Gauhati High Court
Ume Kulsum vs The Union Of India And 6 Ors on 26 September, 2019
Author: Manojit Bhuyan
Bench: Manojit Bhuyan, Ajit Borthakur
Page No.# 1/6
GAHC010126212019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 3793/2019
1:UME KULSUM
D/O. LT. KASIMUDDIN, W/O. MD. NAZIMUDDIN, VILL. SIMALUGURI, P.S.
DALGAON, DIST. DARRANG, ASSAM-784514.
VERSUS
1:THE UNION OF INDIA AND 6 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, NEW DELHI-01.
2:THE ELECTION COMMISSIONER OF INDIA
NEW DELHI-01.
3:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GUWAHATI-06.
4:THE ASSAM CO-ORDINATOR OF NRC
BHANGAGARH
ASSAM
GHY.-05.
5:THE DY. COMMISSIONER
DARRANG
ASSAM
PIN-784116.
6:THE SUPDT. OF POLICE (B)
Page No.# 2/6
DARRANG
ASSAM
PIN-784116.
7:THE OFFICER IN CHARGE
DALGAON POLICE STATION
DIST. DARRANG
ASSAM
PIN-784514
Advocate for the Petitioner : MR. M U MAHMUD
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
26.09.2019 (Manojit Bhuyan, J) Heard Mr. M.U. Mahmud, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing respondent no.1. Ms. B. Das, learned counsel represents respondent no.2 whereas Mr. A. Kalita, learned counsel represents respondent nos.3, 5, 6 and 7. Ms. U. Das, learned counsel appears for respondent no.4.
Petitioner assails opinion dated 29.06.2018 passed by the Foreigners' Tribunal (5th), Darrang, Mangaldai in Case No.FT(V) 2720/2017, declaring her to be an illegal migrant/foreigner of the stream of post 25.03.1971.
For the purpose of discharging burden as required under section 9 of the Foreigners Act, 1946 to prove that she is not a foreigner, the petitioner exhibited as many as 11 (eleven) documents, the particulars of which may be noticed, as under :
Page No.# 3/6
(i) Exhibit-1 - Certified copy of Voter List of 1966, in the name of one Kasimuddin, projected father of the petitioner and Airon, projected mother of the petitioner of village Baligaon, Sub-Division-Mangaldoi (Sadar), Mouza-Pachim Dalgaon, under 73 Dalgaon LAC.
(ii) Exhibit-2 - Certified copy of Voter List of 1971, in the name of one Kasimuddin, projected father of the petitioner and Airon, projected mother of the petitioner of village Baligaon, Sub-Division-Mangaldoi (Sadar), Mouza-Pachim Dalgaon, under 73 Dalgaon LAC.
(iii) Exhibit-3 - NRC of 1951 in the name of one Kasimuddin, projected father of the petitioner of village Baligaon No.34 .
(iv) Exhibit-4 - NRC of 1966 in the name of one Kasimuddin, projected father of the petitioner village Baligaon.
(v) Exhibit-5 - NRC of 1971 in the name of one Kasimuddin, projected father of the petitioner of village Baligaon.
(vi) Exhibit-6 - NRC of 1966 in the name of one Airon, projected mother of the petitioner of village Baligaon.
(vii) Exhibit-7 - NRC of 1971 in the name of one Airon, projected mother of the petitioner of village Baligaon.
(viii) Exhibit-8 - Certified copy of Jamabandi in the name of petitioner along with others as co-pattadars of the land in question
(ix) Exhibit-9 - Certificate issued by Md. Jakir Hussain, Government Gaonburah of village Lat No.2 Majgaon, Baligaon, certifying the name of the petitioner's father as Kasimuddin of village Baligaon is a resident of Baligaon and also stating that Kasimuddin's father is Late Sayed Ali.
(x) Exhibit-10 - Summary of document of NRC of 1951 wherein petitioner's projected father shown as Kasimuddin.
(xi) Exhibit-11 - Affidavit filed by the petitioner to clarify the discrepancies in her projected father's name and age.
Petitioner examined herself as DW-1. One Md. Jakir Hussain, Gaonburah of Page No.# 4/6 Baligaon who issued the Exhibit-9 document, deposed as DW-2.
As indicated above, the petitioner projected one Kasimuddin as his father and one Airon as mother, which names appeared in the Exhibits-1 and 2 Voter Lists of 1966 and 1971 of village Baligaon, Mangaldoi. Petitioner also produced and exhibited NRC of 1951, 1966, 1971 and Legacy Data Code of 1951 at Exhibits-3, 4, 5 and 10, wherein name of Kasimuddin, projected father of the petitioner is reflected and NRC of 1966 and 1971 at Exhibit-6 and 7, wherein name of one Airon, projected mother of the petitioner is reflected. However, reflection of a name in a document is wholly insufficient and without relevance if the proceedee/writ petitioner is unable to connect herself to such entity by means of cogent, reliable and admissible document/evidence. No voter lists of the projected father and mother of the petitioner were produced or exhibited between 1985 and 1996 showing their presence as they were alive during that period. No any voter lists were produced and exhibited reflecting the name of the petitioner by showing relationship with the projected father and mother. She had cast her vote only in the year 2010 with her husband.
The document brought on record for the purpose of establishing linkage to Kasimuddin is the Jamabandi at Exhibit-8 which, hosever, did not stand proved by means of any related Sale Deed showing that the plot of land, which the petitioner claims to have inherited, had been purchased by her projected father on any date prior to the cut-off date of 25.03.1971. Situated thus, the Jambandi document lost its relevance to establish lineage to a predecessor prior to 25.03.1971.
The other link document brought on record for the purpose of establishing linkage to Kasimuddin is the Gaonburah Certificate at Exhibit-9. The DW-2 Md. Jakir Hussain, aged 43 years, in his deposition stated he was appointed as Gaonburah of Baligaon village in 2014 and he has seen Kasimuddin in his childhood and that Kasimuddin died some 20/22 years back and Airon died some 18/19 years back. No statement, whatsoever, was made as regards the source of information to support that Page No.# 5/6 Kasimuddin and Airon are the father and mother of the petitioner. The deposition of said DW-2 is unreliable and untrustworthy and cannot go to support the claim of the petitioner as not being a foreigner and/or that she was born out of Indian parents relatable to a period prior to the cut-off date of 25.03.1971 As the primary issue in a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 relates to determination as to whether the proceedee is a foreigner or not, the relevant facts being especially within the knowledge of the proceedee, therefore, the burden of proving citizenship absolutely rests upon the proceedee, notwithstanding anything contained in the Evidence Act, 1872. This is mandated under section 9 of the aforesaid Act, 1946. In the instant case and as observed above, the petitioner not only failed to discharge the burden but also utterly failed to make proof of the most crucial aspect, that is, in establishing linkage to her projected parents.
On the available materials, we find that the Tribunal rendered opinion/order upon due appreciation of the entire facts, evidence and documents brought on record. We find no infirmity in the findings and opinion recorded by the Tribunal. We would observe that the certiorari jurisdiction of the writ court being supervisory and not appellate jurisdiction, this Court would refrain from reviewing the findings of facts reached by the Tribunal. No case is made out that the impugned opinion/order was rendered without affording opportunity of hearing or in violation of the principles of natural justice and/or that it suffers from illegality on any ground of having been passed by placing reliance on evidence which is legally impermissible in law and/or that the Tribunal refused to admit admissible evidence and/or that the findings finds no support by any evidence at all. In other words, the petitioner has not been able to make out any case demonstrating any errors apparent on the face of the record to warrant interference of the impugned opinion.
On the discussions and findings above, we find no merit in the writ petition.
Page No.# 6/6 Accordingly, the same stands dismissed, however, without any order as to cost.
Interim bail granted by this Court on 26.06.2019 stands recalled.
Office to send back the case records to the Tribunal forthwith.
A copy of this order be made part of the case records of the Tribunal for future reference.
JUDGE JUDGE Comparing Assistant