Gauhati High Court
Fateman Nessa vs State Of Assam & 4 Ors on 18 August, 2015
Author: P.K.Saikia
Bench: P. K. Saikia, Rumi Kumari Phukan
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
W A No. 295 of 2013
Fateman Nessa,
Wife of Shaizuddin,
Resident of Village- Pithadigaon,
P.S--Sarthebari,
District- Barpeta, Assam.
.....Appellant
Versus
1. The State of Assam
Represented by the Secretary to the
Government of Assam,
Home Affairs Department, Dispur,
Guwahati- 6.
2. The Foreigners' Tribunal No. III,
Barpeta, P.O.- Barpeta,
District- Barpeta, Assam.
3. The Superintendent of Police(B)
Barpeta, P.O.- Barpeta,
District- Barpeta, Assam.
4. The Electoral Registration Officer,
46 No.Sarukhetri, Assembly Constituency,
P.O.- Sarukhetri,
District- Barpeta, Assam.
5. Union of India,
Represented by its Secretary,
Home Affairs Department,
New Delhi.
..... Respondents
WA No. 295 of 2013
2
BEFORE HON'BLE MR. JUSTICE P. K. SAIKIA AND HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN For the Appellant : Mr. B. Abnerjee, Senior Counsel : Mr. D F A Ahmed, Advocate.
For the Respondents : Mr. S. C. Keyal, Asstt. S.G.I.
: Mr. M. Bhagawati, G.A., Assam
Date of hearing : 22.07.2015
Date of judgment : 18.08.2015
JUDGMENT AND ORDER (CAV)
(P.K.Saikia,J)
This appeal is directed against the judgment and order dated 09.09.2013, rendered by the learned Single Judge in WP(C) No. 990/2013, refusing to interfere with the judgment dated 26.12.2012, rendered by the learned Member, Foreigners Tribunal No. III, Barpeta in FT Case No. 71(III)/2011 (IM(D)T) Ref. Case No. 3569/B/1998 (Government of Assam-vs- Fateman Nessa) declaring the appellant herein to be foreign national.
2. We have heard Mr. B. Banerjee, learned senior counsel assisted by Mr. D F A Ahmed, learned counsel for the appellant and also heard Mr. S. C. Keyal, learned Asstt. S G I as well as Mr. M. Bhagabati, learned G. A., Assam.
3. The brief facts, projected by the appellant herein in the writ petition are that SP(B), Barpeta made a reference under the IMDT Act vide IMDT (D) Reference No. 3569/B/1998, expressing doubt about the nationality of the appellant herein (who would be referred to as the petitioner hereinafter). Subsequently, the case was transferred to the Foreigners' Tribunal following abolition of IMDT Act.
4. On the receipt of the copies from the Tribunal, the petitioner herein entered appearance in the proceeding before the Tribunal and filed Written Statement (in WA No. 295 of 2013 3 short W.S.) claiming that she is an Indian citizen by birth. To support her case that she is an India citizen by birth, she adduced some documents besides examining herself as DW 1 and one Sadulla Ahmed as DW 2, said to be her brother.
5. On hearing the learned counsel for both the parties, the learned Tribunal came to the conclusion that she could not establish that she is an Indian citizen by birth and hence she was declared foreigner vide judgment dated 26.12.2012 in FT Case No. 71(III)/2011. Consequently, the order was passed to push her back to her country of origin .
6. Being aggrieved, the petitioner has preferred a proceeding under Article 226 of the Constitution of India and challenged the order rendered by the learned Tribunal in FT Case No. 71(III)/2011 on 26.12.2012. This court issued notice to both the parties and on conclusion of trial, it had found that there is no scope whatsoever for the writ court to interfere with the judgment in question and accordingly, the writ proceeding was dismissed vide judgment dated 09.09.2013, rendered by the learned Single Judge in WP(C) No. 990/2013.
7. Still being aggrieved, the petitioner has preferred this appeal alleging that the judgments in question in this appeal are not rendered in accordance with the prescription of law nor was it rendered on the basis of facts on records and as such, same are liable to be quashed and set aside. Such a contention was hotly denied by learned counsel appearing for the State respondents contending that the judgments under challenge were rendered in accordance with prescription of law and therefore, same cannot be quashed and set aside as prayed for.
8. To support their respective case, the counsel for the parties took us through the judgments aforesaid and also caused us to peruse the various materials found available on record. However, before one could proceed further, he needs to keep in mind that 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 exercises 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.
WA No. 295 of 2013 49. Further the High Court can interfere with the order of the Tribunal exercising its writ jurisdiction, 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 reasoning on points whether there may be conceivably two views.
10. The jurisdiction of this Court dealing with a writ appeal is even more circumscribed. Keeping the above principle in mind we find it necessary to consider the dispute projected through the present appeal. In this connection, we also find it necessary to have a look at the judgments under challenge in this appeal. The relevant part of the same is also reproduced below:--
"3. On receipt of notice from the Tribunal, the petitioner upon appearance filed her written statement on 27.07.2011 inter-alia stating that she is a Bonafide citizen of India by birth and that her father's name Mobed Ali appeared in the Electoral Roll of 1965 of the then No. 48 Bhawanipur, LAC. In the written statement, she also claimed that her father's name also appeared in the N.R.C of 1951 and that her father purchased a plot of land measuring 1 Bigha 17 Lachas covered by Dag No. 150 under periodic patta No. 10 of village-Purbalowashur under P.S, Barpeta, through a registered sale deed No. NIL/1969 dated 19.12.1969.
4. According to the written statement, the petitioner got married with one Shaizuddin son of Rahizuddin of village- Pithadigaon and that her name appeared in the Electoral Roll of 1985 of 46 No., Sarukhetri, L.A.C. In support of her aforesaid claim in the written statement, the petitioner produced the photocopy of voter list of 1965 containing the name of one Mobed Ali and photocopy of purported N.R.C containing 4 names, one of whom she seeks to identify as her father. However, the contents of the said purported N.R.C are not legible and prima facie the name of Mobed Ali is not discernible. The petitioner also produced photocopy of voter list of 1985 containing the name of one Fateman Nessa along with Shaizuddin, whom she claims to be her husband. She also produced photocopy of a sale deed containing the name of Mobed Ali Bepari, son of Late Haji Osimuddin. No date of the sale deed is discernible and prima facie appears to be un-registered. The petitioner also produced the voter lists of 1970 and 1971 containing the name of one Sobed Ali.
5. Learned Tribunal appreciating the evidence on record has held that the petitioner failed to establish that she is an Indian citizen and that too by birth. The petitioner in her evidence on oath as DW1 stated that she was born and brought up at village-Purbalowashur. In reference to the written statement, she also stated about the documents and exhibited the photocopies of the same i.e. voter lists of 1970, 1971 and 1985, the WA No. 295 of 2013 5 certificate of village Gaonburah and the sale deed as Ext. A, B, C, D and E respectively.
6. The petitioner also examined one Md. Sadulla Ahmed as DW2 who in his deposition stated that the petitioner is his own elder sister and that their father Late Mobed Ali had landed property at village Nalirpur under PS and District Barpeta. He also stated that his name appeared in the voter lists of 1985, 1997 and 2010 (Ext. G, H and I). He further stated that, he was born in 1970 and that the petitioner was elder to him by about 30-40 years and also that he was only 2 years of age when his sister i.e. the petitioner was given on marriage as told to him by his mother Late Amina Khatun. He further stated in his deposition that his father expired in the year 1980 and thereafter his mother in 2006.
7. The learned Tribunal on careful consideration of the written statement filed by the petitioner and the evidences adduced by her including the documentary evidences found discrepancies narrated in the impugned judgment and order leading to failure of the petitioner to establish that she is an Indian Citizen by birth. In her written statement supported by an affidavit dated 20.07.2011, the petitioner has stated that the name of her father Mobed Ali appeared in the Electoral Roll of 1965 and also in the NRC of 1951. However, she did not file, exhibit or prove any certified copy of the Electoral Roll of 1965 or the certified true copies of NRC of 1951 showing the name of Mobed Ali. The photo copy of the NRC even if considered to be true, it is found to be of no help to the case of the petitioner. Though the petitioner stated in her written statement that her father Mobed Ali's name appeared in the NRC of 1951, but as discussed by the learned Tribunal in the impugned judgment and order, she is completely silent about the same in her evidence recorded on oath. She has not stated anything in her evidence regarding the NRC.
8. As discussed above, in the photo copy of the NRC, the contents are not legible, but even if it is accepted that Mobed Ali's name is there with Bhanu Nessa and Khatu Nessa, but the petitioner did not state anything about the same either in her written statement or in her evidence on oath.
9. DW 2, in his evidence has stated that he was about 2 years old when the petitioner i.e his sister was given on marriage. It has rightly been held by the learned Tribunal that even if the name of Mobed Ali appeared in the NRC of 1951 but in absence of any cogent proof that the said person is the father of the petitioner, mere production of the same is of no help to the case of the petitioner. It has rightly been recorded by the learned Tribunal that non- mentioning of the name of the petitioner's father is very vital. No document was produced and proved to show that the name of the mother of the petitioner is Amina Khatun. If Amina Khatun is, in fact her mother, she having died only in 2006, there cannot be any earthly reason as to why no certified copy of any voter list showing her name could be produced by the petitioner. If Mobed Ali is accepted to be the father of the petitioner then also it is not understood as to why the names of his two wives did not appear in any of the voter lists.WA No. 295 of 2013 6
10. Learned Tribunal after the elaborate discussion of the entire evidence and recording the huge discrepancies easily discernible from the said evidence having held that the petitioner could not discharge the burden of proof to establish that she is an Indian Citizen and that too by birth, this Court exercising its power of Judicial Review under Article 226 of the Constitution of India cannot sit on appeal over the said findings by scrutinizing the evidence so as to return another finding.
11. 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 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."
12. 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."
WA No. 295 of 2013 711. A perusal of the judgment reveals that the appellant herein claims that she is an Indian citizen by birth and in that connection, she tried to establish her linkage with one Mabed Ali claiming that the appellant is the daughter of said Mabed Ali, who found his name included in NRC of 1951 as well as in the voter list of 1965. She also claimed that one Sadulla Ahmed (DW 2) is an employee of Accountant General, Assam, Guwahati and is the son of said Mabed Ali and said Sadulla Ahmed (DW 2) happens to be her own brother. In support of such contention, she also produced before the Tribunal a number of documents to show that Mabed Ali was a genuine Indian citizen who acquired landed property in the district of Barpeta in the State of Assam even before 1971.
12. We have already found that learned Tribunal as well as the learned Single Judge considered those documents and held that documents which were produced to show that the appellant is a genuine Indian citizen were not proved in accordance with prescription of law. The learned Single Judge as well as learned Tribunal also held that even if one assumes for the sake of arguments that those documents were proved in accordance with prescription of law, yet, one would find that the facts, recorded in those documents, are enormously inconsistent which make all those documents totally unsafe for reliance which, in turn, shows that the appellant could not establish that Mobed Ali is an Indian citizen.
13. Learned tribunal and learned Single Judge also came to the conclusion that even if one assumes that said Mobed Ali is a genuine Indian citizen, yet then, the appellant miserably fails to show that she is the daughter of said Mobed Ali. It is in those backdrops, let us examine such findings of the learned Single Judge as well as learned Tribunal having regard to the materials on record as well as judgments under challenge.
14. A bare perusal of the judgments in question in the light of materials on record leaves no manner of doubt that the appellant never proves the documents which she produced before the tribunal to substantiate her claim that she is a citizen of India by birth. Being so, one cannot find fault with the decisions of the learned Single Judge as well as learned Tribunal that the appellant could not prove any document to show that Mobed Ali, who is said to be her father, was a genuine Indian citizen.
WA No. 295 of 2013 8What is important to note is that those documents give contradictory pictures regarding her claim that she is an Indian citizen by birth.
15. At one point of time, learned Single Judge as well as learned Tribunal assumes for the sake of argument that said Mobed Ali is an Indian citizen and then tried to ascertain if the claim of the appellant that she is daughter of said Mobed Ali is made out. Both learned Single Judge as well as learned Tribunal on their independent scrutiny of the matter, came to the conclusion that the appellant could not establish that she is the daughter of aforesaid Mobed Ali. Let us see if such finding is correct.
16. It is found from the testimony of DW 2 that appellant is her own sister. It is found evident from the evidence of DW 2 that name of mother of DW 2 is one Amina Khatun who reportedly died in 2006. But then, NRC of 1951 or for that matter voter list of 1965 reveals that said Mabed Ali had 2 wives, they being Bhanu Nessa and Khatu Nessa.
17. It does not speak anything about Amina Khatun being also the wife of aforesaid Mabed Ali. The appellant owes an explanation how and when Amina Khatun become the wife of said Mobed Ali. Unfortunately, such explanation was found conspicuously missing in all the evidence tendered from the side of the appellant. Such a failure makes the claim of the appellant that she is the daughter of said Mobed Ali is enormously doubtful.
18. It is found from the testimony of DW 2 that he was born in 1970 meaning thereby that Mabed Ali must have married the mother of DW 1 even before 1970. This shows that name of Amina Khatun, as being the wife of said Mabed Ali, must have been incorporated in the voter lists prepared in post 1971 period. However, not a single voter list of post 1971 period was produced before the tribunal to show that Amina Khatun, mother of DW2, was the wife of said Mabed Ali although Mobed Ali remained alive upto 1980 and said Amina Khatun too lived upto 2006. Such failure, in turn, makes the claim of the appellant that she is the daughter of said Mobed Ali through one Amina Khatun even more suspicious.
19. It is equally worth noting that in his evidence that DW 2 deposes that he was told by his mother (Amina Khatun) that when the petitioner (appellant) was married of to one Shaizuddin, DW 2 was a baby of 2 years of age only. It is also in WA No. 295 of 2013 9 the evidence that petitioner is 38/40 years older to DW 2. However, such a claim stands completely demolished in view of fact that when both of them were examined as DW 1 and DW 2 in 2012, DW1 and DW2 claim that their age in 2012 was 55 and 43 respectively meaning thereby the age difference between DW1 and DW2 is only 12 years, and not 38-40 years as claimed by DW 2. This further casts a doubt on the claim of the appellant that she was the daughter of aforesaid Mobed Ali.
20. It is equally important to note that the DW 2, as stated above, claims that he was born in 1970 and his sister DW 1 (appellant herein) was about 38 to 40 years older to him. If that be the position, the appellant must have been born during the period between 1928 and 1930 and in that event, she must be a woman of about 21 years of age when NRC was prepared in 1951.
21. This strongly suggests that the name of the appellant must have found its place in the NRC of 1951 if she was born in between 1938 and 1940. But there is nothing on record to show that the name of mother of the appellant was found incorporated in NRC 1951 or any other voter lists, prepared prior to 1971.
22. Worst still, though mother of appellant reportedly died in 2006, not a single voter list, prepared in post 1971 period were produced before the tribunal to show that she was the wife of Mobed Ali to support the claim of the appellant that the appellant is the daughter of Mobed Ali who is said to be a genuine Indian citizen. Such a failure on the part of the appellant to produce before the tribunal the aforesaid voter lists is one more testimony of claim of the petitioner being the daughter of said Mobed Ali is without any substance.
23. It is found that the learned Tribunal has observed that in voters list of 1965, the age of Mabed Ali was shown as 50 years, however, in the voters list of 1970, his age was shown as 46. How a person, who was to be 55 years in 1970, became 10 years younger in 1970 remains far from being explained. This not only casts a serious doubt about the very identity of aforesaid Mabed Ali who is said to be the father of the petitioner but also makes the claim of the appellant that she is the daughter of Mobed more and more doubtful.
24. The judgments in question reveals that the learned Tribunal also finds, and quite rightly so, that Mabed Ali had died as per evidence of DW 2 in the year 1980.
WA No. 295 of 2013 10But then, the certificate, issued by the Gaon Bura in 1993, shows that Mabed Ali was a resident of a place called Pub Luwashur in the district of Barpeta in 1993. How could a Gaonbura certify a man who died as back as 1980 to be a resident of Pub- Luwashur in 1993 has not been explained? This coupled with the fact that the Gaon Bura has no authority to issue such a certificate makes all those claims shrouded with serious doubt.
25. The NRC of 1951 reveals that Osman Uddin, (said to be grandfather of the appellant) had one son by name Nasik Ali, but then, his name was not shown along with Mobed Ali in the voter list of 1965. In the facts and circumstances of the case in hand, the appellant owes an explanation as to why the name of said Nasik Ali, brother of Mobed Ali did not figure along with Mobed Ali in the voter list of 1965. But same was not done. This is another reason which casts a doubt on the claim of the appellant made in the proceeding before the Tribunal.
26. Learned Tribunal also found fault with the claim of DW 1 that the appellant is his own sister. In that regard, the Tribunal noticed that the name of DW 2 (son of Mobet Ali?) appeared in the voter list of 1985 and his age was shown as 21 years in 1985. However, it is his own claim that he was born in 1970 meaning thereby that in 1985, he was a boy of 15 years of age only and despite that being the position, he became a voter in 1985 which is, however, not permissible under the law since during the time in question the minimum age to acquire the right to vote was 21 years.
27. A careful perusal of the materials on record reveals that as per NRC of 1951, Osman Uddin, father of Mobed Ali, was not alive in 1951. It is also found apparent that all the voter lists, produced before the Tribunal shows that Osman Uddin died long before 1965. But then, a patta issued in 1965, which is produced before the Tribunal, shows that such a patta was issued in the name of Osman Uddin although he is stated to have expired even before 1951. This also casts a serious doubt not only about the authenticity of the claim of the appellant that Osman Uddin was the father of aforesaid Mobed Ali but it also throws the claim of appellant that she is a bonafide citizen of India to a labyrinth of suspicion.
28. Our forgoing discussion reveals that the appellant could not prove that Mobed Ali is a genuine Indian citizen. Nor could she prove that she is the daughter WA No. 295 of 2013 11 of aforesaid Mobed Ali, even one assumes for the sake of argument that Mobed Ali is an Indian citizen. Being so, we are of the opinion that the claim of the appellant that she is an Indian citizen by birth is found to be fallen through.
29. In view of our forgoing discussion, it needs to be concluded that the judgments under challenge do not suffer from any infirmity whatsoever and as such, present appeal deserves to be dismissed.
30. This appeal is accordingly dismissed.
31. A copy of this judgment be furnished to the SP (B) Barpeta for doing needful as indicated in paragraph 15 of the judgment of learned Single Judge.
JUDGE JUDGE
Rupam
WA No. 295 of 2013