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2016 DIGILAW 566 (GAU)

Ranjit Choudhury v. Union of India

2016-06-16

RUMI KUMARI PHUKAN, UJJAL BHUYAN

body2016
JUDGMENT : Ujjal Bhuyan, J. 1. Heard Mr. P.C. Dey, learned counsel for the petitioner, Ms. G Sharma, learned Central Government Counsel and Mr. M. Bhagawati, learned Govt. Advocate, Assam. By filing this petition under Article 226 of the Constitution of India, petitioner has challenged the legality and validity of order dated 24.02.2016 passed by the learned Member, Foreigners Tribunal, Nagaon, Court No. 7, at Lanka, in FT Case No. 255/2015 declaring the petitioner to be a foreigner liable to be deported from India. 2. A reference was made by the Nagaon police under the Foreigners Act, 1946 alleging that petitioner was a foreigner of post 1971 stream. Initially, the reference was registered at Nagaon but after creation of Foreigners Tribunal at Lanka, this reference was transferred to the present Tribunal whereafter it was re-registered as FT/L/Case No. 255/2015. Notice was issued by the Tribunal to the petitioner and on receipt of notice, petitioner appeared along with his counsel and filed written statement He gave evidence as his witness and also exhibited eight documents. Learned Member on consideration of evidence adduced and other materials on record, came to the conclusion that the petitioner had failed to discharge his burden under Section 9 of the Foreigners Act, 1946, that he was an Indian citizen and not a foreigner. Consequently, vide impugned order dated 24.02.2016, opinion was rendered that petitioner was a foreigner who had illegally entered into India (Assam) after 25.03.1971 and thus liable to be deported. 3. Aggrieved, present writ petition has been filed. 4. We have heard learned counsel for the parties and also perused the materials on record including the record requisitioned from the Tribunal. 5. In his written statement, petitioner stated that he was born and brought up at Lanka Town in the district of Nagaon. His father was enrolled as a voter in the voters list of 1966 in respect of Lumding constituency. His name also appears in the voters list of 1970 of Lumding constituency. Name of the petitioner and his family members were enrolled in the voters list of 1997 under Lumding constituency and subsequently in the voters list of 2005 and 2010. A school certificate dated 21.12.11 of the Headmaster of Langterang L.P. School was annexed along with the residential certificate issued by Lanka Municipal Board. Same thing was repeated in his evidence in chief filed by way of affidavit. A school certificate dated 21.12.11 of the Headmaster of Langterang L.P. School was annexed along with the residential certificate issued by Lanka Municipal Board. Same thing was repeated in his evidence in chief filed by way of affidavit. Petitioner was cross-examined on behalf of the State. In support of his contention, petitioner exhibited the following documents: 1. Certified copy of voters list of 1966 of Lumding constituency showing the name of petitioner's father, 2. Certified copy of voters list of 1970 of Lumding constituency showing the name of petitioner's father, 3. Certified copy of voters list of 1997 of Lumding constituency showing the names of petitioner, his wife and parents, i.e., Brajendra Bhusan and Shanti Bala; 4. Certified copy of voters list of 2005 of Lumding constituency showing the names of petitioner and his wife Supriya Choudhury, 5. Certified copy of voters list of 2010 of Hojai constituency showing the names of petitioner and his wife Supriya Choudhury; 6. Certificate dated 21.12.2011 of Headmaster, Langtereng English LP School, Karbi Anglong, certifying that petitioner had studied up-to class-IV and as on 31.12.1972, his age was 9 years 8 months 19 days. 7. Certificate of Chairman, Lanka Municipal Board certifying that petitioner was a resident of Ward No. 8, Lanka Town; 8. Affidavit of petitioner clarifying that his father was known as Brajendra Bhushan Choudhury, Brajendra Bhusan, Brajendra Choudhury and Brajendra Kumar. In other words, though these names appear in different documents, these names relate to one and the same person, i.e., his father Brajendra Bhushan Choudhury. 6. Learned Member analysed the evidence and as noticed above, did not accept the version of the petitioner. 7. Relevant portion of the order of the learned Member reads as under: "I have carefully perused the evidence of the OP/DW-1 and the documents produced and exhibited by them. In Ext(1) the name of the father only appearing although his age shown to have 45 years in 1966. It is not explained in the evidence of the OP/DW as to why his mother's name is not recorded in Ext. 1. As such, it casts doubt the genuinity of the aforesaid Ext. 1 because Ext. 1 does not concerned the name of the mother of the OP although and she was surviving at the relevant point of time. Ext. It is not explained in the evidence of the OP/DW as to why his mother's name is not recorded in Ext. 1. As such, it casts doubt the genuinity of the aforesaid Ext. 1 because Ext. 1 does not concerned the name of the mother of the OP although and she was surviving at the relevant point of time. Ext. 2 also contained in the name of the father of the OP although his age in 1970 ought to have 49 years and not 50 years as mentioned therein it is contained the name of the mother of the OP although she was surviving at the relevant point of time as in Ext. 1. Ext. 3 containing the name of the OP his parents and his brothers. The name of the OP is mentioned as SI. W.706 having shown his age as 34 years in 1997. If then he was 21 years of age in 1984 but it is not understood as to why his name is not mentioned in the voters list of 1985 onwards. At Sl. No. 707, the name of the OP's wife is appearing having shown her age as 27 years in 1997. She attained the majority at the age of 18 years itself i.e. in 1979 itself, but no reason is assigned as to why her name is not similarly at recorded in the voter list of 1979 or 1980. SI. No. 708, the father's name of the OP is mentioned, having his age as shown is 71 years. If the age of the OP's father was 45 years in 1966 (Ext. 1) then in 1997 his age ought to have 77 years and not 71 years. At SI. No. 709, the name as appearing is of the younger brother of the OP. However, at SI. No. 710, the mother's name is mentioned as Shantibala Choudhury aged 56 years. Now if the OP's mother was 56 years of age in 1997 the obviously her age in 1966 (Ext. 1) and 1970 (Ext. 2) would have been 25 years and 29 years respectively. There is absolutely no mentioning as to why the OP's mother's is not mentioned in Ext. 1 and Ext. 2 although she was 25 and 29 years respectively i.e. major in age. 1) and 1970 (Ext. 2) would have been 25 years and 29 years respectively. There is absolutely no mentioning as to why the OP's mother's is not mentioned in Ext. 1 and Ext. 2 although she was 25 and 29 years respectively i.e. major in age. Beside the above, such difference of age of the OP and his parents have not been mentioned anywhere in his evidence so submitted and as such, it cast a shadow of doubt. There is not any mention about the fact that as to why the OP's own name or the name of his parents had not been included in any voters list after the year of 1970 and prior to 1997 i.e. all along for 27 years. In Exs. 4 and 5 which are the voters list of 2005 and 2010 respectively containing the name of the OP himself and his other family members. The Exs. 4 and 5 since issued much after the cut off year i.e. 25.03.1971 therefore, these are not sufficient to establish linkage with the pre cut-off date of 25.03.1971. Hence, the Exts 4 and 5 are not enough to decide his citizenship status of India. Ext. 6 is the School Certificate and certificate from Lanka Municipal Board respectively. According to the School Certificate, the OP's year of birth should be 1963 and his age in the year 1997 should be 44 years but it is shown in the voter list of 1997 as 34 years. This gap of 10 years in the age of me OP cannot be believed. Moreover, the Exts 6 and 7 are not proved in accordance with the provisions of Indian Evidence Act, 1876 and hence not admissible in evidence in support of the claim of the OP of Indian nationality. Ext. 8 is an affidavit being shorn in support of his father's name in many aliases. By this affidavit (Ext. 8), the OP has sought to rectify the different names of his father in the various public documents. However, in order to rectify such names, Ext. 8 is not a valid piece of documentary evidence and hence not admissible in law. 5. By this affidavit (Ext. 8), the OP has sought to rectify the different names of his father in the various public documents. However, in order to rectify such names, Ext. 8 is not a valid piece of documentary evidence and hence not admissible in law. 5. In view of the discussion as made above, it is thus abundantly clear that the present OP/DW-1 has failed to discharge his burden to prove that he is an Indian citizen and not a Foreigner as envisaged U/S 9 of the Foreigner's Act, 1946. Accordingly, the Opp Party namely Ranjit Choudhury, S/o. (L) Brajendra Bhushan Choudhury of Ward No. 8 (Lanka), PO & PS. Lanka is declared as a Foreigner U/s. 2(a) of the Foreigner's Act, who has illegally entered into the territory of India(Assam) after 25.03.1971 without any valid document."? 8. Thus from the above, it is evident that learned Member had carefully scanned the evidence and arrived at her own finding. 9. Coming to the written statement filed by the petitioner, though he stated that he was born and brought up at Lanka Town, he did not disclose his date of birth or even the year of birth. He had also not stated in the written statement as to what he did to earn his livelihood though petitioner has tried to develop his case in the writ petition by disclosing his year of birth as 1963 and that his father was a daily wage earner. While in the written statement, petitioner stated that he was born and brought up at Hojai, he had placed reliance on Ext. 6, i.e., school certificate dated 21.12.2011 issued by the Headmaster of Langtereng English LP School, Karbi Anglong. As per the school certificate, petitioner had studied in the said school till class-IV up-to 31.12.1972. If the petitioner was born and brought up at Lanka, on what basis or how he studied till class-TV at Karbi Anglong was not explained. Headmaster of the school was also not examined. Certificate was issued almost 40 years after leaving the school. Similarly, certificate issued by Chairman, Lanka Municipal Board, is dated 26.5.2015 after initiation of the proceeding. He was also not examined; neither any neighbour of the petitioner was examined. 10. Headmaster of the school was also not examined. Certificate was issued almost 40 years after leaving the school. Similarly, certificate issued by Chairman, Lanka Municipal Board, is dated 26.5.2015 after initiation of the proceeding. He was also not examined; neither any neighbour of the petitioner was examined. 10. Coming to the voters list, it is stated that name of the petitioner's father Braja Kumar appeared in the voters list of 1966 in respect of Lumding constituency showing his age as 45. His name is also reflected in the next exhibit that is Exhibit-2, voters list of 1970 where name of the petitioner's father is shown with his age as 50 years. Though learned Member has noticed discrepancy in the age of petitioner's father in Exhibit-2 by pointing out that if in 1966, he was 45 years of age, then in 1970 he would have been 49 years of age and not 50 years as recorded in the certified copy. While this certainly may give rise to doubts about the claim of the petitioner; however, for the sake of argument, we may even ignore this discrepancy. But what is significant is that in these two exhibits, name of petitioner's mother does not appear. Her name Shanti Bala first appears in the voters list of 1997 wherein her age is shown as 56 years. If in 1997 she was 56 years of age, then her year of birth would be 1941. If that be so, certainly she would have been a voter of 1966. But surprisingly her name does not appear along with her husband in the voters lists of 1966 and 1970. If petitioner's father was 45 years of age in 1966, his name ought to have figured in some of the voters list prior to 1966. Again if he was 45 years of age in 1966, in 1997, he would have been 76 years but in the voters list of 1997, his age is shown as 71 years. While Exhibits 1 to 4 are voters list of Lumding constituency, Ext 5 is the voters list of Hojai constituency of the year 2010 showing names of petitioner and his wife Supriya Choudhury as voters of Hojai constituency. How the petitioner who was a voter of Lumding constituency since 1997 became a voter of Hojai constituency has not been explained. 11. How the petitioner who was a voter of Lumding constituency since 1997 became a voter of Hojai constituency has not been explained. 11. Certainly, on the basis of these evidence adduced by the petitioner, it cannot be said that he had successfully established that he was a citizen of India. 12. Section 9 of the Foreigners Act, 1946, which deals with burden of proof, states that onus of proving that the procedee 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. On the basis of the evidence on record, it cannot be said that petitioner had successfully discharged the burden to prove that he was not a foreigner. Thus, after appreciation of evidence, learned Member has returned a finding of fact that petitioner is a foreigner of post 25.03.1971 stream and is liable to be deported. 13. A full Bench of this Court in State of Assam v. Moslem Mondal, 2013 (1) GLT 809, has held that certiorari jurisdiction of the writ Court being supervisory and not appellate jurisdiction, writ Court would not review the findings of fact reached by a Tribunal except when it can be shown that the Tribunal had acted on inadmissible evidence or had refused to admit admissible evidence or if the finding is not supported by any evidence at all as in such a case, it would amount to an error apparent on the face of the record. The other errors of fact, howsoever grave it may be, cannot be corrected by a writ Court. 14. In Life Insurance Corporation of India vs. Rampal Singh Bisen, (2010) 4 SCC 491 , the Supreme Court has held that mere admission of a document in evidence or mere marking of exhibit of a document does not amount to adducing proof. Under the Law of Evidence, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, an admission of a document may amount to admission of its content but not its truth. Contents of the document cannot be proved by merely filing in a Court. 15. Upon thorough consideration of the matter, we do not find any error or infirmity in the opinion of the learned Member to warrant interference. At the most, an admission of a document may amount to admission of its content but not its truth. Contents of the document cannot be proved by merely filing in a Court. 15. Upon thorough consideration of the matter, we do not find any error or infirmity in the opinion of the learned Member to warrant interference. Consequently, we find no merit in the writ petition and the same is accordingly dismissed. 16. Registry to inform the concerned Deputy Commissioner & Superintendent of Police (Border) accordingly. Let a copy of this order be furnished to Mr. M. Bhagawati, learned Govt. Advocate, Assam, for information to the above concerned authorities.