Gauhati High Court
Amiran Nessa @ Amirjan vs The Union Of India & 3 Ors on 13 September, 2013
Equivalent citations: AIR 2014 (NOC) 272 (GAU.)
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH)
WP(C) 2564 of 2013
Amiran Nessa @ Amirjan
D/o. Late Hayet Ali,
W/o. Mugrab Ali,
R/o. Karagari None 12 No.Block,
P.S. - Sarthebari,
Dist.- Barpeta, Assam. .
............Petitioner.
-Vs-
1. The Union of India, represented by the
Ministry of Home Affairs, New Delhi.
2. The State of Assam, represented by the
Commissioner and Secretary to the Govt.
of Assam, Department of Home, Dispur,
Guwahati-6.
3. The Superintendent of Police (B), Barpeta,
PO, PS & Dist.- Barpeta, Assam.
4. The Officer-in-Charge, Sarthebari Police
Station, P.O.- Sarthebari, Dist.- Barpeta,
Assam, Pin-781307.
Respondents.
BEFORE THE HON'BLE MR. JUSTICE B.K. SHARMA For the petitioners : Mr. A. R. Sikdar, Adv.
For the respondents: Mr. N. Upadhyay, GA, Assam.
Mr. M. Bhagabati, CGC.
Date of hearing : 29/08/2013.
Date of judgement : 13/09/2013.
WP(C) 2564/2013 - CAV Page 1 of 7
JUDGEMENT AND ORDER (CAV)
This writ petition is directed against the judgment and order 15.02.2013 passed by the learned Member, Foreigners Tribunal-III, Barpeta, Assam in FT Case No. 153(III)/2011 (ref. IM(D)T Case No. 7161/B/98 (State of Assam Vs. Amiran Nessa @ Zamiraon Nessa) declaring the petitioner to be foreigner (Illegal Bangladeshi Migrant) who entered into Assam after the cut off date 25.03.1971.
2. I have heard Mr. A.R. Sikdar, learned counsel for the petitioner. Also heard Mr. M. Bhagabati, learned CGC and Mr. N. Upadhyay, learned State Counsel. I have also perused the materials on record including the records received from the Tribunal.
3. In response to the reference against the petitioner suspecting her to be a foreign national, appeared before the Tribunal and submitted her written statement. In the written statement, she had contended that the name of her grand father Darog Ali appeared in the electoral roll of 1965. Similarly, her father's name (Hayed Ali) also appeared in the electoral roll of 1970. As per the written statement, she was born at Village Bahcha, Mouza- Sarukhetri, PS and district - Barpeta. She got married with one Mograb Ali, S/o. Late Hussen Ali of village Karaguri Nonke 12 No. Block, Mouza- Paka, PS- Sarthebari, District - Barpeta.
4. In the written statement, the petitioner had further stated that her name appeared in the electoral roll of 1993 and that the Sarthebari PS (Border) registered the case against her without proper enquiry with the sole purpose of harassing her. Along with the written statement, the petitioner submitted the copies of the voter list of 1965, 1970, 1993 and the certificate of Gaonbura. In the voter list of 1965 pertaining to 53 No. Sarukehtri LAC (Extract only), names of Darag Ali Mia and Kukimon Nessa, aged 47 and 41 years respectively appears. In the 1970 voter list of the same constituency (extract only), the names of Hayed Ali, Bosiran Nessa and Rahmat Mia aged 45, 35 and 21 appears. In the 1997 voter list, the name of WP(C) 2564/2013 - CAV Page 2 of 7 Basiran Nessa aged 75 years appears. In the 1993 voter list, the name of Amiran Nessa W/o. Magbar aged 38 years appears. The Gaonbura's certificate is dated 12/09/2012 certifying the petitioner to be a resident of the particular locality.
5. Above are the documents on the basis of which the petitioner wanted to prove her Indian citizenship, that too, by birth. The aforesaid documents had been exhibited in the Tribunal as Ext. A, B, C, D and E respectively.
6. The learned Tribunal appreciating the aforesaid evidence adduced by the petitioner has passed the impugned judgement and order dated 15/02/2013 holding the petitioner to be a foreign national. As recorded in the impugned judgement and order and also stated above, if the voter lists of 1965 and 1970 are to be believed, than the age difference between the projected father and grand father of the petitioner was only of 5 (five) years. In the 1965 voter list containing the name of the projected father and mother, their respective age is 47 and 41 years. If that be so, the projected father of the petitioner, namely, Hayed Ali could not have been aged 45 years in 1970. Surprising, in the Ext. C voter list containing the name of the projected mother of the petitioner and her age is recorded as 75 years while she was only 35 years of age in 1970.
7. In Ext. D photocopy of the voter list of 1993, the name of Amiran Nessa appears recording her age as 38 years. If she could become voter in 1993, she could have produced voter list of subsequent years containing her name. She ought to have produced voter list of pre 1993 containing her name.
8. As noted above, the certificate of Gaonbura has got nothing to do with the question as to whether the petitioner is an Indian citizen or not. By the said certificate, it has only been certified that the petitioner is only a resident of the particular locality. The learned Tribunal has rightly recorded the findings that if the parents of the petitioner were aged 45 and 35 years, their names ought to have WP(C) 2564/2013 - CAV Page 3 of 7 been recorded in the earlier voter lists. No explanation could be furnished by the petitioner. This is no explanation as to why their names did not appear in any subsequent or earlier voter list including the 1965 voter list.
9. According to the petitioner, Amiran Nessa and Zariran Nessa is one and the same person i.e. the petitioner. In the Gaonbura's certificate referred to above (Ext. E) one Amijan W/o. Magrab Ali has been recorded. It is not the case of the petitioner that she is also known as Amijan. Interestingly, apart from the above documents produced before the Tribunal, the petitioner in her over enthusiasm has also produced another voter list of 1959 showing the inclusion of names of her projected parents aged 63 and 31 years respectively. If her father was only 45 years old in 1970 it is not understood how he could be 63 years old in 1955, even older than his father who was only 47 years old in 1965. Similarly, in the 1997 voter list annexed as Annexure-9 to the writ petition, the petitioner's mother become 75 years of age. This discrepancies are sought to be overcome by the learned counsel for the petitioner with the submission that such mistakes are attributable to the Enumerators. It will have to be borne in mind that in the voter lists, similar names, even to the extent of resembling with the names of father's and grand father's are to be found. It could be the advantage of a foreigner to identify any name from the voter list with the slightest of resemblance to project as his parents and grand parents.
10. 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 :-
WP(C) 2564/2013 - CAV Page 4 of 7"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."
11. 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, 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 WP(C) 2564/2013 - CAV Page 5 of 7 upon by the Court. Contents of the document cannot be proved by merely filing in a Court.
12. 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.
13. The writ petition is dismissed. There shall be no order as to costs.
14. 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 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.
12. Registry shall send down the case records to the Tribunal along with a copy of this judgement and order. List after one month for WP(C) 2564/2013 - CAV Page 6 of 7 furnishing report by the respondents, more particularly, the SP(B), Barpeta and Deputy Commissioner, Barpeta regarding action taken in term of this judgement and order.
JUDGE Sukhamay WP(C) 2564/2013 - CAV Page 7 of 7