Gauhati High Court
Afruja Begum @ Afruja Bibi vs The Union Of India And 7 Ors on 14 November, 2019
Bench: Manojit Bhuyan, Ajit Borthakur
Page No.# 1/6
GAHC010192662017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 572/2017
1:AFRUJA BEGUM @ AFRUJA BIBI
W/O. SEKENDAR ALI, D/O. AFAJUDDIN SK, VILL. DUDNATH, P.O.
TILAPARA, P.S. CHAPAR, DIST. DHUBRI, ASSAM, PIN.- 783371.
VERSUS
1:THE UNION OF INDIA and 7 ORS.
REP. BY THE MINISRTY OF HOME AFFAIRS, GOVT. OF INDIA, NEW DELHI-
01.
2:THE STATE OF ASSAM
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
DISPUR
GHY.- 06.
3:THE COMMISSIONER and SECRETARY TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY.- 06.
4:THE DIRECTOR GENERAL OF POLICE
ASSAM
ULUBARI
GUWAHATI- 05.
5:THE SUPERINTENDENT OF POLICE
B DHUBRI
ASSAM
DIST. DHUBRI
ASSAM
PIN.- 783301.
6:THE DEPUTY COMMISSIONER
DHUBRI
Page No.# 2/6
ASSAM
DIST.- DHUBRI
ASSAM
PIN.- 783301.
7:THE OFFICER-IN-CHARGE
BILASIPARA POLICE STATION
DIST.- DHUBRI
ASSAM
PIN.- 783348.
8:THE ELECTOR REGISTRATION OFFICER
NO. 26 BILASIPARA WEST LAC
DIST.- DHUBRI
ASSAM
PIN.- 783348
Advocate for the Petitioner : MDI H KHAN
Advocate for the Respondent : GA, ASSAMR. 2-8.
:: BEFORE ::
HON'BLE MR. JUSTICE MANOJIT BHUYAN
HON'BLE MR. JUSTICE AJIT BORTHAKUR
O R D E R
14.11.2019 (Manojit Bhuyan, J) Heard Mr. M.U. Mondal, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing respondent no.1. Mr. J. Payeng, learned counsel appears for respondent nos.2, 3, 4, 5, 6, 7 and 8 whereas Ms. A. Verma, learned counsel appears for the State Co-ordinator, NRC, Assam.
Petitioner assails the opinion/order dated 22.12.2016 passed by the Foreigners' Tribunal 7 th Dhubri at Bilasipara in F.T. 7 th Dhubri Case No.107/CPR/16, declaring her to be a foreigner, having illegally entered into India (Assam) on or after 25.03.1971 from the specified territory i.e. Bangladesh.
Page No.# 3/6 For the purpose of discharging burden as required under section 9 of the Foreigners Act, 1946 to prove that she is not a foreigner, the petitioner projected one Jamuddi Sk. as her grandfather and one Afazuddin Sk. as the father. In support of her case, as many as 7 (seven) documents were exhibited, the particulars of which may be noticed, as under:
(i) Exhibit-1 - School Leaving Certificate dated 12.07.2005, issued by the Headmistress, Janata M.E. Madrassa in the name of the petitioner certifying that Afruza Begum, daughter of Afazuddin Sk., of village Botertal, P.O. Hakama, district- Dhubri left the school on 31.12.98. Her date of birth according to Admission Register was 05.06.1985.
(ii) Exhibit-2 - Certificate dated 17.04.2015, issued by the Executive Officer, Bilasipara Town Committee certifying Smti. Afruja Begum, daughter of Afajuddin is a resident of Ward No.6 (New) 2-A (Old) under Bilasipara Town Committee.
(iii) Exhibit-3 - Certificate dated 02.11.2015, issued by the Executive Officer, Bilasipara Town Committee certifying Sri Afazuddin Sk., son of Jamuddi Sk. is a resident of Ward No.6 (New) under Bilasipara Town Committee.
(iv) Exhibit-4 - Certified copy of Electoral Roll of 1997 showing the name of one Afajuddin, son of Jamuddi and one Amina Bibi, wife of Afaj Uddin, as the projected father and mother of the petitioner, of village 352 Gopigaon - Part-4, P.S. Bilasipara, district- Dhubri under 29 Bilasipara East LAC.
(v) Exhibit-5 - Certified copy of Electoral Roll of 1953 showing the name of one Jamuddi Sk., projected as the grandfather of the petitioner, of village Botertal, P.S. Bilasipara, district- Goalpara under Bilasipara LAC.
(vi) Exhibit-6 - Elector Photo Identity Card dated 01.10.2013, issued in the name of one Afaj Uddin with relation to one Jamuddi, projected as the father of the petitioner.
(vii) Exhibit-7 - Ration Card showing the name of one Amina Bibi, wife of Afaj Uddin Sk. and one Afaj Uddin Sk. projected as the mother and of the petitioner.
Petitioner examined herself as DW-1. One Mahsen Ali, Headmaster of Janata M.E. Madrassa deposed as DW-2 and one Nirmal Kumar Acharjee, Tax Collector of Bilasipara Town Committee deposed as DW-3.
Page No.# 4/6 The petitioner projected Afazuddin Sk./Afajuddin as her father, which name appeared in the Electoral Roll of 1997 at Exhibit-4, of village 352 Gopigaon - Part-4, P.S. Bilasipara under 29 Bilasipara East LAC and also stated that her grandfather's name is reflected in the Electoral Roll of 1953 at Exhibit-5, of village Botertal, P.S. Bilasipara under Bilasipara LAC. However, in the written statement the petitioner did not mention about shifting of the family from village Botertal to village Gopigaon. There is no clear evidence that Jamuddi Sheikh of the Voter List of 1953 and Jamuddi shown as the father of Afazuddin in the Voter List of 1997, both lists pertaining to two different villages, are one and the same person. No linkage between the projected father and the projected grandfather, as may be admissible in law, could be established. Further, no voter lists or any land documents were produced and exhibited reflecting the name of the petitioner by showing relationship with her projected father or grandfather. The Elector Photo Identity Card at Exhibit-6 issued in the name of one Afaj Uddin, projected as the father of the petitioner and one Ration Card at Exhibit-7, issued in the name of one Amina Bibi, projected as the mother of the petitioner, are not relevant piece of documents to prove citizenship in law.
Turning to the deposition of DW-2, who claimed to be the Headmaster of Janata M.E. Madrassa, he stated that the School Leaving Certificate at Exhibit-1 was issued by the school and, as a proof thereof, produced the original Admission Register of the school wherein the name of Afruja Begum, daughter of Afajuddin of village Botertal, P.O. Hakama, district- Dhubri is shown at Sl. No.60 of the year 1997. He further stated that he knows the proceedee (petitioner) who was a student of his school and the contents of the Certificate are true. Now coming to the deposition of DW-3, who claimed to be the Tax Collector of Bilasipara Town Committee, he stated that he has appeared before the Tribunal to depose on being so authorized by the Executive Officer who had issued the two certificates i.e. Certificate dated 17.04.2015 at Exhibit-2 in the name of the petitioner (Afruja Begum), daughter of Afajuddin, Ward No.6 (New) 2-A (Old) under Bilasipara Town Committee and the Certificate dated 02.11.2015 at Exhibit-3 in the name of the petitioner's father i.e. Afazuddin Sk., son of Jamuddi Sk., Ward No.6 (New) under Bilasipara Town Committee. DW-3 also deposed that he knows the seal and signature on the Exhibit-2 and Exhibit-3 as well as the contents thereof. In cross- examination the DW-2, however, admitted that he did not bring the official records to prove the contents of the documents of Exhibit-2 and Exhibit-3.
It is worthwhile to mention here that DW-2 deposed in the capacity of Headmaster but the School Leaving Certificate at Exhibit-1 was issued by the Headmistress of the Janata M.E. Madrassa. The DW-2 is apparently not the author/issuing authority of the said Certificate. Similarly, DW-3 deposed in the capacity of Tax Collector on being authorized by the Executive Officer of the Bilasipara Page No.# 5/6 Town Committee who, in fact, issued two certificates at Exhibits-2 and 3 and he (DW-3) stated that he is familiar with the contents of the abovementioned certificates and the seal and signature put thereon is of the Executive Officer. However, he conceded that he did not bring the official records/Certificate Issue Register to prove the contents of the documents which are Exhibits-2 and 3. The DW-3 is not the author of the said two certificates. Most importantly, nothing was brought on record as to the basis of the statement in the Exhibit-3 Certificate wherein the father of Afazuddin Sk. is mentioned as Jamuddi Sk. The contents of Exhibit-3 was not proved by any contemporaneous records and evidence so as to substantiate the reliability and admissibility of the entry so made. Even assuming the evidence of DW-2 and DW-3 to be credible, relationship with the projected father Afazuddin is only traceable from 1997 or at best from the date and year when particulars of the projected father was entered in the School Admission Register. At any rate the existence of the projected father cannot date prior to 05.06.1985, being the date of birth of the petitioner, which is well after the cut-off date of 25.03.1971.
As the primary issue in a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 relates to determination as to whether the proceedee is a foreigner or not, the relevant facts being especially within the knowledge of the proceedee, therefore, the burden of proving citizenship absolutely rests upon the proceedee, notwithstanding anything contained in the Evidence Act, 1872. This is mandated under section 9 of the aforesaid Act, 1946. In the instant case and as observed above, the petitioner not only failed to discharge the burden but also utterly failed to make proof of the most crucial aspect, that is, in establishing linkage to her projected grandfather of the Exhibit-5 Voter List of 1953 through her projected father.
On the available materials, we find that the Tribunal rendered opinion/order upon due appreciation of the entire facts, evidence and documents brought on record. We find no infirmity in the findings and opinion recorded by the Tribunal. We would observe that the certiorari jurisdiction of the writ court being supervisory and not appellate jurisdiction, this Court would refrain from reviewing the findings of facts reached by the Tribunal. No case is made out that the impugned opinion/order was rendered without affording opportunity of hearing or in violation of the principles of natural justice and/or that it suffers from illegality on any ground of having been passed by placing reliance on evidence which is legally impermissible in law and/or that the Tribunal refused to admit admissible evidence and/or that the findings finds no support by any evidence at all. In other words, the petitioner has not been able to make out any case demonstrating any errors apparent on the face of the record to warrant interference of the impugned opinion.
Page No.# 6/6 On the discussions and findings above, we find no merit in the writ petition. Accordingly, the same stands dismissed, however, without any order as to cost.
Interim bail granted by this Court on 07.02.2017 stands recalled.
Office to send back the case records to the Tribunal forthwith.
A copy of this order be made part of the case records of the Tribunal for future reference.
JUDGE JUDGE Comparing Assistant