Gauhati High Court
WP(C)/159/2019 on 14 June, 2022
Author: Malasri Nandi
Bench: Malasri Nandi
Page No.# 1/16
GAHC010281572018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/159/2019
PINJIRA KHATUN @ PINJIRA BIBI
WIFE OF MAHAR ALI @ MAHARUDDIN,
DAUGHTER OF LATE KUZRAT ALI @ KURZUK ALI,
VILLAGE- GOTLAPAR (181 BARKOLIA SERSOW),
POLICE STATION FAKIRGANJ, POST OFFICE BARKOLIA SERSOW,
DISTRICT- DHUBRI, ASSAM, PIN- 783330.
......Petitioner.
-Versus-
1. THE UNION OF INDIA,
REP. BY THE SECRETARY TO THE GOVT. OF INDIA,
MINISTRY OF HOME AFFAIRS,
SHASTRI BHAWAN, TRILOK MARG, NEW DELHI-1.
2:THE STATE OF ASSAM,
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
DISPUR, GUWAHATI-6.
3:THE ELECTION COMMISSION OF INDIA,
REP. BY THE CHIEF ELECTION COMMISSIONER,
NEW DELHI- 110001.
4:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HOME DEPARTMENT, DISPUR
GUWAHATI-6.
5:THE DIRECTOR GENERAL OF POLICE, ASSAM
ULUBARI, GUWAHATI-5.
6:THE SUPERINTENDENT OF POLICE (BORDER), DHUBRI
P.O. DHUBRI, DISTRICT- DHUBRI
ASSAM PIN- 783301.
Page No.# 2/16
7:THE DEPUTY COMMISSIONER OF DHUBRI,
P.O. DHUBRI, DIST- DHUBRI
ASSAM, PIN- 783301.
8:THE STATE COORDINATOR OF NATIONAL REGISTER OF CITIZENS,
BHANGAGARH, GUWAHATI,
ASSAM. PIN- 781004.
9:THE ELECTORAL REGISTRATION OFFICER, SOUTH SALMARA LAC
P.O.- SALMARA, DISTRICT- DHUBRI,
ASSAM. PIN- 87312 .
......Respondents.
BEFORE HON'BLE THE CHIEF JUSTICE (ACTING) MR. N. KOTISWAR SINGH HON'BLE MRS. JUSTICE MALASRI NANDI For the Petitioner: Mr. M.U. Mondal, Mr. R. Islam, Mr. I.H. Khan, Mr. G. Sanowar.
......Advocates.
For the Respondents : Asstt. S.G.I.
Ms. L. Devi, SC, NRC.
Mr. G. Sarma, SC, FT.
Mr. A. Bhuyan, SC, ECI.
Ms. K. Phukan, GA, Assam.
......Advocates.
Date of Hearing : 11.11.2021
Date of Judgment : 14.06.20229.04.020
Page No.# 3/16
JUDGMENT AND ORDER
[N. Kotiswar Singh, Chief Justice (Acting)]
Heard Mr. M.U. Mondal, learned counsel for the petitioner. Also heard Mr. G. Sarma, learned Standing Counsel, Foreigners Tribunal appearing for respondent Nos.4, 5 & 6; Ms. L. Devi, learned counsel appearing on behalf of Mr. R.K.D. Chouhdury, learned Assistant Solicitor General of India for respondent No.1; Ms. Devi also appears for respondent No.8 as the learned Standing Counsel, NRC; Mr. A. Bhuyan, learned Standing Counsel, ECI appearing for respondent Nos.3 & 9 and Ms. K. Phukan, learned Government Advocate, Assam appearing for respondent Nos.2 & 7.
2. The present petition has been filed by the petitioner challenging the impugned opinion dated 26.10.2018 passed by the learned Member, Foreigners Tribunal (II), Dhubri, Assam in F.T. Case No.570/F/15 [Police Ref. Case No.1194/98] by which the petitioner was declared a foreigner of post 25.03.1971 stream.
3. The brief facts of the case as can be gathered from the records as also reflected in the order passed by the learned Tribunal are as follows.
4. Upon receipt of summons from the learned Tribunal, the petitioner appeared before the learned Tribunal, filed her written statement and also adduced a number of documents which are as follows,
1. One G.P. certificate, issued by Secretary, Salakata G.P. (Ext.1)
2. One photocopies of Voter I/Card (Ext.2) Page No.# 4/16
3. Extract Certified copy of Electoral Roll, 1966 (Ext.3)
4. Extract Certified copy of Electoral Roll, 1970 (Ext.4)
5. Registered Sale Deed No.1185 dated 03.10.66 (Ext.5)
6. Extract Certified copy of Electoral Roll, 1985 (Ext.6)
7. Extract Certified copy of Electoral Roll, 1997 (Ext.7)
8. Extract Certified copy of Electoral Roll, 2005 (Ext.8)
9. Periodic Khiraj Patta No.469 in the name of the petitioner & others (Ext.10)
10. Ration Card (Ext.11)
11. Voter I. Card (Ext.13 to 19)
12. H.S.L.C. Admit Card of DW-2 (Ext.20)
13. B.A. Passed Certificate of DW-2 (Ext.21)
14. Death Certificate of petitioner's father (Ext.23) The petitioner examined herself as DW1, her brother as DW2 and one Gaon Panchayat Secretary as DW3.
5. The learned Tribunal, however, on assessing the evidence on record, both oral and documentary held that the petitioner was unable to establish her linkage with her projected Indian parents relatable to a period prior to 25.03.1971 which is the cut-off date for identification of foreigners in the State of Assam as per Section 6A of the Citizenship Act, 1955 as amended and the narrative presented by the petitioner suffers from multiple contradictions and omission rendering the same as highly suspicious and improbable.
Accordingly, the learned Tribunal held that the petitioner has failed to discharge her burden under Section 9 of the Foreigners Act, 1946 to prove that she is not a foreigner, but an Indian citizen.
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6. The reasons assigned by the learned Tribunal to give the aforesaid conclusion as mentioned in the impugned opinion dated 26.10.2018 reads as follows.
1. Exihibit 1 is the G.P. certificate, issued by the Secretary, Salkata Gaon Panchayat in the name of Pinjira Khatun, Do Lt. Kuzrat Ali Mandal. In this regards; O.P. summoned the G.P. Secretary Kamal Uddin Ahmed, who issued the certificate on 10-01-18 and appeared before the Tribunal as DW-3 and deposed his evidence. But this G.P. Certificate will not render any help to the O.P. This has been clarified by the Hon'ble Supreme Court in Para 15 and 16 of Rupjan Begum Vs. Union of India, in a decided case vide 2018(1) SCC 579. In para 15, "the certificate issued by the G.P. Secretary merely acknowledge the shifting of residence of a married women from one village to another. The said certificate by itself and by no means establishes any claim of Citizenship of the certificate holder". Moreover the certificate (Ext.1) was issued by the Secretary without proper inquiry and verification of the documents of O.P. The certificate is also not issued as per guideline of state government. Hence O.P. failed to establish her linkage through the submitted Exbt.-1.
2. Exhibit 3 is the extract copy of electoral rolls of 1966 under 32 South Salmara LAC of village 181 Borkolia Sersow, wherein the O.P. claims that her father Kurjuk Ali Mandal S/O Sukur and mother Jelemon Bibi W/O Kurjuk Ali appeared.
3. Exhibit 4 is the extract copy of electoral roll of 1970 under 32 South Salmara LAC of 181 Borkolia Sersew, wherein the O.P. claims that her father Kurjuk Ali Mandal S/O Sukur and mother Jelemon Bibi W/O Kurjuk Ali appeared. On scrutiny of Exbt-4, it is found that the making over the copy to the applicant was on 17/1/13, but the copy was compared by Senior Assistant and certified by concerned election officer on 18/1/13, i.e. the date of making over the copy to the applicant was on 17/1/13 and the date of compare and the date of certified was on 18/1/13. So, it creates doubt over its genuineness. In such irregularity on certification or authentications, the copy has got no evidentiary value. Moreover, the contents of Exbt.4 were also not proved on the basis of the primary evidence, i.e., by comparing with the electoral roll in original and on the basis of testimony of the lawful custodian of the primary evidence. Therefore, the contents of Exbt-4 also remained unproved and the same is found to be wholly unreliable.
4. Exhibit 5 is the regd. Sale deed no. 1185 dated 3.10.66 executed by one Amzed Ali Sk. in Page No.# 6/16 favour of Kujrat Ali Mandal S/O Sukur Ali Mandal. But, here the O.P. has failed to submit any up to date documents or mutation order in respect of the said purchased land through regd. Sale deed (Exbt-5).
5. Exhibit 6, 7 and 8 are the extract copy of electoral rolls of 1985, 1997 and 2005 under 22 South, Salmara LAC of village Boro Ravatari, wherein the name of the O.P. Pinjira Khatun, wife of Kahar and others appeared under serial No.535 and 534 respectively.
6. Exhibit 10 is the Khiraj patta no. 469 issued in the name of O.P. Pinjira Khatun and 13 others by the revenue authority, Dhubri dated 23-02-15, but O.P. has not explained in her evidence as to how she acquired the said land. The O.P. ought to have submitted old land documents relating to the said Khiraj Patta (Exbt-10). By this particular land document, the O.P. cannot claim the citizenship without establishing the existence of her forefathers.
O.P. also submitted other documents as exhibits like Exbts-11 to 23 and also some Annexures, which are not discussed as all are post 1971 documents and it cannot establish her parents' existence in the Indian soil prior to 1971. So discussion of other evidence and documents (exhibits) is not necessary since redundant.
Moreover, as held by the Hon'ble Apex Court "mere long stay in the country and enrolment of the name in the voters list did not confer any right to continue to stay in the country (Citizenship Rules, 1956)".
7. As regards the Exhibit 1 which is the Certificate issued by the Secretary of Salkata Gaon Panchayat, relying on the decision of the Hon'ble Supreme Court in Rupjan Begum Vs. Union of India, 2018 (1) SCC 579, the learned Tribunal observed that "the certificate issued by G.P. Secretary merely acknowledge the shifting of residence of a married women from one village to another, the said certificate by itself and by no means establishes any claim of Citizenship of the certificate holder." Further, it was observed by the learned Tribunal that the certificate was issued by the Secretary without proper inquiry and verification of the documents of the petitioner and the said Certificate was not issued as per guidelines of the State Government and as such, it was held that the petitioner failed to establish her linkage Page No.# 7/16 through the said Ext.1.
8. While not disputing with the proposition laid by the Hon'ble Supreme Court in Rupjan Begum (supra) that the certificate by itself does not establish any claim of citizenship, it certainly can be used to corroborate other evidences. The citizenship of a person perhaps may not be established on a single document inasmuch as such a single document would be required to be corroborated by other evidences as well. It would be cumulative effect of the evidences taken together on which basis the Tribunal can come to a conclusion as to whether the citizenship of a person stands established or not. If many evidences, both oral and documentary are brought on record by a proceedee, the Tribunal has to assess the cumulative effect of these evidences taken together and Tribunal cannot pick up the evidence one by one separately and hold that the evidence by itself does not establish the citizenship.
9. Further, even if, the certificate was not issued by following the procedures required for issuing a certificate, nevertheless, it cannot be said that it is devoid of any evidentiary value as it may establish the fact that the author of the certificate knew the person in whose favour the certificate was issued, which however, depends on facts of each case.
10. Thus, in our view, the observation made by the learned Tribunal as held in the impugned order that the petitioner has failed to establish her linkage through Ext.1 submitted, perhaps may not be the correct approach inasmuch as such a document may corroborate other evidences on record.
11. Coming to the Second finding of the learned Tribunal to the effect that the Ext.3 is the extract copy of electoral rolls of 1966 under 32 South Salmara LAC of Village 181 Borkolia Page No.# 8/16 Sersew, wherein the O.P. (petitioner) claims that her father Kurjuk Ali Mandal, Son of Sukur and her mother Jelemon Bibi, wife of Kurjuk Ali appeared, the learned Tribunal did not make any observation as to the relevancy or reliability of the said document, i.e. Ext.3 in the impugned opinion. Therefore, we will proceed with the assumption that the learned Tribunal did not have any adverse opinion as regards the said Ext.3, Electoral Roll of 1966.
12. The learned Tribunal thereafter proceeded to examine Ext.4 which is the extract copy of Electoral Roll of 1970 under 32 South Salmara LAC of same village 181 Borlolia Sersow in which the petitioner had claimed that her father Kurjuk Ali Mandal, son of Sukur and mother Jelemon Bibi, wife of Kurjuk Ali appeared. The learned Tribunal held that the contents of the said Ext.4 was not proved on the basis of primary evidence by comparing with the Electoral Roll in original and on the basis of the testimony of the legal custodian of the primary evidence and as such, held it to be wholly unreliable. The learned Tribunal also observed that the date of making over the copy to the applicant was on 17.01.13 whereas the copy was compared by the Senior Assistant and certified by the concerned Election Officer on 18.01.2013. Thus, it was held that while the copy was handed over on 17.01.2013, it was compared and certified on 18.01.2013 creating doubt about the genuineness.
13. We also have noted the aforesaid discrepancy inasmuch as the said certificate was made over to the applicant on 17.01.2013 which was compared by the Senior Assistant on 18.01.2013 and certified to be true copy by the concerned Election Officer on 18.01.2013. However, we have also noted that the learned Tribunal had not doubted the signature of the said Senior Assistant who compared the said document and the signature of the Election Officer who certified the same to be true copy was never questioned, and as such the said document ought not have been rejected in toto. The learned Tribunal rejected it as doubtful Page No.# 9/16 because of discrepancy on the date of handing over of the copy and the date recorded by the officer who compared the documents and certified the same to be true copy. In our opinion, if there was such a discrepancy that could have been verified through the official records which are in possession of the authorities.
14. What we have also noted that the petitioner is an illiterate person who put her right thump impression on the documents. Thus, the petitioner who is an illiterate woman perhaps could not detect such a discrepancy at the time of handing over the copy. Thus, it is quite possible that the petitioner who is an illiterate woman did not detect the said discrepancy at the time of handing over the copy to her. On the other hand, the State Government did not raise any doubt nor questioned the authenticity of the said Electoral Roll of 1970 on the grounds mentioned by the learned Tribunal and we are of the view that merely because of the aforesaid discrepancy, the said certified copy, which otherwise, appears to us to be genuine bearing the original signatures of the authorities who copied, compared and certified, ought not to have been thrown out. The Tribunal appears to have taken a very hyper technical view while the Tribunal had a right to doubt it nothing also prevented the Tribunal from getting it verified from the authority concerned.
15. Coming to the other finding as regards Ext.5 which is a registered Sale Deed No.1185 dated 03.10.1966 executed by one Amzed Ali Sk. in favour of Kujrat Ali Mandal, son of Sukur Ali Mandal, the learned Tribunal held that the petitioner has failed to submit any up to date documents or mutation order in respect of the said purchased land through registered Sale Deed.
16. From the above observation, it appears that the learned Tribunal did not take into Page No.# 10/16 consideration of the said registered Sale Deed. In our view, unless questioned by the State, the validity or authenticity or reliability of the said Sale Deed ought not have been ignored merely because the petitioner failed to submit any up to date or mutation order in respect of the said land. What is important is whether the said registered Sale Deed was genuine or not. A registered Sale Deed cannot be ignored by the authority merely on the ground that it is not supported by any up to date document or mutation order in respect of the said purchased land. The certified copy of a document ought to be given its importance to the extent it was permissible. If the validity of the certified copy of the sale deed was not questioned, certain facts mentioned or which can be derived from it cannot be ignored.
17. Accordingly, we are of the view that the learned Tribunal ought not to have ignored the said registered Sale Deed if it is found to be otherwise a genuine document.
18. Similarly, coming to the other Exts.6, 7 and 8 as referred to above, which are the extract copies of the Electoral Rolls of 1985, 1997 and 2005 under 22 South Salmara Legislative Assembly Constituency of village Boro Ravatari wherein the name of the petitioner appears as the wife of Mahor, the learned Tribunal has not made any observation. Accordingly, we would proceed with the assumption that the learned Tribunal did not find anything wrong in the aforesaid Electoral Rolls. Even if the said electoral rolls may not establish the linkage of the petitioner with her father, it, however, can corroborate her testimony that she got married to the named person which in turn would show the consistency of her testimony.
19. Coming to the Ext.10 which is the Khiraj Patta No.469 issued in the name of the petitioner Pinjira Khatun and 13 others by the revenue authority, Dhubri dated 23.02.2015, Page No.# 11/16 the learned Tribunal held that the petitioner did not explain in her evidence as to how she acquired the said land. The learned Tribunal held that the petitioner ought to have submitted old land documents relating to the said Khiraj Patta, i.e. Ext.10 and on the basis of this document the O.P. (petitioner) cannot claim the citizenship without establishing the existence of her forefathers.
20. Coming to other Exts.11 to 23, the learned Tribunal held that these are post 1971 documents and it cannot establish her parents' existence in the Indian soil prior to 1971 and also observed that mere long stay in the country and enrolment of the name in the voters list did not confer any right to continue to stay in the country.
21. Accordingly, with the above discussion of the evidences on record, the learned Tribunal held that the petitioner had failed to discharge her burden under Section 9 of the Foreigners Act, 1946 to prove that she was not a foreigner but a citizen of India.
22. As regards the aforesaid observations made by the learned Tribunal in coming to the conclusion that the petitioner is not an Indian citizen, we, however, are not able to persuade ourselves to accept the same.
23. As discussed above, though the certificate issued by the Secretary, Salkata Gaon Panchayat may not itself be the basis for establishing citizenship of the petitioner, it certainly can be used for the limited purpose for establishing the fact that the petitioner was known to the said Secretary. While going through the evidence and testimony of the said DW3, it comes out very clearly that the DW3 knew the petitioner officially and personally and that he testified that the petitioner was married to one Mahar Ali Shiekh. It was specifically stated by DW3 that he personally knew that the petitioner was the daughter of Kujrat Ali Mondal. He Page No.# 12/16 also testified to the fact that the petitioner was a resident of village Gotlarpar under Salkata Gaon Panchayat. This limited evidence would corroborate the testimony of the petitioner that she got married to her husband, namely, Mahar Ali Sheikh who resided in the village Gotlarpar under Salkata Gaon Panchayat. Therefore, in our view, the said Ext.1 as well as the deposition of the DW3 cannot be said to be wholly irrelevant.
24. As regards the Ext.3 (Electoral Roll of 1966) as, noted above, the learned Tribunal did not give any adverse findings about the genuineness or credibility or relevancy of the said document.
25. Coming to Ext.4 (Electoral Roll of 1970), we have also noted that the learned Tribunal ought not to have rejected the said Ext.4 as unreliable merely because of the aforesaid discrepancy at the time of issuing the certificate.
In fact, when the said Electoral Roll of 1970 was exhibited by the petitioner, no question was asked by the State during the cross-examination of the petitioner questioning the authenticity of the said document and in fact, it was very much within the power and authority of the State to have verified as to whether such an entry in the Electoral Roll of 1970 under 32 South Salmara LAC of village 181 Borkolia Sersow was correct or not.
Merely because Section 9 of the Foreigners Act, 1946 provides that the burden of proof is upon the proceedee, it does not necessarily mean that the burden never gets shifted. Though Section 9 of the Foreigners Act begins with the nomenclature "Burden of proof", reading of the provision of Section 9 shows that the onus of proof would lie on the person that he is or is not a foreigner. Thus, what the statute mentions in the substantive part of the provision is onus of proof.
Page No.# 13/16 Section 9 of the Foreigners Act reads as follows, "9. Burden of proof.- In any case not falling under Section 8 any question arises with reference to this Act or any other made or direction given thereunder, whether any person is or is not a foreigner or is or is not a foreigner of a particular class or description the onus of proving that such a person is not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person".
Unlike burden of proof, Section 9 provides that the onus of proof can shift depending on the nature of evidence laid by a party. Since it is the responsibility of the proceedee to lay the evidence to show that he or she is not a foreigner, yet if the proceedee is satisfactorily able to show that he/she is not a foreigner, the onus of proof may shift to the State.
In the present case, we are of the view that the petitioner has been able to adduce certain evidences to indicate that she is not a foreigner.
26. In the present case, what we have noted is that the State did not question the authenticity of the said document, Ext.4 (Electoral Roll of 1970) and if there be any discrepancy, the State could have pointed out to the petitioners of the said discrepancy. In any event, since the petitioner was not questioned of the said discrepancy, the petitioner did not have the opportunity to explain the same. Though as correctly held by the learned Tribunal that because of discrepancy it creates certain reasonable doubt about the authenticity of the said Electoral Roll, yet, it is seen that some of the other Electoral Rolls have been similarly issued by same officers. For instance, Ext.3 which is the Electoral Roll of 1966 was similarly copied by the same Officer and appears to be also similarly compared and certified by the same officer. So is the case in respect of Electoral Rolls of 1985 and 1997 and as such because of the aforesaid discrepancy, the learned Tribunal ought not to have rejected Page No.# 14/16 the said document, if the learned Tribunal could accept the authenticity of many of the other remaining Electoral Rolls which appear to have been issued by the same officer in similar manner.
27. As discussed above, as regards to Ext.5, i.e. the registered Sale Deed, we are of the view that merely because the petitioner failed to submit up to date document or mutation order in respect of the purchased land, cannot be led to the conclusion that the Sale deed is not genuine and for the same reason, Ext.10 which is the Kharij Patta in the name of the petitioner merely because the petitioner had not explained how she acquired the land cannot be a reason to ignore the same. More so, when no question was asked by the State.
As regards this, we are of the view that such a document could not have been ignored as irrelevant if it contains the relationship of the petitioner with her projected father.
28. As regards the other documents, Ext.11 to 23 which are all post 1971 documents, even if, these are post 1971 documents, these indicate consistency in the plea of the petitioner that she was born to Indian citizens and got married to an Indian and thereafter settled in India. Though these documents may be post 1971 documents, some of the documents show that Kuzrat Ali and Zelemon Nessa who the petitioner claims to be her parents continue to be the residents of 181 Borokalia Sersow under 22 South Salmara LAC and as such, these documents cannot be also ignored.
29. We have also noted that though the learned Tribunal mentioned about the oral testimony of the petitioner's brother, namely, Lal Mamud Mondal who was examined as DW2 and also cross-examined by the State, nothing has been discussed about the same by the learned Tribunal while appreciating the evidence. The said evidence of the petitioner's Page No.# 15/16 brother, also in our opinion, is critical piece of evidence and it will have same relevance in terms of Section 50 of the Evidence Act, 1872. Unfortunately, the learned Tribunal has not consider at all in conjunction with other evidences on record.
30. Under the circumstances, we are of the view that the learned Tribunal has not properly appreciated the documents and evidences adduced by the petitioner and as such, the Tribunal would be required to re-appreciate the evidences and give a fresh opinion.
31. In that view of the matter, we remit the matter to the learned Foreigners Tribunal (II), Dhubri, Assam for re-appreciation of the evidences on record in the light of the observation made by us and after hearing the petitioner again, render a fresh opinion.
32. The petitioner will, accordingly, appear before the learned Foreigners Tribunal, Dhubri (II) within a period of 1(one) month from today. Thereafter, the learned Tribunal, after re-appreciation of evidence on record, will pass a fresh opinion as regards the citizenship status of the petitioner.
33. For the reasons discussed above, we allow this petition by setting aside the impugned order dated 26.10.2018 passed by the learned Foreigners Tribunal (II), Dhubri, Assam in F.T. Case No.570/F/15 [Police Ref. Case No.1194/98].
34. The petitioner will continue to remain on bail on similar terms and conditions as directed by this Court vide order dated 29.07.2021 till a fresh opinion is rendered by the learned Foreigners Tribunal (II), Dhubri as regards the citizenship status of the petitioner.
35. The present petition is, accordingly, disposed of.
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36. LCR be remitted forthwith to the concerned Foreigners Tribunal.
JUDGE CHIEF JUSTICE (ACTING) Comparing Assistant