Gauhati High Court
Marfat Ali vs The Union Of India And 5 Ors on 8 May, 2019
Bench: Manojit Bhuyan, Manish Choudhury
Page No.# 1/6
GAHC010091092019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 2807/2019
1:MARFAT ALI
S/O LT. RAJAB ALI @ RAJABALI @ RAJAB, VILL.- GOROIMARI, P.O.
DOLOIGAON, P.S. BHELOWGURI, MOUZA- MOIRABARI, DIST.-
MORIGAON, ASSAM, PIN- 782126.
VERSUS
1:THE UNION OF INDIA AND 5 ORS.
REP. BY THE COMM. AND SECY. TO THE GOVT. OF INDIA, HOME DEPTT.,
NEW DELHI-1, INDIA.
2:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY-6.
3:THE STATE CO-ORDINATOR
NATIONAL REGISTER OF CITIZENS (NRC)
ASSAM
ACHYUT PLAZA
BHANGAGARH
GHY.-05
ASSAM.
4:THE ELECTION COMMISSION OF INDIA
TO BE REP. BY THE COMMISSIONER
NIRVACHAN SADAN
ASHOKA ROAD
DELHI. 110001.
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5:THE DY. COMMISSIONER
MORIGAON
DIST. MORIGAON
ASSAM.
6:THE SUPERINTENDENT OF POLICE (B)
MORIGAON
DIST. MORIGAON
ASSAM
Advocate for the Petitioner : MR. ELIAS AHMED
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 08-05-2019 Heard Mr. Z. Hammad, learned counsel for the petitioner as well as Mr. J. Payeng, learned counsel representing respondent nos. 2, 5 to 6. Also heard Ms. U.Das, learned counsel representing respondent no. 3 and Ms. B. Das, learned counsel for the respondent no. 4. None, however, appears for respondent no. 1.
2. The petitioner assails the order/opinion dated 30.01.2017 passed by the Foreigners Tribunal -
5th, Morigaon in Case No. F.T.(D)89/2015 (New Number)/F.T.(D)1038/2012 (Old Number), declaring the petitioner to be a foreigner of post 25.03.1971 stream, having illegally entered into the territory of India from the specified territory without any valid document.
3. The primary issue for determination is as to whether the petitioner, Marfat Ali, succeeded to establish his linkage with his projected parents, Rajab Ali and Maleka Khatun. The Tribunal had held that the petitioner as the proceedee, could not produce any Voters List to the satisfaction of the Tribunal in respect of his linkage with the projected parents and, thus, the petitioner had failed to prove his Indian nationality.
4. On a reference made by the Superintendent of Police (Border), Morigaon, the Tribunal issued notice and on receipt thereof, the petitioner duly entered appearance and contested the case by filing Page No.# 3/6 his written statement and later on, by adducing his evidence on affidavit as D.W.1 exhibiting 6 (six) Nos. of documents. The petitioner also adduced the evidence of one Sahidul Islam, son of Md. Lal Miyan, Gaonbura of Chitalmari Pathar, Modarguri, Goroimari and Chitalmari colony, as D.W.-2.
5. The reference case was contested by the petitioner by projecting one Rajab Ali as his father and one Maleka Khatun, wife of Rajab Ali as his mother. Reliance is placed in the Voters List of 1965 (Ext. D.) and Voters List of 1970 (Ext. C), both pertaining to Village - Goroimari, Police Station - Laharighat under Laharighat LAC where the names of his projected parents appeared. From the records it is seen that the petitioner, Marfat Ali had enrolled himself for the first time in the year 1985 at Village - Goroimari, Police Station - Laharighat under Dhing LAC and his name appeared in the Voters List of 1985 (Ext.C). The case records do not contain any other Voter List showing his projected parents subsequent to the Voters List 1970. No explanation is made, in the written statement, as to his projected parents' existence and whereabouts during the subsequent period. In the Voter List of 1985 (Ext.C), it is seen that names of Marfat Ali (30 years), son of Rajab and Hamida Khatun (26 years), wife of Marfat appeared. For the purpose of establishing his linkage with his projected parents whose names appeared in the Voters List of 1965 (Ext.B.) and Voters List of 1970 (Ext.C), the petitioner exhibited a certificate (Ext.A) issued by the Gaonbura of Chitalmari Pathar, Modarguri, Goroimari and Chitalmari colony and also adduced the evidence of the said Gaonbura who issued Ext.A, as D.W.-2. Referring to Ext.A and the deposition of D.W.-2, the petitioner contended that although the same had established his linkage with his projected parents and also his status as a citizen but the same was not appreciated by the Tribunal in the proper perspective. Ext.A is a certificate dated 25.02.2016 issued by D.W.-2 - the Gaonbura of Chitalmari Pathar, Modarguri, Goroimari and Chitalmari Colony wherein he stated that he knew the petitioner/proceedee as a resident of Village - Goroimari. In his deposition before the Tribunal, D.W.-2 deposed that he met the petitioner/proceedee at Village - Goroimari when he took the charge of Gaonbura in the year 1989 and he did not, however, know the year of birth of the petitioner/proceedee. He further deposed that the petitioner/proceedee was living in the said village prior to 1989. Such evidence of D.W.-2 as Gaonbura read with Ext.A, notwithstanding its inadmissibility on another count, could, at best, indicate only about the stay of the petitioner/proceedee at the said village from 1989. This evidence, if accepted, along with Ext.D go to show the presence of the petitioner/proceedee on Indian soil from the year 1985 onwards only without establishing any kind of linkage with his projected parents.
6. In this connection, a reference may be made to an order dated 27.03.2019 passed by a co- ordinate Bench of this Court in the writ petition, WP(C) No. 7919/2018 (Jalekha Khatun vs The Union of India and 6 Ors.), wherein it has been observed as under:
Page No.# 4/6 "There is another aspect of the matter which assumes importance and forms part of the records. The certificates at Exhibits-D and E carries with it the State Emblem. In this respect we would observe that the Central Government has framed statutory rules called State Emblem of India (Regulation of Use) Rules, 2007 (in short the Rules) in exercise of powers conferred by section 11 of the State Emblem of India (Prohibition of Improper Use) Act, 2005 (in short the Act). Section 3 of the Act specifically prohibits improper use of the State Emblem. It says that notwithstanding anything contained in any other law for the time being in force, no person shall use the emblem or any colourable imitation thereof in any manner which tends to create an impression that it relates to the Government or that it is an official document of the Central Government or the State Government, without the previous permission or authorization. This section starts with a non-obstante clause, meaning thereby that it has overriding effect over all the laws for the time being in force. Rule 5 of the Rules provides that use of the official emblem is restricted to the authorities specified in Schedule-I. Rule 10 makes the restriction more specific. It says that no person, other than those authorized under the Rules, shall use the emblem in any manner. Sub-rule (2) of Rule 10 clearly provides that no Commission or Committee, Public Sector Undertaking, Bank, Municipal Council, Panchayati Raj Institution, Non-Government Page No.# 4/4 Organization, University (other than those authorized under the Rules) shall use the emblem in any manner. Schedule-I to the Rules contains a list of constitutional and statutory authorities, Ministries and Departments of the Central Government, State Governments or Union Territory Administrations and other Government functionaries which may use the emblem. Therefore, the certificates issued by the respective Gaonburahs at Exhibits-D and E containing the State Emblem of India cannot be regarded as valid and acceptable documents. It stands that the State Emblem has been improperly used and the same being in clear violation of the aforesaid Act and Rules, have rendered the said certificates as inadmissible in evidence."
In view of the above observations, the certificate issued by the Gaonbura (D.W.-2) at Ext.A containing the State Emblem of India cannot be regarded as valid and acceptable document.
7. The Tribunal had observed that the petitioner/proceedee failed to establish his link with his projected father, Rajab Ali by producing any Voter List having their names enlisted together in a single Voter List as voters. The petitioner had stated in his deposition, recorded on 10.08.2016, that he was 60 years old and if that be so, his year of birth was 1956 and his name should have been enlisted in Page No.# 5/6 the Voters List of the year 1977 for the first time. It was also observed by the Tribunal that as per the petitioner's own testimony in deposition his projected father appeared to have expired in the year 1986 as he stated that he died about 30/31 years ago and his projected mother appeared to have expired in the year 2015 as he stated that she died about a year ago. In such view of the matter, the Tribunal opined that petitioner's name should have been enlisted in the Voters Lists of the years 1977 or 1983 together with his projected parents, Rajab Ali and Maleka Khatun in one single Voters List but he failed to produce any such Voters List, thereby, failing to establish his link with his said projected parents. The Tribunal is not unjustified in its approach in this regard and we find no good and sufficient reason to differ with the aforesaid view of the Tribunal.
8. The petitioner had sought to clarify the discrepancies found in the names of his projected father in Ext.B and Ext.C wherein his name appeared as Rajbali instead of his projected name, Rajab Ali by submitting a self-sworn affidavit dated 29.11.2016. It is a settled legal proposition that an affidavit is not "evidence" within the meaning of Section 3 of the Evidence Act, 1872. Affidavits are not included within the purview of the definition of "evidence". It is held in Ayaaubkhan Noorkhan Pathan vs. State of Maharashtra and others, (2013) 4 SCC 465, that the filing of an affidavit of one's own statement, in one's own favour, cannot be regarded as sufficient evidence for any Court or Tribunal, on the basis of which it can come to a conclusion as regards a particular fact situation.
9. Insofar as Ext.E is concerned the same is a computerized copy of Jamabandi wherein the name of one A. Jabar appeared whom the petitioner projected as his paternal grandfather. As has been discussed above, the petitioner had apparently failed to establish his linkage with his projected father and, therefore, any linkage between his projected grandfather and his projected father does not go to help the cause of the petitioner to establish his status of citizenship and as such, there appears to be no necessity for any further deliberation on Ext.E.
10. A perusal of the order/opinion dated 30.01.2017 passed by the Tribunal shows that the Tribunal had appreciated whatever evidence was led by the petitioner before it in the proper perspective and, thereafter, had rendered the finding that the petitioner had failed to establish his claim to be a citizen of India by reliable and cogent documentary evidence. Such a finding being a finding of fact, a writ Court exercising jurisdiction under Article 226 of the Constitution of India does not, ordinarily, interfere with such finding of fact unless there is perversity because the jurisdiction so exercised is supervisory and not appellate. In view of the point raised on behalf of the petitioner, the evidence led before the Tribunal by the petitioner is once again revisited only to reassure ourselves as to whether there was any perversity or error in appreciation in the order/opinion of the Tribunal. There being none, this writ petition is, resultantly, found to be bereft of merit and the same stands accordingly Page No.# 6/6 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 Comparing Assistant