Gauhati High Court
Jiliman Nessa vs The Union Of India And 4 Ors on 25 February, 2020
Author: Manojit Bhuyan
Bench: Manojit Bhuyan, Parthivjyoti Saikia
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GAHC010028772017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 3895/2017
1:JILIMAN NESSA
W/O- ABDUL SALAM, R/O- VILL- NICHUKAI, MOUZA- DAMAKA CHAKA
BAUSI, P.S- SORBHOG, DIST- BARPETA, ASSAM
VERSUS
1:THE UNION OF INDIA and 4 ORS.
REP. BY THE HOME AFFAIRS, GOVT OF INDIA, NORTH BLOCK, CENTRAL
SECRETARIAT, NEW DELHI- 110001
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM
HOME DEPTT.
ASSAM SECRETARIAT
DISPUR
GUWAHATI-781006
3:THE ADDITIONAL DIRECTOR GENERAL OF POLICEB
ASSAM
ASSAM POLICE BORDER ORGANISATION
SRIMANTAPUR
GUWAHATI- 781003
4:THE DEPUTY COMMISSIONER
BARPETA DISTRICT
P.O
P.S AND DIST- BARPETA
ASSAM
PIN- 781301
5:THE SUPERINTENDENT OF POLICEB
BARPETA
ASSAM POLICE BORDER ORGANISATION
BARPETA
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P.O
P.S AND DIST- BARPETA
ASSAM
PIN- 78130
Advocate for the Petitioner : MR.J P MORE
Advocate for the Respondent :
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
O R D E R
25.02.2020 (Manojit Bhuyan, J) Heard Mr. A. Goyal, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing respondent no.1. Also heard Mr. J. Payeng, learned counsel representing respondent nos.2, 3, 4 and 5 and Ms. A. Verma, learned counsel for the NRC.
Petitioner assails opinion dated 03.03.2017 passed by the Foreigners' Tribunal Barpeta 11 th, Assam in F.T. Case No.168/2016, declaring her to be a foreigner, having illegally entered into Assam on or after 25.03.1971 without valid documents.
For the purpose of discharging burden as required under section 9 of the Foreigners Act, 1946 to prove that petitioner is not a foreigner, as many as 9 (nine) documents were exhibited by her, the particulars of which may be noticed as under :
(i) Exhibit-A - Copy of Voter List of 1965, in the name of one Munjil Akand, projected father of the petitioner and one Amela, projected mother of the petitioner of village Nichuka, Part No.111, Sub-Division-Barpeta, P.S.-Sorbhog, District-Kamrup, under 47 No. Sorbhog LAC.
(ii) Exhibit-B - Photostat copy of Annual Khiraj Patta wherein name of the petitioner's projected father Munjila Sheikh is reflected.
(iii) Exhibit-C - Photostat copy of Annual Khiraj Patta wherein name of the petitioner's projected grandfather Mamud Ali is reflected.
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(iv) Exhibit-D - Photostat copy of Annual Khiraj Patta wherein name of the petitioner's projected father Munjila Sheikh is reflected.
(v) Exhibit-E - Identity Card issued by the Gaonburah of Nichuka, P.O. Barpeta Road certifying that the petitioner is the daughter of Munjila Akand.
(vi) Exhibit-F - Certificate issued by the Secretary, 46 No. Nichuka Gaon Panchayat, certifying that petitioner's father name is Munjil Akand and residents of Nichuka village , Barpeta.
(vii) Exhibit- G - Land Revenue Receipt in the name of the projected father of the petitioner i.e. Munjila Sheikh
viii) Exhibit- H - Copy of Voter List of 1997, in the name of one Munjil Munsi, projected father of the petitioner and one Amela, projected mother of the petitioner of village Nichuka, Part No.101, Sub-Division-Barpeta, P.S.-Sorbhog, District-Kamrup, under 40 No. Sorbhog LAC.
ix) Exhibit- I - Copy of Voter List of 2008, in the name of one Amena Khatun, projected mother of the petitioner of village Nichuka, Part No.129, Sub-Division-Barpeta, P.S.- Sorbhog, District-Barpeta, under 40 No. Sorbhog LAC.
Petitioner examined herself as DW-1. One A. Mannan, projected as brother of the petitioner, deposed as DW-2.
From the documents produced and exhibited, as above, no other documents, as admissible in evidence, were brought on record to demonstrate and establish any kind of relationship/linkage to either the projected father Munjil Akand or projected mother Amela Khatun. Though their names indeed reflects in the Voter Lists of 1965, 1997 and 2008 at Exhibits-A, H and I respectively, but only reflection of their names 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 link documents brought on record for the purpose of establishing linkage to Munjil Akand were the Identity Card issued by the Gaonburah of Nichuka Village and Certificate issued by the and Secretary 46 No. Nichuka Gaon Panchayat at Exhibits-E and F. The Identity Card/Certificate rendered itself as inadmissible in evidence, inasmuch as, the authors of the said Certificates were not examined to prove the same and the contents thereof. The Annual Khiraj Patta at Exhibits-B, C and D shows the name of one Munjil Sheikh, whereas in the Voter Lists of 1965 and 1997 the petitioner projected father's name shown as Munjil Akand/Munjil Munchi. Inherent discrepancies makes the Annual Khiraj Patta as an unreliable piece of evidence and without any relevance to establish lineage. The Exhibit-G, being land revenue payment receipt of the year 2010 rendered itself as inadmissible in evidence without the original land records being produced to show that the revenue so paid was in Page No.# 4/5 respect of land belonging to the projected father Munjil Akand.
A. Mannan as DW-2 deposed that the petitioner is his elder sister. Whether the statement of DW-2 can be taken at its face value or deserves to be discarded, recourse must be had to certain important factual aspects. It is seen that in the written statement filed by the petitioner there is absolutely no mention of A. Mannan as her brother. No documents were brought on record, either by way of voter lists or land documents, showing any relationship between the petitioner and A. Mannan. Clearly, the sudden appearance of A. Mannan as a brother of the petitioner raises reasonable doubt. Mere oral statement as to the relationship between the petitioner and Mohammad Ali sans any documentary support has to be considered as an unreliable piece of evidence.
The petitioner enclosed several documents with the writ petition for consideration. We would observe that fresh documents introduced in the present writ proceedings cannot be looked into or considered, the same not having been produced and exhibited before the Tribunal at the first instance.
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 make out any case demonstrating any errors apparent on the face of the record to warrant interference of the impugned opinion.
We find no merit in the present petition. Accordingly, the same stands dismissed, however, Page No.# 5/5 without any order as to cost.
Interim bail granted by this Court on 23.06.2017 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