GAHC010147362020

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)/4501/2020

MAZEDA KHATUN @ MAZEDA BEGUM D/O. LT. JAHER ALI, W/O. ABDUL KADIR, VILL. NAKHOLA GRANT, P.S. JAGOROAD, DIST. MORIGAON, ASSAM.

VERSUS

THE UNION OF INDIA AND 7 ORS REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI, 110001.

2:THE STATE OF ASSAM

REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GUWAHATI-781006.

3:THE ELECTION COMMISSION OF INDIA

NEW DELHI-110001.

4:THE STATE COORDINATOR

NRC ASSAM ACHYUT PLAZA BHANGAGARH GUWAHATI-781005.

5:THE STANDING COUNSEL

SPECIAL FT AND BOARDER.

6:THE DY. COMMISSIONER

MORIGAON ASSAM-782105.

7:THE SUPDT. OF POLICE (B)

MORIGAON ASSAM-782105.

8:THE O/C

JAGIROAD POLICE STATION MORIGAON-782..

Advocate for the Petitioner : MR. P RAHMAN

Advocate for the Respondent : ASSTT.S.G.I.

BEFORE HONOURABLE MR. JUSTICE MANOJIT BHUYAN HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

ORDER

28.01.2021

(Manojit Bhuyan, J)

Heard Mr. P. Rahman learned counsel for the petitioner as well as Mr. B. Chakravorty, learned counsel representing respondent no.1. Mr. J. Payeng, learned counsel represents respondent nos.2, 5, 6, 7 and 8 whereas Ms. N. Upadhyay, learned counsel appears for respondent no.3. Ms. L. Devi, learned counsel accepts notice on behalf of respondent no.4.

Petitioner assails opinion dated 28.02.2020 passed by the Foreigners' Tribunal No.(1st), Morigaon, Assam, in Case No. F.T. 458/2010, declaring her to be a foreigner/illegal migrant, having illegally entered in to India from the specified territory without any valid documents after 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, as many as 14 (fourteen) documents were

exhibited by her, the particulars of which may be noticed as under :

• (i) Exhibit-1 Birth Certificate of Abdul Azid, projected son of the petitioner.
• (ii) Exhibit-2 Birth Certificate of Khaidul Islam, projected son of the petitioner.
• (iii) Exhibit-3 Copy of Jamabandi for surveyed villages which includes Sidaguri village where names of the projected grandfather and father are reflected.
• (iv) Exhibit-4 Certified copy of Voter List of 1966, in the name of one Jaher, projected as father of the petitioner and one Jarina Khatun, projected as mother of the petitioner along with others of village Sidhaguri, Mouza- Pakaria, P.S. – Morigaon, district- Nagaon, Part No.162, under 83 No. Bokoni (SC) LAC.
• (v) Exhibit-5 Certified copy of Voter List of 1970, in the name of one Jaher, projected as father of the petitioner and one Jarina Khatun, projected as mother of the petitioner along with others of village Sidhaguri, Mouza- Pakaria, P.S. – Morigaon, district- Nagaon, Part No.162, under 83 No. Bokoni (SC) LAC.
• (vi) Exhibit-6 Certified copy of Voter List of 1977, in the name of one Jaher, projected as father of the petitioner and one Jarina Khatun, projected as mother of the petitioner along with others of village Sidhaguri, Mouza- Pakaria, P.S. – Morigaon, district- Nagaon, Part No.162, under 79 No. Jagiroad (SC) LAC.
• (vii) Exhibit-7 Certified copy of Voter List of 1997, in the name of one Jaher, projected as father of the petitioner, one Jarina Khatun, projected as mother of the petitioner, one Ahmed Ali, projected as uncle of the petitioner and one Jayeda, projected as elder sister of the petitioner of village Morisuti/Sidaguri, Mouza- Pakaria, P.S. – Morigaon, district- Morigaon, Part No.38, under 79 No. Jagiroad (SC) LAC.
• (viii) Exhibit-8 Certified copy of Voter List of 2005, in the name of one Jaher Ali, projected as father of the petitioner, one Jarina Khatun, projected as mother of the petitioner and one Jayeda Khatun, projected as elder sister of the petitioner of village Morisuti/Sidaguri, Revenue Circle-Mayang, P.S. – Mayang, district-Morigaon, under 79 No. Jagiroad (SC) LAC.
• (ix) Exhibit-9 Certified copy of Voter List of 2015, in the name of one Jarina Khatun, projected as mother of the petitioner of village Morisuti, Revenue Circle-Mayang, P.S. – Mayang, district- Morigaon, under 79 No. Jagiroad (SC) LAC.
• (x) Exhibit-10(1) Certified copy of Voter List of 2013, in the name of the petitioner of village Nakhola Grant, Revenue Circle-Mayang, P.S. – Mayang, district- Morigaon, under 79 No. Jagiroad (SC) LAC.
• (xi) Exhibit-10(2) Certified copy of Voter List of 2005, in the name of the

petitioner of village Nakhola Grant, P.S. – Mayang, district- Morigaon, under 79 No. Jagiroad (SC) LAC.

• (xii) Exhibit-11 Elector Photo Identity Card of the petitioner.
• (xiii) Exhibit-12 Ration Card in the name of the projected mother of the petitioner where petitioner's name is also reflected.
• (xiv) Exhibit-13 Gaonburah Certificate dated 20.03.2018 certifying that the petitioner is the daughter of Jaher Ali of village Sidaguri.

Petitioner examined herself as DW-1 and also presented for examination her projected mother Jarina Khatun as DW-2.

As indicated above, the petitioner projected one Jaher as her father and one Jarina Khatun, as her mother, which names appeared respectively in the Exhibits- 4, 5, 6, 7, 8 and 9 Voter Lists of 1966, 1970, 1977, 1997, 2005 and 2015. 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 document brought on record for the purpose of establishing linkage to said Jaher Ali was the Certificate at Exhibit-13. However, the certificate rendered itself as inadmissible in evidence, inasmuch as, the author was not examined to prove the Certificate and the contents thereof. The voter list with the name of the petitioner are the Exhibits-10(1) and 10(2) Voter Lists of 2013 and 2005 of village Nakhola Grant, P.S. Mayang which, however, bears no relevance as her relation is shown with her projected husband and not with the projected father. No any voter lists were produced and exhibited reflecting the name of the petitioner by showing relationship with the projected father or mother. The Jamabandi document at Exhibit-3 has no relevance as it does not serve to link the petitioner with the projected father. Finally the Birth Certificates at Exhibits-1 and 2, Elector Photo Identity Card at Exhibit-11 and Ration Card at Exhibit-12 remained as documents inadmissible in evidence as it is too well settled that such documents are no proof of citizenship. This is a clear case where the petitioner utterly failed to prove linkage and to discharge the burden, as required of her, under section 9 of the Foreigners Act, 1946.

The statement of DW-2 i.e. Jarina Khatun, who claimed to be the mother of the petitioner, cannot be relied upon in the absence of any documents showing relationship with the petitioner. Oral testimony of DW-2 alone, sans any documentary support, cannot be treated as sufficient to prove linkage or help the cause of the petitioner. We would reiterate 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 and/or the mother.

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 grandfather, grandmother, father and/or the mother.

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, without any order as to cost.

JUDGE JUDGE

Comparing Assistant