Gauhati High Court
Fazila Khatun @ Fozila Begum @ Fozida ... vs The Union Of India & 4 Ors on 17 December, 2013
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM AND
ARUNACHAL PRADESH)
Writ Petition (C) No. 1176 OF 2013
FAZILA KHATUN @ FOZILA BEGUM @ FOZIDA KHATUN,
D/O. LT. ABDUR RAHMAN @ ROHMAN ALI @ ROKMAN ALI,
VILL - MILAN NAGAR (SANTIPUR), P.S. - GOALPARA,
DIST - GOALPARA, ASSAM.
............ Petitioner
-Versus-
1. THE UNION OF INDIA,
REPRESENTED BY THE MINISTRY OF HOME AFFAIRS, NEW DELHI.
2. THE STATE OF ASSAM,
REPRESENTED BY THE COMMISSIONER & SECRETARY TO THE GOVT. OF
ASSAM,
DEPARTMENT OF HOME, DISPUR, GHY.-6.
3. THE SUPERINTENDENT OF POLICE,
GOALPARA, P.O. AND DIST. - GOALPARA, ASSAM.
4. THE OFFICER-IN-CHARGE,
GOALPARA POLICE STATION, GOALPARA AND
DIST - GOALPARA.
5. THE ELECTORAL REGISTRATION OFFICER,
GOALPARA LAC, ASSAM.
.......... Respondents
BEFORE THE HON'BLE MR. JUSTICE UJJAL BHUYAN For the Petitioner : Mr. P Sharma, Advocate.
Mr. M Ahmed, Advocate.
Mr. B Sinha, Advocate
For the Respondents : Mr. M Bhagabati, Govt. Advocate,
Assam & Central Government Counsel
Date of Hearing : 03.12.2013.
Date of Judgment : 17.12.2013.
Judgment & Order (Oral)
By way of this petition, under Article 226 of the Constitution of India, petitioner seeks quashing of judgment and order dated 02.08.2010, passed by the Foreigners Tribunal, Goalpara in FT Case No. 1177/G/2006, declaring her to be a foreigner.
02. Case of the petitioner is that she is the daughter of late Abdur Rahman @ Rokman Ali and Moymon Bewa. She was born in the year 1979 at village Baguan in the district of Goalpara. She stayed in the said village till 1990 when her father expired. Thereafter, along with her mother and her brothers, she shifted to another village called Milan Nagar (Santipur) in the same district. In 1996, she was married to one Abdul Awal, a resident of Kalyanpur, P.S. Baguan in the district of Goalpara. She was enlisted in the voters list of 1997, but she was earmarked as D-voter. She was divorced by her husband in the year 1998, whereafter, she came back to her parental house. Name of the petitioner appeared in the voters list of 2005 under No. 37 East Goalpara LA Constituency from village Bhalukdubi.
03. In view of her name being shown as D-voter and pursuant to submission of verification report by Local Verification Officer, a reference was made by the Superintendent of Police (B), Goalpara to the Illegal Migrants (Determination) Tribunal (IMDT) to determine citizenship of the petitioner.
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04. During the pendency of the case before the IMDT, the IMDT Act, 1983 was declared unconstitutional by the Hon'ble Supreme Court and her case was, thereafter, transferred to the Foreigners Tribunal, Goalpara (Tribunal).
05. The case was re-registered against the petitioner as FT Case No. 1177/G/2006. As the petitioner failed to appear before the Tribunal and contest the proceeding, it was proceeded ex-parte and by order dated 04.12.2008, the petitioner was declared as foreigner. Petitioner filed a writ petition before this Court, which was registered as WP(C) No. 7/2010. This Court by order dated 06.01.2010 allowed the writ petition by setting aside the ex-parte order dated 04.12.2008. The petitioner was directed to appear before the Tribunal and the Tribunal in turn was directed to proceed with the case in accordance with law by allowing the petitioner to contest the proceeding.
06. On remand, the petitioner submitted written statement and adduced evidence.
07. By judgment and order dated 02.08.2010, Tribunal opined that petitioner failed to prove her citizenship. Accordingly, it was held that petitioner is a doubtful illegal migrant, who should be expelled from India.
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08. Heard Mr. P Sharma, learned counsel for the petitioner and Mr. M Bhagabati, learned Central Government as well as State Counsel, Assam.
09. Mr. Sharma, learned counsel for the petitioner submits that names of petitioner's parents along with her grandfather appeared in the voters' list of 1966 in respect of East Goalpara LA Constituency. Therefore, question of petitioner not being a citizen of India does not arise. He submits that petitioner by filing written statement and by adducing evidence including that of her own had discharged the burden cast on her as per section 9 of the Foreigners Act, 1946 by proving her citizenship. Therefore, the finding of the Tribunal that petitioner had hopelessly failed to prove her case that she is a citizen of India and that she is a doubtful illegal migrant is not correct. He submits that because of minor discrepancy in the age of the petitioner, such a finding could not have been arrived at by the Tribunal. He, therefore, seeks quashing of the order of the Tribunal.
10. Submissions made by learned counsel for the petitioner has been objected to by Mr. Bhagabati, learned Central Govt. as well as State Counsel. He submits that from a bare perusal of the evidence adduced by the petitioner as DW 1, it would be apparent that the case sought to be projected by the petitioner is totally unbelievable and, therefore, the Tribunal rightly disbelieved the version of the petitioner. WPC No. 1176 Of 2013 Page 4 of 11 Finding arrived at by the Tribunal is based on appreciation of the evidence adduced and no case for interference is made out. He, therefore, seeks dismissal of the writ petition.
11. Submissions made have been considered. Also perused the record requisitioned by the Registry.
12. From a perusal of the evidence on record as well as the impugned judgment, it is seen that two factors influenced the decision of the Tribunal. Firstly, discrepancy in the name of the petitioner as appearing in the record of the case as well as in the voters' list and secondly, discrepancy in the age of the petitioner which appeared in the various voters' list and the evidence before the Tribunal.
13. Petitioner adduced evidence as DW 1, whereas her two paternal uncles, Abdul Hamid and Miya Chand adduced evidence as DW 2 and DW 3. Petitioner as DW 1 was cross-examined on behalf of the State. The discrepancy relating to the name of the petitioner may not be a decisive factor to arrive at any conclusive finding that the case projected by the petitioner is not plausible. Petitioner has been referred to as Fozida Khatun @ Fozida Begum. At some place she has also been referred to as Fozila Khatun. Having regard to the ground realities, such differences in the name of a person appears to be quite common and cannot be the basis for disbelieving the version of the petitioner.
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14. But more substantive is the aspect relating to the age of the petitioner. Petitioner was the respondent in the proceeding before the Tribunal. This is the finding of the Tribunal regarding age of the petitioner:-
"........................................................................................ The respondent swore an affidavit to support the contents of her written statement on 24.05.2010 where on oath she stated her age to be about 25 years. The respondent furnished her in-chief evidence on affidavit on the day of hearing of the case i.e. on 20.07.2010. The respondent swore this affidavit before public notary. On that day also she stated her age to be about 25 years. Before cross examination of respondent I recorded her name and age where she stated her name to be Fozila Begum and stated her age to be 25/26 years. Now question arises if presently the respondent is aged 25/26 years, what was the age of respondent on 01.01.97? It may be said that the respondent is an illiterate woman who can put hardly her signature with some wrong Assamese script and as such she has no knowledge about the draft of the Ld. Advocate which was done in English. On the other hand, before preparation of written statement and evidence in-chief of the respondent, she furnished her all documents which are also furnished to the tribunal by a firstly on the day of hearing. The xerox copy of extract electoral roll was most important document where the respondent was shown to be 'D' voter. Earlier right to the adult franchise was granted by constitution of India on attaining 21 years by an Indian National. Due to the amendment of Indian Majority Act it was reduced to 18 years and accordingly the right to Adult Franchise is also WPC No. 1176 Of 2013 Page 6 of 11 awarded on attaining 18 years. Xerox copy of extract electoral roll shows the age of respondent was 19 years on 01-01-97. The respondent is W/o. Abdul Awal. If on 20-07- 10 respondent was 25 years aged, under that circumstance she would be hardly 11 years on 01-01-97. As per guideline of electoral roll on 01-01-97 one must complete age of 18 years i.e, on 31-12-96 such person shall be 18 years. The word 'about 25 years' we cannot presume the fact even it may be 25/30 years, hardly it may mean two years plus, minus. It is also decision of different High Courts and even in Apex Court. Thus from evidence of respondent it appears to me that she was hardly 11 years on 01-01-97. Thus a question arises how her name was enrolled in the electoral roll at the age of 11 years? In her cross examination respondent clearly answered that in the year 1999 her first husband talaqued her. Further she stated that before 5/6 years of her talaque her marriage took place with Abdul Awal. Thus we find either in the year 1993 or in the year 1994 her marriage took place with Abdul Awal, so as per earlier calculation did she get marry at the age of her 7/8 years? It is impracticable and not believable. She also stated in the cross-examination that her marriage took place while her father's house was at village Batabari. Among the documents we find the last certified copy of electoral roll 1985 from Batabari village under 38 Goalpara West LAC and beyond 1985 no document of her father furnished. In her cross-examination we further found that her father married two wives, first was one Maimona Bewa and second one is Fuljan Nessa where Maimona Bewa is her mother. We have perused certified copy of 1966 voter list where against house no 224 of village Batabari at serial No. 745 we find the name of Abdur Rahman, S/o. Sirajuddin and at serial No. 746 we find the name of Fuljan Nessa WPC No. 1176 Of 2013 Page 7 of 11 W/O Rahman Ali i.e, the second wife of Abdur Rahman but name of Maimona Nessa we do not find among the serial Nos. 743 to 751 against aforesaid house no. Certified copy of 1970 electoral roll against house No. 224 from serial No. 765 to 773 is nothing but repetition of 66 enrolment. That means name of Maimona Nessa was not enrolled in 1970 also, whereas Maimona Nessa was the first wife of Abdur Rahman. 1979 certified copy shows enrolment of Aimona Khatun and Abdur Rahman in the year 1985 for the first time we have seen enrolment of name of Maimona Nessa at the age of 35 years along with Abdur Rahman and Kulchan which may be most probably erroneously printed in place of Fuljan. On the other hand, age of Kulchan W/o. Abdur Rahman was shown to be 37 years in the year 1985 whereas 1966 certified copy of voter list shows that Fuljan W/o. Rahman Ali was aged 30 years in 1966 and we cannot forget that Maimona Nessa, mother of respondent was the first wife of Abdur Rahman. Respondent failed to show any enrolment of her mother, Maimona except 1985. The enrolment of Kulchan in the year 1985 certified copy, if we presume it to be Fulchan the age is recorded in 1966 voter list shall not corroborate. Fulchan Nessa would be 49/50 years in the year 1985 whereas 1985 certified copy of electoral roll shows her age to be 37 years. Respondent also did not put forward any explanation that name of Fuljan Nessa was erroneously printed to be Kulchan. Thus whatever respondent contended in her written statement as well as evidence in- chief she herself totally damaged her own case.
DW 2 Abdul Hamid and DW 3 Miya Chand both are sons of Siraj Ali and their evidence is that respondent Fozila Begum is daughter of their elder brother. That piece of evidence is not enough in view of cross examination of WPC No. 1176 Of 2013 Page 8 of 11 DW 1. Record also shows that in the year 1997 respondent was detected to be illegal migrant in the village Pakhretary but in the year 2005 this Fozila Begum D/o. Rokman Ali aged to be 20 years got her enrolment at Bhalukdubi under 37 Goalpara East LAC part No. 53 as well as in the year 2008 also. In her cross examination she admitted that she was wife of Abdul Awal of Pakhretary village. Thus there is no doubt about identity of respondent either Fozila Begum or Fozila Khatun or Fozida Khatun.
In addition to above, I cannot help stating a fact that by producing xerox copy of extract electoral roll 1997, the respondent herself proved that her name was enrolled against house No. 106 of village Pakhretary at serial No. 472 to be Fozila Khatun W/o. Abdul Awal aged 19 years. In the aforesaid house no. name of family members of Abdul Seikh i.e. father of husband of respondent were enrolled and at Sl. No. 471 name of Abdul Awal Mandal husband of respondent is also seen to be enrolled. As per her written statement respondent stated that her such marriage with Abdul Awal lasted for hardly two years whereas in her cross examination she stated that in the year 1999 her first husband talaqued her and before 5/6 years of such talaque, her marriage took place with Abdul Awal. Both statements are highly contradictory. As per report of ERO and as per submission of respondent she was made to be 'D' voter at Pakhretary village in the year 1997. Thereafter respondent used to stay at Bhalukdubi with her mother and by producing 2005 certified copy of electoral roll from Bhalukdubi under 37 Goalpara East LAC respondent has proved the fact that she somehow obtained her enrolment in the electoral roll in the village Bhalukdubi against house No. 189 at serial No. 700 and in this enrolment our respondent Fozila Khatun became Fozila WPC No. 1176 Of 2013 Page 9 of 11 Begum and in the year 2005 her age was shown to be 20 years whereas 97 voter list shows that in the year 1997 she was 19 years old. Producing certified copy of 2008 voter list respondent has proved her continuation of enrolment. From above it is reflected to me that altering her title and age the respondent obtained her enrolment in the electoral roll 2005 which is liable to be deleted from electoral roll.
In view of foregoing discussions in my opinion the respondent hopelessly failed to prove her case that she is Indian national by birth as well as citizen of India. The respondent also withheld best witnesses for her i.e. the evidence of her mother who is still alive.
15. From a careful reading of the aforesaid portion of the judgment of the Tribunal as well as the evidence adduced by the defence witnesses, it is clear that there are gaping holes in the version of the petitioner. Admittedly, as per her own showing, she was 11 years old on 01.01.1997 and, therefore, her name could not have been entered in the electoral rolls of 1997. Moreover, when she was declared as D-voter in 1997, it is not understood as to how and on what basis she got herself registered as a regular voter in the voters' list of 2005. It is in this context, that the Tribunal observed that the same could have been only possible by changing of her name, surname and age.
16. Based on the evidence on record, the Tribunal had taken a view that the petitioner had failed to prove her citizenship. Admittedly, WPC No. 1176 Of 2013 Page 10 of 11 as per the provisions of section 9 of the Foreigners Act, 1946, the onus is on the petitioner to prove her citizenship.
17. From the above, I do not find any error in the line of reasoning adopted by the Tribunal disbelieving the version of the petitioner and opining her to be an illegal migrant. View taken by the Tribunal is a plausible view and does not suffer from any irrationality or perversity. Exercising jurisdiction under Article 226 of the Constitution of India, a writ court would not enter into the merits of the evidence or go for re-appreciation of evidence unless there is any violation of the principles of natural justice, irrationality or perversity. None of the above is discernible in the present case.
18. For the aforesaid reason, this Court is not inclined to accede to the prayer of the petitioner. There is no merit in the writ petition, which is, accordingly, dismissed. Stay order passed earlier stands vacated.
19. Registry to send down the LCR forthwith.
Judge Beep WPC No. 1176 Of 2013 Page 11 of 11