Gauhati High Court
Jasmin Begum @ Jesminara Begum vs The Union Of India And 6 Ors on 25 September, 2019
Author: Manojit Bhuyan
Bench: Manojit Bhuyan, Ajit Borthakur
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GAHC010096362019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 3084/2019
1:JASMIN BEGUM @ JESMINARA BEGUM
W/O- A.LATIF, VILL- MOIRABARI, P.S. MOIRABARI, DIST- MORIGAON
(ASSAM), PIN- 782126
VERSUS
1:THE UNION OF INDIA AND 6 ORS.
REP. BY THE SECY., MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, NEW
DELHI-01
2:THE ELECTION COMMISSIONER OF INDIA
NEW DELHI-1
3:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM
HOME DEPTT.
DISPUR
GHY-06
4:THE CO-ORDINATOR OF NRC
BHANGAGARH
ASSAM
GHY-05
5:THE DY. COMMISSIONER
MORIGAON
ASSAM
PIN- 782105
6:THE SUPERINTENDENT OF POLICE (B)
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MORIGAON
DIST- MORIGAON
ASSAM
PIN- 782104
7:THE OFFICER-IN-CHARGE
MOIRABARI P.S.
DIST- MORIGAON
ASSAM
PIN- 78212
Advocate for the Petitioner : MR. SK N MOHAMMAD
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
25.09.2019 (Manojit Bhuyan, J) Heard Mr. S.K.N. Mohammad, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing respondent no.1. Ms. B. Das, learned counsel represents respondent no.2 whereas Mr. J. Payeng, learned counsel represents respondent nos.3, 5, 6 and 7. Ms. A. Verma, learned counsel appears for respondent no.4.
Petitioner assails opinion dated 25.01.2019 passed by the Foreigners' Tribunal-
5th, Morigaon in Case No.F.T.(D)980/2017, declaring her to be a foreigner, having illegally entered into India (Assam) after 25.03.1971.
For the purpose of discharging burden as required under section 9 of the Foreigners Act, 1946 to prove that she is not a foreigner, the petitioner exhibited as many as 11 (eleven) documents, the particulars of which may be noticed, as under :
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(i) Exhibit-A - Certified copy of Voter List of 1965, in the name of one A. Kadir, projected father of the petitioner and Majuda Begam, projected mother of the petitioner of village Hatimuria, P.S. - Lahorighat, district- Nagaon, Part No.62, under 84 Lahorighat LAC.
(ii) Exhibit-B - Certified copy of Voter List of 1970, in the name of one A. Kadir, projected father of the petitioner and Majumda Begam, projected mother of the petitioner of village Hatimuria, P.S. - Lahorighat, district- Nagaon, Part No.62, under 84 Lahorighat LAC.
(iii) Exhibit-C - Hand written Jamabandi of the year 1970.
(iv) Exhibit-D - Certified copy of Voter List of 1997, in the name of one A. Kadir Muktar, projected father of the petitioner and one Sultana Mazeda, projected mother of the petitioner of village Molan Kamora, District-Nagaon, P.S.-Moirabari, Part No.77 under 83 No. Dhing LAC.
(v) Exhibit-E - Certified copy of Voter List of 2018, in the name of one Sultana Mazeda, projected mother of the petitioner of village Moirabari, District-Nagaon, P.S.-
Moirabari, Part No.161 under 83 No. Dhing LAC.
(vi) Exhibit-F - School Certificate dated 01.10.2018 issued by the Headmistress of Moirabari Boys L.P. School.
(vii) Exhibit-G - Certified copy of Jamabandi in the name of the petitioner as co- pattadars of the land in question.
(viii) Exhibit-H - Certificate issued by the Government Gaonburah of village Tatikata Pathar certifying the name of the petitioner's father as Abdul Kadir and is a resident of Tatikata and her marriage was solemnized with Abdul Latif of village Moirabari, Morigaon.
(ix) Exhibit-I - Certificate issued by the Government Gaonburah of village Moirabari certifying the name of the petitioner's father as Abdul Kadir resident of Moirabari Ward No.9 of village Moirabari, Morigaon.
(x) Exhibit-J - Certificate issued by the Government Gaonburah of village Hatimuria certifying the name of the petitioner's father as Abdul Kadir and husband's name as Abbad Ali is a resident of Hatimuria, Morigaon.
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(xi) Exhibit-K - Certificate issued by the Government Gaonburah of villages Chitalmari Pathar, Madarguri, Goroimari certifying that petitioner's marriage with A. Latif is a true incident.
Besides the documents above, the petitioner presented two witnesses i.e. one Mustafa Saiful Islam as DW-2, the projected uncle of the petitioner and one Abdul Latif, projected husband of the petitioner who deposed as DW-3.
As indicated above, the petitioner projected one A. Kadir as his father and one Majuda Begum as mother, which names appeared in the Exhibits-A, B, D and E Voter Lists of 1965, 1970, 1997 and 2018 from different villages i.e. Hatimuria, Molan Kamora, Moirabari with discrepancies of projected mother's name. No voter lists were produced and exhibited reflecting the name of the petitioner by showing relationship with her projected parents. To establish linkage, reliance was placed in the Exhibits-F, H, I, J, K respectively, being Certificates issued by the Headmistress of Moirabari Boys L.P. School and Government Gaonburah of village Tatikata / Moirabari / Chitalmari Pathar / Mdarguri / Goroimari respectively. However, the said Certificates rendered itself as inadmissible in evidence, inasmuch as, the authors of the said Certificates were not examined to prove the contents thereof. The Jamabandi at Exhibit-G did not stand proved by means of any related Sale Deed showing that the plot of land in question, which the petitioner claims to have inherited, had been purchased by his projected father on any date prior to the cut-off date of 25.03.1971. Situated thus, the Jambandi document lost its relevance to establish lineage to a predecessor prior to 25.03.1971. The hand written Jamabandi at Exhibit-C also has no relevance as it could not relate to the projected father or mother of the petitioner.
The statement of DW-2 i.e. Mustafa Saiful Islam, who claimed to be the uncle of the petitioner, cannot be relied upon in the absence of any documents showing his relationship, either to the projected father of the petitioner or to the petitioner herself. DW-2 himself stated in regard to citizenship of the petitioner that he could not submit Page No.# 5/6 any document. DW-3 Abdul Latif is the projected husband of the petitioner, who deposed that he only knows the name of the projected father of the petitioner. 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 and DW-3, thus, falls short of being considered as cogent, reliable and admissible evidence, so much so, to establish linkage of the petitioner to the projected parents.
As the primary issue in a proceeding under the Foreigners Act, 1946 and the Foreigners (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.
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 Page No.# 6/6 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.
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