Gauhati High Court
Mahiruddin vs The Union Of India And 5 Ors on 6 May, 2019
Author: Manish Choudhury
Bench: Manojit Bhuyan, Manish Choudhury
Page No.# 1/8
GAHC010016362019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 576/2019
1:MAHIRUDDIN
S/O- LT KANU SHEIKH, R/O- BAGHMARACHAR, P.S. BAGHBAR, DIST-
BARPETA, ASSAM
VERSUS
1:THE UNION OF INDIA AND 5 ORS.
REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, SHASTRI BHAWAN, TILOK MARG, NEW DELHI- 1
2:ELECTION COMMISSION OF INDIA
NEW DELHI-1
3:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
MINISTRY OF HOME DEPTT.
DISPUR
GHY-6
4:THE STATE CO-ORDINATOR
NRC
ASSAM
BHANGAGARH
GHY-5
5:THE DY. COMMISSIONER
BARPETA
6:THE SUPERINTENDENT OF POLICE (B)
BARPETA
Page No.# 2/8
ASSA
Advocate for the Petitioner : MR. A R SIKDAR
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 06-05-2019 (Manish Choudhury,J) Heard Mr. A.R Sikdar, learned counsel for the petitioner as well as Mr. J. Payeng, learned counsel representing respondent nos. 3, 5 and 6. Also heard Ms. N. Upadhyay, learned counsel representing respondent no.2 and Ms. U. Das, learned counsel representing respondent no.4. None, however, appears for respondent no.1.
The petitioner assails the order / opinion dated 20.06.2018 passed by the Foreigners Tribunal No.6, Barpeta in F.T. Case No.27/2016, declaring the petitioner to be a foreigner on his failure to establish his status of citizenship under Section 6 A of the Citizenship Act. The Tribunal had held that the petitioner, Mahir Uddin, Son of Kanta, Village - Baghmarachar, Police Station - Baghbar, District - Barpeta, Assam as the proceedee, had failed to establish his linkage with his projected parents by cogent, reliable and admissible evidence. It was further held that the petitioner / proceedee had failed to prove his relationship with the projected parents whose identities as Indian citizens by birth itself were questionable.
On a reference made by the Superintendent of Police (Border), Barpeta, the Tribunal issued notice and on receipt thereof, the petitioner duly entered appearance and contested the proceeding initially by filing his written statement and later on, evidence on affidavit as D.W.1 along with 6 (six) Nos. documents. The petitioner also adduced evidence of 2 (two) more witnesses to establish the fact that he was a citizen of India not a foreigner within a meaning of Section 2 (a) of the Foreigners Act, 1946. The petitioner produced and exhibited Page No.# 3/8
(i) Ext.-A :- Certified copy of extract of electoral roll of the year 1966 of Village - Rakhaldubi, Sub-Division - Goalpara, District - Goalpara, (ii) Ext.-B :- Certified copy of extract of electoral roll of the year 1970 of Village - Rakhaldubi, Sub-Division - Goalpara, District - Goalpara, (iii) Ext.-C :- Certified copy of extract of electoral roll of the year 1997 of Village - 181 Korea Pahar, Sub-Division - North Salmara, District - Bongaigaon, (iv) Ext.-D :- Certified copy of extract of electoral roll of the year 1997 of Village - 181 Korea Pahar, Sub-Division - North Salmara, District - Bongaigaon, (v) Ext.-E :- Certificate issued by the Gaon Bura of Village - Baghmara Char, Charge No.31 and (vi) Ext.-F :- An affidavit sworn by the petitioner himself saying "Bahaj Uddin" and " Bahej Ali" were one and same person.
In Ext.-A and Ext.-B, names of 4 (four) persons viz. (a) Anser Ali, Son of Late Moner Uddin, (b) Kanu Sheikh, Son of Anser Ali, (c) Kodbhanu Bibi, Wife of Kanu Sheikh and (d) Bahaj Uddin, Son of Anser Ali appeared as voters which the petitioner projected as his grandfather, father, mother and uncle respectively. In Ext.-C and Ext.-D, name of Bahej Ali, Son of Anser Ali, inter-alia, appeared as a voter. The story projected by the petitioner all along was that "Bahaj Uddin" appearing in Ext.-A and Ext.-B and "Bahej Ali" appearing in Ext.- C and Ext.-D were one and the same person in order to establish the linkage.
As the Tribunal had discussed the testimonies of all the witnesses and evaluated the probative values of all the documentary evidence led by the petitioner in its order of opinion elaborately, it appears germane to make reference to the same in order to avoid iteration and the relevant portions are reproduced here under :-
"I have carefully gone through with the case record, the W/S, and Affidavit filed by the O.P., also the testimony of D.W.-2. The O.P. in his W/S stated that he is a bonafide citizen of India by birth. He was born at village Rakhaldubi P.S. Lakhipur along with his family he had shifted to Baghmara Char under Alopatichar P.S. Barpeta from Rakhaldubi in the year 1995. O.P. has also stated that his father's name is Kanu Sheikh and his name had entered in the voter list of 1966 and 1970 under 44 No. Goalpara West LAC. His uncle's name is Bahaz Uddin and his name also entered in the voter list of 1970 under 44 No. Goalpara West LAC. O.P. further stated that his uncle namely Bahez Ali and his name had also enrolled in the voter list of 1997 and 2010 under 35 No. Abhyapuri South (SC) LAC Page No.# 4/8 under Bongaigaon District. He also added that his uncle had shifted from village:
Rakhaldubi to village: Koreapahar after 1995. O.P. has also stated that the Gaonburha namely Ainuddin, charged no 31 of village: Baghmarachar is in favour of the 2 nd party i.e., the O.P. O.P./Proceedee has also stated that his father's name is Kanu Sheikh but his name is recorded wrongly in the case record of Foreigners' Tribunal as Kanta instead of Kanu Sheikh. Also he stated that his uncle's name is Bahez Ali but in the voter list of 1970 it is wrongly written as Bahaz Uddin. That's all the O.P. has stated in his W/S. In his evidence-in-chief on Affidavit, O.P. has more or less reiterated the entire statements of his W/S except with an addition of his grandfather's name. The O.P. had not mention about his grandfather in his W/S but he overstepped his pleadings by adding his grandfather's name in his evidence. It is pertinent to mention here that, the O.P. did not disclose the material facts which are supposed to be in his specific knowledge. He did not mentioned about his grandparent's in his pleadings, where as one Anser Ali is placed very vaguely as O.P.'s grandfather without giving any details regarding his inhabitancy, from where his grandfather originated, from which period O.P.'s paternal family was residing in village: Rakhaldubi, what is the date of birth of O.P.'s father and his uncle, when and what age O.P.'s grandfather died, in which year and at what age O.P.'s father got married, etc. the O.P./ Proceedee has exhibited four certified voter list of the year 1966, 1970, 1997 and 2010 and marked as Ext A, Ext B, Ext C and Ext D respectively. O.P./Proceedee has also exhibited a permanent residential certificate issued by Gaonburha and marked as Ext E. One Affidavit of O.P. sworn before Notary Public submitted as Ext F. That much of documents relied by O.P. O.P./Proceedee's statements regarding shifting from one place to another are very vague. O.P./Proceedee did not disclose specifically when and who are the other family members shifted along with him to the village: Baghmarachar. He merely stated in Para 5 and Para 9 of W/S and same statement in Para 5 and Para 9 of W/S and same statement in Para 5 and Para 8 of Affidavit as quoted.
Page No.# 5/8 "Para 5 That the 2nd party's shifted along with his family to Baghmara Char, Mouza: Baghbar, P.S. Alopatichar, Dist: Barpeta, Assam from Rakhaldubi, Dist: Goalpara, Assam since 1995."
"Para 8 & 9 That the 2nd party's uncle's shifted from village: Rakhaldubi, Dist:
Goalpara, Assam to village: Korea Pahar, Dist: Bongaigaon, Assam since 1995."
It can be said that through these kind of statements, O.P. obviously trying to misguide and mislead the proceeding of the Tribunal. According to O.P. his grandfather and father and uncle had casted vote in the year 1966 (Ext A) and 1970 (Ext B) under 44 No. Goalpara West LAC. In the said voter list three male and one female's name had entered. But, he omitted to mention about the entry and identity of Kad Bhanu Bibi at Serial No.
70. Also it is seen that there are some discrepancy in the Ext A and Ext B. It is very strange that the O.P.'s grandfather is only 13 years elder than O.P.'s father. It is impossible and absurd that O.P.'s father was born when O.P.s grandfather was merely 13 years old. If the statements of O.P. to be taken into consideration than the contents of Ext A and Ext B seems to be false and contradicted it selves. Besides the Ext A and Ext B no other voter list of intervening period post 1970 had submitted by O.P. Since, O.P. remain silent about the material facts of his paternal side and maternal side it is impossible to taken into consideration O.P.'s claimed to be a bonafide Indian Citizen by birth without relevant and authentic documents. It is apparent in the face of the record that O.P. is trying to project one Anser Ali as his grandfather and Kanu Sheikh as his father. Due to lack of authentic document it is impossible to acknowledge the statement of O.P. /Proceedee that Anser Ali is his grandfather. Hence, O.P., failed to establish that he is a bonafide citizen of India by birth by projecting a few persons as his grandfather, father and uncle whose identifies are found to be not trustworthy, and seems to be fake projection. By producing one or more voter list particularly of the year of 1966 and 1970 and purportedly claimed that the persons are his/her ancestors, parents or other family members with full of anomalies cannot be taken as reliable evidence. Post 1970, the silence of O.P what happened to his grandparents and parents, why they were. Conspicuously absent after Page No.# 6/8 1970, the silence of O.P. had created cloud of doubts and invites adverse presumption against O.P. The other two voter list i.e., Ext C and Ext D belongs to one Bahez Ali. According to O.P. he is O.P.'s uncle. This "Bahaj Uddin"s name (if we take into consideration of O.P.'s statement ) had entered in the vote list of the year 1966 and his age is recorded as '24'. But, in the Ext C, the voter list of 1997 one Bahej Ali's age is recorded as 38 years. This discloser is totally contradictory and makes the statement of O.P. false and fabricated. A person who was about to be 24 years old in the year 1966 his age or to have been 55 years in the year 1997 but the O.P.'s projected uncle as per Ext C is only 38 years old. Hence, the statement of the O.P. and Ext C and Ext B is not trustworthy and in admissible.
The D.W.-2, the Gaonburha, in his deposition has stated that he knows the O.P. for about 20/22 years and at present he resided at village: Baghmarachar and his father's name is Kanu Sheikh. DW 2 has stated only that much. He also stated that he had issued Ext E and Ext 1 is his signature. These two lines of statement failed to furtherance the O.P.s claim. Firstly, the Gaonburha in the capacity of the village head man had issued the said certificate but he has no assessment of O.P.'s family nor he had disclosed any material facts such as the date of birth of the O.P., name of O.P.s mother as well as about her grandparent's. The fact that, the O.P. is residing to the same village with the Gaonburha is not sufficient to issue a certificate under Executive Instruction part VIII chapter I of the Assam Land and Revenue regulation, 1886. The said Executive Instruction of the Gaonburha does not authorize a Gaonburha to issue such certificate and as such, it has no legal sanctity and cannot be treated as a legal certificate and, hence, Ext 'E' renders admissible in evidence. Secondly, besides, the Gaonburha's certificate may not be admissible due to use of State Emblem on the top of it without any authority; such improper use of the State Emblem of India by itself renders in admissibility in evidence.
The O.P. had sworn on Affidavit, which is marked as Ext F. The Hon'ble Gauhati High Court has observed that the Affidavit cannot be treated as a valid piece of evidence. Section 1 & Section 3 of the Evidence Act, read with Order 19 Rule 1 of the Civil Procedure Code, 1908 would make it abundantly clear that Affidavit by a Proceedee Page No.# 7/8 explain discrepancies in name and age of self, father etc. is not evidence. The Apex Court has clarified the position in Sudha Devi -Vs- M P Narayan (AIR 1988 SC 1381)) by declaring that Affidavit filed by a party suo moto and not under direction of Court cannot be termed as evidence. Affidavit is not included as evidence unless law specifically permits. There Ext F is not admissible evidence.
I have analyzed the entire evidence placed by the O.P. and his witness; documents relied by him as well as the materials available in record. The documents relied by O.P./Proceedee have no probative value as discussed above. At every account the O.P./Proceedee has failed miserably to establish his linkage with his parents by cogent, reliable and admissible evidence. The fact in issue is that the O.P. has failed to prove his relationship with the projected parents whose identity itself is questionable whether they are Indian Citizen by birth or not under Section 6 A of the Citizenship Act, 1955."
It is most pertinent to state that the petitioner had failed to produce and exhibit any voter list in which his name was enrolled as a voter. In his evidence in affidavit filed on 26.07.2016, he mentioned his age to be of 59 years. If that is so, the petitioner must have been born in and around the year 1957 and had attained the age of adult franchisee i.e. 21 years in and around the year 1978. The petitioner was conspicuously silent as to whether he had casted his vote at any point of time. In the absence of such details and failure on the part of the petitioner to show any reason, not to speak of any plausible reason, an adverse is to be drawn against him as regards his status of Indian Citizenship. It can also be noticed that in Ext.-A and Ext.-B, the ages of Bahaj Uddin in 1966 and in 1970 were 24 years and 28 years respectively. But in Ext.-C and Ext.-D, the ages of Bahej Ali were shown as 38 years and 50 years respectively in 1997 and 2010. If Bajaj Uddin of 1966 in Ext.-A was the same person whose name appeared as Bahej Ali in Ext.-C in the year 1997, then his age should have been 55 years instead of 38 years. Thus, the plea taken by the petitioner as regards "Bahaj Uddin"
and "Bahej Ali" as one and the same person is not acceptable and the approach of the Tribunal to reach the finding in that respect is not unjustified. In view of the aforesaid discrepancies, the petitioner had failed to establish his linkage with any of the person who is an Indian national.
Page No.# 8/8 From the facts above, we are of the considered view that this is not an appropriate case warranting interference of the opinion / order of the Foreigners Tribunal under Article 226 of the Constitution of India. The certiorari jurisdiction of this Court being supervisory and not an appellate jurisdiction, as such, review of findings of the facts, reached by the Tribunal are not permissible in law. No case is made out that the Tribunal has acted on evidence which is legally inadmissible and / or that it has refused to admit admissible evidence and / or that the findings of the Tribunal is not supported by any evidence at all. There are not errors on the face of record requiring exercise of jurisdiction under Article 226. The Tribunal has correctly held that the petitioner has failed to prove his linkage with his projected father and has failed to prove his citizenship with any valid documents. This writ petition is, resultantly, found to be bereft of merit and the same stands accordingly dismissed. There shall be no order as to costs.
Concerned State authorities to take action accordingly.
Office to send back the case records to the Tribunal forthwith.
JUDGE JUDGE Comparing Assistant