Gauhati High Court
Aroti Bala Mandal vs The Union Of India And 3 Ors on 6 December, 2018
Author: Nani Tagia
Bench: Manojit Bhuyan, Nani Tagia
Page No.# 1/6
GAHC010055702017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 7643/2017
1:AROTI BALA MANDAL
D/O SRI SURESH MANDAL W/O BABULAL MONDAL VILL- KACHARI
PETTI PART-II P.S. ABHAYAPURI DIST. BONGAIGAON, ASSAM
VERSUS
1:THE UNION OF INDIA and 3 ORS.
REP. BY THE SECRETARY TO THE GOVT OF INDIA, MINISTRY OF HOME
AFFAIRS, SHASTRI BHAWANI, TILOK MARG, NEW DELHI-1.
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER and SECRETARY TO THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI -6.
3:THE DEPUTY COMMISSIONER
BONGAIGAON
P.O. and DIST. BONGAIGAON
ASSAM
PIN - 783382.
4:THE SUPERINTENDENT OF POLICE B
BONGAIGAON
P.O. and DIST. BONGAIGAON
ASSAM PIN - 783380
Advocate for the Petitioner : MD.S ISLAM
Advocate for the Respondent :
Page No.# 2/6
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE NANI TAGIA
ORDER
Date : 06-12-2018 Nani Tagia, J.
Heard Mr. MU Mahmud, learned counsel for the petitioner as well as Ms. G. Sarmah, learned counsel for respondent No.1; Mr. UK Nair, learned Senior Special Standing Counsel, Foreigners' Tribunal, for respondent Nos. 2, 3, & 4.
By this petition, under Article 226 of Constitution of India, the petitioner has challenged the legality and validity of the order dated 30.12.2016 passed by the learned Member, Foreigners' Tribunal, Bongaigaon No. 2nd, Abhayapuri, in BNGN/FT/Case No.965/2009 whereby the petitioner/ opposite party has been held to be a foreigner having entered into India from Bangladesh illegally subsequent to 25.03.1971.
This case was initially forwarded by the Supdt. of Police (B), Bongaigaon through IMDT No.1640/2003 expressing doubt about the nationality of the writ petitioner/opposite party with a prayer to decide as to whether the writ petitioner/opposite party is a foreigner or illegal migrant. Subsequently, in view of the Govt. W.T. Message in this regard, the case stood transferred to the Foreigners' Tribunal Bongaigaon 2 nd , Abhayapuri for decision as per Foreigners' Tribunal Act.
Upon receipt of Notice, the petitioner/opposite party appeared and filed her written statement as well as evidence on affidavit. In her evidence, she stated that she is the daughter of Suresh Mandal and resident of village- Kacharipetti, Part-II under Abhayapuri Police Station and that she was born on 21.04.1991 at village 134 Borpara under Jogighopa Police Station. Thereafter, she got married with Babulal Mandal and started to reside in Kacharipetti with her husband. In support of her case, the opposite party has exhibited 7 documents, which are as follows:
Ext. 1 Certificate by Balapara GP Page No.# 3/6 Ext.2 School Certificate Ext.3 Voter List of 1966 Ext.4 Voter List of 1970 Ext.5 Voter List of 2011 Ext.6 Family ID Card Ext.7 Affidiavt On perusal of Ext.3 & Ext.4, which are voter lists of 1966 and 1970 respectively of Bongaigaon LAC 43, it appears that the name of grandfather of opposite party, namely, Aswni Kumar Mandal appeared at Sl. No. 90, H/No. 24 as well as the father of the opposite party, namely, Suresh Mandal appeared at Sl. No. 96, H/No.24. In the 1970 voter list, the name of the names of same ancestors i.e. the name of the grandfather of the writ petitioner/opposite party appears at Sl. No.94. H/No. 24 and that of the father appears at Sl. No.96, H/No.24. However, in the said voter list, the name of the father of the writ petitioner/opposite party is recorded as Suresh Ch.
From the lists of exhibits mentioned above, it is found that writ petitioner/opposite party seeks to establish linkage with her projected father Suresh Mandal through Ext. 1 & 2. Ext.1 is the Gaon Panchayat certificate issued by the Secretary, Balapara Gaon Panchayat dated 05.04.2012, wherein, the opposite party has been certified to be daughter of Suresh Mandal of village 134 Barpara, PO- Balapara, PS- Jogighopa under Boithamari Dev. Block in the district of Bongaigaon. Ext.2 is a school certificate issued by the Headmaster, No.2 Barpara Dakaipara LP School, dated 09.05.2014 whereby it has been certified that petitioner is the daughter of Suresh Mandal and she studied upto Class-V and her age is 10 years 2 months and 20 days. There is also State Emblem embossed on top of the Ext.1 and Ext.2.
The exhibited documents Ext.1 and Ext.2 are found to be photocopies. Apart from the documents being photocopies of the said certificates, which would not be an admissible evidence, we find that none of the author of the said certificates, who had issued the same were examined before the Tribunal for which reasons the two exhibits cannot be relied upon in favour of the writ petitioner/opposite party. Reference in this regard may be made to the decision of the Hon'ble Supreme Court in the case of Life Insurance Corporation of India Vs. Page No.# 4/6 Ram Pal Singh Bisen reported in (2010) 4 SCC 491, wherein, it has been held in paragraph 31 that -
"31.Under the Law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the Evidence Act cannot be relied upon by the Court. Contents of the document cannot be proved by merely filing in a court."
Further, the aforesaid exhibits/certificates (Ext.1 and Ext.2) are embossed with State Emblem on top of it. With regard to improper use of State Emblem in certificate, this Court in the order dated 20.11.2018 passed in W.P.(C) No.7115/2016 ( Sultana Begum Vs. Union of India and others) has held as follows:
".....We would observe that the Central Government has framed statutory rules called State Emblem of India (Regulation of Use) Rules, 2007 (in short the Rules), in exercise of powers conferred by Section 11 of the State Emblem of India (Prohibition of Improper Use) Act, 2005 (in short the Act). Section 3 of the Act specifically prohibits improper use of the state emblem. It says that notwithstanding anything contained in any other law for the time being in force, no person shall use the emblem or any colourable imitation thereof in any manner which tends to create an impression that it relates to the Government or that it is an official document of the Central Government or the State Government, without the previous permission or authorization. This section starts with a non-obstante clause, meaning thereby that it has overriding effect over all the laws for the time being in force. Rule 5 of the Rules provides that use of the official emblem is restricted to the authorities specified in Schedule-I. Rule 10 makes the restriction more specific. It says that no person, including former Ministers, former Members of Parliament, former Members of Legislative Assemblies, former Judges and retired Government officials (other than those authorized under the Rules) shall use the emblem in any manner. Sub-rule (2) of Rule 10 clearly provides that no Commission or Committee, Public Sector Undertaking, Bank, Municipal Council, Panchayati Raj Institution, Non- Government Organization, University (other than those authorized under the Rules) shall use the emblem in any manner. Schedule-I to the Rules contains a list of constitutional and statutory authorities, Ministries and Departments of the Central Government, State Governments or Union Territory Administrations and other Government functionaries which may use the emblem. ...."
The said certificates (Ext.1 and Ext.2), therefore, cannot be accepted as a valid piece of evidence because such unauthorized use of the State Emblem of India has tendered the said exhibits inadmissible in evidence.
Page No.# 5/6 Referring to Ext.5, which is a voter list of 2011, wherein, the petitioner's projected father's name appears as Suresh Ch. at Sl. No.96 of H/No. 24, Abhayapuri South (SC) LAC as well as Ext. 6, which is a Family Identity Card issued in the name of Suresh Mandal, learned counsel for the petitioner submits that these exhibits cannot be ignored and ought to have been taken into account for the purpose of determination of linkage of the petitioner with her projected father. In this regard, learned counsel for the petitioner also refers to Ext.7 which is an affidavit filed by the petitioner stating that in the 1970 Voter list of 43 No. Bongaigaon LAC, her father's name was recorded as Suresh Ch. instead of Suresh Mandal in Sl. No. 96, H/No.24 due to bonafide mistake and accordingly the petitioner has stated in the affidavit that Suresh Mandal and Suresh Ch. are one and the same person. Therefore, in the light of such explanation made in the affidavit (Ext.7), the learned Tribunal ought to have taken into account Ext.5, 6 & 7 in order to come to a conclusion that opposite party is the daughter of Suresh Mandal.
Submission of the learned counsel for the petitioner is that the discrepancy in the projected father's name of the writ petitioner/opposite party in the voter list of 2011 (Ext.5) and the Family ID Card (Ext.6) having been explained through an affidavit (Ext.7) by the writ petitioner/opposite party, the learned Tribunal ought to have held that the petitioner/opposite party has discharged his burden of proof in establishing a linkage with her projected father.
We are unable to agree with the submission made on behalf of the writ petitioner in this regard. Affidavit (Ext.7) of the writ petitioner/opposite party clarifying the discrepancy in her father's name, is neither evidence nor proof as per Section 1 & 3 of the Indian Evidence Act, 1872 read with Order 19 Rule 1 of the Code of Civil Procedure. Such a self serving suo- moto affidavit cannot come to the assistance of the writ petitioner/opposite party.
A Full Bench of this Court in the case of State of Assam and another Vs. Moslem Mondal, reported in 2013(1) GLT 809 have held that under Section 9 of the Foreigners' Act, 1946, burden is on the proceedee to prove that she is not a foreigner, but a citizen of India and this burden never shifts. This burden has to be discharged by the proceedee by adducing evidence which are admissible; which must be proved; and which must have relevance to the facts in issue. By mere filing of documents without examining its admissibility and without the documents being proved or without examining its relevance, it cannot be Page No.# 6/6 said that the proceedee had discharged his burden.
It is a well settled legal position that mere marking of a document as exhibit does not amount to proof. The Hon'ble Supreme Court in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal and another reported in (2003) 8 SCC 745 in paragraph-16 held that - mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence that is by the 'evidence of those persons who can vouchsafe for the truth of the facts in issue'.
In the instant case by merely making voter list of 2011 and Family Identity Card and the affidavit sworn by the petitioner as Ext.5, 6 & 7 respectively, cannot in any manner take the place of proof which can be placed reliance for the purpose of establishing writ petitioner/opposite party's linkage with her projected father.
For the aforesaid reasons and discussions, we find no infirmity in the impugned order dated 29.06.2018 passed by the learned Member, Foreigners' Tribunal No. 3 rd, Morigaon, in F.T. Case No. 27/2015.
The writ petition is devoid of merit and the same stands dismissed with no order as to cost.
Office to send back the case records to the concerned Tribunal forthwith.
JUDGE JUDGE Comparing Assistant