Gauhati High Court
Jarful Khatun @ Jharfuli vs The Union Of India And 7 Ors on 11 September, 2020
Author: Manojit Bhuyan
Bench: Manojit Bhuyan, Hitesh Kumar Sarma
Page No.# 1/5
GAHC010279352019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 1994/2020
1:JARFUL KHATUN @ JHARFULI
D/O- LT. SENGU SHEIKH, W/O- EUSUF ALI, R/O- VILL- ATAKATA, P.O. AND
P.S. DHULA, DIST.- DARRANG, ASSAM, PIN- 784146
VERSUS
1:THE UNION OF INDIA AND 7 ORS.
REP. BY THE SECY., MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, NEW
DELHI, PIN- 110001
2:THE ELECTION COMMISSION OF INDIA
REP. BY THE CHIEF ELECTION COMMISSIONER
NEW DELHI
PIN- 110001
3:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
DEPTT. OF HOME
DISPUR
GHY-06
4:THE STATE CO-ORDINATOR
OF NATIONAL REGISTER OF CITIZENS (NRC)
GOVT. OF ASSAM
DISPUR
GHY-06
5:THE DY. COMMISSIONER
DARRANG
MANGALDAI
P.S. MANGALDAI
Page No.# 2/5
DIST.- DARRANG
ASSAM
PIN- 784125
6:THE SUPERINTENDENT OF POLICE (B)
DARRANG
P.S. MANGALDAI
DIST.- DARRANG
ASSAM
PIN- 784125
7:THE ENQUIRY OFFICER OF REF. F.T. CASE NO. 194/07
P.S. DHULA
DIST.- DARRANG
ASSAM
PIN- 784146
8:KISMAT ALI
S/O- LT. KALU SK.
R/O- VILL- ATAKATA
P.S. DHULA
DIST.- DARRANG
ASSAM
PIN- 78414
Advocate for the Petitioner : MR. S ISLAM
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE HITESH KUMAR SARMA
ORDER
11.09.2020 (Manojit Bhuyan, J) Heard Mr. S. Islam, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing respondent nos.1 and 4. Ms. B. Das, learned counsel represents respondent no.2 whereas Mr. A. Kalita, learned counsel appears for respondent nos.3, 5, 6, 7 and 8.
Petitioner assails opinion dated 30.09.2019 passed by the Foreigners' Tribunal (4 th), Darrang, Page No.# 3/5 Mangaldai in F.T.4th Case No.641/DHL/2015, declaring her to be a foreigner, having illegally entered into India (Assam) after the cut-off date of 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, as many as 8 (eight) documents were exhibited by her, the particulars of which may be noticed as under :
(i) Exhibit-A - Copy of Voter List of 1966, in the name of one Sangu Sheikh, projected as father of the petitioner and one Hajra Khatun, projected as mother of the petitioner of village Atakata, Part No.51, Sub-Division-Mangaldai, P.S.-Dalgaon, District-Dalgaon, under 72 Mangaldai LAC.
(ii) Exhibit-B - Copy of Voter List of 1985, in the name of one Sangu Sheikh, projected as father of the petitioner, one Fulbhan Nessa, projected as stepmother of the petitioner and one A. Kader, projected as brother of the petitioner of village Atakata, Block No.62, Sub-Division-Mangaldai, P.S.-Mangaldai, District-Darrang, under 67 Mangaldai(SC) LAC.
(iii) Exhibit-C - Copy of Voter List of 1997, in the name of one Sangu Sheikh, projected as father of the petitioner and one Hajra Khatun, projected as mother of the petitioner of village Non-K Magurmari, Sub-Division-Mangaldai, P.S.-Dhula, District-Darrang, under 67 Mangaldai (SC) LAC.
(iv) Exhibit-D - Gaon Panchayat Certificate dated 15.07.2015, issued by the Secretary, Dhula Gaon Panchayat, certifying Sangu Sheikh is the father of the petitioner.
(v) Exhibit-E - PAN Card in the name of the petitioner .
(vi) Exhibit-F - Elector Photo Identity Card of the petitioner .
(vii) Exhibit- G - Certificate dated 03.06.2018 issued by the Government Gaonburah, P.O. & P.S. - Dhula, Athakata District- Darrang, certifying that Yusuf Ali is the husband of the petitioner.
Petitioner examined herself as DW-1. One A. Kader, projected as brother of the petitioner, deposed as DW-2. Few other documents were brought in as Annexures, but not exhibited.
As indicated above, the petitioner projected one Sangu Sheith as her father, one Hajra Khatun as her mother and one A. Kader as her brother, which names appeared in the Exhibits-A, B and C Voter Lists of 1966, 1985 and 1997 respectively. At this stage we would observe that reflection of a name in a document is wholly insufficient and without relevance if the proceedee/writ petitioner is unable to connect herself to such entity by means of cogent, reliable and admissible document/evidence. No any voter lists were produced and exhibited reflecting the name of the petitioner by showing relationship with the projected father, mother or brother. The documents brought on record for the purpose of establishing linkage to said Sangu Sheikh were the Exhibit-D Page No.# 4/5 issued by the Secretary, Dhula Gaon Panchayat and Exhibit-G, issued by the Gaonburah of Athakata village respectively. However, both the certificates rendered itself as inadmissible in evidence, inasmuch as, the authors were not examined to prove the Certificates and the contents thereof. Finally the PAN Card and Elector Photo Identity Card at Exhibits-E and F remained as documents inadmissible in evidence as it is too well settled that such documents are no proof of citizenship.
One A. Kader deposed as DW-2, claiming himself to be the elder brother of the petitioner. The name of A. Kader is also reflected in the Exhibit-B Voter List of 1985 along with the projected father. However, there is no mention of existence of a brother by the name of A. Kader in the written statement. What has been stated in the written statement is that the petitioner has a brother by the name of Kader Ali and not A. Kader. There are no materials to show that A. Kader and Kader Ali are one and the same person. No documents were brought on record, either by way of voter lists or land documents, showing any relationship between the petitioner and A. Kader. Clearly, the sudden appearance of A. Kader as a brother of the petitioner raises reasonable doubt. Mere oral statement as to the relationship between the petitioner and A. Kader sans any documentary support has to be considered as an unreliable piece of evidence. 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, thus, falls short of being considered as cogent, reliable and admissible evidence, so much so, to establish linkage of the petitioner to the projected father, mother and either of the brother.
An argument is advanced that since in the Investigation Report one Sangu Sheikh is described as the father of the petitioner and, therefore, the identity of the father stands vindicated, we are of the opinion that such argument do not hold water, inasmuch as, it is too well settled that mere mentioning of the name of the proceedee as the son or daughter of an individual, either in the notice or in the report, is no proof of such relationship. It does not serve as an evidence of linkage.
Mr. Islam makes submission that although the petitioner made an application on 21.08.2019 vide Petition No.3714 for summoning the Secretary of Dhula Gaon Panchayat to prove the Certificate at Exhibit-D, the same was rejected, thus, denying opportunity to the petitioner to prove the said Certificate. In our opinion, rejection of the said application vide order of the Tribunal dated 21.08.2019 do not call for interference, inasmuch as, it is also well settled in law that prior to a notice being issued by the Tribunal for summoning an official to depose before it, the proceedee has to satisfy at the first instance that he/she had given notice to the said official and such official did not Page No.# 5/5 respond to the notice. Only in such a case a proceedee would be justified in filing an application before the Tribunal to summon the said official and not otherwise. This is not the case in hand. As such, the application made by the proceedee for summoning the Secretary of the Dhula Gaon Panchayat was rightly rejected.
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 parents and brother.
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 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.
We find no merit in the present petition. Accordingly, the same stands dismissed, however, without any order as to cost.
Interim bail granted by this Court on 18.06.2020 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