Gauhati High Court
Zirfan Nessa @ Jirfun Begum vs The Union Of India And 6 Ors on 30 April, 2019
Bench: Manojit Bhuyan, Manish Choudhury
Page No.# 1/12
GAHC010217332018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 7058/2018
1:ZIRFAN NESSA @ JIRFUN BEGUM
W/O- MD. SOHRAB ALI @ SORHAB ALI, D/O- CHAND MIA ALI @ MD.
CHAN MIYA, VILL- BONPURA, P.S- MUKALMUA, DIST- NALBARI, ASSAM,
PIN- 781126
VERSUS
1:THE UNION OF INDIA AND 6 ORS
REP. BY THE SECRETARY TO THE GOVT OF INDIA, MIN OF HOME
AFFAIRS, NEW DELHI- 01
2:THE ELECTION COMMISSION OF INDIA
NEW DELHI- 01
3:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM
HOME DEPTT
DISPUR
GHY- 06
4:THE ASSAM COORDINATOR
OF NRC
BHANGAGARH
ASSAM
GHY- 05
5:THE DEPUTY COMMISSIONER
NALBARI
DIST- NALBARI
ASSAM
PIN- 781335
Page No.# 2/12
6:THE SUPERINTENDENT OF POLICE(B)
NALBARI
DIST- NALBARI
ASSAM
PIN- 781335
7:THE OFFICER IN CHARGE
MUKALMUA POLICE STATION
DIST- NALBARI
ASSAM
PIN- 78112
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 MANISH CHOUDHURY
JUDGMENT
(Oral) Date : 30-04-2019 Heard Mr. M.U. Mahmud, learned counsel for the petitioner as well as Mr. J. Payeng, learned counsel representing respondent Nos. 3, 5, 6 & 7. Also heard Mr. A.I. Ali, learned counsel representing respondent No.2 and Ms. U. Das, learned counsel representing respondent No.4. There is, however, no representation on behalf of respondent No.1.
2. The petitioner assails the order/opinion dated 27.08.2018 passed by the Foreigners Tribunal No.3, Nalbari in F.T.(Nal.) Case No.148/2018, whereby, the Tribunal held that the petitioner, Mustt. Zirfan Nessa, wife of Md. Sohrab, Village - Bonpura, Police Station - Mukalmua, District - Nalbari, Assam as the proceedee, failed to discharge her burden of proof as mandated under Section 9 of the Foreigners Act, 1946 and accordingly, she was declared to be a foreigner. By the said order/opinion Page No.# 3/12 dated 27.08.2018, the Tribunal answered the reference in the affirmative and held that the petitioner was liable to be deported being a foreigner.
3. On a reference made by the Superintendent of Police (Border), Nalbari, the Tribunal issued notice and on receipt thereof, the petitioner duly entered appearance and contested the case by filing her written statement on 05.05.2015 and deposing as an witness, O.P.W.1 on 06.07.2015 on which date she was also cross- examined. It is seen from the records that after recording the deposition of the petitioner on 06.07.2015, the case was fixed for argument on 24.08.2015. It transpires from the records that thereafter, the petitioner filed two petitions before the Tribunal on 22.05.2018 praying for examining further witnesses i.e. her parents as well as the Election Officer and for submitting additional documents i.e. voter lists of 1971, 1985, 1997 and 2014. The Tribunal by its order dated 22.05.2018 rejected both the petitions. Assailing the said order dated 22.05.2018, the petitioner approached this Court by way of a writ petition, W.P. (C) No. 3694/2018. On due consideration and in the interest of justice, this Court by order dated 12.06.2018 disposed of the writ petition, W.P (C) No. 3694/2018, by granting a further opportunity to the petitioner to adduce the additional evidence, as indicated above, with the direction to conclude the proceeding within a period of 60 (sixty) days from the next date of hearing. Pursuant to the direction contained in the said order dated 12.06.2018, the evidence of the projected parents of the petitioner viz. Chan Mia Ali (O.P.W.2) and Nazmun Begum (O.P.W.3), and an official from the office of the Election Officer, Nalbari (O.P.W.4) were adduced apart from submission of the documents, indicated above, before the Tribunal. After closure of evidence, the Tribunal rendered its order/opinion on 27.08.2018 which is under challenge in the instant writ petition.
4. The primary issue for determination is as to whether the petitioner succeeded to establish her linkage with her projected father or her projected mother or her projected grandfather in order to establish her status of citizenship under the provisions of Section 6A of the Citizenship Act, 1955.
5. In her written statement, the petitioner stated that she was an Indian national Page No.# 4/12 by birth and a permanent resident of the noted address without, however, mentioning the address. She stated that her father was Md. Chand Miah, whose name was recorded in the Electoral Roll of 1966 of Village - Kandhmari, Police Station
- Mukalmua, District - Nalbari for No.61 Hajo LAC. Her place of birth was also Kandhmari. She got married with Md. Sohrab Ali of Village - Bonpura, Police Station - Mukalmua, District - Nalbari. She further stated that her name was recorded in the voter lists of 1993, 1997 and 2014 at Village - Bonpura, Police Station - Mukalmua, District - Nalbari.
6. In her testimony as O.P.W.1, recorded on 06.07.2015, the petitioner deposed that she was born at Village - Kandhmari and she could not remember her date of birth. She deposed that her father was Md. Chand Mia, whose name was enlisted in the voter list of 1966 of No. 61 Hajo LAC. She further stated that about 18/19 years ago, she got married with Md. Sohrab Ali of Village - Bonpura and since then she was living with her husband at Bonpura. Her name was enlisted in the voter list of 1993 (Ext.-2), the voter list of 1997 (Ext.-3) and the voter list of 2014 (Ext.-4) at Village - Bonpura, Police Station - Mukalmua, District - Nalbari of No. 60 Barkhetri LAC.
7. On the basis of the above statements made in the written statement and the testimony of the petitioner as O.P.W.1, the documents so produced by the petitioner before the Tribunal are to be examined and appreciated. In the extract copy of voter list of 1966 (Ext.-1) of Village - Kandhmari, Police Station - Hajo, District - Kamrup for No. 61 Hajo LAC, the name of Chanmia Ali, 24 years, son of Arifulla was recorded. In the voter list of 1993 (Ext.-2) of Village - Kaldi/Kasubar/No.4 Bortola/Bonpura, Police Station - Mukalmua, District - Nalbari of No. 60 Barkhetri LAC, the name of Jirpun Begum, 25 years, wife of Sorhab was recorded. In the voter list of 1997 (Ext.-3) of Village - No.4 Bortola/Bonpura, Police Station - Mukalmua, District - Nalbari of No. 60 Barkhetri LAC, the name of Jirful Nessa, 27 years, wife of Sorhab was recorded. The name of Jirfun Begum, 42 years, wife of Sohrab was found enrolled in the voter list of 2014 (Ext.-4) of Village - Bonpura, Police Station - Mukalmua, District - Nalbari of No. 60 Barkhetri LAC. Ignoring the discrepancies in the names - Jirpun Begum in Ext.-2, Jirful Nessa in Ext.-3 and Jirfun Begum in Ext.-4 - for the time being and assuming the Page No.# 5/12 same are different names of the petitioner herself then the same would go to show her presence in the soil of Assam (India) only from the year 1993 along with her husband viz. Sorhab/Sohrab notwithstanding some other variances in those voter lists. In such situation, it is for the petitioner as the proceedee to establish a linkage with any of her parents, who has to be an Indian national. When the voter list of 1966 (Ext.-
1) of Village - Kandhmari, Police Station - Hajo, District - Kamrup for No. 61 Hajo LAC is examined in that context, the name of only Chanmia Ali, 24 years, son of Arifulla was found enrolled therein, which, thus, does not ex-facie establish any link of the petitioner with said Chanmia Ali. As a result, it is necessary to examine the depositions of the projected parents of the petitioner.
8. As the Tribunal had given proper accounts of the testimonies of the petitioner's projected father as O.P.W.2 and projected mother as O.P.W.3 in its order/opinion, it appears more apposite for this Court to make reference to the same in order to avoid iteration and the same are extracted hereunder :-
"O.P.W. 2 introduced himself as Chan Mia Ali, son of Lt. Alimuddin, age about 85 years, resident of Boithabhanga, P.S. Mukalmua, Dist. Nalbari and inter alia deposed that they are 5 nos. of brothers and sisters. Later on says 6 nos., Afasar Ali, Abdul Karim, Chan Mia Ali, Noi Miya, Khaibar Ali, Sohrab Ali. He has 5 nos. of children, Champa Begum residing in Banpura, Jirfan Begum residing in Banpura and her marriage was performed with Sohrab Ali, Narjuban Begum residing in Saniroad, Sabir Ali and Najir Ali. Jirfan Nessa is his daughter. She was born and brought up in Kandhbari. He cast vote in the year 1966 for the first time from Khandhbari. In the year 1980-85 he cast vote from Sapkata. Now he is casting vote from Bardhap - Boithabhanga. His father's name has been written as Arifulla in the voter list of the year 1966 instead of Alimuddin. In the year 1966 his father was cast vote. He cannot remember whether his father's name had been corrected or not later on, it was wrongly written in the voter list of the year 1966. After the year 1966 he cast vote in the year 1980-85. In the year 1970-71 he cast vote from Kandhbari. Due to "Kur" after the year 1966 he had gone to Sapkata. From Sapkata he had gone to Boithabhanga. Since last 20-25 years he has been residing in Boithabhanga. Police did not ask him about Jirfan. During cross-examination O.P.W.2 deposed that his parents name is Alimuddin and Page No.# 6/12 Aijan. Name of his grandfather is Arifulla. He does not know his grandmother's name. He was born in Sapkata. Now he is residing in Bardhap - Boithabhanga. Since last 20-25 years he has been residing in Bardhap - Boithabhanga. Jirfan was born in Kandhbari. At the time of birth of Jirfan he was residing in Kandhbari. From Sapkata he had gone to Bardhap - Boithabhanga. Jirfan is about 55-60 years old. Jirfan has 7 children, 6 nos.of girl and 1 no. son. He cannot remember the names of the daughters of Jirfan. Name of the son of Jirfan is Pakka. Marriage of Jirfan was performed about 20 years ago. Name of his son in law is Sohrab. Now Jirfan is casting vote from Kandhbari. First child of Jirfan is girl, now about 20 years old. Jirfan did not go to school. No foreigner's case has been initiated against his other family members. Police did not ask him about Jirfan.
O.P.W. 3, Nazmun Begum deposed that Jirfan Nessa is her daughter, she has 5 children namely, Champa, Jirfan, Najir Hussain, Narjubhanu, Chapil Ali. Jirfan was born in Kandhbari. Marriage of Jirfan was performed with Sohrab Ali of Banpura. She cast vote from Sapkata for the first time. She cannot remember the year. Her husband also cast vote along with her. At first they were residing in Kandhbari thereafter, went to Sapkata. About 3-4 times she cast vote from Sapkata. Thereafter, she went to Koithabhanga from Sapkata about 20 years ago. She is casting vote from Bardhap - Boithabhanga. Jirfan Nessa is now 40-45 years old. Jirfan Nessa is casting vote from Banpura village. She has seen her father in law and mother in law. Their names are Alimuddin and Aijan. She does not know the name of grandfather in law. Police did not interrogate her in respect of Jirfan's birth. Due to "Kur" she went from Kandhbari to Sapkata. Except Jirfan no foreigner's case has been initiated against others. During cross-examination O.P.W. 3 deposed that residence of her father is in Barbala. Name of her father is Lt. Majibar and name of her mother is Haliman Nessa. She does not know the names of her grandparent's. She cannot remember how many years ago her marriage was performed. At the time of her marriage her father in law's residence was in Kandhbari. Jirfan was born in Kandhbari. Age of her first daughter Champa is about 40 years. She cannot remember how many yeas old Jirfan. About 30 years ago marriage of Jirfan was performed. While Jirfan was 10 years old her marriage was performed. Jirfan has 1 son and 7 daughters. Name of the children of Jirfan are Ayeb Ali, Churatan, Surjyabhanu, Ajiya, Rehena, Rupbhan, Mamani. Jirfan is casting vote from Banpura. Since the date of marriage Jirfan has been residing in Banpura. Jirfan went to School.
Page No.# 7/12 She is casting vote from Boithbhanga."
9. After going through the materials on record, the Tribunal found that the petitioner as O.P.W.1 claimed that she was the daughter of O.P.W.2 and O.P.W.3 and similarly, O.P.W.2 and O.P.W.3 also deposed that O.P.W.1 was their daughter. However, no documentary evidence was available on record to prove that the petitioner, O.P.W.1 was the daughter of O.P.W.2 and O.P.W.3. It was further observed that the petitioner submitted photocopies of two certificates issued by the Secretary, 60 No. Kandhbari - Dagapara Gaon Panchayat and the village headman of Bardhap, Boithabhanga, Lawthari & Khalihapra, Lat No.8 without leave of the Tribunal or this High Court. Apart from the nature of the said documents, the Tribunal due to non-examination of the issuing authorities of those documents did not rightly consider the same. Noticeably in the petition dated 22.05.2018 supported by an affidavit, whereby, the above two documents were submitted the petitioner herself had, inter alia, admitted that at the time of filing written statement as well as evidence, she could not submit any linkage document with her father.
10. When the above testimonies of O.P.W.2 and O.P.W.3 are read together, few noticeable inconsistencies emerge. The petitioner on the date of her deposition on 06.07.2015 stated her age to be 32 years. When the O.P.W.2 as her projected father deposed on 27.06.2018 he stated the age of the petitioner to be of 55-60 years. On the other hand, O.P.W.3 as her projected mother during her deposition on 27.06.2018 stated the age of the petitioner as 40-45 years. Even keeping the factor of approximation in mind, such huge differences in respect of age of the petitioner cannot, by any stretch, be considered to be a minor one and to be ignored. O.P.W.2 stated that the petitioner had 7 children - 6 daughters & 1 son, and the name of the son was Pakka. On the other hand, O.P.W.3 mentioned that the petitioner had 8 children - 7 daughters & 1 son and the name of the son was Ayeb Ali. It is not easily believable that such inconsistencies arose due to ignorance on the part of either O.P.W.2 or O.P.W.3, when both of them came specifically for the purpose of giving evidence in respect of their purported daughter as the projected father and the Page No.# 8/12 projected mother in a proceeding where the matter under consideration was her citizenship. In her written statement, the petitioner mentioned Md. Chand Mia as her father and during evidence also, she stated Md. Chand Mia as her father. O.P.W.2 stated his name as Chan Miah Ali, son of late Alimuddin. In Ext.-1 i.e. the extract of the voter list of 1966, the name shown enrolled was Chan Miah Ali, son of late Arifullah. Neither O.P.W.1 nor O.P.W.2 offered any explanation as regards the differences in the names so mentioned above. Further, the petitioner did not provide any explanation in her written statement as well as in her evidence as regards "Arifullah", appearing in Ext.-1as her projected grandfather, and "Alimuddin", as deposed by O.P.W.2 as his father. It is only O.P.W.2 who sought to explain the same in his deposition stating that in Ext.-1, the name of his father should have been "Alimuddin" instead of "Arifullah". The Tribunal also considered the failure on the part of the petitioner to explain the same while considering the claim of citizenship by the petitioner. O.P.W.2 deposed that his father casted vote in the year 1966. The air of doubt as regards the name of his father, Afifulla or Alimuddin and also about his grandfather would have been cleared had the voter list of 1966 containing the name of the father of O.P.W.2 was produced. When no good reason and explanation has been provided for such omission, it is open to draw an adverse presumption against the proceedee on the supposition that had it been produced the same would have gone against the proceedee.
11. It is settled proposition that mere production and marking of a document as exhibit by the Court cannot be held to be a due proof of its contents. It is seen that the petitioner by an application dated 22.05.2018 submitted photocopies of extracts of the voter lists of 1971, 1985, 1997 & 2014 for the purpose of showing enrolment of her projected father, Chanmia and projected mother, Nazmun Begum. Though those documents were filed in the Tribunal those were neither marked as exhibits nor those documents were referred by any of the witnesses, O.P.W.1, O.P.W.2 & O.P.W.3 and, thus, the same were not put in evidence. In such view of the matter, the Tribunal did not take into consideration those documents and it cannot be said that the Tribunal was not justified in its approach.
Page No.# 9/12
12. The learned counsel appearing on behalf of the petitioner herein assails the order/opinion of the Tribunal contending that the Tribunal did not approach and evaluate the oral evidence of O.P.W.1, O.P.W.2 & O.P.W.3 in the proper and correct perspective and discarding of the oral evidence of O.P.W.2 & O.P.W.3 who are the father and the mother respectively of the petitioner was unjustifiable and without any proper reasoning, which submissions are objected to by the learned counsel appearing for the respondents. The learned counsel for the petitioner further submits that when the projected parents had adduced evidence in support of the proceedee claiming the proceedee to be their daughter the Tribunal ought to have accepted the same in the absence of any evidence led by the State authorities in rebuttal, by holding the same to be proved.
13. In the above fact situation obtaining in the present case, what remains to be considered is whether in the absence of documentary evidence and/or in view of insufficient nature of documentary evidence to establish linkage of the proceedee with any of his projected parents to establish one's citizenship the proceedee can establish the status of citizenship by adducing oral evidence of any of the projected parents.
14. In Sarbananda Sonowal vs. Union of India and another, (2005) 5 SCC 665, it is held that in order to establish one's citizenship, normally he may be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship. In a proceeding under the Foreigners Act, 1946 read with Foreigners (Tribunals) Order, 1964 the issue is whether the proceedee is a foreigner or not and Section 9 of the Foreigners Act, 1946 casts the burden of proof on the proceedee to prove that he is not a foreigner. The same is based on the legal principle that the facts which are within the personal knowledge of a person should be proved by him and not the party who avers the negative because those facts are within the personal knowledge of the person concerned and not of the authorities of the State. After such proceedee has given evidence on the above points, the State authorities can verify the facts and can, thereafter, lead evidence in rebuttal, if necessary.
Page No.# 10/12
15. Taking the aforesaid principles into consideration, the testimonies of the projected parents are to be considered and evaluated. The oral evidence of a person adduced in support of a proceedee in the proceeding where the matter involved is the status of citizenship of the proceedee, to be acceptable, the status of citizenship of the person adducing oral testimony must not be in any doubt. It must be kept in mind that in a proceeding of such nature where the proceedee brings a witness to support his/her claim of citizenship as a projected parent it cannot be said that such a witness is an independent witness and, therefore, the Court or the Tribunal is to be cautious in accepting the oral evidence unless it is corroborated by other reliable, acceptable and dependable material. The decision on conferment of citizenship on a proceedee cannot be decided in the affirmative unless the proceedee discharges the burden of proof that lies on him/her under the law.
16. It is noticed that there is no evidence on record wherefrom the status of Indian citizenship of O.P.W.3, Nazmun Begum can be ascertained. No evidence including documentary evidence in the form of any electoral roll/voter list was exhibited and proved before the Tribunal to establish the fact of presence of O.P.W.3 on Indian soil prior to 25.03.1971. It is in the testimony of O.P.W.3 that she cast vote for the first time at Saptaka though she did not remember the year and though no documentary evidence was led to that effect. O.P.W.2, on the other hand, stated that in the year 1980-1985, he cast vote at Saptaka without, however, leading any documentary evidence to that effect. Even if the same is assumed to be true, the same would trace the presence of O.P.W.3 on Indian soil from 1980-1985 which does not assist the cause of the petitioner as regards her status of not being a foreigner. Save and except the oral testimony of O.P.W.3 as the projected mother of the proceedee no linkage between herself and the proceedee has been established from any other evidence. In respect of the O.P.W.2, Chan Mia Ali, the petitioner produced the extract copy of the voter list of 1966 (Ext.-1). The O.P.W.2 when he adduced evidence on 27.06.2018 stated his age as 85 years which means that he was born in or near about the year 1933 and attained the then age for exercise of adult franchise i.e. 21 years in or near about the year 1954. If that be so, his name should have been in the Page No.# 11/12 electoral rolls/voter lists from the period 1954 onwards till 2018. But save and except the extract copy of the voter list of 1966 (Ext.-1), no other electoral rolls/voter lists wherein the name of O.P.W.2 was included was exhibited and proved. In so far as the extract copy of the voter list of 1966 (Ext.-1) is concerned, the discrepancies found in respect of his name as well as in respect of his purported father and the failure on the part of the proceedee to explain the same in a proper and acceptable manner have already been discussed herein above. For the above reasons, the status of citizenship of O.P.W.2 also comes under cloud, beyond all shadow of doubt. In such situation, the endeavour made by the petitioner/proceedee, in the absence of cogent and acceptable documentary evidence, to travel the distance of proving her status of citizenship by way of oral testimonies of O.P.W.2 and O.P.W.3, whose status as citizens of India are not clear and in doubt, in the considered opinion of this Court, has fallen short of the requirement to be acceptable. The decisions of this Court passed in W.P. (C) 6958/2017 (Jarina Khatun @ Jarina Khatun vs. the Union of India and others) and W.P.(C) 5158/2018 (Jamila Khatun vs. the Union of India and others), referred to by the learned counsel for the petitioner, are not relevant to the issue under consideration.
17. A perusal of the order/opinion dated 27.08.2018 passed by the Tribunal shows that the Tribunal had carefully appreciated whatever evidence was led by the petitioner before it and, thereafter, had rendered the finding that the petitioner had failed to establish her 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 as to whether there was any perversity 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 dismissed. There shall be no order as to costs.
Interim order passed on 10.10.2018 stands recalled. Concerned State Page No.# 12/12 authorities to take action accordingly.
Office to send back the case records to the Tribunal forthwith.
JUDGE Comparing Assistant