Gauhati High Court
Surzya Bhanu @ Suriya Bhanu vs The Union Of India And 5 Ors on 12 February, 2025
Author: M. Nandi
Bench: Kalyan Rai Surana, Malasri Nandi
Page No.# 1/16
GAHC010014862021
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/648/2021
SURZYA BHANU @ SURIYA BHANU
W/O ROFIQUL HUSSEN, R/O VILL. DHANBANDHA, MOUZA GHILAZARI,
P.S. AND DIST. BARPETA, ASSAM.
VERSUS
THE UNION OF INDIA AND 5 ORS
REPRESENTED BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF
HOME AFFAIRS, SHASTRI BHAWAN, NEW DELHI 1
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT. OF
ASSAM
HOME DEPTT.
DISPUR
GUWAHATI 6
3:THE DEPUTY COMMISSIONER
BARPETA
P.O. AND DIST. BARPETA
ASSAM
PIN 781301
4:THE SUPERINTENDENT OF POLICE (B)
BARPETA
P.O. AND DIST. BARPETA
ASSAM
PIN 781301
5:THE ELECTION COMMISSION OF INDIA
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NEW DELHI TO BE REPRESENTED BY CHIEF ELECTION COMMISSIONER
OF INDIA
NEW DELHI-1
6:THE STATE COORDINATOR OF NATIONAL REGISTRATION
ASSAM
BHANGAGARH
LACHIT NAGAR
GUWAHATI
Advocate for the Petitioner : DR. B AHMED, MR M HUSSAIN,MR. S R BARBHUIYA,MR. N
HAQUE
Advocate for the Respondent : ASSTT.S.G.I., SC, ECI,SC, F.T,SC, NRC
BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE MALASRI NANDI Date : 12-02-2025 JUDGMENT & ORDER (CAV) ((M. Nandi, J) Heard Mr. M. Hussain, learned counsel for the petitioner. Also heard Mr. J. Payeng, learned standing counsel for the FT matters; Mr. H.K Hazarika, learned Govt. Advocate and Mr. A.I. Ali, learned Standing Counsel, ECI and Ms. A. Gayan, learned counsel, CGC.
2. This writ petition has been preferred by the petitioner under Article 226 of the Constitution of India against the impugned opinion dated 15.10.2019, passed by the learned Foreigners' Tribunal No.1st, Barpeta in F.T. Case no.189/16, whereby the petitioner has been declared as foreigner of post 25.03.1971.
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3. The case of the petitioner is that a reference was made by the Superintendent of Police (B), Barpeta against the petitioner under the IM(D)T Act vide reference case No.4451/98 suspecting that the petitioner is a foreigner. Accordingly, the said reference was forwarded to the Foreigners' Tribunal No.1, Barpeta for registering a case against the petitioner and thereafter, a proceeding was initiated against the petitioner. The Tribunal issued notice to the petitioner asking her to submit written statement along with supporting documents to prove that she is an Indian Citizen.
4. On receipt of the notice, the petitioner appeared before the Tribunal and submitted her written statement along with the relevant documents before the Tribunal. In her written statement, the petitioner stated that she was born and brought up at village Taparbori under Barpeta district of Assam. After attaining majority, the petitioner got married to one Rofiqul Hussain, son of late Hazrat Ali of village Dhanbandha of Barpeta district. It is also stated in the written statement that the name of the father of the petitioner appeared in the voter list of 1966, 1970 of village Taparbori under Barpeta LAC. After the death of the father of petitioner, the mother of the petitioner shifted from Taparbori village to Dhanbandha village under 43 No. Barpeta LAC. The gaonburah issued a certificate in favour of the petitioner.
5. During the proceeding in the Foreigners' Tribunal, the petitioner submitted and exhibited the following documents:
a) Voter list of 1966 in respect of the parent of the petitioner vide Exhibit A.
b) Voter list of 1970 in respect of father of the petitioner vide Exhibit B.
c) Voter list of 1977 in respect of mother of the petitioner vide Exhibit C.
d) Voter list of 1993 in respect of petitioner and her mother vide Exhibit D.
e) Voter identity card vide Exhibit E. Page No.# 4/16
6. The petitioner was examined herself as DW-1 and DW-2 and DW-3 are the projected brothers of the petitioner. After hearing the parties and on perusal of the records, the learned Tribunal passed the impugned opinion declaring the petitioner as a foreigner of post 25.03.1971. Hence, this writ petition.
7. It was urged by the learned counsel for the petitioner that in Section 3(1) of Citizenship Act, 1955, it has been specifically stated that every person born in India -
a) on or after 26th day of January, 1950 but before first day of July, 1987;
b) on or after 1st day of July, 1987 but before the commencement of Citizenship (Amendment Act, 2003) and either of whose parents are citizens of India at the time of his birth;
c) on or after the Citizenship (Amendment Act, 2003) were -
i) Both of his parents are citizen of India,
ii) One of whose parents is a citizen of India and other is not illegal migrants at the time of his birth, shall be citizen of India by birth.
8. It is further submitted that the petitioner as DW-1 deposed that she was born and brought up in Taparbori village in Barpeta district of Assam. The name of the parents of the petitioner is Hakim Ali and Hajiran Nessa. The said statement of the petitioner has not been controverted by the State respondent. It is well settled law that unless the pleadings and document are not controverted in the proceeding, the same would amount to admission but the learned Tribunal passed the impugned opinion without considering the above proposition of law and which is liable to be interfered with.
9. It is also the submission of learned counsel for the petitioner that DW- 2 and DW-3 are brothers of the petitioner and their identity was proved by Page No.# 5/16 submitting and exhibiting the documents as Ext.D and E. DW-3 has submitted and exhibited the Voter Identity Card as Exhibit E but his evidence was not believed as he could not submit any voter list of his own. The name of DW -2 appeared in Electoral Roll of 1993 with his family but the evidence of DW-2 was not believed as there is some discrepancy in his name.
10. According to the learned counsel for the petitioner, the learned Tribunal failed to discuss the evidence of DW-1 and discarded the evidence of DW-2 and DW-3 as not reliable on flimsy ground. Therefore, the impugned opinion suffers from perversity which is liable to be set aside.
11. The learned counsel for the petitioner also pointed out the name of the petitioner's mother appeared in electoral roll of 1970 vide Ext.B and the name of the petitioner appeared in electoral roll of 1993 vide Ext.C with her mother and other family members. The Ext.B and Ext.C were admitted in evidence and the said two documents are sufficient to prove the citizenship of the petitioner. By referring the judgment of R.V.E Venkatachala Gonder vs. Arulmigu Viswesaraswami and V.P Temple and Anr., reported in AIR 2003 SC 4548, the learned counsel for the petitioner has submitted that in the said judgment, the Hon'ble Supreme Court has held that ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently.
12. According to the learned counsel for the petitioner, in view of the above observation of Hon'ble Supreme Court, the Tribunal is not correct in objecting the admissibility of the documents produced by the petitioner. As such, the impugned opinion of the Tribunal is liable to be set aside.
13. Another point raised by learned counsel for the petitioner that in case Page No.# 6/16 of Harka Bahadur Chetri vide WP(C) 3001/2018, though Harka Bahadur Chetri was declared foreigner/illegal migrant of post 25.01.1971 but subsequently, this Court held that he is not a illegal migrant as he used to speak in 'Nepali'. Accordingly, the learned counsel for the petitioner prays that case of the present petitioner can be considered on similarly situated issue.
14. In support of his submission, learned counsel has placed reliance on some other case laws :
a) (2020) 1 GLT 330 (Motior Rahman vs. Union of India and others)
b) (2017) 2 GLT 974 (Akhtara Khatun vs. State of Assam and others)
15. Per contra, Mr. J. Payeng has submitted that as per Central Govt. Notification dated 24.09.2018, the persons belonging to the gorkha community used to speak in 'Nepali' which is a language spoken by the neighbouring country- Nepal and this included as language in the 8 th Schedule of the Constitution of India and therefore, they could not have been treated to be migrants from the specified territory i.e. to say Bangladesh. Only those persons who came from the 'specified territory' as defined under section 6 A (1) (C) of the Citizenship Act, 1955 and are leaving in the state of Assam, can be treated as persons migrating from the 'specified territory' in accordance with Section 6A of the Citizenship Act, 1955. It is further submitted that as the petitioner has migrated to Assam from the 'specified territory' namely, from any place in the Country of Bangladesh vide Central Govt. Notification dated 24.09.2018, the petitioner is not entitled to take any advantage of such benefit.
16. According to the learned counsel for the respondent, the petitioner only submitted 1966 voter list of her projecting father vide Ext. A. and vide Page No.# 7/16 Ext. B - voter list of 1970 her projecting parents and Ext. C shows voter list of 1993 the name of the petitioner along with her mother. In between 1970-1993, no other voter list was annexed by the petitioner. It is further pointed out that though the petitioner has claimed her citizenship by birth but she has not mentioned when she was born. By referring judgment of Sarbananda Sonowal vs. Union of India and Another, reported in (2005) 5 SCC 665, as per Para 26 of the judgment, it is clearly mentioned that the person who asserts to be a citizen of a particular country, he/she may be required to give evidence of his date of birth, place of birth, name of his parents and their place of birth and citizenship.
17. Accordingly, Mr. Payeng has submitted that as the petitioner has failed to fulfil the criteria to prove her citizenship, the opinion of the Tribunal needs no interference by this Court.
18. We have considered the submissions of learned counsel for the parties and we have also perused the evidence of witnesses and the opinion of the Tribunal.
19. As per Section 9 of the Foreigner's Act, 1946, the onus of proving the fact that the petitioner is a citizen of India and not a foreigner, lies on the petitioner. Under such background, it is apt to discuss the evidence of witnesses and the documents relied on by the petitioner in this case.
20. The petitioner as DW-1 replied in her cross-examination that she was born in Taparbori village. Her father expired 26 years back and mother expired 7 years back. She could not say when her parents casted vote. She also could not say when the family of her parents shifted from Taparbori to Dhanbandha village. She also could not say in which year she had casted her vote.
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21. DW-2, who is the projected brother of the petitioner, replied in his cross-examination that he could not say when his father expired. His mother casted vote in the year 1997. They shifted from Verandi to Dhanbandha village about 30 years back. He casted vote once but he could not recollect the year. He also could not say when the petitioner casted her vote.
22. DW-3 is one Munnaf Ali, son of late Ilimuddin, has stated that he is the elder brother of the petitioner. After the death of his father, his mother Hajiran Nessa got married to Hakim Uddin. From the deposition of DW-3, it discloses that the petitioner has two brothers. He could not say when the petitioner and her parents had casted vote.
23. After going through the evidence of the witnesses, it reveals that there are lots of contradiction in the statement of the witnesses and the documents relied on by the petitioner. According to the petitioner, she was born and brought up at village Taparbori in Barpeta district of Assam but nowhere she stated when she was born. From the evidence of DW-1, it also reveals that subsequently the family of her parents shifted to Taparbori village to village Dhanbandha. It is also not disclosed when they had changed their residence. But DW-2 did not support the fact of shifting from Taparbori village to village Dhanbandha. According to him, they had shifted from Verandi to Dhanbandha about 30 years back.
24. Coming to the documents relied on by the petitioner, the name of the petitioner appeared in the voter list of 1993 vide Serial no.822. Serial no.819 shows the name of Hajiran Nessa, wife of Hakim. Serial no.820 shows the name of one Manoj Ali, son of Hakim. But the name of DW-2 appears as Montaz Ali, who claims to be the brother of the petitioner. As per 1993 voter list, the age of the petitioner reflects as 18 years. The petitioner was examined before the Page No.# 9/16 Tribunal as DW-1 on 10.07.2018, when she disclosed her age as 35 years which is not tallied with the age of the petitioner. If she was 18 years in the year 1993, her age in the year 2018 should be 42 years.
25. According to the petitioner, DW-2 and DW-3, the name of the father of the petitioner was Hakim Ali, who casted votes in the year 1966 and 1970 along with his wife Hajiran Nessa. Ext.B is the voter list of 1997 which disclosed the name of Hajiran Nessa, wife of Hakim and her address is shown as Dhanbandha. According to DW-3, the mother of the petitioner Hajiran Nessa, who is also his mother, after the death of his father Ilimuddin, got married to Hakim Uddin but it is not revealed when Hajiran Nessa got married to Hakim Uddin. DW-3 is also silent when his father expired. It is interesting to note that DW-1 and DW-2 did not make any whisper regarding first marriage of their mother Hajiran Nessa with Ilimuddin and after the death of Ilimuddin, she got married to their father Hakim Uddin.
26. It is also noticed that the petitioner as DW-1 stated that the gaonburah of both the villages i.e. Taparbori and Dhanbandha issued Certificate in her favour vide Ext.D and E. But, the gaonburah certificates are not available in the record. And Ext.D as per record is 1993 voter list and Ext.E is Elector Photo Identity Card of Munnaf Ali (DW-3).
27. As has been held by the Apex Court in Sarbananda Sonowal (supra), there is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country. In order to establish one's citizenship, normally he may be referred to give evidence of :
i) His date of birth
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ii) Place of birth
iii) Name of his parents
iv) Their place of birth and citizenship.
Sometimes the place of birth of his grandparents may also be relevant like u/s 6 A (1) d of the Citizenship Act. All these facts would necessarily be within the personal knowledge of the person concerned and not of the authority of the State. As per provisions of Section 9 of the Foreigners Act, the burden of proof that he is an Indian citizen is on the proceedee. In the case of Sarbananda Sonowal (supra) dealing with the 'burden of proof', the Apex Court has made the following observation -
"27. Though in a criminal case, the general rule is that the burden of proof is on the prosecution but if any fact is especially within the knowledge of the accused, he has to leave evidence to prove the said fact. In Shambhu Nath Mehra vs. State of Ajmer, AIR 1956 SC 404, it was held as follows :
Section 106 is an exception to Section 101. The latter with its Illustration (a) lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult for the prosecution to establish facts which has specially within the knowledge of the accused and which could prove without difficulty or inconvenience. The word 'Bangladeshi' specially stresses that. It means facts that a pre-eminently or exceptionally within his knowledge.
28. In Collector of Customs, Madras vs. D. Bhoormull AIR, 1974 SC 859, proceedings were initiated u/s 167 (8) (c) of the Customs Act for confiscation of contraband or smuggled Page No.# 11/16 goods and it was observed that -
"..... Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the accused, it is not obliged to prove them as part of its primary burden."
".... On the principle underlying Section 106 Evidence Act, the burden to establish those facts is cast on the person concerned and if he fails to establish or explained those facts, an adverse inference of facts may arise against him which coupled with the presumptive evidence adduced by the prosecution or the department would rebut the initial presumption of innocence in favour of that person and in the result prove him guilty."
29. In State of West bengal vs. Mir Mohd. Omar, reported in (2000) 8 SCC 382, it was held that the legislature engrafted special rule in Section 106 of the evidence act to meet certain exceptional cases in which not only it would be impossible but disproportionately difficult for the prosecution to establish such facts which are specially and exceptionally within the exclusive knowledge of the accused and which he could prove without difficulty or inconvenience. This principle was reiterated in Sanjay @ Kaka vs. State (NCT) of Delhi (2001) 3 SCC 190 and Ezhil vs. State of Tamilnadu, AIR (2002) SC 2017.
30. In R. v. Oliver (1943) All ER 800, the accused was charged with having sold sugar as a wholesale seller without the necessary license. It was held that whether the accused had a license was a fact peculiarly within his own knowledge and proof of the fact that he had a license lay upon him. It was further held that in the circumstances if the case the prosecution was under no necessity to give prima-facie evidence of non-existence of a license. In this case, reference is made to some earlier decisions and it will be useful to notice the same. In R. v. Turner (1916) 5 M & S 206... 14 Digest Page No.# 12/16 430, the learned Judge observed as follows ...
" I have always understood it to be a general rule, that if a negative averment be made by one party, which is peculiarly within the knowledge of the other, the party within whose knowledge it lies and who asserts the affirmative, is to prove it and not he who avers the negative."
31. In Williams v. Russel (1993) 149 LT 190, the learned Judge held as under...
"On the principle laid down in R. v. Turner and numerous other cases where it is an offence to do an act without lawful authority, the person who sets up the lawful authority must prove it and the prosecution need not prove the absence of lawful authority. I think the onus of the negative averment in this case was on the accused to prove the possession of the policy required by the Statute.
32. Section 9 of the Foreigners Act regarding burden of proof is basically on the same lines as the corresponding provision is in U.K and some other western nations and is based upon sound legal principle that the facts which are peculiarly within the knowledge of a person should prove it and not the party who avers the negative."
28. The issue relating to Citizenship, particularly in Assam will have to be considered keeping in mind that there is large scale of illegal migration of Bangladeshi nationals to Assam. In this context, the Hon'ble Apex Court has made significant observations in Sarbananda Sonowal (supra) which is reproduced as follows -
" 38. This being the situation there can be no manner of doubt that the State of Assam is facing external aggression and internal disturbance on account of large scale illegal Page No.# 13/16 migration of Bangladeshi nationals. It therefore, becomes the duty of Union of India to take on measures for protection of the State of Assam from such external aggression and internal disturbance enjoined in "Article 355 of the Constitution".
Having regard to this Constitutional mandate, the question arises whether the Union of India has taken any measures for that purpose.
45. As mentioned earlier, the influx of Bangladeshi nationals who have illegally migrated into Assam pose a threat to the integrity and security of north-eastern region. Their presence has changed the demographic character of that region and the local people of Assam have been reduced to status of minority in certain districts...."
29. In the instant case, the learned Tribunal appreciating the evidence on record has held the petitioner to be a foreign national who illegally entered Assam after the cut off date i.e. 25.03.1971. Such findings of fact cannot be lightly interfered with exercising writ jurisdiction unless it is shown to be a perverse finding or the finding being not based on the evidence on record. The writ court exercising extra ordinary jurisdiction under Article 226 of the Constitution of India cannot sit on appeal over the findings of facts recorded by the Tribunal. Needless to say that, this Court exercising its jurisdiction under Article 226 of the Constitution of India cannot re-appreciate the evidence produced before the Tribunal and on the basis of re-appreciation of evidence, arrived at a finding different from that recorded by such Tribunal. The settled and laid down principle is that a question of fact once decided by the Tribunal on the basis of evidence on record, it is not appropriate for the High Court through Article 226 to re-appreciate the evidence and come to a different conclusion.
30. Keeping in mind the above principles, it is to be seen as to Page No.# 14/16 whether findings arrived at by the tribunal on the basis of evidence on record can be said to be perverse or devoid of appreciation of evidence on record or there is any error of law which has apparent on the face of the record. It is well established principle that a finding of fact cannot be challenged under Article 226 on the ground that the evidence before the Tribunal was insufficient and inadequate to sustain the findings, as a writ court is not a court of appeal. So also , errors in appreciation of documents or affidavits or error in drawing inferences or omission to draw inferences, in other words, errors of a court of appeal only can examine and correct, are not amenable to correction in a Certiorari proceeding. But if it is shown that in recording the said findings the tribunal had erroneously refused to admit admissible and material evidence or had erroneously admitted inadmissible evidence which have influenced the impugned findings, the same can be assailed in a writ petition.
31. In the case in hand, the records have revealed that the reference against the petitioner, was on the basis of the enquiry conducted by the Superintendent of Police, Barpeta. As has been discussed by the learned Tribunal in the impugned judgment, the case projected by the petitioner before the Tribunal is that he was born at village Taparbori and his father casted vote in the year 1966 and subsequently his father expired. It has been rightly held by the learned Tribunal that though the petitioner stated that she was born at village Taparbori but she has failed to mention the year and date of birth when she was born. However, except the voter list of 1993, the petitioner could not produce any voter list and so also in place of his father whose name allegedly appeared in the voter list of 1966. The learned Tribunal had also appreciated the oral testimony of DWs as to what evidence adduced by DW-2 and 3 have been referred to above. Their testimony does not help the case of the petitioner to Page No.# 15/16 prove that she is an Indian citizen by birth.
32. On perusal of the impugned opinion in reference to the evidence on record, it cannot be said to be a case of any wrong appreciation of evidence or record of perverse finding opposed to the evidence on record.
33. Above being the position, this Court exercising writ jurisdiction cannot interfere with the same. As has been held by the Hon'ble Apex Court in LICI vs. Rampal Singh Bishen, reported in (2010) 4 SCC 491 , admission of documents in evidence does not amount to its proof, in other words, merely making of exhibit of a document does not dispense with its proof which is required to be done in accordance with law. The documentary evidence adduced by the petitioner was also required to be proved in accordance with the provisions of the Evidence Act, which she failed to do. Under the law of evidence, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents, may also to admission of contents but not its truth. Apart from the aforesaid position of the case, the documents i.e. gaonburah certificates were not produced and marked as required under the Evidence Act. Needless to say that the contents of the documents cannot be proved by merely filing in a Court. As we have already noticed that though according to the proceedee/petitioner, the gaonburah of respective village issued certificates in her favour but the documents are not available in the record. Moreover, the persons who issued the certificates were also not examined to prove the contents of the documents.
34. For all the reasons aforesaid, we do not find any merit in the writ petition and accordingly, it is dismissed. However, there is no order as to cost.
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35. It is seen that as per order of this Court dated 12.02.2021, bail was granted to the petitioner. Under such backdrop, the bail granted to the petitioner as aforesaid is hereby cancelled.
36. Accordingly, there would be no impediment for the respondents and their competent authorities to take appropriate action as per directions contained in paragraph 12 to 14 of the impugned opinion dated 15.10.2019.
37. With the above observation, the writ petition is disposed of.
38. Transmit the records to the Tribunal.
JUDGE JUDGE Comparing Assistant