Gauhati High Court
Smti Anima Sutradhar vs The Union Of India & Anr on 13 September, 2013
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH)
WP(C) 2730 of 2013
1. Smti. Anima Sutradhar, D/o. Late Ranu
Gopal Sutradhar, W/o. Shri Bibek
Sutradhar, Resident of Denartari
(Charalpara), P.S. Patacharkuchi, Dist.-
Barpeta (Assam).
............Petitioner.
-Vs-
1. The Union of India, represented by the
Secretary to the Government of India,
Home Affairs, New Delhi.
2. The State of Assam, represented by the
Commissioner and Secretary to the Govt.
of Assam, Home and Political Department,
Dispur, Guwahati-6.
Respondents.
BEFORE THE HON'BLE MR. JUSTICE B.K. SHARMA For the petitioners : Mr. U.C. Rabha, Adv.
For the respondents: Mr. N. Upadhyay, GA, Assam.
Mr. M. Bhagabati, CGC.
Date of hearing : 25/07/2013.
Date of judgement : 13/09/2013.
WP(C) 2730/2013 - CAV Page 1 of 8
JUDGEMENT AND ORDER (CAV)
This writ petition is directed against the judgment and order 30/01/2013 passed by the learned Member, Foreigners Tribunal (III) Barpeta in Case No. FT Case No. 203(III)/2011 (Ref. IM(D)T Case No. 1199/2k) (State of Assam Vs. Smt. Anima Sutradhar), by which the petitioner has been declared to be a foreign national who illegally entered into Assam subsequent to 25.03.1971.
2. I have heard Mr. U. C. Rabha, learned counsel for the petitioner. Also heard Mr. M. Bhagabati, learned CGC and Mr. N. Upadhyay, learned State Counsel. I have also perused the entire materials on record including the records received from the Tribunal.
3. On receipt of the notice from the Tribunal, the petitioner appeared and filed written statement claiming herself to be an Indian citizen, by birth. The relevant paragraphs of the written statement are reproduced below :-
"4. The real fact is that the O.P./2nd Party is an Indian citizen by birth ; and a permanent resident of Assam. The 2nd party is born in village Karertal, under Mouza Jania, Dist. Barpeta ; and daughter of Ranu Gopal Sutradhar.
5. The name of the father of the 2nd party, Ranu Gopal Sutradhar is listed in the Voter List of 1966 along with other voters in the Serial No. 925 of Voter list prepared for Vill :
Keretal, Mouza : jania under No. 52 Baghbar LAC.
6. The name of the father of the 2nd party, Ranu Gopal Sutradhar is listed along with other voters in the, 1970, part No. 15, Mouza Jania, Dist. Barpeta under No. 52, Baghbar LAC.
7. The 2nd Party got married in the year 1989 with Shri Bibek Sutradhar S/o. Late Nani Mohan Sutradhar, Vill. Charalpara, Mouza WP(C) 2730/2013 - CAV Page 2 of 8 Bhabanipur, Dist. Barpeta as per Social custom and rites. After marriage, the name of the 2nd party is listed in the Voter list of 1997, 2004 and 2009 along with other voters."
4. In support of her aforesaid written statement, the petitioner produced one certificate dated 6/11/1993 issued by the President of No. 57 Bhatkuchi Gaon Panchayat (Ext. 1). Similarly, 1966 voter list (Ext.2) containing the names of Nani Gopal Sutradhar, Dadhibala Sutradhar and Ranu Gopal Sutradhar and 1970 voter list (Ext.3) containing the same names. Although, in the written statement, the petitioner stated that her name also appeared in the voter list of 1997, 2004 and 2009 but no copy thereof was produced by her.
5. In Ext.1 certificate it has been certified that the name of the petitioner's father Ranu Gopal appeared in the 1996 voter list of 51 No. Jonia LAC but on perusal of the 1966 voter list, it is evident that the same pertains to 52 No. Bagbhar LAC. Similarly, 1970 voter list is also of 52 No. Baghbar LAC.
6. The learned Tribunal having noticed the aforesaid discrepancies and there being no explanation coupled with the fact that although the petitioner claims that her name was included in the voter list of 1997, 2004 and 2009 but could not produce any one of the same, has held that the story made out by the petitioner is not believable and that she could not discharged her burden of proof as envisaged under Section 9 of the Foreigners act, 1946. It has been held that although the petitioner has projected her father as Ranu Gopal Sutradhar but there is no explanation as to why she could not name her mother. She did not say anything about her mother either in the written statement or in the affidavit. In the written statement, the petitioner also did not name her grand parents.
7. Above apart, on perusal of the records received from the Tribunal, it is found that in the report of the Enquiry Officer, the name of the petitioner's father was indicated as Sachin Sutradhar and not Ranu Gopal Sutradhar.
WP(C) 2730/2013 - CAV Page 3 of 88. In Sarbananda Sonowal-I Vs. union of India reported in (2005) 5 SCC 665, the Apex Court while discussing the problem being faced by the State of Assam due to illegal migration and their continued presence in the State has been vividly discussed the alarming situation. While striking out the IM(D)T Act, 1983, the Apex Court also dealt with the modality of proving one's Indian citizenship. It has been emphasized that the burden of proof is always on the proceedee as per provisions of Section 9 of the Foreigners Act, 1946. In Sarbananda Sonowal-I, the Apex Court dealing with the burden of proof, made the following observation :-
"26. 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 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. Sometimes the place of birth of his grandparents may also be relevant like under Section 6-A(1)(d) of the Citizenship Act. All these facts would be necessarily be within the personal knowledge of the person concerned and hot of the authorities of the State. After he has given evidence on these points, the State authorities can verify the facts and can then lead evidence in rebuttal, if necessary. If the State authorities dispute the claim of citizenship by a person and assert that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the aforesaid points. This is in accordance with the underlying policy of Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
9. Above apart, merely by producing some photocopies, one cannot establish his Indian citizenship. Even in case of production of certified copies of the documents, something more is required as per the Law of Evidence. As has been held by the Apex Court in (2010) 4 SCC 491 (LIC of India Vs. Ram Pal Singh Bisen), even admission of a document in evidence does not amount to its proof, in other words, WP(C) 2730/2013 - CAV Page 4 of 8 mere making of exhibit of a document does not dispense with its proof, which is required to be done in accordance with law. It was the duty of the petitioners to have proved the documents in accordance with law. Under the Law of Evidence also, 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 amounts to admission of contents but not its truth. Thus, the documents (Photocopies) having not been produced and marked as required under the Evidence Act, cannot be relied upon by the Court. Contents of the document cannot be proved by merely filing in a Court.
10. Needless to say that the High Court exercising its power of judicial review under Article 226 of the Constitution of India cannot sit on appeal over the finding of facts recorded by the Court/Tribunal. It is only when the Court/ Tribunal exercise a jurisdiction without being empowered or in excess of it or fails to exercise the vested jurisdiction or acts illegally, the Writ Court exercising its jurisdiction can interfere with the same. The High Court can interfere with the order of the Tribunal exercising its writ jurisdiction only if it is proved that it is a case of no evidence at all or there is error apparent on the face of the record. The power of judicial review under Article 226 of the Constitution is limited only to correction of errors apparent on the face of the records and does not need long drawn out process of reasons on points whether there may be conceivably two views. In the instant case, I do not find any infirmity in the impugned judgement and order requiring any interference of this Court exercising its power of judicial review under Article 226 of the Constitution of India.
11. The writ petition is dismissed. There shall be no order as to costs.
12. Let copies of this judgement be sent to SP(B), Barpeta and the Deputy Commissioner, Barpeta for taking further course of action towards detention of the petitioner in the detention camp for his WP(C) 2730/2013 - CAV Page 5 of 8 deportation to his country of origin and for deletion of his name from the voter list. Copies of this order shall also be sent to the Union Govt. in the Ministry of Home and so also to the State Government in the Home Department for their necessary follow up action in terms of this judgement and order. Another copy be furnished to Mr. N. Upadhyay, the learned State Counsel for his follow up action.
13. Before parting with the case records, I place on record the amended provision of Citizenship Rules 1956 and its application to the State of Gujarat and Rajasthan as was brought in by gazette notification dated 1.3.2004. By the said amendment, after Rule 8 of the Citizenship Rules, 1956, Rule 8A was inserted which is quoted below:
"8A. Authority to register as Citizens in States of Gujarat and Rajasthan.-
(1) In the case of registration of citizens in the State of Gujarat, -
(a) in relation to the district of Kutch, Patan, Banaskantha and Ahmedabad, -
(i) in respect of Pakistan nationals of minority Hindu community displaced consequent to the wars between India and Pakistan in the years 1965 and 1971, the dependants of such persons married to Indian Citizens or persons of Indian origin, the authority to register a person as a citizen of India under Clauses (a), (c), (d) and (e) of sub-
section (1) of Section 5 of the Act shall be the concerned Collectors of the districts;
(ii) in respect of minority Hindus with Pakistan citizenship who have migrated to India more than five years back with the intention of permanently settling down in India and have applied for Indian citizenship, the authority to register a person as a citizen of India under Clauses
(a), (c), (d) and (e) of sub-0section (1) of WP(C) 2730/2013 - CAV Page 6 of 8 section 5 of the Act shall be the concerned Collector of the district where the applicant is ordinarily resident;
(b) in relation to the districts not covered under sub-clause (i) of clause (a), the authority to register a person as a citizen of India under clauses (a) (c), (d) and (e) of sub-section (1) of section 5 of the Act shall be the Secretary, Home Department of the State of Gujarat.
(2) In the case of registration of citizens in the State of Rajasthan, -
(i) in relation to the district of Badmar and Jaisalmer, in respect of Pakistan nationals of minority Hindu community displaced consequent to the wars between India and Pakistan in the years 1965 and 1971, the dependants of such persons married to Indian Citizens or persons of Indian origin, the authority to register a person as a citizen of India under clauses (a), (c), (d) and (e) of sub- section (1) of section 5 of the Act shall be the concerned Collector of the district;
(ii) in respect of minority Hindus with Pakistan citizenship who have migrated to India more than five years back with the intention of permanently settling down in India and have applied for Indian citizenship, the authority to register a person as a citizen of India under clauses (a), (c), (d) and (e) of sub-section (1) of section 5 of the Acts hall be the concerned Collector of the district where the applicant is normally resident."
14. The aforesaid provision has been referred to in view of the submissions often made that the Hindus who have been displaced from Bangladesh and or have migrated to Indian due to oppression there should be treated differently than the illegal Bangladeshi migrants. So far as this Court is concerned, it has already been observed in Mustt Sarabari Begum Vs. State of Assam & Ors. reported in 2008 (3) GLT 272 that the issue being a political one and the laws relating to foreigners making no distinction in that line, this Court is not the appropriate forum to deal with the said issue and WP(C) 2730/2013 - CAV Page 7 of 8 that too in this type of proceeding. In this connection, paragraph 2 of the said judgment is quoted below:
219. A submission was made, particularly in WP(C) No. 32/2008 that the petitioners being Hindus and even if they have come from Bangladesh, same being the result of oppression meted out to them there, they must not be branded as illegal migrants and that having regard to the theme of partition of India, they should be regarded as refugees from Bangladesh. Suffice is to say that the laws relating to foreigners do not make any distinction in that line. The issue raised is purely a political one and this Court is not the forum to comment upon the same, it being not in its scope, ambit and jurisdiction.
15. Let the LCR be sent down along with a copy of this judgement and order.
JUDGE Sukhamay WP(C) 2730/2013 - CAV Page 8 of 8