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2015 DIGILAW 1261 (GAU)

Howah Khatun v. Union of India

2015-09-30

BIPLAB KUMAR SHARMA

body2015
JUDGMENT : Biplab Kumar Sharma, J. 1. I have heard Mr. M.U. Mondal, learned counsel for the petitioners. Also heard Mr. N. Mohammed, learned State Counsel and Ms. P. Barua, learned counsel appearing on behalf of Mr. S.C. Keyal; learned ASGI. I have also considered the entire materials on record including the records received from the Tribunal. The petitioners are aggrieved by order dated 27.11.2013 of the Foreigners Tribunal No. III, Barpeta passed in F.T. Case No. 39(III)/2011 (IMDT Ref. Case No. 3429/B/98) (State of Assam Vs. Howah Khatun). By the said order, the learned Tribunal has opined that the petitioners are foreigners of post 25.3.1971. 2. Referring to the Annexure-6 verification report, Mr. Mondal, learned counsel for the petitioner has submitted that there was no proper verification to find out as to whether the petitioner is a foreigner or not. According to him, the reference against the petitioner started with a mechanical approach. Countering the said argument, both Mr. N. Mohammed, learned State Counsel and Ms. P. Barua, learned counsel representing the Union of India have submitted that the petitioner having failed to discharge the burden of proof as envisaged under Section 9 of the Foreigners Act, 1946, cannot now turn around so as to question the very reference. 3. The reference against the petitioner was on the basis of the doubt that arose when her name came to be included in the draft electoral roll that was published on 24.7.1997. The draft electoral roll was prepared pursuant to the order of the Election Commission of India. The same was carried out in reference to 1.1.1997 as qualifying date. House to house enumeration was done during the period from 16.1.1997 to 15.4.1997. Responding to the notice received from the Tribunal, the petitioner submitted her evidence on affidavit as DW-1 and submitted the following documents: i. Exhibit 'A' is the certified copy of voters list of 1966 ii. Exhibit 'B' is the certified copy of voters list of 1970 iii. Exhibit 'C' is the certified copy of voters list of 1989 iv. Exhibit 'D' is the certified copy of voters list of 1997 v. Exhibit 'E' certified copy of the Jamabandi, surveyed village-Kokila Dakhinpara P. Patta No. 241 vi. Exhibit 'G' is the certificate issued by the Secy of Kokila G.P. 4. Exhibit 'C' is the certified copy of voters list of 1989 iv. Exhibit 'D' is the certified copy of voters list of 1997 v. Exhibit 'E' certified copy of the Jamabandi, surveyed village-Kokila Dakhinpara P. Patta No. 241 vi. Exhibit 'G' is the certificate issued by the Secy of Kokila G.P. 4. The learned Tribunal appreciating the evidence on record found discrepancies in the evidence adduced by the petitioner as recorded in paragraph-12 of the impugned judgment. As recorded in Paragraph-12(a) of the impugned judgment, if Helaluddin is accepted as petitioner's step brother as stated by the petitioner in her cross examination, then in that case he could be only 9 years younger to his father. For a ready reference, paragraph-12(a) of the impugned judgment is quoted below: "In para 6 of her affidavit, the OP has stated that the age of her father was 38 years and the age of her own mother Jahiran Nessa was 35 years as recorded in the voters list of 1966 (Ext-A) but that the age of her father was wrongly recorded as 51 years in the voters list of 1970 (Ex-B) which actually should have been 42 years. Now even if for argument sake, this statement of the OP is accepted to be correct and the age of her father is accepted as 42 years in 1970, the statement of the OP that Helal Uddin is her step brother (as stated by her in her cross examination) cannot be accepted to be true and correct statement for the simple reason that in 1970 the age of Helaluddin is shown as 29 years in Ex-A and 33 years in Ex-B. This shows that Helal Uddin was just 9(nine) years younger to his father which fact in no case, can be accepted as true. There is no evidence on record to show that the own mother of Helal Uddin namely Sakina Khatun had another person as her husband before she married Hasen Ali. This casts a serious and genuine doubt in the truthfulness of the version of the OP." 5. As discussed in paragraph-12(b) of the impugned judgment, the petitioner failed to produce any voter list except Ext-A and Ext-B to projecting the names therein as her parents, brothers and step brothers. As regards the Ext-H document, the allotment of the land was on 31.3.2009. As discussed in paragraph-12(b) of the impugned judgment, the petitioner failed to produce any voter list except Ext-A and Ext-B to projecting the names therein as her parents, brothers and step brothers. As regards the Ext-H document, the allotment of the land was on 31.3.2009. On the other hand, it was the stand of the petitioner that her parents expired after 1970 and the land of the father was inherited by his legal heirs. There is no explanation in respect of the gap of 39 years. Further, as discussed in the impugned judgment, Ext-H land was allotted on 31.3.2009 for 20 years only and not inherited by pattadars. Also there is nothing on record to show as to who is or was Fatey Bewa shown as wife of late Hasen Ali. In Ext-A and Ext-B no name of any Fatey Bewa is shown as one of the wives of Hasen Ali. It is in such circumstances, the learned Tribunal has rightly concluded that Ext-H does not pertain to projected parents or brothers of the petitioner. 6. As discussed in paragraph-12(c) of the impugned judgment, Ext-E, copy of jamabandi contains the name of Fatey Bewa as the wife of late Hasen Ali and others are shown as son of late Hasen Ali. Therefore, both Ext-E and Ext-H are not sufficient and reliable evidence to show that the projected father of the petitioner ever purchased or possessed the land in question. 7. As regards failure on the part of the petitioner to furnish any explanation as to why no voter list published after 1970 containing the name of the projected brothers/step brothers of the petitioner could be produced, the learned Tribunal has recorded the following finding. "No explanation is furnished in this case by the OP to clarify as to why no voters' list published after 1970 showing the names of the projected brothers/step brothers of the OP could be filed and proved. In Ex-A and Ex-B only the name of Helal Uddin is found recorded. As discussed above, it cannot be said for certain, in absence of any reliable evidence on record, that the projected brothers or the step brothers of the OP including Helal Uddin were sons of late Hasen Ali and Sakina Khatun or Jahiran Nessa. In Ex-A and Ex-B only the name of Helal Uddin is found recorded. As discussed above, it cannot be said for certain, in absence of any reliable evidence on record, that the projected brothers or the step brothers of the OP including Helal Uddin were sons of late Hasen Ali and Sakina Khatun or Jahiran Nessa. Ex-E and Ex-H belies the statement of the OP that the said brothers/step brothers of the OP were sons of Late hasen Ali and Sakina Khatun or Late Hasen Ali and Jahiran Nessa because of Ex-E and Ex-H clearly show that they were sons of late Hasen Ali and Fatey Bewa. The name of Helal Uddin who is shown as a voter and son of Hasen Ali has not even been mentioned in Ex-E and Ex-H. Therefore, it cannot be said for certain that Hasen Ali whose name appears in Ex-A and Ex-B is the same Hasen Ali whose name appears in Ex-E and Ex-H. This further deepens the doubt in the veracity or the evidence of the O.P." 8. As discussed in Paragraph-12(e) of the impugned judgment, ext-C and Ext-D are the voters list of 1989 and 1997 containing the name of the petitioner along with her husband, which are no help to the case of the petitioner, the cutoff date being 25.3.1971. As regards Ext-F and Ext-G certificates including Ext-A voter list of 1966, the learned Tribunal has recorded the following finding. "The linkage certificate (Ex-F) issued on 27.2.2013 by Gaoburha of village Burikhamar shows that Hawa Khatun is the wife of Khabiruddin of village Burikhamar. This does not prove that she was born in Assam (India). Ex-G is a certificate issued on 17.07.2011 by the secretary of Kokila Gaon Panchayat certifying that Hawa Khatun D/O late Hashen Ali residing at village Kokila Dakhsin para is known to the certificate issuing authority. It is further certified in Ex-G that her (Hawa Khatun's) father's name is included in the Electoral Roll 1966/1997/2005 vide Sl. No. 108, House No. 31, Centre No. 143, Const No. 34 Abhayapuri North LAC of village Kokila Dakhsin para. No voters' list of 1997 or 2005 showing the name of Late Hashen Ali (projected father of the OP) is, however, filed and proved in this case. No. 108, House No. 31, Centre No. 143, Const No. 34 Abhayapuri North LAC of village Kokila Dakhsin para. No voters' list of 1997 or 2005 showing the name of Late Hashen Ali (projected father of the OP) is, however, filed and proved in this case. The certified copy of voters' list of 1966 (Ex-A) filed in this case shows that it pertains to 42 No. Abhayapuri (SC) LAC and not to 34 No. Abhayapuri North LAC as certified in Ex-G Whatever be the case as it may, there is nothing in Ex-G to show that Hawa Khatun (OP in this case) was born at village Kokila Dakhsin para. Ex-G further shows that Hawa Khatun D/O Hashen Ali is residing at village Kokila Dakhsin para which again contradicts the statement of the OP that after her marriage she is presently residing at village Burikhamar. Therefore Ex-F and Ex-G are also found to be of no help to the OP to prove that she is a citizen of India by birth." 9. It is on the basis of the above fining recorded by the learned Tribunal, the reference has been answered in favour of the State and against the petitioner. Nothing could be shown that such findings recorded by the learned Tribunal is perverse and/or based on no evidence. This court exercising writ jurisdiction cannot sit on appeal over such finding based on evidence. 10. Above being the position, this Court exercising writ jurisdiction cannot re-appreciate the evidence on the basis of which the learned tribunal arrived at the impugned finding. Scope, ambit and jurisdiction of Writ Court is well defined, about which detail discussions have been made in State of Assam Vs. Moslem Mondal reported in 2013 (1) GLT (FB) 809. For a ready reference, paragraphs-112 and 113 of the said judgment are quoted. "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 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, in as much 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 Lal Gupta Vs. Modern Coop. 113. The Apex Court in Sant Lal Gupta Vs. Modern Coop. Group Housing Society Ltd. reported in (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. 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." 11. In view of the above, I do not find any merit in the writ petition and accordingly, it is dismissed. The SP(B), Barpeta is directed to apprehend the petitioner immediately and keep her in detention camp till deportation to her country of origin. Her name shall also be deleted from the voter list, if any. 12. Let copies of this order be furnished to Ms. N. Mohammed, learned State Counsel and SP (Border), Barpeta and Deputy Commissioner, Barpeta for necessary follow up action. Copies may also be sent to the Government of Assam in the Home Department and Union of India in the Home Department for appraisal and necessary action. Send down the LCR along with a copy of this order.