Gauhati High Court
Kalpana Mandal vs The Union Of India And 5 Ors on 24 January, 2020
Bench: Manojit Bhuyan, Parthivjyoti Saikia
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GAHC010151152019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 4726/2019
1:KALPANA MANDAL
W/O. SRI NIREN MANDAL, D/O. RAMCHARAN MANDAL, R/O. HOUSE NO.
36, PUB SANTINAGAR, KAHILIPARA, GUWAHATI-19, DIST. KAMRUP (M),
ASSAM.
VERSUS
1:THE UNION OF INDIA AND 5 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, SHASTRI BHAWAN, TILOK MARG, NEW DELHI-01.
2:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
MINISTRY OF HOME DEPTT.
DISPUR
GUWAHATI-06.
3:THE DY. COMMISSIONER
KAMRUP (R)
AMINGAON.
4:THE SUPDT. OF POLICE (B)
KAMRUP (R)
ASSAM.
5:ELECTION COMMISSION OF INDIA
NEW DELHI-01.
6:THE STATE CO-ORDINATOR
NRC
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ASSAM
BHANGAGARH
GUWAHATI-05
Advocate for the Petitioner : MR M K ROY
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
O R D E R
24.01.2020 (Manojit Bhuyan, J) Heard Mr. M.K. Roy, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing respondent no.1. Also heard Mr. U.K. Nair, learned senior counsel represents respondent nos.2, 3 and 4; Ms. B. Das, learned counsel represents respondent no.5 and Ms. A. Verma, learned counsel for respondent no.6.
Petitioner assails opinion dated 17.05.2019 passed by the Foreigners' Tribunal, Kamrup (Rural) No.1, in GFT (R) Case No.1169/2017, declaring her to be a foreigner/illegal migrant, having illegally entered into India after 25.03.1971.
For the purpose of discharging burden as required under section 9 of the Foreigners Act, 1946 to prove that petitioner is not a foreigner, she exhibited as many as 9 (nine) documents, the particulars of which may be noticed as under:
(i) Exhibit-I- Certificate dated 17.01.2019 issued by the Gaonbura of Khapartari, Kandulimari Lat of Mouza-Dakhin Charu Bongsor certifying that petitioner is the daughter of Late Ramcharan Mandal and resident of village-Panikhaiti. It is also certified that Ramcharan Das and Ramcharan Mandal are one and same person.
(ii) Exhibit-II- Registered Sale Deed in the name of one Muthi Ram Mandal, projected grandfather of the petitioner.
(iii) Exhibit-III-Certificate dated 19.10.1997 issued by the Headmaster of Panikhaity Anchalik High School stating that the petitioner read upto Class-IX and left the school in the year 1990.
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(iv) Exhibit-IV- Certificate issued by the Secretary, 27 No. Sapartari Gaon Panchayat certifying that petitioner is the daughter of Ramcharan Mandal and got married with one Niren Mandal.
(v) Exhibit-V- Elector Photo Identity Card of the petitioner.
vi) Exhibit-VI- Certified copy of Voter List of 2011, in the name of the petitioner under the
locality of 1 Kahilipara and the name of the LAC is 53 No. East Guwahati LAC.
vii) Exhibit-VII- PAN Card in the name of the petitioner.
viii) Exhibit-VIII- Certified copy of Voter List of 2014, in the name of one Ramcharan
Mandal, aged 66 years son of Muchiram Mandal of village Panikhaiti, Part No.4 under 50 Palashbari LAC.
vii) Exhibit-IX- Draft NRC details of Ramcharan Mandal, projected father of the petitioner.
Petitioner examined herself as DW-1. Two projected brothers of the petitioner namely Parimal Mandal and Chittaranjan Mandal deposed as DW-2 and DW-3 From the documents above and for establishing linkage to Indian parents relatable to a period prior to the cut-off date of 25.03.1971, the petitioner projected one Ramcharan Mandal, aged 66 years, son of Mushiram Mandal, as her father, which name appeared in the Voter List of 2014 at Exhibit-8. But in the Sale Deed at Exhibit-2, her grandfather name is reflected as Muthi Ram Mandal. From the name of the projected grandfather reflected in the above two documents, it is seen that they are two different entities. The documents brought on record for the purpose of establishing linkage to said Ramcharan Mandal were the Certificate dated 17.01.2019 issued by the Gaonburah at Exhibit-1; Certificate issued by the Headmaster of Panikhaity Anchalik High School at Exibit-3 and Certificate issued by the Secretary, 27 No. Sapartari Gaon Panchayat at Exhibit-4. The said documents rendered itself as inadmissible in evidence in the absence of the authors of the certificates standing to prove the contents thereof. The Elector Photo Identity Card at Exhibit-5, PAN Card at Exhibit-7 of the petitioner and the NRC details of the projected father at Exhibit-9 are not relevant piece of documents to prove citizenship of the petitioner. No voter lists were produced and exhibited showing relationship with her projected father. The petitioner's name along with her projected husband appeared in the Voter List of 2011 at Exhibit-6 of Kahilipara locality at Guwahati, which, however, bore no relevance as her relation is shown with her projected husband and not with the projected father Ramcharan Mandal. The petitioner also annexed three documents i.e. two Voter Lists of 1966 and Voter List of 2014, but these were not exhibited by the petitioner.
The petitioner in her written statement stated that notice was issued in the name of Mayarani Mandal and she denied that she is Mayarani Mandal and claims to be Kalpana Mandal. Further, that Page No.# 4/5 the Notice was received by the relative of the petitioner wrongly believing that the noticee and the petitioner are the same person. Notwithstanding the denial, the petitioner in her deposition stated that she is called as Mayarani Mandal at home. The statements of Parimal Mandal as DW-2 and Chittaranjan Mandal as DW-3, who claimed to be the brothers of the petitioner, also stated in their depositions that their sister's home name is Mayarani Mandal. As regards the other statements of DW- 2 and DW-3, the same cannot be relied upon in the absence of any documents showing their relationship to the petitioner. In this we would observe that in a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 the evidentiary value of oral testimony without support of documentary evidence is wholly insignificant. Oral testimony alone is no proof of citizenship. The evidence of DW-2 and DW-3, thus, falls short of being considered as cogent, reliable and admissible evidence, so much so, to establish linkage of the petitioner to them. The petitioner has enclosed few documents with the writ petition for consideration. We would observe that fresh documents introduced in the present writ proceedings cannot be looked into or considered, the same not having been produced, exhibited and proved before the Tribunal at the first instance. The petitioner have made reference to the application filed before the Tribunal on 11.02.2019 and submits that her prayer for summoning the author/Headmaster of Exhibit-III was ignored and no order was passed thereon. In this respect we would observe that no infirmity is caused as it was not the case of the petitioner that despite the petitioner giving notice to the official first, no appearance had been made compelling the petitioner to file application before the Tribunal to summon the person/official concerned. The requirement for giving notice by the proceedee at the first instance is clearly laid down in the case of Khudeja Khatoon vs. Union of India [WP(C) 7756/2016] 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 father and/or the grandfather.
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 Page No.# 5/5 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.
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 02.09.2019 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