Gauhati High Court
Shahanaz Begum @ Shaynaz Begum vs The Union Of India And 5 Ors on 15 May, 2019
Author: Manish Choudhury
Bench: Manojit Bhuyan, Manish Choudhury
Page No.# 1/11
GAHC010039262019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 1999/2019
1:SHAHANAZ BEGUM @ SHAYNAZ BEGUM
D/O. MAYCHAN SHEIKH, W/O- SADAGAR ALI, R/O. VILL.- ALOPATICHAR,
P.S. ALOPATICHAR, DIST.- BARPETA, ASSAM.
VERSUS
1:THE UNION OF INDIA AND 5 ORS.
REP. BY THE SECRETARY TO MINISTRY OF HOME AFFAIRS, GOVT. OF
INDIA, SASTRI BHAWAN, NEW DELHI- 110001.
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GUWAHATI-6.
3:THE SUPERINTENDENT OF POLICE (B)
BARPETA
DIST. BARPETA
ASSAM.
4:THE DEPUTY COMMISSIONER
BARPETA
P.O. BARPETA
DIST.- BARPETA
ASSAM
PIN- 781301.
5:THE ELECTION COMMISSION OF INDIA
REP. BY THE CHIEF ELECTION COMMISSION OF INDIA
NIRVACHAN ASHOKA ROAD
Page No.# 2/11
NEW DELHI
INDIA
PIN- 110001.
6:THE NATIONAL REGISTER OF CITIZEN
REP. BY THE STATE CO-ORDINATOR
ASHYUT PLAZA
BHANGAGARH
KAMRUP(M)
ASSAM
PIN- 781005
Advocate for the Petitioner : MR. M A SHEIKH
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 15-05-2019 (Manish Choudhury, J) Heard Mr. M. A. Sheikh, learned counsel for the petitioner as well as Mr. A. Kalita, learned counsel representing the respondent nos. 2 to 4. Also heard Ms. A. Verma, learned counsel representing respondent no. 6. None appears for respondent nos. 1 and 5.
2. The petitioner assails the order/opinion dated 23.08.2018 passed by the Foreigners Tribunal No. 6, Barpeta in Case No. FT-(VI)127/2016, whereby, the Tribunal held that the petitioner, Sahanaz Begum, w/o Sadagar Ali, Village - Alopatichar, Police Station - Alopatichar, District - Barpeta, 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 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, Sahanaz Begum succeeded to establish her linkage with her projected father, Moychan Sheikh and projected mother, Fatekjan Nessa. The Tribunal had, inter-alia, taken notice of the fact that the Page No.# 3/11 petitioner as the proceedee, could not produce before it any Electoral Roll of any period having her name as a voter and thus, the petitioner had failed to prove her Indian nationality.
4. On a reference made by the Superintendent of Police (Border), Barpeta, the Tribunal issued notice to the proceedee and on receipt the notice, the proceedee appeared with her husband as in the said notice, two more persons viz. Lt. Moychan Ali as father of the proceedee and Sadagar Ali as husband of the proceedee, were also included as proceedees. Pursuant to appearance, the proceedee contested the case by filing a joint written statement denying the allegations and stating that they were Indian citizens by birth. Later on, the proceedee adduced her evidence on affidavit as D.W.1 exhibiting a number of documents. The proceedee also adduced evidence of 2 (two) witnesses viz. the Gaonbura In-Charge of Village - Alopatichar (D.W.2) and one Mobarak Ali (D.W.3) claiming him to be her brother.
5. In her written statement, the proceedee stated that she was born and brought up at Village - Alopati, Mouza - Baghbar, Police Station - Alopatichar, District - Barpeta, Assam. She mentioned the name of her father as Maychan Sheikh whose name, with some variations, appeared in 1951 NRC Legacy Data as well as in the Electoral Rolls of 1966 and 1970 from Village - Alopatichar/Alopati Nonke under 52 No. Baghbar LAC. After the death of Moychan Sheikh in 1970, name of Khotejan Bidhaba who was projected as the proceedee's mother, was enrolled as a voter in the Electoral Roll of 1997 from Village - Alopatichar under 45 No. Baghbar LAC. The proceedee further stated that her name was recorded as a voter in the Electoral Roll of 1993 from Village - Alopati Nonke under 45 No. Baghbar LAC. She on attaining majority, stated to have married one Sadagar Ali, son of Hamod Ali from the same village as Alopati. For the purpose of linkage, she mentioned about two certificates issued by the Secretary, 71 No. Alopati Majarchar Gaon Panchayat and the Gaonbura of Village - Alopatichar respectively. The written statement also mentioned about the legacy of her husband and the same need not be dilated further here as the proceedee was to establish her linkage with her projected parents only. Save and except as above, the proceedee did not disclose any other details like the year of her birth and names of her grandparents and her siblings, etc. No explanation had been made, in the written statement, as about such non- disclosure. In her evidence on affidavit, the proceedee reiterated the same facts as made in the written statement indicated above. In Sarbananda Sonowal vs. Union of India and Page No.# 4/11 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. Sometimes the place of birth of his grandparents may also be relevant like under Section 6-A(1)(d) of the Citizenship Act. 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. It is held that there is good and sufficient reason for placing the burden of proof on the person concerned who asserts to be citizen of India.
6. For the purpose of discharging the burden as not being a foreigner, the proceedee sought to link herself with her projected parents and the relevant documents on which the proceedee relied to establish the link, were:-
(i) Ext.A - Certified copy of extract of Electoral Roll of 1966 pertaining to Village -
Alopati Nonke under 52 No. Baghbar LAC showing (i) Moychan Sheikh (30 years), son of Ghotu Sheikh and (ii) Fatekjan Nessa (25 years), wife of Moychan as voters;
(ii) Ext.B - Certified copy of extract of Electoral Roll of 1970 pertaining to Village -
Alopatichar Nonke under 52 No. Baghbar LAC showing (i) Moychan Sheikh (34 years), son of Ghotu Sheikh and (ii) Fatekjan Nessa (29 years), wife of Moychan as voters;
(iii) Ext.C - Certified copy of extract of Electoral Roll of 1997 pertaining to Village - No. 1 Alopatichar under 45 No. Baghbar LAC showing Khotejan Bidhaba (38 years), wife of Moychan as a voter along with 2 (two) other names;
(iv) Ext.D - Certificate dated 25.06.2015 issued by the Secretary, 71 No. Alopati Majarchar Gaon Panchayat and countersigned by the Block Development Page No.# 5/11 Officer, Mandia Development Block to the effect that the proceedee, 39 years, was a daughter of Maysan Sheikh of Village - Alopati and she got married on 09.03.1994 with Sadagar Ali, son of Ahmed Ali, Village - Alopati; and
(v) Ext.E - Certificate dated 08.10.2015 issued by the Gaonbura, 1, 2 and 3 No. Alopati Nonke.
Other than the aforementioned documents, no other document for establishing linkage between the proceedee and her projected parents was exhibited before the Tribunal.
7. Conspicuously, the proceedee who stated her age to be 39 years in the year 2016, had failed to produce any Electoral Roll where her name was enrolled as a voter nor did she state about the reason for such non-enrollment. For the purpose of establishing linkage to either of her projected parents who were stated to be Indian citizens and relatable to a period prior to the cut-off date of 25.03.1971 the proceedee projected, as mentioned above, Moychan Sheikh as her father and Fatekjan Nessa as her mother respectively, both names having appeared in the Electoral Rolls of 1966 (Ext.A) and 1970 (Ext.B) and her projected mother, Khotejan Bidhaba's name having appeared in the Electoral Roll of 1997 (Ext.C) taking the plea that Fatekjan Nessa and Khotejan Bidhaba were one and the same person. As the name of the proceedee did not appear with either of her projected parents in any of the Electoral Rolls as voters together, the proceedee sought to draw linkage with her projected father by placing reliance in the certificate issued by 25.06.2015 issued by the Secretary, 71 No. Alopati Majarchar Gaon Panchayat (Ext.D) and the Certificate dated 08.10.2015 issued by the Gaonbura, 1, 2 and 3 No. Alopati Nonke (Ext.E) respectively. In respect of Ext.E, the proceedee adduced the evidence of the Gaonbura In-Charge of Village - Alopatichar (D.W.2). The proceedee in absence of cogent, reliable and acceptable documentary evidence to link herself with either of her projected parents, also adduced the evidence of D.W.3.
8. In so far as Ext.D is concerned, the Secretary, 71 No. Alopati Majarchar Gaon Panchayat i.e. the author of the certificate did not testify before the Tribunal on the basis of contemporaneous record to prove the said certificate and also to the contents thereof. In Rupjan Begum vs. Union of India, reported in (2018) 1 SCC 579, the Supreme Court has clarified that such certificate issued by the Gaon Panchayat Secretary is basically for married Page No.# 6/11 women and is used as a linkage document of such married women. It has been clarified that such a certificate by no means is proof of citizenship. Such certificate has to be verified at two stages i.e. verification of the genuineness of the documents and secondly, verification of the contents. As the concerned Gaon Panchayat Secretary was not examined, the first stage of verification was not met, not speak of the second stage of verification. Therefore, no reliance can be placed on Ext.D.
9. As the Tribunal had given proper accounts of the testimonies of D.W.2 and D.W.3 and also analyzed those testimonies in some detail 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 here under:-
"12. O.P. stated about another certificate disused by the Gaonburha of village: 1, 2, 3 and 4 No. Alopati Non K, which is exhibited as Ext.-E and stated that it is certified that O.P. is the daughter of Late Moychan Ali. Also it is certified that she is married to Sadagar Ali S/o Lt. Hamed Ali of Village - Alopati. In the Ext.-E the Gaonburha has also mentioned that O.P's Mother's name inserted in the voter list of 2014 under 45 Baghbar LAC, Part no. 84, Serial no. 10, House no. 4 that much of material facts mentioned in the Ext.-E while issuing the said certificate by the concerned Gaonburha Namely Abul Hussain. The said Gaonburha had not given evidence due to his health problem before this Tribunal. One Ikramul Hussain who is in-charge of Gaonburha had deposed evidence as D.W.-2. During his deposition D.W.-2 had stated that he is the son of Abul Hussain, the concerned Gaonburha of Village Alopati. D.W.-2 further stated that he was appointed as a Gaonburha in-charge by Circle Officer vide order dated 22.09.16, the said order is Exhibited as Ext.-2. D.W.-2 during his course of evidence stated that Ext.-E is issued by his father. D.W.-2 also verified his father's signature put in the Ext.- E. From the deposition of Gaonburha in-charge as well as from Ext.-E nothing can be derived about the paternal site of O.P. By mentioning a voter list of 2014 and mentioning a name of a person as the father of O.P. as well as by mentioning O.P.'s husband's name cannot lead to any discloser about O.P.'s Page No.# 7/11 Citizenship by birth through her Indian parents.
13. Besides that, the Gaonburha, being in the capacity of the village Head Man had issued the said certificate but he has no assessment of O.P.'s family nor he had disclosed any marital facts such as the date of birth and date of marriage of O.P., no mentioning of O.P.'s mother's name. About her grandparent from paternal side, about their inhabitancy in the village Alopatichar are not disclosed from the deposition of D.W.-2. The fact is that, O.P. being a resident in the same village with the Gaonburha is not sufficient to issue a certificate without special means of knowledge. Moreover, under Executive Instruction part VIII chapter I of the Assam Land and Revenue regulation, 1886 according to the instruction to issue such certificate and as such, it has no legal sanctity and cannot be treated as a legal certificate. On further perusal of the certificate of Gaonburha it is evident that on the top (middle) of the certificate the State Emblem is embossed. This unauthorized use of this State Emblem itself renders the certificate of Gaonburha Ext.-G inadmissible in evidence.
14. O.P. produced one Mubarak Ali, another witness as D.W.-3 and through him she tried to establish her claim of Indian Citizenship by birth. Ext.-D and Ext.-E, the certificates issued by G.P. Secretary and Gaonburha of Village Alopati Non K have failed to establish adequately O.P.'s linkage with her parents. Besides that, O.P. have not submitted any other documents apart from Ext.-D and Ext.-E from which it can be ascertained that she is the daughter of Late Maychan Sheikh. But, one Mobarak Ali was produced by O.P. as her elder brother and made him as D.W.-3. On perusal of the pleadings of O.P. it is found that there is no mention in her pleadings about any brother if she has any. Now, sudden appearance of Mobarak Ali and projected him as her elder brother, the approach of O.P. to establish her Indian Citizenship cast serious doubt in mind for which the deposition of D.W.-3 cannot be taken as trustworthy evidence. However, this Tribunal perused the evidence of D.W.-3 and found that D.W.-3 claimed himself as the Page No.# 8/11 elder brother of O.P. On perusal of the oral testimony of D.W.-3, it is found that, his statements are not to be trust worthy, because of many contradictory statements made by him while adducing his evidence. In his deposition, he stated that his father expired after the year 1970. This statement has also given by O.P. in the W/S as well as in her Affidavit. If their father died after 1970 then this elder brother i.e. D.W.-3 and O.P. cannot be born after their father's death. As per O.P.'s own admission, if she is 39 years old in the year 2016 then her year of birth ought to have been sometime in the year 1977. From this revelation the claim of O.P. can be rejected straight way by stating that said Moychan Sheikh, whose name inserted as voter in the Electoral Roll of the year 1966 and 1977 under 52 No. Baghbar LAC cannot be the father of O.P.
15. It is also found that D.W.-3 disclosed his date of birth as 01-05-1971 but, by stating that his father died after 1970, a self contradictory statement itself makes D.W.-3's evidence untrustworthy. Further, D.W.-3 remained silent from mentioning about the place where he was born and brought up. In the chief, D.W.-3 did not mention how many children his parents had. But, contradictorily D.W.-3 disclosed while replying to the Tribunal's queries that O.P. is the third child among the six children of their parents and he is the eldest one and he further disclosed that the age of his immediate brother is about 44 years old and the youngest brother is about 24 years old presently. The children who are claimed to be born from a person who died in the year 1970 cannot be taken into consideration. Besides that, both O.P. and D.W.-3 had not given any plausible explanation at all about this absurd revelation and discrepancies. Here again on the basis of evidence D.W.-3, it can be said that, either Moychan Sheikh, the voter of Ext.-A and Ext.-B cannot be the father of O.P. or these two documents are manufactured and purportedly place by O.P. to establish her claim as Indian Citizen through the persons whose name had inserted in the Electoral Roll before the specific year i.e., the year of 1966 and 1970. D.W.-3 further mentioned that Page No.# 9/11 his mother's name as Khudejan Nessa but while going through with Ext.-A and Ext.-B there no voter has found by name of Khudejan Nessa.
16. Apart from that, D.W.-3 being her elder brother, did not disclose anything specific about O.P., which is supposed to be in his special knowledge. He merely stated that O.P. was born and brought up at village:
Alopati. But as a reply to the Tribunal D.W.-3 has stated that he didn't know when O.P. was born. Also, D.W.-3 did not disclose anything about O.P.'s marriage. Without disclosing about his educational qualification he merely mentioned about an Admit Card issued and marked as Ext.-J. Apart from this document D.W.-3 did not disclose where he had studied. Also there is no documentary evidence to prove about the entry of D.W.-3's date of birth at the time of his enrollment in the school. Apart from the Ext.-J, i.e. the Admit Card of H.S.L.C. neither D.W.-3 had submitted any other documents related to his academic career nor there is any verification of Ext.-J in regard to its authenticity. On this account it can be said that Ext.-J has no evidentiary value."
10. 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 was held that a certificate issued by a Gaonbura containing the State Emblem of India, like Ext.E in the instant case, cannot be regarded as valid and acceptable document rendering the said certificate inadmissible in evidence.
11. After going through the materials on record, the Tribunal found that the petitioner as the proceedee, had failed to discharge her burden as required under Section 9 of the Foreigners' Act, 1946 by failing to establish her linkage with the persons whose names were recorded as voters in the Electoral Rolls of 1966 and 1970. 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 close relative like brother, etc. it cannot be said that such a witness is an independent witness and, therefore, the Court or the Tribunal is to be cautious and circumspect in accepting the veracity of oral evidence so adduced unless it is corroborated by other reliable, acceptable and dependable material. The decision on conferment of citizenship on a proceedee cannot Page No.# 10/11 be decided in the affirmative for the proceedee unless the proceedee discharges the burden of proof that lies on him/her under the law. Save and except the oral testimony of D.W.3 as a brother of the proceedee, no linkage between himself and the proceedee has been established from any other evidence. As have been mentioned above, the proceedee did not mention anything about her siblings in her written statement as well as in her evidence filed on affidavit. In such situation, the endeavour made by the proceedee, in the absence of cogent, reliable and acceptable documentary evidence, to traverse the distance of proving her status of citizenship by way of oral testimony of D.W.3, in the considered opinion of this Court, has fallen short of the requirement to be acceptable for the fact of presence of the proceedee on Indian soil prior to 25.03.1971. Having gone through the accounts given by the Tribunal for arriving at the finding of facts, we do not find any perversity and, thus, do not find no good and sufficient reason to differ with the finding of facts so arrived at by the Tribunal and we deem it appropriate not to interfere with the observations as regards the status of the proceedee, made by the Tribunal in its order/opinion.
12. As regards the contention raised by the learned counsel for the petitioner that as the notice had mentioned the name of her father, Maychan Ali who was an Indian citizen the proceeding initiated should not have continued, it is held in the writ petition, W.P.(C) No. 3971/2016 (Rupali Bibi vs Union of India and others) by a co-ordinate bench of this Court that a notice issued by a Foreigner's Tribunal to a proceedee describing him or her as son or daughter of some person and calling upon him or her to a proceeding where his or her citizenship of India is questioned by the State cannot be construed as evidence of such relationship.
13. A perusal of the order/opinion dated 23.08.2018 passed by the Tribunal shows that the Tribunal had appreciated the entire evidence led by the petitioner before it in the proper perspective 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 Page No.# 11/11 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 dismissed. There shall be no order as to costs.
Interim order passed on 29.03.2019 stands recalled. Concerned State authorities to take action accordingly.
Office to send back the case records to the Tribunal forthwith.
JUDGE JUDGE Comparing Assistant