Gauhati High Court
Jahura Khatun vs The Union Of India And 5 Ors on 4 December, 2019
Author: Parthivjyoti Saikia
Bench: Suman Shyam, Parthivjyoti Saikia
Page No.# 1/4
GAHC010202792019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 6346/2019
1:JAHURA KHATUN
D/O- LATE TOMEJ UDDIN, W/O- MONTAZ ALI SHEIKH, R/O- VILL-
DEOTARI, P.O- ALUKHUNDA, P.S- MANIKPUR, DIST- BONGAIGAON,
ASSAM, PIN- 783392
VERSUS
1:THE UNION OF INDIA AND 5 ORS
THROUGH THE MIN OF HOME AFFAIRS, GRIHA MANTRALAYA, NEW
DELHI- 110001
2:THE STATE OF ASSAM
THROUGH THE SECRETARY TO THE GOVT OF ASSAM
HOME DEPTT
DISPUR
GHY- 6
3:THE ELECTION COMMISSION OF INDIA
NIRVACHAN SADAN
ASHOKA ROAD
NEW DELHI- 110001
4:THE STATE COORDINATOR
NRC
ASSAM
BHANGAGARH
GHY- 781005
5:THE DEPUTY COMMISSIONER
BONGAIGAON
P.O- BONGAIGAON
Page No.# 2/4
DIST- BONGAIGAON
ASSAM
PIN- 783380
6:THE SUPERINTENDENT OF POLICE (B)
BONGAIGAON
P.O- BONGAIGAON
DIST- BONGAIGAON
ASSAM
PIN- 78338
Advocate for the Petitioner : MR. S C BISWAS
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
ORDER
Date : 04-12-2019 (Parthivjyoti Saikia, J.)
1. Heard the learned counsel Mr. S. C. Biswas, for the petitioner. Also heard Mr. A. Kalita, learned standing counsel for the Foreigners Tribunal; Ms. A. Verma, learned standing counsel for the NRC; Ms. G. Hazarika, learned CGC appearing for the Union of India and Mr. B. Das, learned standing counsel for Election Commission.
2. In the instant writ petition, the petitioner has challenged the order dated 28.06.2018, passed by the Foreigner Tribunal No. 1, Bongaigaon by which, the learned Tribunal had rejected the evidence produced by the petitioner and declared her to be a foreigner of post 25.03.1971 stream.
3. On a reference made by the Superintendent of Police (B), Bongaigaon, the learned Tribunal issued notice to the petitioner and she appeared and contested the proceeding. She filed the voter list of 1966, bearing the name of her father Tomej Sk. She also filed the computer generated voter details of 1966 which was issued in the name of Tomej Sk. The petitioner had filed some other documents; they are (i) photocopy of 1970 voter list, bearing the name of her father; (ii) photocopy of 1989 voter list, bearing the name of bearing her own name, (iii) photocopy of 1993 voter list, bearing her name,
(iv) photocopy of 1997 voter list, bearing her name (v) photocopy of 2005 voter list, bearing her Page No.# 3/4 name; vi) photocopy of 2011 voter list, bearing her name and (vii) photocopy of V.C.D.C. Certificate in her name.
4. The learned Tribunal rejected the computer generated voter details of 1966 that stood in the name of Tomej Sk. i.e. the father of the petitioner. The relevant observation of the learned Tribunal is quoted as under;
"I have minutely perused the records and the materials available thereon. Ext-A is a photocopy of 1966 voter list in the name of Tomez Sk S/O-Behuli. Ext-A(1) is a computer generated voter details of 1966 in the name of Tomej Sk S/O- Behuli. Ext-B is a photocopy of 1970 voter list in the name of Tomej Sk S/O-Behalu. Ext-C is a photocopy of 1989 voter list in the name of Jahura Khatun W/O-Muntaz. Ext-D is a photocopy of voter list of 1994 in the name of Muntaz Ali, Jahura Khatun and Jaharul Hoque. Ext-E also a photocopy of Voter list of 1997 in the name of Jahura Khatun and Jaharul Hoque. Ext-F is a photo copy of voter list of 2010 in the name of Muntaz Ali and Jahura Khatun. Ext-G is a photocopy of V.C.D.C. Certificate in the name of Johura Khatun D/O of Tomez Sk. Ext-H is a Elector Photo Identity Card in the name of Billal Hussains. But she failed to produce the original documents in support of her claim of Nationality or Citizenship of India. Mere filing of documents or marking of documents as exhibits by the O.P./Proceedee is not enough. Not only the documents but also the contents thereof would have to be proved and relevancy established as per mandate of Section 9 of the Foreigners Act, 1946 as explained by the Hon'ble Supreme Court in Sarbananda Sonowal -Vs- Union of India reported in (2005) 5 SCC 665. It therefore reveals from the case record that the O.P./Proceedee herein has absolutely failed to discharge her mandatory burden to prove and established that she is not a foreigner as envisaged U/S 9 of the Foreigners' Act 1946 (As amended upto date). The reference thus stands unassailed and unrebutted and accordingly it is allowed."
5. Mr. Biswas, learned counsel for the petitioner has submitted that the learned Tribunal had committed error while making the aforesaid observation. Mr. Biswas further submitted that computer generated documents are admissible in evidence. Mr. Biswas relied upon a judgment of this Court passed in Mamata Bhumik -vs- Union of India and Others [WP(C) No. 8610/2018] to support his point.
6. Mr. Kalita, learned standing counsel for the Foreigner Tribunal has also agreed to the contention of Mr. Biswas, the learned counsel for the petitioner.
Page No.# 4/4
7. After perusal of the impugned order and in view of the decision rendered in the case of Mamata Bhumik (supra) we are of the view that the learned Tribunal had erred in law in rejecting the computer generated voter details of 1966 treating it to be inadmissible evidence. We find that the learned Tribunal has not given any reason as to why it had rejected the other evidence produced by the petitioner. Therefore, we are of the opinion that the impugned order dated 20.08.2016 is unsustainable in law and is liable to be set aside. Accordingly, the impugned order stands set aside.
8. The matter is remanded back to the learned Tribunal for passing a judgment afresh after hearing both the parties. We also direct that within 2 (two) weeks from today, the petitioner shall appear before the learned Tribunal alongwith a certified copy of this order.
9. We make it clear that if the petitioner fails to appear before the learned Tribunal within 2 (two) weeks, this order would stand discharged automatically.
The writ petition stands disposed of.
JUDGE JUDGE Comparing Assistant