Gauhati High Court
Suhagi Nessa vs Union Of India And 5 Ors on 1 November, 2019
Author: Ajit Borthakur
Bench: Manojit Bhuyan, Ajit Borthakur
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GAHC010181432019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 5571/2019
1:SUHAGI NESSA
W/O- BADSHA, R/O- VILL- NIRALA, P.S- TARABARI, DIST- BARPETA,
ASSAM,
VERSUS
1:UNION OF INDIA AND 5 ORS
REP. BY THE SECRETARY TO THE GOVT OF INDIA, MIN OF HOME
AFFAIRS, SHASTRI BHAWAN, NEW DELHI- 01
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM
HOME DEPTT
DISPUR
GUWAHATI- 6
3:THE DEPUTY COMMISSIONER
BARPETA
P.O AND DIST- BARPETA
ASSAM
4:THE SUPERINTENDENT OF POLICE (B)
BARPETA
P.O AND DIST- BARPETA
ASSAM
5:THE ELECTION COMMISSION OF INDIA
NEW DELHI
6:THE STATE COORDINATOR
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NRC
ASSA
Advocate for the Petitioner : MR F Z MAZUMDER
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
Date : 01-11-2019 (Ajit Borthakur, J) Heard Mr. FZ Mazumdar, learned counsel for the petitioner as well as Mr. J Payeng, learned Counsel representing respondent nos. 2, 3 and 4. Ms. G Hazarika, learned counsel appears for respondent no. 1 whereas Ms. A Verma, learned counsel appears for the respondent no. 6. Ms. B Das, learned counsel represents respondent No.5.
2. By this petition under Article 226 of the Constitution of India, the petitioner assails the order/ opinion, dated 09.01.2019, rendered by the Foreigners Tribunal No. 7, Barpeta, Assam in F.T. Case No. 461/2016 (corresponding to R/IM(D)T Case No.2882/97) declaring her to be a foreigner, who had entered into India (Assam) on or after 25.03.1971 and accordingly, answered the reference in the affirmative.
3. The reference was originally made by the Superintendent of Police (Border), Barpeta, Assam under the Illegal Migrants (Determination by Tribunals) Act, 1983, ('IMDT Act' for short) vide Reference IM(D)T No.2882/97 to render opinion regarding the petitioner's nationality. However, as the Hon'ble Supreme Court in Sarbananda Sonowal vs. Union of India, reported in (2005) 5 SCC 665 declared the IM(D)T Act, 1983 and the Rules made thereunder, as ultra-vires the Constitution and struck down the said Act, the reference stood transferred to the Foreigners Tribunal at Barpeta and accordingly, registered as FT Case No. 461/2016.
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4. On receipt of notice, the petitioner appeared before the Tribunal and contested the proceeding by filing a written statement denying that she is a foreigner and claimed to be an Indian national.
5. To substantiate her claim of Indian citizenship, the petitioner examined herself (DW-1) and her brother as DW-2 and relied on 10 number of documents, which are as follows:
1. Ext. 1, the certified copy of the voter list of 1966;
2. Ext.2, the certified copy of the voter list of 1989;
3. Ext.3, the certified copy of the voter list of 1997;
4. Ext.4, the certified copy of the E/Roll of 2010;
5. Ext.5, the Electoral Photo Identity Card of Idrish Ali;
6. Ext.6, the Certificate issued by Kholabandha Gaon Panchayat; Secretary, dated 17.06.2015;
7. Ext.7, the Certificate of the Gaonburah of village Nirala Nonke, dated 10.10.2018;
8. Ext.8, the original copy of name correction
9. Ext.9, the land revenue receipt; and
10. Ext/A, the photocopy of the NRC details of 1951
6. We have considered the arguments advanced by both sides and have scrutinized the above documents.
7. The petitioner in her written statement and in evidence (DW-1) stated that her father's name was Rasul Sheikh @ Osul Sheikh, s/o Sukur Ali, who was a permanent resident of village Nirala, Mowza-Baguribari under Tarabari PS, district-Barpeta (Assam) and his name along with mother Momiran Nessa appeared in the voter lists of 1966 and 1970. DW-2, the petitioner's brother, corroborated her (DW-1) evidence. According to DW-2, their father died in the year 2004 and till then he was a regular voter. He further stated that he was born in Page No.# 4/5 the year 1971. DW-1 stated that she was aged 40 years in the year 2018 and got married, about 22 years ago, to one Badsha Miah, s/o Lt. Kader Ali, resident of village-Shukhuwarijhar, Mowza-Baghbar, under Alopati Char P.S., district-Barpeta, Assam.
8. A perusal of the voter list of 1966 of village Nirala Nonke, under Tarabari PS, Mowza- Baguribari, district-Barpeta (Assam), it appears that the name of the projected father of the petitioner, namely, Rosul Mia, S/O Sukur, age 27 years, in 47 Chenga LAC appears along with her projected mother Momiran Nessa, age 21 years, against the house No. 144 of village Nirala Nonke. The voter list of 1970, where the name of her said father claimed to have appeared was not produced and exhibited in the proceeding without any explanation. The petitioner exhibited the 1989 voter list of the aforementioned place, where the names of her father and mother appeared along with their two sons and daughter-in-law. We have also perused the voter list of 1997 of the aforementioned same place and found the names of the petitioner's projected parents along with others and in the voter list of 2010, we find the name of the petitioner's projected mother Momiran Nessa Bidhawa, wife of late Rasul Miah, who, as per evidence of DW-1, Rasul Miah died after the year 2005 and as per DW-2, he died in the year 2004. We have no doubt regarding the contents of those exhibited voter lists.
9. We notice, the petitioner exhibited two certificates of Gaon Panchayats, first one is dated 17.06.2015, issued by one Rafiqul Hassan , the Secretary, No.34 Kholabandha Gaon Panchayat of Chenga Revenue Circle, District-Barpeta (Assam) certifying the petitioner's father as Rosul Seikh and mother as one Nirala instead of Momiran Nessa and her age to be about 34 years, who was married to one Badsah Mia, s/o Kader, with other particulars aforementioned, on 05.05.1995 and the second one, dated 10.10.2018, which is , of course, not available on record.
10. Be that as it may, we find the contents of both the aforementioned Certificates were not proved by calling the concern authorities, who issued the same as witness and as such, the same cannot be relied on. In this regard, we have taken note of the paragraphs 11 and Page No.# 5/5 12 of the impugned order/ opinion of the Tribunal. Further, the petitioner has also failed to prove the revenue receipt by calling for and exhibiting the relevant revenue records or examining the concern revenue official. The petitioner has not even examined her mother, who is stated to be alive. There is, thus, neither any voter list showing the petitioner's name along with her projected family members including her parents or mother at any point of time or otherwise linking to her projected parents, inspite of evidence aforementioned that the petitioner's father died sometime after the year 2005 and petitioner was born sometime in the year 1978. There is even no consistency in regard to the petitioner's age or the year of birth .
11. Ext.9, the land revenue payment receipt in respect of annual patta, dated 31.01.1940, in the name of the petitioner's projected father has no evidentiary value as the same merely raises a presumption in regard to possession and the same being not proved by relevant revenue entry record. As such, this document also does not establish the petitioner's lineage to her projected father.
12. Therefore, we find no merit in the instant writ petition and accordingly stands dismissed, without any order as to cost.
JUDGE JUDGE Comparing Assistant