Gauhati High Court
Rashminara Begum vs The Union Of Inida & 4 Ors on 22 May, 2017
Author: U. Bhuyan
Bench: Ujjal Bhuyan, Paran Kumar Phukan
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM, AND ARUNACHAL PRADESH)
WP(C) No.7102 of 2016
Rashminara Begum,
W/o Manirul Islam,
D/o Ramjan Ali,
Vill-Paikan Part-II,
P.S. Krishnai,
District-Goalpara, Assam.
... ..Petitioner
-Versus-
1. Union of India,
Represented by the Secretary
to the Ministry of Home Affairs,
Govt. of India, New Delhi.
2. State of Assam,
Represented by the Commissioner and Secretary
to the Government of Assam, Home Department,
Dispur, Guwahati-6.
3. Deputy Commissioner, Goalpara,
District- Goalpara, Assam.
4. Superintendent of Police (Border),
Goalpara, District-Goalpara, Assam.
5. Officer-in-charge, Krishnai Police Station,
District-Goalpara, Assam.
... ..Respondents
BEFORE
HON'BLE MR. JUSTICE UJJAL BHUYAN
HON'BLE MR. JUSTICE PARAN KUMAR PHUKAN
Advocates for the Petitioner : Mr. N. Dutta, Sr. Adv.,
: Mr. M. U. Mahmud, Adv.
Advocate for the
Respondent No. 1 : None Appeared.
Advocate for the
Respondent Nos. 2 to 5 : Mr. D. K. Saikia, Addl. AG, Assam
Dates of Hearing : 08-05-2017 & 16-05-2017
Date of Judgment : 22-05-2017
WP(C) No.7102/2016
2
JUDGMENT AND ORDER (ORAL)
(U. Bhuyan,J) Heard Mr. N. Dutta, learned senior counsel and Mr. M. U. Mahmud, learned counsel appearing for the petitioner. Also heard Mr. D. K. Saikia, learned Additional Advocate General, Assam.
2. This case was heard on 16.05.2017 and today is fixed for delivery of judgment. Accordingly, judgment is dictated in the open court.
3. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 31.10.2016, passed by the Foreigners Tribunal No. 2, Goalpara in F.T. 2. Case No.29/K/2015 declaring the petitioner to be an illegal migrant who had illegally entered into India (Assam) from the specified territory i.e., Bangladesh after 25.03.1971.
4. It appears that on a reference made by the Superintendent of Police (Border), Goalpara with the allegation that petitioner was an illegal migrant as above, FT 2 Case No.29/K/2015 was registered before the Foreigners Tribunal No.2, Goalpara (Tribunal). Notice issued by the Tribunal was served upon the petitioner whereafter she had entered appearance and filed written statement denying the allegation made, by claiming herself to be a citizen of India by birth. Petitioner also deposed as her witness and was cross-examined. She submitted photocopies of certain documents before the Tribunal in support of her claim. After hearing the matter, Tribunal passed the order dated 31.10.2016 by answering the reference in favour of the State in the above manner.
5. Aggrieved, present writ petition has been filed.
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6. When this writ petition was moved on 29.11.2016, it was submitted that following the order passed by the Tribunal, petitioner was taken into custody. On such submission made, order dated 29.11.2016 was passed, issuing notice while requisitioning the case record with an interim order to the effect that petitioner should not be deported from Indian until further order(s).
7. Before adverting to the rival submissions made at the Bar, it may be mentioned that in the course of hearing on 27.03.2017, Mr. Dutta, learned senior counsel for the petitioner submitted that the petitioner was in an advanced stage of pregnancy and that she was lodged in the Kokrajhar District Jail serving as detention centre for declared foreigners. Having regard to the submissions made, Superintendent of Kokrajhar District Jail was directed to extend medical assistance to the petitioner as and when required.
8. In the subsequent hearing on 16.05.2017, it was submitted on behalf of the petitioner that petitioner had given birth to a baby girl on 29.04.2017 and that she was in the RNB Civil Hospital, Kokrajhar post delivery. After the arguments were closed on 16.05.2017, it was directed that till delivery of judgment petitioner should be retained in the said hospital.
9. Mr. Dutta, learned senior counsel for the petitioner submits that approach of the Tribunal was too technical. For minor discrepancies in the age of the petitioner, her claim to citizenship of India was disbelieved causing serious prejudice to her. While admitting that relatives of the petitioner could have contested the reference before the Tribunal on behalf of the petitioner in a better way, he submits that brother of the petitioner Zakir Hussain has filed an additional affidavit in the present proceeding enclosing therewith relevant WP(C) No.7102/2016 4 documents which the court may consider along with the documents annexed to the writ petition by the petitioner herself. These documents prima facie show that petitioner is a citizen of India. He submits that petitioner has adequate documents to buttress her claim of being a citizen of India. Therefore, ends of justice would be met if the matter is remanded back to the Tribunal for fresh consideration of the matter. While making the aforesaid prayer, learned senior counsel has elaborately taken us through the documents annexed to the writ petition to show that the view taken by the Tribunal is erroneous.
10. On the other hand, Mr. D. K. Saikia, learned Addl. Advocate General, Assam supports the order passed by the Tribunal and contends that having regard to the facts and circumstances of the case, order passed by the Tribunal is a plausible one. Tribunal has recorded a finding of fact on appreciation of the materials on record. Therefore, the writ court may not interfere with such a finding of fact recorded by the Tribunal.
11. Mr. Mahmud, learned counsel for the petitioner in his reply submission has also referred to the additional documents brought on record as well as the documents in the interlocutory application filed on behalf of the petitioner being I.A. (C) No.828/2017 and submits that the documents annexed to the said interlocutory application should be considered by the court to arrive at a just decision.
12. Towards the fag end of the hearing, Mr. Mahmud, learned counsel made a submission that petitioner's father Ramjan Ali was a freedom fighter and a well known personality of the locality. As a matter of fact, Mr. Dutta, had also made a passing reference in this regard towards the end of his submission. WP(C) No.7102/2016 5
13. Submissions made by learned counsel for the parties have received the due consideration of the court. Also perused the record.
14. It appears that having regard to the problem of influx of large number of illegal migrants into the State of Assam, Election Commission of India had ordered intensive revision of electoral rolls in the State of Assam, including in the Dudhnoi (ST) Legislative Assembly Constituency with reference to 01.01.2005 as the qualifying date. A house to house enumeration was carried out during the period from 01.10.2004 to 10.12.2004. During such enumeration name of the petitioner was found in the draft electoral roll of the said constituency published on 15.06.2005. The Electoral Registration Officer for the said constituency had doubts about the citizenship of the petitioner and got the matter verified by an on the spot local verification. On consideration of such verification report, the Electoral Registration Officer recorded reasonable doubt that the petitioner was not a citizen of India. Consequently, by communication dated 20.07.2005 the matter was forwarded to the Superintendent of Police (B), Goalpara for deciding the question as to whether petitioner was a foreigner or not.
15. Superintendent of Police (B), Goalpara got the matter enquired through Sub-Inspector of Police (B), Dudhnoi Police Station who submitted report to the effect that he had locally enquired about the nationality of the petitioner who was marked as doubtful (D) voter. During enquiry, petitioner could not be traced out in the village Paikan Pt-II. He further stated that he had consulted local people but they could not say anything about her whereabouts.
16. Thereafter, on 21.08.2007, Superintendent of Police (B), Goalpara made a reference under the Foreigners Act, 1946 read with the Foreigners (Tribunals) WP(C) No.7102/2016 6 Order,1964, as amended, to the Foreigners Tribunal, Goalpara alleging the petitioner to be a foreigner. It appears that after creation of additional Tribunals, the reference was re-registered as FT 2 Case No.29/K/2015 and assigned to the Tribunal for opinion. Notice issued by the Tribunal was served upon the petitioner who thereafter filed written statement on 02.02.2016 but thereafter, on as many as 11 dates petitioner sought for time for adducing evidence on the ground of shortage of documents. Ultimately, petitioner was cross examined and discharged on 25.10.2016. The reference was heard on that day whereafter the impugned order was passed on 31.10.2016.
17. Before proceeding to the written statement and evidence adduced by the petitioner, it would be apposite to briefly notice the legal framework under which a reference is decided by a Foreigners Tribunal.
18. After declaration of the Illegal Migrants (Determination by Tribunals) Act, 1983 as unconstitutional by the Supreme Court in Sarbananda Sonow al vs. Union of India, (2005) 5 SCC 665, the references are now made and decided under the provisions of the Foreigners Act, 1946 (Act) read with the Foreigners (Tribunals) Order, 1964 (Order). Though a detailed analysis of all the provisions of the Act and the Order may not be necessary for the purpose of adjudication of this case, what is important to note is that unlike under Illegal Migrants (Determination by Tribunals) Act, 1983, Section 9 of the Foreigners Act, 1946 mandates that onus of proving citizenship of a person is upon that person who claims to be a citizen of India. Section 9 of the Foreigners Act, 1946 is extracted as under:---
"9. Burden of proof.--If in any case not falling under section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a WP(C) No.7102/2016 7 foreigner of a particular class or description the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person."
19. The principle governing Section 9 of the Foreigners Act, 1946 is in tune with the requirement of Section 106 of the Indian Evidence Act, 1872 which is an exception to the general requirement of burden of proof inasmuch as ordinarily the burden is on that person who seeks a judgment of the court, to prove the existence of facts which he asserts, necessary for the court to give judgment. Section 106 of the Evidence Act deals with a situation where certain facts are especially within the knowledge of any person in which event the burden of proving that fact is upon such person. Section 106 of the Evidence Act reads as under:----
"106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
20. Explaining the rationale behind Section 9 of the Foreigners Act, 1946, Supreme Court in Sarbananda Sonowal (supra) held that there is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country. In order to establish one's citizenship, normally he may be required to give evidence of his date of birth, place of birth, name of his parents, place of birth and citizenship. Some times the place of birth of his grandparents may also be relevant. All these facts would be necessarily within the knowledge of the person concerned and not of the authorities of the State. After he has given evidence, the State authorities can verify the facts and lead evidence in rebuttal, if necessary. If the State authorities dispute the claim of citizenship of a person and assert that he is a foreigner, it will not only be WP(C) No.7102/2016 8 difficult but almost impossible for them to first lead evidence on the aforesaid points. This is in accordance with the underlying policy of Section 106 of the Evidence Act.
21. At this stage it may be mentioned that the regime which has been put in place for identification for foreigners in the State of Assam is fundamentally different from the rest of the country. This fact was taken note of by the Supreme Court in the subsequent case of Sarbananda Sonow al vs Union of India, (2007) 1 SCC 174, where in para 26 it was mentioned that Foreigners Tribunal has not been set up in any other part of India except the State of Assam. A different regime therefore exists in Assam from the rest of the country. In the rest of the country foreigners are identified by the executive machinery of the State. Thus the province of Assam only has been singled out for adopting a different procedure. The problem in regard to illegal migration faced by Assam is also faced by other States including the States of West Bengal, Tripura etc.
22. Having noticed the above, we may have a brief glance at the Foreigners (Tribunals) Order, 1964, as amended, which lays down the procedure to be followed by the Foreigners Tribunal while determining the status of a proceedee. References are made by the State through the concerned Superintendent of Police (Border) to the Foreigners Tribunal for its opinion as to whether the proceedee is a foreigner or not. Procedure followed by the Foreigners Tribunal while rendering such opinion is summary in nature. Therefore, having regard to the object of the Foreigners Act, 1946 it is desirable that opinion should be rendered expeditiously. A perusal of Order 3 of the aforesaid 1964 Order would go to show that a Foreigners Tribunal is required to dispose of a reference within a period of 60 days from the date of receipt of the reference from the competent WP(C) No.7102/2016 9 authority. If notice is served upon the proceedee and the proceedee appears before the Foreigners Tribunal, the Tribunal shall give to the proceedee 10 days time to submit written statement and further 10 days time to produce evidence in support of her case.
23. Reference to the aforesaid provisions is necessary to put in context the several adjournments sought for by the petitioner to adduce evidence on the ground of shortage of documents and the subsequent evidence of the petitioner.
24. Having noticed the above, we may now examine the written statement filed by the petitioner.
25. Written statement is the basic statement of defence of a proceedee before the Foreigners Tribunal. Keeping in mind the mandate of Section 9 of the Foreigners Act,1946, it is incumbent upon the proceedee to disclose at the first instance itself i.e., in his written statement all relevant facts specially within his knowledge having a material bearing on his claim to citizenship of India. Material facts pleaded in the written statement are thereafter required to be proved by adducing cogent and reliable evidence. It is also trite that a party cannot traverse beyond the pleadings made in the written statement.
26. In her written statement filed on 02.02.2016, petitioner stated that she was born and brought up at village Kharija Manikpur under the erstwhile Goalpara Police Station in the district of Goalpara. Her father's name was late Ramjan Ali, son of late Haji Roj Mahammad and her mother's name was Jamila Bibi. Both parents were citizens of India by birth. Their names appeared in the voters list of 1966 in respect of Dudhnoi (ST) Legislative Assembly Constituency (LAC). Their names also appeared in the 1978 voters list of 29 Kharija Gaon WP(C) No.7102/2016 10 Panchyat as well as in the voters list of 1989 in respect of Goalpara East LAC. Names of her parents also appeared in the voters lists of 1997, 2005, 2010 and 2015 under Goalpara East Constituency. Petitioner stated that she was married to one Manirul Islam, son of late Paresh Ali, of village Kurshapakri Pt-II under Lakhipur Police Station in the district of Goalpara. After her marriage she shifted to Paikan Pt-II village under Krishnai Police Station. In the year 2005 her name was enrolled in the voters list but she was marked as doubtful (D) voter. In the affidavit sworn in support of the averments made in the written statement petitioner disclosed her age as 30 years. No document was annexed to the written statement.
27. Thus, from a perusal of the written statement, it is clear that petitioner did not disclose her date or year of birth though in the affidavit she disclosed her age as 30 years (sworn on 02.02.2016). This would mean that she was born sometime in the year 1986. While she disclosed the names of her parents as Ramjan Ali and Jamila Bibi, she was silent about her brothers and sisters as well as about her educational status: where she had studied and upto what level. While she disclosed the name of her parental grandfather as late Haji Roj Mohammad, she was silent regarding her parental grandmother. Moreover, she did not mention the year of her marriage with Monirul Islam. All that she said was that names of her parents appeared in the 1966 voters list and thereafter in the 1989, 1997, 2005, 2010 and 2015 voters list. What is however important to note is that 1966 voters list was in respect of Dudhnoi Constituency whereas 1989 and subsequent voters lists were of Goalpara East Constituency, two different Constituencies. How this had happened was not explained. In so far WP(C) No.7102/2016 11 petitioner was concerned, her name appeared in the voters list for the first time in the year 2005 where she was marked as a doubtful (D) voter.
28. Proceeding to the evidence-in-chief of the petitioner who deposed as her witness on 05.10.2016, it is seen that here petitioner disclosed her age as 33 years. Petitioner stated that the name of her mother was Jamila Bibi @ Jamila Bewa. However, in the voters list of 1966 the name of the father appeared along with her step mother. This was a clear deviation from what she stated in her written statement as noticed above. In 1970's voters list names of father and step mother i.e., Ramjan Ali and Chabi Bewa appeared. While other statements were more or less identical, petitioner additionally stated that she was a student of Majgaon Primary School and studied upto Class-IV. Headmaster of the said school had issued a school certificate. She also referred to the linkage certificate issued by the Gaon Panchayat Secretary showing her linkage with Ramjan Ali.
29. Petitioner was subjected to cross examination and in her cross examination she disclosed her age as 32 years. Thus in the year 2016 itself, petitioner disclosed 3 different age- 30 years in the written statement, 33 years in the evidence-in-chief and 32 years in her cross-examination. Her grandfather late Haji Roj Mahmmud Shah had 9 children including her father Ramjan Ali. Referring to Ramjan Ali, she stated that he had 6 daughters and 3 sons including herself. Her step mother Chabi Bewa had 2 daughters. Additionally she stated that after marriage she first stayed in Garo Hills for 2/3 years, thereafter she shifted to Paikan Part-II village with her husband and got her name enrolled in the voters list of 2005. She further stated that her husband was also marked as doubtful (D) voter.
WP(C) No.7102/2016 12
30. Interestingly, though the petitioner submitted 9 documents none of these documents were exhibited before the Tribunal; those were not proved. They were simply filed in the Tribunal, yet from a perusal of the impugned order passed by the Tribunal we notice that notwithstanding non-exhibition of the documents by the petitioner Tribunal had considered those documents while passing the impugned order.
31. Law on this aspect is very clear. In Narbada Devi Gupta vs Birendra K um ar Jaisw al, (2003) 8 SCC 745, Supreme Court reiterated the legal position that marking of documents as exhibits and their proof are two different legal concepts. Mere production and marking of a document as exhibit cannot be held to be due proof of its contents. Its execution has to be proved by admissible evidence i.e., by the evidence of those persons who can vouchsafe for the truth of the facts in issue.
32. This proposition was again re-stated by the Supreme Court in L.I.C. vs R am Pal Singh Bisen, (2010) 4 SCC 491, wherein it has been held that mere admission of a document in evidence does not amount to its proof; in other words, mere marking of exhibit on a document does not dispense with its proof which is required to be done in accordance with law. Under the law of evidence, 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. Contents of the document cannot be proved by merely filing in a court. Such a document cannot be relied upon.
WP(C) No.7102/2016 13
33. As noticed above, in the present case we find that none of the documents referred to by the petitioner were exhibited, not to speak of being proved. Those were simply filed before the Tribunal.
34. Notwithstanding the same, we have once again looked into these documents. We find from the record that many of the documents filed are ineligible and in torn condition. There is an extract copy of electoral roll of 1966 in respect of Dudhnoi Constituency. Names of Md. Romjan Ali and Chabi Bibi appeared in the said voters list. According to the petitioner, Chabi Bibi is her step mother and her mother is Jamila Bibi @ Jamila Bewa. However, Jamila Bibi is conspicuous by her absence in this document despite the averment to this effect in the written statement.
35. Next document is a duplicate certificate dated 08.11.2012 issued by one Md. Zakir Hussain, Headmaster of Mazgaon Primary School. As per this certificate date of birth of the petitioner was shown as 05.11.1987 and it disclosed that petitioner studied up to Class-IV, besides certifying that she was the daughter of Ramjan Ali and Jamila Bibi. In addition to not being proved, this certificate cannot otherwise also be relied upon for more than one reason. Firstly, it has not been issued on the letterhead of the School which immediately raises doubt about its genuineness. Secondly, it is a duplicate copy. Why a duplicate copy had to be issued has not been explained. Thirdly, this certificate was issued after the reference was made against the petitioner. The certificate also does not disclose when petitioner had left the school after passing Class IV examination, which is very relevant considering the fact that petitioner produced another school certificate of a different school, which will be discussed in the succeeding paragraphs.
WP(C) No.7102/201614
36. The 3rd document is dated 24.06.2015 issued by the Secretary, Manikpur Bhelakhamar Gaon Panchayat certifying that petitioner is the daughter of Romjan Ali and Jamila Bibi. She was described as aged about 27 years and that she had married Manirul Islam on 26.06.2002. This document also is of no use to the petitioner. Firstly, because of its belated issuance; as in the previous document, this document was issued on 24.06.2015 when the proceeding against the petitioner was going on. Secondly, and more importantly, this court in Monowara Bewa @ Manora Bewa [ WP(C) No.2634/2016] decided on 28.02.2017 has already held that certificate issued by Gaon Panchayat Secretary in so far citizenship status of a person is concerned has got no statutory sanctity. At the most it can be treated as a private document in which event the author of the certificate would have to prove the truthfulness of the contents of the certificate. Secretary of the Gaon Panchayat did not appear before the Tribunal to prove the truthfulness of the contents of the said document. Therefore, such document cannot be relied upon. That apart, if this document was indeed issued on 24.06.2015, it was prior to filing of the written statement by the petitioner on 02.02.2016. However, petitioner did not disclose the date of her marriage in the written statement and her age disclosed in this document differed from her age disclosed by herself in her written statement, evidence-in-chief and cross- examination.
37. As noticed above, most of the documents filed before the Tribunal were ineligible. Amongst the eligible documents, was an extract copy of the voters list of 1997 in respect of Goalpara East Constituency. At Sl No.776 name of Haji Romjan Ali, son of Haji Roj Mahmmud appeared aged 65 years and at Sl No. 777 name of Jamila Bibi appeared, aged 45 years. Names of Zakir Hussain, Jahangir WP(C) No.7102/2016 15 Hussain and Joynal Abedin appeared. Name of Rousanara Begum also appeared at Sl No.781 aged 20 years. In the voters list of 1970 names of Ramjan Ali and Chabi Bibi appeared.
38. In the voters list of 2007 names of only Jamila Bibi and Zakir Hussain appeared. While in the previous documents Jamila Bibi was conspicuous by her absence, in the subsequent documents Chabi Bibi was conspicuous by her absence, while name of Ramjan Ali appeared till 1997. This is in clear contradiction to what the petitioner stated in her written statement that names of her parents Ramjan Ali and Jamila Bibi appeared in the voters list of 1966, 1989, 1997, 2005, 2010 and 2015.
39. As already discussed above, the written statement was silent about the present status of her parents, whether they are still alive or they had expired.
40. We also noticed in the record another school transfer certificate issued by the Headmaster of Killajhar High School, Mazgaon dated 10.05.2003. As per this certificate petitioner was the daughter of late Alhaj Ramjan Ali. She had left the said school on 31.12.2002 after studying up to Class-IX and that her date of birth was 25.03.1983. Question is whether petitioner had joined this school after leaving the Mazgaon Primary School? There is no answer to this question. Again, as per certificate of Gaon Panchayat Secretary, she got married on 26.06.2002. If that be so, she got married when she was in the Killajhar High School. But as per her oral evidence, after her marriage, she went to stay with her husband in Garo Hills for 2/3 years though in her written statement, she stated that she went to her husband's village Paikan Pt-II after marriage. Either way, she could not have continued in Killajhar High School from 26.06.2002 till 31.12.2002. That apart, WP(C) No.7102/2016 16 this certificate refers to the petitioner as daughter of late Alhaj Ramjan Ali, meaning thereby that he had expired before issuance of the certificate on 10.05.2003. If that be so, his name could not have appeared in the voters list of 2005, 2010 and 2015 as pleaded by the petitioner in the written statement.
41. Having analysed the documents as above, what is of considerable significance is the two contradictory school certificates produced by the petitioner, one issued by the Headmaster of Mazgaon Primary School on 08.11.2012 and the other issued by the Headmaster of Killajhar High School on 10.05.2003. As per first certificate, petitioner had studied till Class-IV in the said school and her date of birth was 05.11.1987 without stating when she had left school. In the second certificate petitioner has studied upto Class IX and had left the school on 31.12.2002 where her date of birth was shown as 25.03.1983. Both the certificates cannot be believed at the same time. If one is believed, the other has to be disbelieved. For the reasons mentioned in the preceding paragraphs, both the certificate cannot be believed. In so far the second certificate is concerned it is also contradictory to the Gaon Panchayat Secretary certificate which shows that the petitioner got married to Manirul Islam on 26.06.2002 while she was still in Class IX in the Killajhar High School; she left the school only on 31.12.2012. This has been discussed in the preceding paragraph.
42. One of the key factors in this case is the consistent discrepancies in the age of the petitioner. As noticed above, in the written statement filed on 02.02.2016, petitioner disclosed her age as 30 years. This is her own declaration. If this is admitted to be correct this would mean that petitioner was born sometime in the year 1986. But in her evidence-in-chief dated 05.10.2016 petitioner disclosed her age as 33 years. If this is taken to be true than the WP(C) No.7102/2016 17 petitioner was born sometime in the year 1983. In her cross examination she disclosed her age as 32 years which would mean her year of birth was 1984. As already noticed above in the first school certificate petitioner's date of birth was disclosed as 05.11.1987 and in the second school certificate date of birth of the petitioner was shown as 25.03.1983. Again, in the voters list of 1997, petitioner was shown as 20 years of age which makes her year of birth 1987. As per the Gaon Panchayat Secretary certificate issued on 24.06.2015 petitioner was 27 years of age which would mean that she was born in the year 1988. A person cannot have so many years of birth (seven to be precise). A discrepancy here or there is understandable. But consistent discrepancies coupled with the other material contradictions would render the version suspect. Again, if petitioner was born in the year 1988, her name could not have appeared in the voters list of 2005 because she was then only 17 years of age, the voting age being 18, not to speak of being a voter in the 1997 voters list when she would have been only 9 years of age. Perhaps for this reason and for other discrepancies as noticed above, she was marked as doubtful (D) voter in 2005.
43. Therefore, the narrative put up by the petitioner, besides not being proved by admissible evidence, suffered from multiple material contradictions raising serious doubt about the very identity of the petitioner. In addition to that, what is to be noted is that in the year 2005 petitioner was marked as doubtful (D) voter. Petitioner did not challenge her marking as doubtful (D) voter for all these years. None of her family members came to contest the said decision of the Election Commission of India. Even before the Tribunal on as many as 10 dates petitioner took adjournment on the ground of shortage of documents. Thereafter, instead of exhibiting any document, those were simply filed before WP(C) No.7102/2016 18 the Tribunal. In the writ petition, in addition to the above documents, a number of other documents have been filed; some more documents have been filed by way of additional affidavit by one Zakir Hussain. The documents which have been annexed to the writ petition were obtained on 04.11.2016 after the reference was decided by the Tribunal on 31.10.2016. In other words these are post decision documents. In any case, documents not exhibited or atleast not filed before the Tribunal cannot be gone into in a writ proceeding to judge correctness of the decision of the Tribunal. In so far Zakir Hussain is concerned he did not appear before the Tribunal to adduce evidence on behalf of the petitioner. None of her brothers, sisters and even her mother appeared before the Tribunal to depose on her behalf. As already noticed above, her written statement was totally silent about her mother, brothers and sisters.
44. Net result of the above discussion is that the narrative presented by the petitioner of being daughter of Ramjan Ali or relatable to an Indian citizen and traceable to a period prior to 25.03.1971 which is the cut off date for detection of illegal migrants in the State of Assam, as per Section 6 A of the Citizenship Act, 1955, as amended, cannot be said to have been established by the petitioner. Her version suffers from multiple material contradictions rendering the same completely unreliable.
45. In this petition we are called upon to decide the legality and validity of the order passed by the Tribunal. Tribunal had passed the order on the basis of the documents which were before it. We cannot judge the correctness of the Tribunal's order on the basis of documents obtained subsequently and produced before us.
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46. Lastly, the submission made towards the end of the hearing that petitioner's father was a freedom fighter is devoid of any substance. This plea was neither taken in the written statement nor in the evidence-in-chief and not even in the cross examination of the petitioner. It is also not pleaded in the writ petition. There is nothing on record to show that name of Ramjan Ali is included in the list of freedom fighters maintained by the Government of Assam or by the district administration of Goalpara district or that he was at any point of time acknowledged as being a freedom fighter by the Government. It appears to be a desperate plea to wriggle out of the situation. Be that as it may, as already stated above, this submission is beyond the record and can have no bearing on the status of the petitioner.
47. For all the aforesaid reasons, we do not find any merit in the writ petition. No case for interference is made out. Consequently, writ petition fails and is accordingly dismissed. Interim order passed earlier stands vacated.
48. Before parting with the record and having regard to the fact that petitioner has undergone child birth very recently, we feel that notwithstanding her declaration as foreigner it would be in the interest of justice to grant her bail for a limited period to tide over the pangs of childbirth. Let Superintendent of Police (B), Goalpara release her from detention for a period of 3 (three) months whereafter she shall be taken back into custody for necessary follow up steps. Superintendent of Police to ensure adequate surety and proper monitoring of the declared foreigner, including by taking mobile number of the sureties. WP(C) No.7102/2016 20
49. Registry to send down the LCR forthwith and inform the concerned Foreigners Tribunal, Superintendent of Police (B) and Deputy Commissioner for doing the needful.
JUDGE JUDGE
Rupam
WP(C) No.7102/2016