Gauhati High Court
Jalekha Khatun vs The Union Of India And 6 Ors on 27 March, 2019
Author: Manojit Bhuyan
Bench: Manojit Bhuyan, Manish Choudhury
Page No.# 1/4
GAHC010255892018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 7919/2018
1:JALEKHA KHATUN
D/O- SABU ALI, W/O- HASMAT ALI, VILL- KUROBAHA, P.O- KUROBAHA,
P.S AND DIST- BARPETA, PIN- 7813
VERSUS
1:THE UNION OF INDIA AND 6 ORS
REP. BY THE SECRETARY TO THE GOVT OF INDIA, DEPTT OF HOME, NEW
DELHI- 01
2:THE STATE OF ASSAM
REP. BY THE SECRETARY TO THE GOVT OF ASSAM
DEPTT OF HOME
DISPUR
GUWAHATI- 6
3:THE DEPUTY COMMISSIONER
BARPETA
PIN- 781301
4:THE SUPERINTENDENT OF POLICE(B)
BARPETA
PIN- 781301
5:THE ELECTION COMMISSION
GOVT OF INDIA
NEW DELHI- 01
6:THE STATE COORDINATOR
NRC
Page No.# 2/4
ASSAM
GUWAHATI- 32
7:THE FOREIGNERS TRIBUNAL NO. 1
BARPETA
REP. BY THE STANDING COUNSEL OF THE TRIBUNAL
PIN- 78130
Advocate for the Petitioner : MR. A ROSHID
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
27.03.2019 (Manojit Bhuyan, J) Heard Mr. A. Roshid, learned counsel for the petitioner as well as Mr. U.K. Nair, learned senior counsel for respondent nos. 2, 4 and 7. Mr. NBP Singha, learned Counsel represents respondent no.5 whereas Ms. U. Das, learned counsel appears on behalf of respondent no.6. None to represent respondent no.1.
Petitioner assails order dated 08.10.2018 passed by the Foreigners' Tribunal No.1st Barpeta in F.T. Case No. 90/17, declaring her to be a foreigner within the meaning of section 2(a) of the Foreigners Act, 1946, having illegally entered into India (Assam) after 25.03.1971.
For the purpose of deciding this case, the issue lies in a narrow compass. In order to trace her lineage to one Sabu Ali and Jaygun Nessa, who are projected as her father and mother, the Voter List of 1965 and 1970 were exhibited as Exhibit-A and Exhibit-B. The petitioner has also produced and exhibited the Voter List of 1989 Page No.# 3/4 (Exhibit-C), where her name finds recorded along with her husband. The crux being establishing linkage to Sabu Ali and Jaygun Nessa, the petitioner exhibited two certificates issued by the Gaonburahs of village Batua and that of village Kurobaha respectively as Exhibits-D and E. The records in original have been perused. To prove the certificates at Exhibits- D and E and to the contents thereof, the respective Gaonburahs were not produced as witnesses. In other words, the said certificates were not proved through the legal testimony of the issuing authority. The said certificates alone, by no means, can amount to proof of citizenship. The Exhibits-D and E cannot legally stand to establish the all-important linkage between the petitioner and her projected parents.
There is another aspect of the matter which assumes importance and forms part of the records. The certificates at Exhibits-D and E carries with it the State Emblem. In this respect 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, 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 Page No.# 4/4 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. Therefore, the certificates issued by the respective Gaonburahs at Exhibits-D and E containing the State Emblem of India cannot be regarded as valid and acceptable documents. It stands that the State Emblem has been improperly used and the same being in clear violation of the aforesaid Act and Rules, have rendered the said certificates as inadmissible in evidence.
From the discussions and findings above, we are of the considered view that the petitioner utterly failed to make out a case warranting interference of the opinion of the Tribunal. First, no linkage could be established and second, the certificates at Exhibits-D and E rendered itself as inadmissible in evidence due to improper use of the State Emblem. The writ petition being devoid of merits, stands dismissed, however, without any order as to cost.
Registry to send back the record to the Tribunal forthwith.
JUDGE JUDGE Comparing Assistant