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2015 DIGILAW 1095 (GAU)

Ramena Begum v. Union of India and Ors.

2015-08-27

B.K.SHARMA

body2015
1. By means of this writ petition, the petitioner has challenged the order dated 30th March, 2013 of the learned Member, Foreigners' Tribunal No.III, Barpeta, Assam, passed in F.T. Case No.35(III)/2010 (IMDT Ref. Case No.721/A/98) (State of Assam v. Ramena Begum). By the said order, she has been declared to be a foreigner of post 25th March, 1971 stream. Coming to the writ Court, the petitioner has identified herself by four names, such as Rumena Begum @ Ramena Khatun @ Ramana Khatun @ Ramala Khatun. 2. The proceeding against the petitioner started on the basis of a reference made by the Superintendent of Police (Border), Barpeta. When the name of the petitioner was incorporated in the Draft Electoral Role published on 24th July, 1997 as Ramena Begum, a doubt arose as to her citizenship and accordingly, a reference was made to the Superintendent of Police (Border), Barpeta. Along with the reference, the report of the Local Verification Officer (LVO) was also enclosed. Be it stated here that the intensive revision of electoral role for 46 No. Sarukhetri Legislative Assembly Constituency was carried out as per the direction of the Election Commission of India. House to house enumeration was done during the period from 16th January, 1997 to 15th April, 1997. 3. In the proceeding before the Tribunal, the State examined the Local Verification Officer as witness Nos.l, who, in his deposition, stated that he along with his staff had gone to Village - Kukarpar, PS - Sarthebari and met the petitioner Ramena Begum, wife of Barek. On being asked, she failed to produce any documents in support of her Indian citizenship. Time was allowed to her to do so but she failed. Accordingly, he submitted the Exhibit-1 report containing his Exhibit-l(l) signature. 4. The LCR received from the Tribunal reveals that notice of the proceeding was served on her in her address at Kukarpar, which was also the address when the enquiry/verification, referred to above, was carried out. On receipt of the notice, the petitioner appeared before the Tribunal on 30th December, 2010; 15th March, 2011 and filed a petition praying for time, which was allowed fixing the matter on 5th May, 2011. On 5th May, 2011, the engaged counsel of the petitioner appeared on her behalf without, however, any written statement and/or evidence and the matter was adjourned to 16th July, 2011. On 5th May, 2011, the engaged counsel of the petitioner appeared on her behalf without, however, any written statement and/or evidence and the matter was adjourned to 16th July, 2011. Same repetition was there on 16th July, 2011 and the matter was adjourned to 3rd September, 2011. Thereafter, to 20th October, 2011 and 28th December, 2011. 5. After the aforesaid adjournments, the learned Tribunal fixed the matter on 16th February, 2011, for evidence. However, on that day, the petitioner prayed for another date for evidence and the same was allowed fixing the matter on 11th April, 2012. On 11th April, 2012 also, the petitioner prayed for another date and the same was allowed fixing the matter on 22nd June, 2012, on which date, same repetition was there and the matter was adjourned to 11th July, 2012. On 11th July, 2012, there was a strike called by the advocates, however, the petitioner also remained absent. On the next date fixed, i.e., on 21st August, 2012, the petitioner remained absent without any step and the same was repeated on 13th September, 2012. On the adjourned date, i.e., on 1st December, 2012, the petitioner again appeared and prayed for time to adduce evidence in the form of affidavit and documents. Allowing the said prayer, the matter was fixed on 17th December, 2012. However, later on, on the same date, i.e., 1st December, 2012, the petitioner filed an affidavit and documents (photocopies). Upon such filing of affidavit and documents, the matter was fixed for hearing on 17th December, 2012, on which date, the matter was adjourned to 8th January, 2013. On the subsequent dates, i.e., 8th January, 2013; 12th February, 2013 and 6th March, 2013 also, the petitioner prayed for adjournments and the prayers were allowed. On 6th March, 2013, again a prayer was made for adjournment and the same was allowed as a last chance. 6. In spite of the aforesaid last chance given fixing the matter on 21st March, 2013, on that day also, a prayer was made on behalf of the petitioner to adjourn the matter and the same was rejected and the argument advanced on behalf of the State was heard, fixing the matter on 30th March, 2013. However, liberty was granted to the petitioner to advance argument before 30th March, 2013, even by filing written argument. On 30th March, 2013, the petitioner remained absent without any step. 7. However, liberty was granted to the petitioner to advance argument before 30th March, 2013, even by filing written argument. On 30th March, 2013, the petitioner remained absent without any step. 7. In the aforesaid circumstances, the learned Tribunal had no other option then to pass the impugned order dated 30th March, 2013, after recording the following order : "The OP is absent today without any step. Learned Assistant Government Pleader is present. On perusal of the case record, it appears that after filing the evidence on Affidavit by the OP, four adjournments were allowed for hearing argument of the parties. On almost all the dates, the OP remained absent and learned advocate appearing for the OP prayed for time on the ground of illness of the OP. On 12.2.2013, the OP appeared and filed Petition No.275/13 praying for time as she could not collect necessary documents for hearing of the case, which was allowed. On the fourth date (on 6.3.2013) fixed for hearing argument, learned Advocate for the OP again filed a petition praying for time. Considering the said petition, last chance was given to the OP for hearing argument fixing next date as 21.3.2013. Again on 21.3.2013, learned Advocate appearing for the OP filed a petition showing cause of absence of the OP and for that praying for further time for argument. Considering the fact that on earlier two occasions (on 8.1.2013 and 6.3.2013), last chance was given to the OP, the prayer for further time for hearing argument of the OP was rejected and the case was fixed, after hearing argument advanced by learned Assistant Government Pleader appearing for the State petitioner, for order to be passed on 30.3.2013 (today). It was further mentioned in the order dated 21.3.2013 that the OP may file written argument before the date so fixed for order, if so advised or desire. The OP, however, remained absent without step today on 30.3.2013 and as such the detailed order is separately type-written and attached to the case record. From the entire material on record, it is found that OP Ramena Begum W /o Barek of village Kukurpar under Sarthebari PS in the District of Barpeta entered into India without authority subsequent to 25.3.1971 and hence she is termed to be a foreigner/illegal migrant of post 25.3.1971 stream. This case stands disposed of. Intimate SP(B), Barpeta, accordingly, for further necessary action." 8. This case stands disposed of. Intimate SP(B), Barpeta, accordingly, for further necessary action." 8. With the recording of the above quoted order, the learned Tribunal delivered the impugned order dated 30th March, 2013 and the kept the same in the separate sheet. If we go by the above position of the proceeding, there is no manner of doubt that the petitioner after filing her written statement and affidavit along with photocopies of some documents did not prove the same and/or failed to prove the same discharging her burden of proof as envisaged under section 9 of the Foreigners Act, 1946. This aspect of the matter has been discussed in detail in Sarbananda Sonowal (1) v. Union of India and Anr., AIR 2005 SC 2920 . 9. In the case of Life Insurance Corporation of India and Anr. v. Ram Pal Singh Bisen, (2010) 4 SCC 491 , the Apex Court in paragraph 31 of the said judgment held, thus : "31. Under the Law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the Evidence Act cannot be relied upon by the court. Contents of the document cannot be proved by merely filing in a court." 10. I have heard Mr. M.U. Mahmud, learned counsel for the petitioner and have also heard Ms. G. Sarma, learned counsel appearing on behalf of Mr. S.C. Keyal, learned Assistant Solicitor General of India. I have also heard Mr. Sk. Nur Mohammad, learned State counsel. I have duly considered the submissions advanced by the learned counsel appearing for the parties and have also perused the entire materials on record including the LCR received from the Tribunal. I have also gone through the judgment dated 8th November, 2013 passed in Writ Appeal No.129/ 2013 (Abdul Matali v. Union of India and Ors.), on which the learned counsel for the petitioner placed reliance. 11. In the Tribunal, as noted above, both during verification/enquiry and also while issuing notice, the address of the petitioner was recorded as village - Kukarpar, PS - Barpeta in the district of Barpeta. Notice was also served in that address. 11. In the Tribunal, as noted above, both during verification/enquiry and also while issuing notice, the address of the petitioner was recorded as village - Kukarpar, PS - Barpeta in the district of Barpeta. Notice was also served in that address. In the written statement filed by her, she categorically stated thus in paragraph 3 : "3. Actually the 2nd party is the citizen of India by birth and permanently residing of vill - Kukarpar, Mouza - Sarakhetri, PS -Sarthebari, Dist - Barpeta (Assam)." 12. In the said written statement, she stated that the names of her grandfather and father appeared in the voter list of 1970 and that her own name appeared in the voter list of 1989. It was also stated that her father's name appeared in the voter list of 1997. In the affidavit that was filed by her on 1st December, 2012, she declared her date of birth as 1973 and that she was brought up at village- Kakdhuwa; Mouza- Chenga, District- Kamrup, which is absolutely in contrast with what she stated in the written statement. In the affidavit filed, she referred to the voter list of 1966 but no such voter list was produced. What were produced are the voter lists of 1970; 1989 and 1997. She projected the names contained in the voter list of 1970 as that of her grandfather; grandmother; father; mother etc. She also projected the name Ramana Khatun, wife of Barek, aged 25 years appearing in the 1989 voter list that of her own name. So far as 1997 voter list is concerned, she projected the names Robi Mulla and Amenna Khatun as that of her parents. Although she placed reliance on the certificate dated 17th April, 2010 purportedly issued by the village headman of Village- Kakdhuwa but failed to prove the contents thereof by examining the author. In any case, such a certificate cannot establish her linkage to the projected names of her purported grandparents and parents. 13. All the above aspects of the matter have been discussed by the learned Member of the Foreigners Tribunal in paragraph 9 of the impugned judgment, which is reproduced below ; "9. In any case, such a certificate cannot establish her linkage to the projected names of her purported grandparents and parents. 13. All the above aspects of the matter have been discussed by the learned Member of the Foreigners Tribunal in paragraph 9 of the impugned judgment, which is reproduced below ; "9. On careful perusal of the W/S filed by the OP, her evidence on Affidavit and the documents relied upon by her, some major discrepancies and contradictions, as mentioned below, are found in her version which cast a serious doubt in the trustworthiness of her version. (a) In para 1 of her Affidavit the OP has stated that she was born in the year 1973 and brought up at village Kakdhuwa under PS & District Barpeta; that the names of her grandfather Late Khalil Mulla, her grandmother Late Sonabhanu Nessa, her father Rabi Mulla, her mother Aiymana Khatun, her uncles Asan Mulla and Pasan Mulla appeared in the voter's lists of 1966 and 1970 at village Kakdhuwa under 54 No. Chenga LAC; that the names of her parents and brother Sambal Mulla appeared in the voters' list of 1997 at the same village; that she was married to one Abdul Barek Miah S/o Late Hazrat Ali; that after her marriage, her own name appeared in the voters' list of 1989 along with the names of her husband Abdul Barek Miah, her mother-in-law Bhanu Nessa and sister-in-law Suria Khatun at village Barghol under 47 No. Chenga LAC and that the allegations made against her in this reference case are false. (b) In support of her case, the OP has stated in her Affidavit that she has submitted the certified copies of voters' lists of 1966,1970,1989,1997 and one linkage certificate issued by the Gaonburah as Annexure A to Annexure E respectively. But it is found that no certified copy or photocopy of the voters' list of 1966 (shown submitted as Annexure A) is filed by her either with her W/S or with her Affidavit. In her W/S she has nowhere mentioned a single word about any voters' list of 1966. But it is found that no certified copy or photocopy of the voters' list of 1966 (shown submitted as Annexure A) is filed by her either with her W/S or with her Affidavit. In her W/S she has nowhere mentioned a single word about any voters' list of 1966. In Para 7 of her W/S, she has stated that she was married to one Abdul Barek Miah S/o. Hazrat Miah of village Kukarpar, Mouza & PS-Sorukhetri in the District of Barpeta but in para 4 of her evidence on Affidavit though she has stated that she was married to one Abdul Barek Miah S/o Late Hazrat Ali, yet she did not mention the name of the village or place of the residence of her husband. In Para 3 of her W/S, she has stated that she is permanently residing at village Kukurpar, Mouza - Sarukhetri under Sarthebari PS but in her evidence on Affidavit, she has said nothing about her permanently residing at village Kukarpar. In para 5 of her W/S, she has stated that her name appeared in the voters' list of 1989 (Annexure C) at village Borghol, Mouza-Nagaon, PS & District Barpeta under 47 No. Chenga LAC. In Para 3 of her evidence on Affidavit she has stated that her name along with the names of her husband, her mother-in-law and her sister-in-law appeared in the same voters' list of 1989 (Annexure C) at village Borghol. No explanation is furnished by the OP as to why and how her name along with the names of her husband and his relatives appeared in the voters' list of 1989 (Annexure C) at village Borghol, Mouza- Nagaon, PS & District Barpeta under 47 No. Chenga LAC when admittedly she was married to Abdul Barek S/o Late Hazrat Ali/Miah of village Kukarpar and was permanently residing at village Kukarpar, Mouza- Sorukhetri under Sarthebari PS in the District of Barpeta, as stated by her in her W/S. By issuing the linkage certificate (Annexure E), the Gaonbura of village Kakdhuwa has also certified that Ramena Khatun daughter of Rabi Mullah is the resident of village Kakdhuwa and that she is married to Barek Miah S/o Hazrat Miah of village Kukarpar. This caste a serious and genuine doubt to believe without any cogent and reliable evidence on record that Ramana Khatun whose name is found recorded in Annexure C at village Borghol is the name of the OP Ramena Begum who is permanently residing at village Kukurpar. This doubt deepens further when in her evidence on Affidavit the OP has specifically stated that she was born in the year 1973 at village Kakdhuwa and that her name appeared in the voters' list of 1989, If she, according to her own version was born in 1973, her name cannot be recorded as a voter in the voters' list of 1989 because in 1989, she was only of the age of 16 years, if she, according to her own statement made in her evidence on Affidavit, was born in 1973. Therefore, the contention that Annexure C relates to the OP appears to be doubtful. (c) In the Affidavit filed by the OP in support of her W/S, she has mentioned her age as 42 years on 19.5.2010 (the date of swearing the Affidavit) which shows that she was born in or about the year 1968. In the voters' list of 1989 (Annexure C) one Ramana Khatun w/o Barek is shown as a voter and her age is recorded therein as 25 years, and if that be so, she should have born in or about the year 1964. Therefore, it appears clear that the statements made by the OP mentioning her age as 42 years in 2010 in the Affidavit filed by her in support of her W/S and the statement made in her evidence on Affidavit that she was born in 1973 appears to be self contradictory. The age of one Ramana Khatun (25 years) as shown in the voters' list of 1989 (Annexure C) is also not consistent with her above statements. (d) The voters' list of 1970 (Annexure B) shows that the names of the projected grandparents, parents and uncles of the OP are recorded therein at village Kakadhuwa under 54 No. Chenga LAC; that the names of her projected parents and brother Sambal Molla are recorded in the voters list of 1997 (Annexure D) at the same village under 47 No. Chenga LAC. But non-submission of the voters' list of 1966 and any other voters' list published in between 1970 and 1997 showing their names therein also creates a doubt in the version of the OP that the persons whose names are recorded as voters in Annexure B and Annexure D are, in fact, the grandparents, parents, uncles and brother of the OP. No clarification is furnished as to why the voters' list of 1966 and any other voters' list published in between 1970 and 1997 showing the names of her projected grandparents, parents and uncles has not been furnished by the OP, though the voters' list of 1966 is shown filed as Annexure A to the Affidavit. There is nothing on record as to why nothing was said about the voters' list of 1966 by the OP in her W/S which is supported by an Affidavit. (e) No clarification is also furnished by the OP as to whether the names Ramena Begum (the OP) and Ramena Khatun or Ramana Khatun are the names of one and the same person." 14. In the writ petition also, the petitioner has placed reliance on certain documents including the elector photo identity card in which name of one Ramala Khatun appeared. This is precisely the reason as to why although not stated before the Tribunal, but coming to the writ jurisdiction, the petitioner has identified herself by four names, such as Ramena Begum @ Ramena Khatun @ Ramana Khatun @ Ramala Khatun, 15. Needless to say that a proceedee will have to establish his/her claim of Indian citizenship with cogent and invincible evidence and not merely on the basis of surmises and conjectures. In the instant case, merely by filing a written statement and affidavit and photocopies of some documents, the petitioner wanted to establish her Indian citizenship unmindful of the fact that under section 9 of the Foreigners Act, 1946 and as discussed in Sarbananda Sonowal (supra), it was her bounden duty to discharge the burden and proof he/she miserably failed to discharge in spite of granting several opportunities. If the kind of argument on the basis of photocopies of some documents is to be accepted, in that case, a suspected foreigner/proceedee will easily get away by placing reliance on photocopies of some documents and projecting the names contained therein to be that of her parents/grandparents without establishing any linkage. If the kind of argument on the basis of photocopies of some documents is to be accepted, in that case, a suspected foreigner/proceedee will easily get away by placing reliance on photocopies of some documents and projecting the names contained therein to be that of her parents/grandparents without establishing any linkage. Having regard to the fact that Assam has become a den of illegal Bangladeshi migrants, coupled with the burden of proof envisaged under section 9 of the Foreigners Act, 1946, about which detail discussions have been made in Sarbananda Sonowal (supra), such a matter cannot be dealt with lightly. 16. The unreported decision on which Mr. Mahmud, learned counsel for the petitioner has placed reliance is of no help to the case of the petitioner. In that case, it was fond that the evidence on behalf of the State was not led. In the given facts and circumstances, the matter was remanded back to the Tribunal for fresh adjudication. 17. A Full Bench of this court in Moslem Mondal v. State of Assam and Ors., 2013 (1) GLT 809 dealing with the ambit, scope and jurisdiction of the writ court exercising its power under judicial review under article 226 of the Constitution of India, in paragraphs 112 and 113 held, thus : "112. Article 226 of the Constitution confers on the High Court power to issue appropriate writ to any person or authority within its territorial jurisdiction. The Tribunal constituted under the 1946 Act read with the 1964 Order, as noticed above, is required to discharge the quasi-judicial function. The High Court, therefore, has the power under article 226 of the Constitution to issue writ of certiorari quashing the decision of the Tribunal in an appropriate case. The scope of interference with the Tribunal's order, in exercise of the jurisdiction under article 226, however, is limited. The writ of certiorari can be issued for correcting errors of jurisdiction, as and when the inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it or if such Court or Tribunal acts illegally in exercise of its undoubted jurisdiction, or when it decides without giving an opportunity to the parties to be heard or violates the principles of natural justice. The certiorari jurisdiction of the writ Court being supervisory and not appellate jurisdiction, the court cannot review the findings of facts reached by the inferior Court or Tribunal. There is, however, an exception to the said general proposition, inasmuch as, the writ of certiorari can be issued and the decision of a Tribunal on a finding of fact can be interfered with, if in recording such a finding 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 such error would amount to an error of law apparent on the face of the record. The other errors of fact, however grave it may be, cannot be corrected by a writ court. As noticed above, the judicial review of the order passed by the inferior Court or the Tribunal, in exercise of the jurisdiction under article 226 of the Constitution, is limited to correction of errors apparent on the face of the record, which also takes within its fold a case where a statutory authority exercising its discretionary jurisdiction did not take into consideration a relevant fact or renders its decision on wholly irrelevant factors. Hence, the failure of taking into account the relevant facts or consideration of irrelevant factors, which has a bearing on the decision of the inferior court or the Tribunal, can be a ground for interference of the court or Tribunal's decision in exercise of the writ jurisdiction by the High Court. 113. The Apex Court in Sant Lai Gupta v. Modern Coop. Group Housing Society Ltd., (2010)13 SCC 336 , reiterating the grounds on which a writ of certiorari can be issued, has opined that such a writ can be issued only when there is a failure of justice and cannot be issued merely because it may be legally permissible to do so. It is obligatory on the part of the petitioners to show that a jurisdictional error has been committed by the statutory authority. There must be an error apparent on the face of the record, as the High Court acts merely in a supervisory capacity and not as the appellate authority. It is obligatory on the part of the petitioners to show that a jurisdictional error has been committed by the statutory authority. There must be an error apparent on the face of the record, as the High Court acts merely in a supervisory capacity and not as the appellate authority. An error apparent on the face of the records means an error which strikes one on mere looking and does not need long drawn out process of reasoning on points where there may conceivably be two opinions. Such error should not require any extraneous matters to show its incorrectness. Such error may include giving reasons that are bad in law or inconsistent, unintelligible or inadequate. It may also include the application of a wrong legal test to the facts found, taking irrelevant consideration into account and failing to take relevant consideration into account, and wrongful admission or exclusion of evidence as well as arriving at a conclusion without any supporting evidence. Such a writ can also be issued when there is an error in jurisdiction or authority whose order is to be reviewed has acted without jurisdiction or in excess of its jurisdiction or has failed to exercise the jurisdiction vested in him by law." 18. For all the aforesaid reasons, I see no reason to interfere with the impugned order dated 30th March, 2013 of the learned Member, Foreigners' Tribunal No.III, Barpeta, Assam, passed in F.T. Case No.35(III)/2010 (IMDT Ref. Case No.721/A/98) (State of Assam v. Ramena Begum) and accordingly, the writ petition is dismissed. Consequently, the Superintendent of Police (Border), Barpeta, shall take the petitioner into custody and detain her in the detention camp forthwith till such time she is deported to her country of origin. Simultaneously, the Deputy Commissioner, Barpeta shall ensure deletion of her name from the voter list, if found. 19. The Registry shall transmit the case records to the Foreigners' Tribunal-Ill, Barpeta, Assam along with a copy of this judgment and order. 20. Copies of the judgment and order shall also be sent to the Superintendent of Police (Border), Barpeta and Deputy Commissioner, Barpeta. Another copy of this judgment and order be furnished to Mr. Sk. Nur Mohammad, learned State counsel for his necessary follow up action. 21. List after one month for submission of report by the Superintendent of Police (Border) and Deputy Commissioner, Barpeta.