Gauhati High Court
Marjena Khatun @ Marjina Khatun vs The Union Of India And 6 Ors on 17 June, 2020
Author: Manojit Bhuyan
Bench: Manojit Bhuyan, Parthivjyoti Saikia
Page No.# 1/5
GAHC010216602019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 6936/2019
1:MARJENA KHATUN @ MARJINA KHATUN
W/O- SAN MOHAMMAD @ SAN MIYA, VILLAGE- BHOKELIKANDA
(APORIA), PS- MANGALDAI, DIST. DARRANG (ASSAM).
VERSUS
1:THE UNION OF INDIA AND 6 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, SHASTRI BHAWAN, TILAK MARG, NEW DELHI- 110001.
2:THE ELECTION COMMISSION OF INDIA
NIRVACHAN SADAN
ASHOKA ROAD
NEW DELHI- 110001.
3:THE STATE OF ASSAM
REP. BY THE SECRETARY TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY.-6.
4:THE STATE COORDINATOR
NATIONAL REGISTER OF CITIZEN
GS ROAD
BHANGAGARH
GUWAHATI- 781005.
5:THE MEMBER
FOREIGNERS TRIBUNAL (1ST)
MANGALDAI
DARRANG
Page No.# 2/5
ASSAM- 784125.
6:THE DEPUTY COMMISSIONER
MANGALDAI
DARRANG
ASSAM- 784125.
7:THE SUPERINTENDENT OF POLICE (B)
MANGALDAI
DARRANG
ASSAM- 784125
Advocate for the Petitioner : MR. MD S HOQUE
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
ORDER
17.06.2020 (Manojit Bhuyan, J) Heard Md. S. Hoque, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing respondent nos.1 and 4. Ms. B. Das, learned counsel appears on behalf of respondent no.2, whereas Mr. U.K. Nair, learned Senior Counsel appears on behalf of respondent nos.3, 5, 6 and 7.
Petitioner assails opinion dated 30.04.2019 passed by the Foreigners' Tribunal (1 st) Mangaldai, Darrang, Assam in F.T. Case No.5858/2011, declaring her to be a foreigner/illegal migrant, having illegally entered into India (Assam) on after 25th March, 1971.
For the purpose of discharging burden as required under section 9 of the Foreigners Act, 1946 to prove that petitioner is not a foreigner, she exhibited as many as 15 (fifteen) documents, the particulars of which may be noticed as under :
(i) Exhibit-1 - School Certificate dated 07.01.1992, issued by the Head Master of No.1 Page No.# 3/5 Aparia L.P. School in favour of the petitioner Marjina Khatun, daughter of Md. Abdul Mazid, certifying that she read upto Class-III.
(ii) Exhibit-2 - Copy of Voter List of 1966 in the name of one Jamis Ali, projected as grandfather of the petitioner, one Nyakjan Bibi, projected as grandmother of the petitioner and one Chattar Ali, projected uncle of the petitioner of village Uzirar Char, Mouza- Baghbar, district- Kamrup under 52 No. Baghbar LAC.
(iii) Exhibit-3 - Copy of Voter List of 1970 in the name of one Jamis Ali, projected as grandfather of the petitioner, one Nyakjan Bibi, projected as grandmother of the petitioner and one Chattar Ali, projected uncle of the petitioner of village Uzirar Char, Mouza- Baghbar, district- Kamrup under 52 No. Baghbar LAC.
(iv) Exhibit-4 - Certified copy of Final Khatian in the name of one James Ali Munshi, projected as grandfather of the petitioner.
(v) Exhibit-5 - Copy of Voter List of 1989 in the name of one Abdul Majid, projected as father of the petitioner and one Jamela, projected as mother of the petitioner of village Aparia, P.S. Mangaldai, District-Darrang Part No.135 under 67 No. Mangaldai (SC) LAC.
(vi) Exhibit-6 - Copy of Voter List of 1993 in the name of one A. Majid, projected as father of the petitioner and one Jamela, projected as mother of the petitioner of village Aparia, P.S. Mangaldai, District-Darrang Part No.135 under 67 No. Mangaldai (SC) LAC.
(vii) Exhibit-7 - Copy of Voter List of 2010 in the name of one Abdul Majid, projected as father of the petitioner, one Jamela, projected as mother of the petitioner along with two others of village Aparia, P.S. Mangaldai, District-Darrang Part No.202 under 67 No. Mangaldai (SC) LAC.
(viii) Exhibit-8 - Copy of Voter List of 1997 in the name of petitioner, one Chan Mia, projected as husband of the petitioner along with two others of village Aparia, P.S. Mangaldai, District-Darrang Part No.136 under 67 No. Mangaldai (SC) LAC.
(ix) Exhibit-9 - Copy of Voter List of 2005 in the name of petitioner along with four others of village Aparia, P.S. Mangaldai, District-Darrang Part No.174 under 67 No. Mangaldai (SC) LAC.
(x) Exhibit-10 - Copy of Voter List of 2011 in the name of petitioner, one Chan Mia, projected as husband of the petitioner along with two others of village Aparia, P.S. Mangaldai, District-Darrang Part No.207 under 67 No. Mangaldai (SC) LAC.
(xi) Exhibit-11 - Copy of Voter List of 2018 in the name of petitioner, one Chan Mia, projected as husband of the petitioner along with one person of village Aparia, P.S. Mangaldai, District-Darrang Part No.226 under 67 No. Mangaldai (SC) LAC.
(xii) Exhibit-12 - Elector Photo Identity Card of the petitioner.
(xiii) Exhibit-13 - Elector Photo Identity Card of the projected father of the petitioner.
(xiv) Exhibit-14 - Certificate issued by the Gaonburah of Village No.2 Aparia dated 20.11.2018 certifying that petitioner is the daughter of Abdul Majid and got married to one Chan Mia of No.1 Aparia Gaon.
(xiv) Exhibit-15 - Certificate issued by the Secretary of Chaulkhowa Gaon Panchayat dated 06.07.2015, certifying that she is the daughter of Abdul Majid and Jamila Khatun.
Page No.# 4/5 Petitioner examined herself as DW-1. One Abdul Majid, projected as father of the petitioner deposed as DW-2.
As indicated above, the petitioner projected one Jamis Ali as her grandfather, one Nyakjan Bibi as her grandmother, one Abdul Majid as her father, one Chattar Ali as her uncle and one Jamela as her mother, which names appeared in the Exhibits- 2, 3, 5, 6 and 7 Voter Lists of 1966, 1970, 1989, 1993 and 2010 respectively. At this stage we would observe that reflection of a name in a document is wholly insufficient and without relevance if the proceedee/writ petitioner is unable to connect herself to such entity by means of cogent, reliable and admissible document/evidence. The voter lists with the name of the petitioner are the Exhibits-8, 9, 10 and 11 Voter Lists of 1997, 2005, 2011 and 2018 which, however, bore no relevance as her relation is shown with her projected husband and not with the father or mother. No any voter lists were produced and exhibited reflecting the name of the petitioner by showing relationship with the projected father or mother. The documents brought on record for the purpose of establishing linkage to said Abdul Majid were the Exhibit-1 issued by the Headmaster of No.1 Aparia L.P. School, where petitioner read upto Class-III in the year 1991 and Exhibits-14 and 15, issued by the Gaonburah of village No.2 Aparia dated 20.11.2018 and Secretary of Chaulkhowa Panchayet respectively. However, all the certificates rendered itself as inadmissible in evidence, inasmuch as, the authors were not examined to prove the Certificates and the contents thereof. The document brought on record for the purpose of establishing linkage to projected grandfather, father and uncle of the petitioner is the Exhibit-4 Final Khatian which, however, did not stand proved by means of any related Sale Deed. Finally, the Elector Photo Identity Cards at Exhibits- 12 and 13 remained as documents inadmissible in evidence as it is too well settled that such documents are no proof of citizenship.
The statement of DW-2 i.e. Abdul Majid , who claimed to be the father of the petitioner, cannot be relied upon in the absence of any documents showing his relationship to the petitioner. At the time of giving evidence the DW-2 did not produce any documents by way of identification proof that he is Abdul Majid. We would observe that in a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 the evidentiary value of oral testimony, without support of documentary evidence, is wholly insignificant. Oral testimony alone is no proof of citizenship. The evidence of DW-2, thus, falls short of being considered as cogent, reliable and admissible evidence, so much so, to establish linkage of the petitioner to the projected grandfather, grandmother, father, uncle and mother.
As the primary issue in a proceeding under the Foreigners Act, 1946 and the Foreigners Page No.# 5/5 (Tribunals) Order, 1964 relates to determination as to whether the proceedee is a foreigner or not, the relevant facts being especially within the knowledge of the proceedee, therefore, the burden of proving citizenship absolutely rests upon the proceedee, notwithstanding anything contained in the Evidence Act, 1872. This is mandated under section 9 of the aforesaid Act, 1946. In the instant case and as observed above, the petitioner not only failed to discharge the burden but also utterly failed to make proof of the most crucial aspect, that is, in establishing linkage to her projected parents and/or the grandfather.
On the available materials, we find that the Tribunal rendered opinion/order upon due appreciation of the entire facts, evidence and documents brought on record. We find no infirmity in the findings and opinion recorded by the Tribunal. We would observe that the certiorari jurisdiction of the writ court being supervisory and not appellate jurisdiction, this Court would refrain from reviewing the findings of facts reached by the Tribunal. No case is made out that the impugned opinion/order was rendered without affording opportunity of hearing or in violation of the principles of natural justice and/or that it suffers from illegality on any ground of having been passed by placing reliance on evidence which is legally impermissible in law and/or that the Tribunal refused to admit admissible evidence and/or that the findings finds no support by any evidence at all. In other words, the petitioner has not been able to make out any case demonstrating any errors apparent on the face of the record to warrant interference of the impugned opinion.
On the discussions and findings above, we find no merit in the writ petition. Accordingly, the same stands dismissed, however, without any order as to cost.
Interim order granted by this Court on 20.12.2019 stands recalled.
Office to send back the case records to the Tribunal forthwith.
A copy of this order be made part of the case records of the Tribunal for future reference.
JUDGE JUDGE Comparing Assistant