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2014 DIGILAW 253 (GAU)

SAZIDA KHATUN v. STATE OF ASSAM

2014-03-03

UJJAL BHUYAN

body2014
Judgment By way of this petition, under Article 226 of the Constitution of India, petitioner has challenged the legality and correctness of the judgment and order dated 21.02.2012, passed by the Foreigners Tribunal (2nd), Silchar in FT 2nd (D) Case No.1029/2011, opining the petitioner to be a foreigner having migrated to India after 1971. 2. Case of the petitioner as projected in the writ petition, is that she was born in the year 1982 at village Sarishacorie under Katigorah Legislative Assembly Constituency in the district of Cachar. Her parents are citizens of India and their names appeared in the voters list. The name of her grand-father also appeared in the voters list of 1965. A reference was made to the Foreigners Tribunal, Cachar by the Electoral Registration Officer of the Katigorah Legislative Assembly Constituency expressing doubts about the citizenship of the petitioner. On the basis of the said reference, a case was registered, being FT 2nd (D) Case No. 1029/2011, following which notice was issued by the Foreigners Tribunal (Tribunal), which was served on the petitioner. Petitioner had submitted written statement contending that she is an Indian citizen. She also adduced evidence before the Tribunal and exhibited five documents. The Tribunal, by the impugned judgment and order dated 21.02.2012 did not accept the contention of the petitioner and held that petitioner had failed to prove her Indian citizenship. The Tribunal opined that she is a foreigner having migrated to India after 1971. 3. Aggrieved, petitioner has filed the present writ petition assailing the correctness of the aforesaid finding. 4. This Court by order dated 23.04.2012 issued notice and, in the interim, directed that the petitioner should not be deported from India subject to her appearance before the Superintendent of Police (Border), Silchar. 5. Petitioner filed an additional-affidavit on 03.05.2012 to place on record an extract of the voters list of the year 1971 in respect of Katigorah Legislative Assembly Constituency containing the name of her father as well as of her mother. She has also enclosed a certificate dated 03.01.1992, issued by the Headmaster of 280 No. Sarishacorie LP School certifying her date of birth as 01.01.1982 and being a resident of village Sarishacorie. 6. Subsequently, petitioner filed a further affidavit dated 30.08.2013, praying for giving her an opportunity to adduce further evidence in support of her citizenship. She has also enclosed a certificate dated 03.01.1992, issued by the Headmaster of 280 No. Sarishacorie LP School certifying her date of birth as 01.01.1982 and being a resident of village Sarishacorie. 6. Subsequently, petitioner filed a further affidavit dated 30.08.2013, praying for giving her an opportunity to adduce further evidence in support of her citizenship. She has contended that there could not have been any doubt about her citizenship and in the notice issued to her by the Tribunal, no ground was mentioned. She is an illiterate lady having read up to Class IV and did not fully comprehend about the legal requirements which she had to meet before the Tribunal. 7. Heard Mr. LR Mazumdar, learned counsel for the petitioner and Mr. M Bhagabati, learned Central Government as well as State Counsel, Assam. 8. While learned counsel for the petitioner has contended that the Tribunal did not properly appreciate the evidence on record and committed a manifest error in coming to the conclusion that petitioner is a foreigner having come to India after the year 1971, he submits that if the petitioner is given one more opportunity, she will be able to establish her citizenship and, therefore, seeks remand of the case back to the Tribunal for re-hearing and a fresh decision. 9. Learned Central Government as well as State Counsel on the other hand, has strongly opposed the submission made by the learned counsel for the petitioner and submits that there is no error or infirmity in the view taken by the Tribunal which calls for no interference by this Court in a proceeding under Article 226 of the Constitution of India. 10. I have heard learned counsel for the parties and also perused the record. 11. It appears that the Electoral Registration Officer of Katigorah Legislative Assembly Constituency while examining the draft electoral roll published on 24.07.1997 expressed doubts about the genuineness of petitioner’s citizenship. His doubt was confirmed after local spot verification was carried out. As per verification report, petitioner failed to produce any document to show that she is a citizen of India. The case was thereafter referred to the Tribunal through the Superintendent of Police, Cachar seeking an opinion as to whether the petitioner is a foreigner or not. 12. When notice was issued to the petitioner by the Tribunal and served, petitioner submitted her written statement. The case was thereafter referred to the Tribunal through the Superintendent of Police, Cachar seeking an opinion as to whether the petitioner is a foreigner or not. 12. When notice was issued to the petitioner by the Tribunal and served, petitioner submitted her written statement. Stand taken in the written statement was that petitioner was born on 01.01.1982 at Sarishacorie under Katigorah Legislative Assembly Constituency to Md. Tomijul Hoque (father) and Musstt. Halima Khatun (mother), who are citizens of India. Their names appeared in the voters list of 1989 in respect of Katigorah Constituency. Grand-father of the petitioner Lt. Mobarok Ali was also a voter and his name appeared in the voters list of 1965 in respect of Katigorah Constituency appearing at Sl. No.244 against house No. 39. Petitioner had her primary education from 280 No. Sarishacorie LP School. Her grand-father had purchased land. Petitioner married Md. Ramizul Ali of village Shewty Part-III under Police Station Katigorah in the year 2004 and since then, she has been residing in her husband’s house. 13. Petitioner gave oral evidence, which was more or less on the lines of her written statement. She also exhibited five documents, viz, sale deed of her father, voters list of her grand-father of the year 1965, voters list of her father of the year 2010, her school certificate and sale deed of her grandfather of the year 1945. 14. The Tribunal after examining the evidence on record and after hearing the arguments of the parties, did not accept the contention of the petitioner and opined that she is a foreigner of post 1971 stream. Relevant portion of the order of the Tribunal dated 21.02.2012 reads as under: - “I have carefully gone through the evidence available on record. OP/DW-1 has deposed in the examination-in-chief that according to school certificate her date of birth is 01.01.1982. The Ext.4 is the school certificate exhibited by the OP. In the cross-examination OP has deposed that she has no document pertaining to her birth. On perusal of the Ext.4 it appears that there is no mention about the place of birth in the Ext.4. It does not establish that the OP was born at Sarishacorie. OP has no voter list to show that she is a voter in India. In the school certificate it is written that according to admission register of the school the OPs date of birth was 01.01.1982. It does not establish that the OP was born at Sarishacorie. OP has no voter list to show that she is a voter in India. In the school certificate it is written that according to admission register of the school the OPs date of birth was 01.01.1982. But aforesaid admission register maintained by the school has not been produced before this Tribunal in order to corroborate the Ext.4 i.e. school certificate. The OP has failed to prove that she was born at village Sarishacorie. The name of the father of the OP is Md. Tomijul Hoque as stated by the OP. The OP has also deposed that her father was a voter No. 2 Silchar Parliamentary Constituency but the OP has failed to prove it. Ext. 3 is the voter list of 2010 in respect of the father of the OP. Except Ext. 3 the OP has not submitted voter list of her father prior to year 2010. There is no proof or voter list of OP’s father to show that on 01.01.1982 the father and the mother of the OP were present in India as citizens of India. The OP has stated that her grand-father was a voter in the year 1965 of 17 No. Katigorah LAC and he had purchased land in the year 1945 vide Ext. 5 sale deed. But the said sale deed i.e. Ext. 5 is irrelevant to ascertain the citizenship of the OP. The OP has also deposed in the examination in chief that her father purchased land by registered deed (Ext.1) on 06.03.1977. The Ext. 1 reveals that 3 persons were purchaser. But the OP has not proved by sufficient evidence that her father has been possessing the said land till now. Besides this, the Ext. 1 is post 25.03.1971. There is no voter list of the parents of the OP of the year 1985 or 1989. The OP has also not proved the voter list of 1989 with her husband after marriage. The OP has failed to prove that she was a voter in India in the year 1989 or in any year. From the above discussion of evidence it is clear that the OP has failed to prove that she was born at village Sarishacorie under Katigorah constituency. She has also failed to prove that she is citizen of India by birth. From the above discussion of evidence it is clear that the OP has failed to prove that she was born at village Sarishacorie under Katigorah constituency. She has also failed to prove that she is citizen of India by birth. According to Section 2(a) of the Foreigners Act 1946 “Foreigners” means a person who is not a citizen of India. The OP of the present case has totally failed to prove that she is a citizen of India. In view of the above circumstances, I am constrained to opine that the OP is a foreigner migrated to India after 1971.” 15. Section 2(a) of the Foreigners Act, 1946 defines a foreigner. As per the said definition, foreigner means a person who is not a citizen of India. 16. As per section 9 of the Foreigners Act, if any question arises as to whether any person is or is not a foreigner of a particular class or description, the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872, lie upon such person. 17. Section 9 of the Foreigners Act as well as other related issues were examined in detail by a Full Bench of this Court in STATE OF ASSAM & ORS. VS. MOSLEM MONDAL & ORS., reported in 2013 (1) GLT (FB) 809. It has been held that in a proceeding under the Foreigners Act read with the Foreigners (Tribunal) Order, 1964, the issue is whether the proceedee is a foreigner. It being a fact especially within the knowledge of the proceedee, the burden of proving that he is a citizen is, therefore, upon him because of section 9 of the Foreigners Act and it is, therefore, his obligation to provide enough evidence to establish that he is not a foreigner. On the scope of interference with the Tribunal’s order in a writ proceeding, the Full Bench held that though the High Court in exercise of its powers under Article 226 of the Constitution of India can issue a writ of certiorari to quash the decision of a Tribunal in an appropriate case, the scope of interference is limited. On the scope of interference with the Tribunal’s order in a writ proceeding, the Full Bench held that though the High Court in exercise of its powers under Article 226 of the Constitution of India can issue a writ of certiorari to quash the decision of a Tribunal in an appropriate case, the scope of interference is limited. The certiorari jurisdiction of a writ court being supervisory and not appellate, the writ court cannot review the findings of fact reached by the Tribunal unless, of course, the Tribunal has acted on evidence, which is legally inadmissible or has refused to admit admissible evidence or if the finding is not supported by any evidence at all. Because in such cases, the error would amount to an error of law apparent on the face of the record. The other errors of fact, howsoever, grave it may be, cannot be corrected by a writ court. 18. Having noticed the broad legal parameters while examining the challenge to a judgment of the Tribunal, this Court is of the view that the line of reasoning adopted by the Tribunal does not suffer from any infirmity or error to warrant interference by this Court in a proceeding under Article 226 of the Constitution of India. The Tribunal has given a reasoned finding that there is no proof to show that on 01.01.1982, the day petitioner claims to have been born, her father and her mother were present in India as citizens of India. The documents that have now been placed on record were not exhibited before the Tribunal and, therefore, those cannot be gone into or taken into consideration in the present proceeding while examining the correctness of the Tribunal’s decision. 19. For the aforesaid reasons, this Court is not inclined to accept the challenge made to the impugned judgment and order of the Tribunal dated 21.02.2012. There is no merit in the writ petition, which is, accordingly, dismissed. Interim order passed on 23.04.2012 stands vacated. Registry to send down the LCR forthwith. No costs.