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2017 DIGILAW 259 (GAU)

Isatun Nessa, W/o Md. Hyder Ali v. Union of India

2017-02-28

PARAN KUMAR PHUKAN, UJJAL BHUYAN

body2017
JUDGMENT AND ORDER : Ujjal Bhuyan, J. Heard Mr. H. Das, learned counsel for the petitioner, Mr. S. C. Keyal, learned Assistant Solicitor General of India for respondent No.1 and Mr. G. Pegu, learned Government Advocate, Assam, for respondent No. 2 to 4. 2. By filing this petition under Article 226 of the Constitution of India petitioner seeks quashing of order dated 01.07.2010 passed by the Foreigners Tribunal, Goalpara in F.T. Case No. 1030/G/2006 declaring the petitioner to be a foreigner who had illegally entered into India after 25.03.1971. 3. This Court by order dated 13.08.2010 had issued notice and passed an interim order to the effect that petitioner should not be taken into custody and deported from India. 4. A perusal of the order dated 01.07.2010 would go to show that on a reference made by the State under the Foreigners Act, 1946 with the allegation that the petitioner was a foreigner who had illegally entered into India after 25.03.1971, F.T. Case No. 1030/G/2006 was registered before the Foreigners Tribunal, Goalpara (Tribunal). Notice issued by the Tribunal was served on the petitioner, where-after she appeared on 01.08.2008 through the learned counsel. Adjournment was sought for on the ground of stomach pain of the petitioner. Adjournment was granted. On the third occasion, petitioner appeared and submitted written statement. Thereafter, petitioner neither appeared nor adduced any evidence. It is seen from the order dated 01.07.2010 that about ten adjournments were granted by the Tribunal to the petitioner thereafter. Consequently, Tribunal decided to proceed ex-parte with the reference and thereafter passed the order dated 01.07.2010 as indicated above. Tribunal considered the materials on record and held as under:-- “In spite of strict caution that only date for evidence was given and no more adjournment shall be granted as per order dated 06/04/10, the Ld. Advocate Mr. Iman Ali filed petition no. 1274 on 07/06/10 stating that respondent is suffering from malaria for which she could not come with witness. But my order dated 06/04/10 did not allow me to adjourn the case further. If we consider again 20/10/2008 was first date for evidence and at an interval of one year eight months i.e. arounding two years 07/06/10 was the last date but within the period the respondent did not appear even for single date. But my order dated 06/04/10 did not allow me to adjourn the case further. If we consider again 20/10/2008 was first date for evidence and at an interval of one year eight months i.e. arounding two years 07/06/10 was the last date but within the period the respondent did not appear even for single date. Since respondent deliberately neglected to appear before us to prove her case in spite of 10 (ten) adjournment I had no alternative except fixing case for final order. On a birds eye view on record it reveals that only a xerox copy of 1966 electoral roll from certified copy in the name of Ismail Seikh and Reja Khatun is furnished with one L.P. School certificate which was obtained on 02/11/93 showing leaving school of respondent in 1968. If we consider her age as per such certificate, the respondent became a voter in 1979. Till 1997 respondent could cast her vote for several times. The respondent failed neither to furnish even a single copy of voter list showing her own enrolment nor to show the continuation no other copy of subsequent decade for parents could be furnished. In spite of giving time, covering one year eight months the respondent did not come forward to prove her case. On the day of submission of written statement, it is also a matter of doubt. As prescribed by rules framed under this special act we have provided one year eight months for hearing of case of respondent but respondent did not come forward to prove her case. Nor furnished the essential documents to prove her nationality. Mere production of a Xerox copy of 1966 voter list in the name of somebody else does not mean that paternity of the respondent is proved unless we get the opportunity for cross-examination of the respondent to find out the link. In her written statement, the respondent did not state where she was born nor stated the name of village where parents of respondent resided in 1966 or thereafter. W/s supporting affidavit shows the respondent was 50 years aged on the day of swearing affidavit. If that was her case, the name of respondent should have entered in the voter list at least from 1979 and till 01/01/97. Respondent must have casted her vote for minimum 4/5 times to show it not a single copy of electoral roll was furnished. If that was her case, the name of respondent should have entered in the voter list at least from 1979 and till 01/01/97. Respondent must have casted her vote for minimum 4/5 times to show it not a single copy of electoral roll was furnished. Thus, how we can presume a fact that the family of the parents of respondent were permanent resident prior to 1966 having their domicile in particular place. Mere enrolment of name in the voter list does not confer citizenship. Adult franchise is a right of a citizen. So, mere enrolment of name in the voter list does not confer citizenship. Whatever the respondent claimed in her own written statement, she willfully abstained from proving her own case. When respondent did not come forward to prove her own prosecution witness. On the other hand, when the respondent did not prove her own written statement, such written statement shall have no value in the eye of law. It has so happened due to non-communication, non co-operation of respondent with her learned counsel; because, there are instances that we require only single day for hearing of case of respondent. On the very day of submission of statement in-chief of witnesses, we cross-examine them on same day and on next date or day we deliver our judgment. Hence, in this case we see deliberate willful gross negligence on the part of respondent only. In the contested case Section 9 of Foreigners Act does not permit us to examine any prosecution witness. As such in contested case, we have not provided any opportunity to the prosecution for examination of any witness to prove any fact against respondent. The number of petitions and the ground assigned therein compelled me to pass the final order of this case. Whenever the respondent did not prove any case, I am compelled to hold that respondent Isaton Nesa W/O Haider Ali of Dabpara village is an illegal migrant. As such I declare accordingly. The respondent could have restrained me from passing this order today by submitting her in-chief evidence of witnesses. As illegal migrant the respondent has no locus standi nor any right whatsoever to live within this country and as such she is liable to be expelled from territory of this country.” 5. As such I declare accordingly. The respondent could have restrained me from passing this order today by submitting her in-chief evidence of witnesses. As illegal migrant the respondent has no locus standi nor any right whatsoever to live within this country and as such she is liable to be expelled from territory of this country.” 5. As per Section 9 of the Foreigners Act, 1946 burden is on the proceedee to prove that he/she is not a foreigner but a citizen of India by adducing cogent and reliable evidence. Mere filing of written statement is not enough. A proceedee is required to adduce evidence, both oral and documentary, to prove his/her Indian citizenship. A Full Bench of this Court in State Vs. Moslem Mondal, 2013 (1) GLT 809 has held that if a proceedee does not appear before the Tribunal and contest the reference, it would amount to failure on his/her part to discharge the burden under Section 9. In such an eventuality, Tribunal would be fully justified in answering the reference in favour of the State. This is precisely what has happened in the present case. Despite more than reasonable opportunity being granted by the Tribunal, petitioner failed to avail such opportunity. 6. Notwithstanding the same, Tribunal had gone through the various documents annexed to the written statement but came to the conclusion that those documents do not in any way establish citizenship of the petitioner. 7. In the writ petition, petitioner has annexed one school certificate issued by the Headmaster of 785 No. Dabpara Primary School in the district of Goalpara. On perusal of the certificate, we find that there is overwriting in the date of the said certificate at page No. 23. It appears that initial date of the certificate was 23.01.1979 over which the word ‘6’ was written to make the date 23.01.1969. Be that as it may be, as per this certificate, petitioner had completed her education upto Class V on 31.12.1968 and as on 31.12.1968 she was 10 years, 10 months and 29 days old. Even if this certificate is taken into consideration, this would mean that petitioner was born sometime in the year 1957. Be that as it may be, as per this certificate, petitioner had completed her education upto Class V on 31.12.1968 and as on 31.12.1968 she was 10 years, 10 months and 29 days old. Even if this certificate is taken into consideration, this would mean that petitioner was born sometime in the year 1957. If that be so, petitioner had attained the age of 21 years in the year 1978, but, petitioner has annexed the voters list of 37 Goalpara East Legislative Assembly Constituency for the year 1985 where her name appears as a voter of the said constituency. If the petitioner had attained the requisite age to cast her vote in the year 1978 it is not understood as to how her name appeared for the first time in the voters list of 1985. That apart, in that list petitioner is shown as wife of Saju Sheikh. She also claims to be the daughter of Ismail Sheikh and Rejina Khatoon who were shown as voters in the voters list of 1966 in respect of said Legislative Assembly Constituency. However, there is no document on record to establish or show any kind of linkage between the petitioner on the one hand and Ismail Sheikh and Rejina Khatoon on the other hand. 8. Be that as it may, since those documents were not exhibited before the Tribunal, there is no question of placing reliance on the said documents. As noticed above, burden was on the petitioner to prove her citizenship by adducing cogent and reliable evidence. From the materials placed on record we are afraid that it cannot be said that petitioner had discharged her burden. We, therefore, do not find any error or infirmity in the order of the Tribunal dated 01.07.2010. There is no merit in this writ petition and the same is accordingly dismissed. 9. Registry to inform the concerned Foreigners Tribunal, S.P. (Border), and Deputy Commissioner for doing the needful. 10. Registry to send down the LCR forthwith.