Gauhati High Court
Jayeda Begum @ Jayeda Bewa vs The Union Of India And 6 Ors on 28 August, 2020
Equivalent citations: AIRONLINE 2020 GAU 280
Bench: Manojit Bhuyan, Ajit Borthakur
Page No.# 1/4
GAHC010140162019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 4394/2019
1:JAYEDA BEGUM @ JAYEDA BEWA
W/O. LT. ALIMUDDIN, VILL. BOLOGORAH, P.S. DHULA, DIST. DARRANG,
ASSAM, PIN-784146.
VERSUS
1:THE UNION OF INDIA AND 6 ORS.
REP. BY THE SECRETARY OF THE MINISTRY OF HOME AFFAIRS, GOVT. OF
INDIA, NEW DELHI-01.
2:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT.
DISPUR
GUWAHATI-06.
3:THE ELECTION COMMISSIONER OF INDIA
NEW DELHI-01.
4:THE COORDINATOR
NRC
ASSAM
GUWAHATI
BHANGAGARH-05.
5:THE DY. COMMISSIONER
DARRANG
DIST. DARRANG
ASSAM
PIN-784125.
Page No.# 2/4
6:THE SUPDT. OF POLICE (B)
DARRANG
DIST. DARRANG
ASSAM
PIN-784125.
7:THE OFFICER IN CHARGE
DHULA POLICE STATION
PIN-784146
Advocate for the Petitioner : MD. H BHUYAN
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
O R D E R
28.08.2020 (Manojit Bhuyan, J) Heard Mr. B. Chowdhury, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing respondent nos.1 and 4. Also heard Mr. J. Payeng, learned counsel represents respondent nos. 2, 5, 6 and 7 and Ms. B. Das, learned counsel represents for respondent no.3.
Petitioner assails opinion dated 06.10.2018 passed by the Foreigners' Tribunal (4 th), Darrang, Mangaldai in F.T.4th Case No.519/DHL/2015, declaring her to be a foreigner, having illegally entered into India (Assam) after the cut-off date of 25.03.1971 without any valid document from the specified territory.
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 3 (three) documents, the particulars of which may be noticed as under :
(i) Exhibit-1 - Copy of Voter List of 1966, in the name of one Jabed Ali projected as father of the petitioner and Sahera Khatun, projected as father of the petitioner of Page No.# 3/4 village Nagajan, Sub-Division-Mangaldai (Sadar), Mouza- Sialmari, under 72 Mangaldai LAC.
(ii) Exhibit-2 - Copy of Voter List of 1971, in the name of one Jabed Ali projected as father of the petitioner of village Nagajan, Sub-Division-Mangaldai (Sadar), Mouza- Pachim Sialmari, under 73 Dalgaon LAC.
(iii) Exhibit-3 - Copy of Jamabandi dated 19.12.2016 for surveyed villages which includes Mowamari village and at new Patta No.73 name of Jabed Ali who is stated to be the projected father of the petitioner is reflected.
Besides the document above and herself, the petitioner did not present for examination any independent witnesses in support of her case.
As indicated above, the petitioner projected one Jabed Ali as her father, and one Sahera Khatun as her mother, which names appeared in the Exhibit-1 and 2 Voter Lists of 1966 and 1970 respectively of village Nagajan, Sub-Division-Mangaldai (Sadar), Mouza- Sialmari, under 72 Mangaldai LAC. 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. The only document brought on record for the purpose of establishing linkage to Jabed Ali is the Jamabandi of village-Mowamari at Exhibit-3 which, however, did not stand proved by means of any related Sale Deed. The Jamabandi makes reference to a village called Mowamari, but there is no statement in the written statement that father and family shifted from the birth place Nagajan to Mowamari. Petitioner only mentioned in her written statement that she got mutated a plot of land in village Mowamari. Also, in the Jamabandi it is recorded that mutation in the name of Jabed Ali was done by order dated 25.06.2013, which is much after the cut- off date.
The discrepancy of age of the petitioner is also discernible. On 15.05.2018, the age of the petitioner is shown as 57 years whereas on 17.06.2019 her age is shown as 55 years in her evidence on affidavit. Moreover, the petitioner did not produce a single voter list in her name by showing relationship with the projected parents. Petitioner also disclosed her brothers' names but no document is produced to link with the projected brothers. Interestingly no document is also produced against her projected father after 1971 and only in the year 2013 the name of the projected father surfaces in the mutation order though reference case was started in 1997.
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 Page No.# 4/4 considered, the same not having been produced, exhibited and proved before the Tribunal at the first instance.
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.
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.
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.
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