Gauhati High Court
Aysha Bibi @ Ayesha Khatun @ Ayesha Bewa vs The Union Of India And 5 Ors on 11 September, 2019
Author: K.R. Surana
Bench: Manojit Bhuyan, Kalyan Rai Surana
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GAHC010162092019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 4935/2019
1:AYSHA BIBI @ AYESHA KHATUN @ AYESHA BEWA
W/O- LATE SOKBUL SK, D/O- LATE DAROG ALI SK, R/O- WARD NO. 2,
GAURIPUR, P.O AND P.S- GAURIPUR, DIST- DHUBRI, ASSAM
VERSUS
1:THE UNION OF INDIA AND 5 ORS
REP. BY THE SECRETARY TO THE MIN OF HOME AFFAIRS, GOVT OF
INDIA, SASTRI BHAWAN, NEW DELHI, PIN- 110001
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM
HOME DEPTT
DISPUR
GUWAHATI- 06
3:THE SUPERINTENDENT OF POLICE(B)
DHUBRI
P.S DHUBRI(SADAR)
DIST- DHUBRI
ASSAM
PIN- 783301
4:THE DEPUTY COMMISSIONER
DHUBRI
DIST- DHUBRI
ASSAM
PIN- 783301
5:THE ELECTION COMMISSION OF INDIA
REP. BY THE CHIEF ELECTION COMMISSION OF INDIA
NIRVACHAN SADAN
ASHOKA ROAD
NEW DELHI
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INDIA
PIN- 110001
6:THE NATIONAL REGISTER OF CITIZEN
REP. BY THE STATE COORDINATOR
ASHYUT PLAZA
BHANGAGARH
KAMRUP(M)
ASSAM
PIN- 78100
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 KALYAN RAI SURANA
ORDER
11.09.2019 (K.R. Surana, J) Heard Mr. M.A. Sheikh, the learned counsel for the petitioner. Also heard Ms. G. Hazarika, learned counsel for respondent No.1, Mr. A. Kalita, learned standing counsel for the respondents No.2 to 4, Ms. A. Borgohain, learned Standing counsel for respondent No.5 and Ms. U. Das, learned Standing counsel for respondent No.6.
2) By this writ petition filed under Article 226 of the Constitution of India, the petitioner has challenged the opinion dated 02.05.2019 passed by the learned Member, Foreigners Tribunal No. 4, Dhubri in Case No. F.T-4/01/GPR/2018 arising out of I.M.(D)T. Case No.6682/98. By the said opinion, the petitioner was declared as a foreigner who had entered India after 25.03.1971.
3) The learned counsel for the petitioner has referred to the written statement as well as evidence- on- affidavit filed by the petitioner. It is submitted that the petitioner was born and brought up in Village- Sanjerkuti, P.S. Gauripur under the then Dist. Goalpara (now Dhubri), Assam. It is projected that the petitioner was married to one Sokbul Sk, son of Tepu Page No.# 3/7 Sk of Ward No.2, Gauripur, P.S. Gauripur, under Dist. Dhubri, Assam. Accordingly, an inhabitant certificate had been issued in favour of Aysha Bewa, wife of Late Sakbul Sheikh by the Executive Officer, Gauripur Town Committee, bearing certificate under Sl. No. 5052 dated 05.12.2015. The petitioner has projected that she has four brothers and five sisters, viz., Monjul Sk, Nurul Hoque, Surut Ali, Jahidul Sk, Aysha Bibi (petitioner), Joneka Bibi, Ahali, Bulbuli and Azima Khatun. She has projected that Darog Ali Sk is her father and Kasiron Bibi is her mother. It is submitted that the name of the father of the petitioner had appeared in the electoral rolls of 1966 and 1970 and that his name is also recorded in the National Register of Citizens (NRC for short) of 1951 in respect of Village- 51 Sajur kuti, under Dhubri Police Station. It is submitted that the name of the petitioner appeared in the electoral roll of 1985 and 1994.
4) The learned counsel for the petitioner has submitted that as per his instructions, the petitioner had submitted the original documents with her written statement, but those documents were returned after retaining photocopies. Later on, the original documents were submitted on 23.04.2018 together with evidence- on- affidavit of DW-1, but the original documents were returned by requiring the documents to be submitted at the time of cross examination of witnesses. The petitioner was cross examined on 08.08.2018, but when the petitioner wanted to file the original documents, the learned Tribunal had refused to accept the same on the ground that the documents were not filed earlier in point of time. Hence, it is submitted that the learned Tribunal, by refusing to accept the original documents earlier in point of time, has mischievously non- suited the petitioner. It is further submitted that on the prayer made by the petitioner, the learned Tribunal had issued summons to (i) the Circle Officer, Dhubri Circle to prove Kacha patta (Ext.7), (ii) to District Election Officer to prove voters list of 1966 (Ext.5) and voters list of 1985 (Ext.2), and (iii) to the Superintendent of Police (B), Dhubri to prove NRC of 1951 (Ext.4). However, the said witnesses did not appear despite issuance of summons, but the learned Tribunal did not take any measure to compel the appearance of the witnesses and thereby prevented the petitioner from proving her case with a premeditated mind. It is submitted that the learned Tribunal had failed to consider the documentary evidence available on record and deprived the petitioner from producing the certified copies of the documents in support of her case by applying dilatory tactics and the case was decided against the petitioner by holding that the documents submitted were photocopies which are not admissible as evidence under Section 62 and 63 of Page No.# 4/7 the Indian Evidence Act. It is also submitted that the learned Tribunal had also failed to take legal action against the witnesses who were failed to appear before the Tribunal despite of summons issued by the learned Tribunal and, as such, by not considering the evidence available on record, the petitioner has been declared as a foreigner. Hence, it is submitted that the impugned opinion be set aside and quashed and that the petitioner be declared as an Indian citizen.
5) We have considered the submissions of the learned counsel for the appearing parties and have perused the documents annexed to the writ petition. It is seen that in support of her case, the petitioner has examined three witnesses, including herself (DW-1), Monjul Hoque (DW-2) and A.S.I., Office of the Superintendent of Police (B), Dhubri (DW-3). The petitioner has exhibited the following documents, viz., Inhabitant Certificate in the name of the petitioner, issued by the Executive Officer, Gauripur Town Committee (Ext.1), copy of the electoral roll of 1985 containing the name of the petitioner (Ext.2), copy of the electoral roll of 1994 containing the name of the petitioner (Ext.3), copy of 1951 NRC containing the name of Darog Ali Sk, projected father of the petitioner (Ext.4), copy of electoral roll of 1966 containing the name of Omed Ali Sk, Somed Ali Sk, Abed Ali (all father's brothers), Darog Ali Sk (projected father), Meseron Bibi (aunt) (Ext.5), electoral roll of 1970 containing the names of Omed Ali Sk, Somed Ali Sk, Abed Ali (all father's brothers), Darog Ali Sk (projected father), Meseron Bibi (aunt), Jatri Bibi (mother), Sofura Bibi (aunt) (Ext-6), copy of kacha patta (Ext.7). In the evidence- on- affidavit, it has been mentioned that the father of the petitioner was known by three names, i.e. Darog Ali Sk, Darog Ali, Darog Tosar Ali. It is submitted that the petitioner is also known by three names, i.e. Aysha Khatun, Aysha Bibi and Aysha Bewa. It is stated that the name of the husband of the petitioner is Sokbul Sk, but he has been named in the voters list as Mokbul Sk.
6) By assuming but not admitting that the learned Tribunal did not accept the original documents from the petitioner, we have perused the documents purportedly marked as Ext. Nos. 1 to 7 by the petitioner as DW-1. The Elector Photo Identity Card marked as Ext.8 by DW-2 is not found annexed to this writ petition.
2) In respect of the 1951 NRC (Ext.4), the said document was prepared during census operations conducted under the Census Act, 1948. As per the provisions of Section 15 Page No.# 5/7 thereof, it is provides that the records of census is not open for inspection and nor it is admissible in evidence. This Court in the case of Borhan Ali @ Barhan Ali Vs. Union of India & Ors., (2018) 6 GLR 491: 2018 (4) GLT 392, has held as under:-
"16. Ext. B is a copy of National Register of Citizens (NRC), 1951 containing the names of Hayat Ali, son of Kosi Kha; and Atakjan, wife of Hayat Ali. This copy of NRC, 1951 was issued by the President of Kamrup District Jamiat-E-Ulema-E-Hind on 31.01.1969. 16.1. This document is not admissible in evidence. NRC, 1951 was prepared on the basis of the Census Act, 1948. Section 15 of the Census Act says that record of census is neither open to inspection nor admissible in evidence.
16.2. In Bhanbhasa Sheikh Vs. Union of India, 1970 Assam LR 206, a Single Bench of this Court held that entry in NRC is not admissible in evidence. In that case also, similar certificate was issued by the Tezpur District Jamiat-E-Ulema-E-Hind.
16.3. As held in Bhanbhasa Sheikh (supra), this is a document issued by a private organization and is, therefore, not a public document. Therefore, such a document issued by a private organization and coupled with the prohibitory mandate of Section 15 of the Census Act, would be inadmissible in evidence. This position has been affirmed by a Division Bench of this Court in Abdul Majid Vs. Union of India, WP(C) No.6090/2016 decided on15.03.2018."
7) Thus, the entries made in the 1951 NRC does not prove the lineage of the petitioner with her projected parents. The electoral roll of 1985 (Ext.2) and 1994 (Ext.3) is in the name of the petitioner at her marital home, which does not link the petitioner with her parents. The electoral roll of 1966 (Ext.5) and 1970 (Ext.6) does not link the petitioner with her projected parents because none of the persons named therein have deposed in favour of the petitioner. Thus, the only link between the petitioner and her projected father is the oral evidence of Monjul Hoque (DW-2) and the Inhabitant Certificate in the name of the petitioner, issued by the Executive Officer, Gauripur Town Committee (Ext.1). In this regard, the author of Ext.1 was not examined, as such, the said document stands "not proved". Surprisingly, the DW-2 has not exhibited any entry contained in any document where the name of Darog Ali @ Darog Sk @, Darog Tosar Ali is shown as his own father. It is well settled that marking of a document is not enough, but the contents of the document has to be proved. Thus, proving documents containing name of projected father, viz., electoral roll, kacha patta, etc., does not constitute a valid link between the petitioner or DW-2 with their projected father, unless both their names i.e. either the petitioner and her projected father or the DW-2 and his projected father appear together.
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8) The petitioner has stated in her evidence- on- affidavit that her projected father had died about 22/23 years ago. The petitioner has exhibited the kacha patta (Ext.7). A kacha patta, as its name suggests is only a draft patta, which does not constitute a record of right and it becomes a record of right only after a periodical patta is lawfully issued. Therefore, a kacha patta is not a primary proof of ownership of land and as the document is temporary, the same is not a proof of citizenship.
9) As regards the allegations that the learned Tribunal did not alow the petitioner to submit the original exhibits, it is seen that the petitioner had submitted her written statement on 08.03.2018 and her evidence- on- affidavit on 23.04.2018. The petitioner was cross examined on 08.08.2018. The evidence- on- affidavit of DW-2 was submitted on 18.09.2018 and he was cross examined on 28.11.2018. The A.S.I. (DW-3), was summoned and examined on 08.01.2019. Thereafter, the matter was heard and the opinion was delivered on 02.05.2019. Thus, after the written statement was filed on 08.03.2018, the proceeding was alive for more than 1 year. If the learned Tribunal had been refusing to accept original documents, nothing prevented the petitioner to submit a petition before the learned Tribunal to explain the sequence of events and to make a prayer before the learned Tribunal to accept the original documents. It is not explained, why when the witnesses were cross examined without marking of original documents as exhibits, the petitioner did not submit any petition, or moved this Court during the pendency of trial. Thus, we are unable to accept the projection that the learned Tribunal did not accept the original exhibits tendered by the petitioner and non- suited the petitioner at the time of delivering the opinion. It appears that there were latches on part of the petitioner while participating in the proceeding.
10) 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. Therefore, as the relevant facts are within the knowledge of the proceedee, notwithstanding anything contained in the Evidence Act, 1872, the burden of proving citizenship absolutely rests upon the proceedee as per the provisions of Section 9 of the Foreigners Act, 1946. In the present case in hand, the petitioner has failed to discharge the burden and to prove that she is an offspring of parents of Indian origin.
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11) In light of discussions above, this Court does not find that the impugned opinion rendered by the learned Tribunal is vitiated by any jurisdictional error or that there was any failure of giving opportunity of hearing to the petitioner. Therefore, as the Court is exercising supervisory jurisdiction and not appellate jurisdiction, no case is made out for substituting the opinion rendered by the learned tribunal with the view of the Court. This is not a case where the learned Tribunal had refused to admit admissible evidence or that its finding is dehors the evidence on record.
12) Hence, this writ petition fails and the same is dismissed, leaving the parties to bear their own cost.
13) The Registry may communicate a copy of this order to the learned Foreigners Tribunal No. 4, Dhubri, to make it a part of the records of Case No. F.T-4/01/GPR/2018 for future reference.
JUDGE JUDGE Comparing Assistant