise of the jurisdiction under Article 226 of the Constitution, is lim ited to correction of errors apparent on the face of the record, w hich also takes w ithin its fold a case w here a statutory authority exercising its discretionary jurisdiction did not take into consideration a relevant fact or renders its decision on w holly irrelevant factors. Hence, the failure of taking into account the relevant facts or consideration of irrelevant factors, w hich has a bearing on the decision of the inferior court or the Tribunal, can be a ground for interference of the Court or Tribunal's decision in ex ercise of the w rit jurisdiction by the High Court.

113. The Apex Court in Sant Lal Gupta Vs. M odern Coop. Group Housing Society Ltd. reported in (2010)13 SCC 336, reiterating the grounds on w hich a w rit of certiorari can be issued, has opined that such a w rit can be issued only w hen there is a failure of justice and cannot be issued m erely because it m ay be legally perm issible to do so. It is obligatory on the part of the petitioners to show that a jurisdictional error has been com m itted by the statutory authority. There m ust be an error apparent on the face of the record, as the High Court acts m erely in a supervisory capacity and not as the appellate authority. An error apparent on the face of the records m eans an error w hich strikes one on m ere looking and does not need long draw n out process of reasoning on points w here there m ay conceivably be tw o opinions. Such error should not require any ex traneous m atters to show its incorrectness. Such error m ay include giving reasons that are bad in law or inconsistent, unintelligible or inadequate. It m ay also include the application of a w rong legal test to the facts found, taking irrelevant consideration into account and failing to take relevant consideration into account, and w rongful adm ission or ex clusion of evidence as w ell as arriving at a conclusion w ithout any supporting evidence. Such a w rit can also be issued w hen there is an error in WP(C) 3502/2012 oral dated 23/11/15 Page 7 of 8 jurisdiction or authority w hose order is to be review ed has acted w ithout jurisdiction or in excess of its jurisdiction or has failed to ex ercise the jurisdiction vested in him by law ."

8. Above being the position, we do not find any merit in the writ petition and accordingly it is dismissed. Now, the Superintendent of Police (B), Dhubri shall ensure that the petitioner is arrested and detained in the detention camp till his deportation to his country of origin i.e. Bangladesh.

9. Let the matter be listed again after one month so as to submit report by the Superintendent of Police (B) Dhubri about the action taken in the terms of this order.

10. The Deputy Commissioner, Dhubri shall ensure deletion of the name of the petitioner from the voter list, if any.

11. Registry shall send down the case records to the learned court below along with a copy of this judgement and order. A copy of the judgement and order may also be furnished to Mr. M. Bhagabati, learned State Counsel for his immediate necessary follow up action. Copies shall also be sent to the SP(B), Dhubri and Deputy Commissioner, Dhubri, for their immediate follow up action.

                                JUDGE                                         JUDGE



Sukhamay




WP(C) 3502/2012 oral dated 23/11/15                             Page 8 of 8

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