Gauhati High Court
Jeleka Begum vs The Union Of India & 3 Ors on 30 August, 2013
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH)
WP(C) 1876 of 2013
Jeleka Begum
(W/O- Hazarat Ali),
D/o. Jaynal Ali @ Jainal Shekh
@ Jaylal Sheikh,
Vill. Karagari Nonke 12 No. Block,
P.S. - Sarthebari,
Dist.- Barpeta, Assam.
............Petitioner.
-Vs-
1. The Union of India, represented by the
Secretary to the Govt. of India, Ministry of
Home Affairs, Shastri Bhawan, Tilok Marg,
New Delhi.
2. The State of Assam, represented by the
Commissioner and Secretary to the Govt.
of Assam, Home Department , Dispur,
Guwahati-6.
3. The Superintendent of Police (B), Barpeta,
PO & Dist.- Barpeta, Assam, Pin-781301.
4. The Officer-in-Charge, Sarthebari Police
Station, P.O.- Sarthebari, Dist.- Barpeta,
Assam, Pin-781307.
Respondents.
BEFORE THE HON'BLE MR. JUSTICE B.K. SHARMA For the petitioners : Mr. A. R. Sikdar, Adv.
For the respondents: Mrs. H.M. Phukan, GA, Assam.
Ms. B. Das, CGC.
Date of hearing : 23/072013.
Date of judgement : 30/08/2013.
WP(C) 1876/2013 - CAV Page 1 of 6
JUDGEMENT AND ORDER (CAV)
This writ petition is directed against the judgment and order 16.02.2013 passed by the learned Member, Foreigners Tribunal, Barpeta in FT Case No. 113(III)/2007 (ref. IM(D)T Case No. 1728/B/98 (State of AssamVs. Jeleka Begum @ Jeleka Khatun) declaring the petitioner to be foreigner (Illegal Bangladeshi Migrant) who entered into Assam after the cut off date 25.03.1971.
2. I have heard Mr. A.,R. Sikdar, learned counsel for the petitioner. Also heard Ms. B. Das, learned CGC and Mrs. H. M. Phukan, learned State Counsel. I have also perused the materials on record including the records received from the Tribunal.
3. In the proceeding before the Tribunal, the petitioner responding to the notice served on her filed written statement and also documents, claiming herself to be an Indian citizen by birth. In the written statement submitted by the petitioner, it was contended that the petitioner is a bonafide citizen of India and her father's name (Jaynal Ali) appeared in the voter list of 1965 pertaining to 53 No. Sarukhetri LAC. It was further contended hat her name also appeared in the 1997 voter list. Referring one Rajab Ali and Kuran Ali as her brothers, it was contended that their names also appeared in the said voter list of 1997. The petitioner also stated in the written statement that her name appeared in the voter list of 1989 and 1997. The written statement also refers to the certificate of the Gaonbura certifying the marriage of the petitioner with one Hazarat Ali. In the written statement, the petitioner also contended that actual name of her father is Jaynal Ali instead of Jaynal Seikh.
4. Along with the written statement, the petitioner submitted photocopies of 1965 voter list containing the name of one Jaynal Seikh S/o. Jalil; photocopy of 1989 voter list containing the name of Hazarat Ali and Jeleka Begum, who were 43 and 35 years of age ' 1997 voter list containing the name of Hazarat Ali, aged 48 years ;
WP(C) 1876/2013 - CAV Page 2 of 61997 voter list containing the name of Jaynal Ali, aged 72 years ; aforesaid certificate of Gaonbura certifying her marriage with Hazarat Ali ; self sworn affidavit stating that her father's name is Jaynal Ali, which is wrongly recorded in the 1965 voter list as Jaynal Seikh and another self sworn affidavit stating that Jeleka Begum and Jeleka Khatun is one and the same person.
5. The learned Tribunal appreciating the evidence adduced by the petitioner has found that the claim of the petitioner that she is an Indian citizen, by birth is not sustainable in law. Upon a detailed discussion of the entire evidence on record, the Tribunal has recorded its finding in paragraph 8 of the impugned judgement. As recorded in the said judgement, in Annexure-B voter list of 1970, there are four names, namely (i) Jaynal Sheikh, (2) Abdul Basir, aged 65 years (3) Jamal Ali aged 33 years (all sons of Jalil) and one Nyjan Nessa, wife of Azibar aged 28 years. However, there is nothing on record to show as to who are Nayjan Nessa and Azibor and what is their relationship with the petitioner or her father. On the other hand, Annexure-D is the copy of the voter list of 1997 wherein the name of the projected father and mother of the petitioner, namely, Jaynal Ali and Mayjan Nessa appeared along with the names of their children and one daughter-in-law. In the said voter list, the age of the projected mother of the petitioner is shown as 39 years whereas in the voter list of 1983 (Annexure-C), the age of the petitioner is recorded as 35 years. Thus, the petitioner cannot be the daughter of Mayjan Nessa. It has rightly been held by the Tribunal that if one goes by the age declared by the petitioner herself in Annexure-C, Annexure-F and Annexure-G as well as in her evidence on affidavit, it cannot be accepted that Mayjan Nessa i.e. the projected mother of the petitioner is actually her mother who is found to be younger than the petitioner by 4 years.
6. Although the petitioner has produced certain voter lists but there is no explanation as to why she could not produce other relevant documents including the voter list issued in the WP(C) 1876/2013 - CAV Page 3 of 6 interregnum. It has rightly been held by the Tribunal that there is no explanation as to why the petitioner could not produce any voter list for the period from 1985 to 1997 showing the name of Jaynal Ali @ Jaynal Seikh. As regard the purported father of the petitioner, the Tribunal has found that the name of her said father is shown as Jaynal Seikh in Annexure-A and Annexure-B at Village Gadeshalipam whereas the name of Jaynal Ali as shown in Annexure- D is of Village- Karagari Nonke Block No. 12. There is no evidence at all to show that the projected father of the petitioner shifted to Karagari Nonke Village from Gadeshalipam village.
7. In Sarbananda Sonowal-I Vs. union of India reported in (2005) 5 SCC 665, the Apex Court while discussing the problem being faced by the State of Assam due to illegal migration and their continued presence in the State has been vividly discussed the alarming situation. While striking out the IM(D)T Act, 1983, the Apex Court also dealt with the modality of proving one's Indian citizenship. It has been emphasized that the burden of proof is always on the proceedee as per provisions of Section 9 of the Foreigners Act, 1946. In Sarbananda Sonowal-I, the Apex Court dealing with the burden of proof, made the following observation :-
"26. 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 (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship. Sometimes the place of birth of his grandparents may also be relevant like under Section 6-A(1)(d) of the Citizenship Act. All these facts would be necessarily be within the personal knowledge of the person concerned and hot of the authorities of the State. After he has given evidence on these points, the State authorities can verify the facts and can then lead evidence in rebuttal, if necessary. If the State authorities dispute the claim of citizenship by a person and assert that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the WP(C) 1876/2013 - CAV Page 4 of 6 aforesaid points. This is in accordance with the underlying policy of Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
8. Above apart, merely by producing some photocopies, one cannot establish his Indian citizenship. Even in case of production of certified copies of the documents, something more is required as per the Law of Evidence. As has been held by the Apex Court in (2010) 4 SCC 491 (LIC of India Vs. Ram Pal Singh Bisen), even admission of a document in evidence does not amount to its proof, in other words, mere making of exhibit of a document does not dispense with its proof, which is required to be done in accordance with law. It was the duty of the petitioners to have proved the documents in accordance with law. 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 amounts to admission of contents but not its truth. Thus, the documents (Photocopies) 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.
9. Needless to say that the High Court exercising its power of judicial review under Article 226 of the Constitution of India cannot sit on appeal over the finding of facts recorded by the Court/Tribunal. It is only when the Court/ Tribunal exercise a jurisdiction without being empowered or in excess of it or fails to exercise the vested jurisdiction or acts illegally, the Writ Court exercising its jurisdiction can interfere with the same. The High Court can interfere with the order of the Tribunal exercising its writ jurisdiction only if it is proved that it is a case of no evidence at all or there is error apparent on the face of the record. The power of judicial review under Article 226 of the Constitution is limited only to correction of errors apparent on the face of the records and does not need long drawn out process of reasons on points whether there may WP(C) 1876/2013 - CAV Page 5 of 6 be conceivably two views. In the instant case, I do not find any infirmity in the impugned judgement and order requiring any interference of this Court exercising its power of judicial review under Article 226 of the Constitution of India.
10. The writ petition is dismissed. There shall be no order as to costs.
11. Let copies of this judgement be sent to SP(B), Barpeta and the Deputy Commissioner, Barpeta for taking further course of action towards detention of the petitioner in the detention camp for his deportation to his country of origin and for deletion of his name from the voter list. Copies of this order shall also be sent to the Union Govt. in the Ministry of Home and so also to the State Government in the Home Department for their necessary follow up action in terms of this judgement and order. Another copy be furnished to Ms. H.M. Phukan, the learned State Counsel for her follow up action.
12. Registry shall send down the case records to the Tribunal along with a copy of this judgement and order. List after one month for furnishing report by the respondents, more particularly, the SP(B), Barpeta and Deputy Commissioner, Barpeta regarding action taken in term of this judgement and order.
JUDGE Sukhamay WP(C) 1876/2013 - CAV Page 6 of 6