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2017 DIGILAW 384 (GAU)

Abiran Nessa v. Union of India

2017-03-27

PARAN KUMAR PHUKAN, UJJAL BHUYAN

body2017
ORDER : Ujjal Bhuyan, J. This case was heard on 20.03.2017 and today is fixed for delivery of order. 2. We have heard Mr. H.R.A. Choudhury, learned Senior counsel assisted by Mr. A. Ali, learned counsel for the appellant and Mr. G. Pegu, learned Govt. Advocate, Assam. 3. This appeal is directed against the judgment and order dated 29.07.2015 passed by the learned Single Judge dismissing WP(C) No. 2205/2014 filed by the appellant as writ petitioner against the order dated 25.04.2013 passed by the Foreigners Tribunal (3rd), Darrang, Mangaldoi in FT (3) Case No. 686/2012 declaring the appellant to be a foreigner of the post 1971 stream. 4. It is seen that notice issued by the Tribunal was served upon the appellant whereafter appellant had entered appearance before the Tribunal and had filed written statement denying the allegation of being a foreigner and contending that she was a citizen of India by birth. She also examined herself and two other witnesses. She also exhibited three documents. After hearing the matter and on perusal of the materials on record, Tribunal passed the order dated 25.04.2013 declaring the appellant to be a foreigner of post 1971 stream. 5. Aggrieved by the aforesaid order dated 25.04.2013, appellant preferred the related WP(C) No. 2205/2014 before this Court. 6. Primary contention of the appellant before the learned Single Judge was that in the notice issued by the Tribunal to the petitioner, it was stated that appellant was alleged to be a foreigner belonging to the 01.01.1966 to 25.03.1971 stream. Therefore, the Tribunal could not have declared the appellant to be a foreigner of post 1971 stream being beyond the allegation brought to the notice of the appellant by way of the notice. Learned Single Judge did not accept the contention of the appellant and held that as per materials on record, appellant was suspected to be a foreigner of post 1971 stream. Learned Single Judge additionally noted that though Tribunal had recorded the age of the appellant as 35 years on the date of order, she was 52 years of age when the enquiry was conducted against her by the police. Be that as it may, learned Single Judge did not find any justification to overturn the order of the Tribunal. Accordingly, vide order dated 29.07.2015, writ petition was dismissed by the learned Single Judge. 7. Hence, this appeal. 8. Be that as it may, learned Single Judge did not find any justification to overturn the order of the Tribunal. Accordingly, vide order dated 29.07.2015, writ petition was dismissed by the learned Single Judge. 7. Hence, this appeal. 8. Before us also, it is the primary contention of the appellant that when she was charged of being a foreigner belonging to the 01.01.1966 to 25.03.1971 stream, she could not have been declared to be a foreigner belonging to the post 25.03.1971 stream. 9. It is true that in the notice issued by the Tribunal to the appellant on 23.09.2011, it was stated that as per reference made by the Superintendent of Police, Darrang, appellant was alleged to be a foreigner belonging to the 01.01.1966 to 25.03.1971 stream. However, the Tribunal, on going through the evidence and other materials on record, returned a finding that appellant was a foreigner belonging to the post 1971 stream. Learned Single Judge had examined the record where-from he noticed that as per materials on record, appellant was suspected to be a foreigner belonging to the post 1971 stream. Therefore, the reference made was to that effect but the Tribunal mistakenly mentioned that the appellant was alleged to be a foreigner belonging to the 01.01.1966 to 25.03.1971 stream. That apart, learned Single Judge opined that the said discrepancy perhaps had occurred because of absence of prescribed format. Referring to the written statement filed by the appellant, learned Single Judge observed that appellant had nowhere claimed that she was a foreigner belonging to the 01.01.1966 to 25.03.1971 stream. 10. Thus, materials on record, as found by the learned Single Judge, disclosed that appellant was a foreigner who had illegally entered into India (Assam) from the specified territory after 25.03.1971. The reference was also made accordingly. 11. It is trite that non-mentioning or wrong mentioning of a provision would not invalidate an order if such an order can be traced to a valid source. In such a situation, Court would examine whether the order in question has any legal sanctity and whether it can be traced to a valid source of power. If it can be traced to a valid source of law, wrong mentioning of the provision of law in the order impugned would be immaterial. 12. In such a situation, Court would examine whether the order in question has any legal sanctity and whether it can be traced to a valid source of power. If it can be traced to a valid source of law, wrong mentioning of the provision of law in the order impugned would be immaterial. 12. By applying the same analogy, it can also be said that wrong mentioning of the foreigners stream as classified under Section 6A of the Citizenship Act, 1955, as amended, to which the notice belongs would not vitiate the proceeding or the consequential order passed by the Tribunal if materials on record disclose that the notice actually belongs to the stream of foreigners, which has been ultimately held to be so by the Tribunal. Such wrong mentioning contrary to the materials on record or contrary to the reference made would not confer any undue advantage to a proceedee or enable a proceedee to improve his/her status. Therefore, on this count, we cannot condemn the order passed by the Tribunal which has been rightly affirmed by the learned Single Judge. 13. We also notice that contrary to the order of the Tribunal wherein age of the appellant was declared as 35 years, learned Single Judge found from the record that the age of the appellant was actually 52 years when the enquiry was conducted against the appellant. 14. Before we proceed further, relevant portion of the order passed by the Tribunal is extracted hereunder:- "I have carefully gone through evidence both oral and documentary. The OP is now 35 years old. But she is not enrolled as voter yet. She deposed that Hajar Ali was her father who was voter of 1966 from 72 Mangaldai LAC. Ext.3 is the said voter list. But there is no evidence to connect the OP with Late Hazar Ali. Though she deposed that she was born at Khogjani but the OPW.1 and OPW.2 who were gaonbura of village Konakatapara and Ghansimuli respectively having no knowledge about the birth place of OP though they issued certificate vide Ext.1 and Ext.2 respectively. In view of the above, there is no proper evidence to rely upon that Hazar Ali is the father of OP and her actual birth place. Hence, the OP is held to be foreigner of post 1971." 15. In view of the above, there is no proper evidence to rely upon that Hazar Ali is the father of OP and her actual birth place. Hence, the OP is held to be foreigner of post 1971." 15. As noticed above, Tribunal had recorded the age of the appellant as 35 years which was corrected by the learned Single Judge as 52 years. On due consideration, learned Single Judge held as follows:- "In the proceeding before the Tribunal, the petitioner submitted four documents exhibited as Ext.1, Ext. 2, Ext.3 and Ext.4. While the Ext.1 & 2 are the certificates of Village Headman certifying that the petitioner was known to him but by the said two certificates, the authority never certified that the petitioner is an Indian citizen. Ext. 3 is the extract (photocopy) of a voter list of 1966 showing the name of one Hajar Ali, whom the petitioner projected as her father. Ext. 4 is also a photocopy of an identity card incorporating the name of one Md. Alam Seikh. Above are the documents on the basis of which the petitioner seeks to claim that she is an Indian citizen. It is not understood as to why the petitioner could not produce any voter list, not to speak of other documents to prove her Indian citizenship. Although by the time the proceeding was taken up by the Tribunal, she was around 55 years of age. There is also no linkage has been established to the 1966 voter list (Ext.3) containing the name of Hajar Ali, whom the petitioner projected as her father." 16. In her written statement, appellant did not mention about the year of her birth, not to speak of the date or month of birth. She also did not mention about her age. Though she stated that her father's name was late Hajar Ali whose name had appeared in the voters list of 1966 in respect of Mangaldoi Legislative Assembly Constituency, she did not mention about the name of her mother. Likewise, she was silent regarding her grandparents - both paternal and maternal. She also did not mention anything about her brothers and sisters. While she stated that she had married Sahar Ali about 12/13 years ago, the year of marriage was not mentioned though she stated that she has two children out of the wedlock and that her husband had died about four months ago. She also did not mention anything about her brothers and sisters. While she stated that she had married Sahar Ali about 12/13 years ago, the year of marriage was not mentioned though she stated that she has two children out of the wedlock and that her husband had died about four months ago. Interestingly, she admitted that she had not cast her vote even once. 17. From the above, it is evident that material facts, which should have been within the knowledge of the appellant, were not stated in the written statement. This was a serious lapse which had put a question mark on the version of the appellant. 18. In her evidence, which was recorded on 15.11.2012, she stated that her father's name was late Hajar Ali and that she had married late Sahar Ali about 14 years ago. She admitted that she was not a voter and had not cast her vote. As in the written statement, material facts necessary to prove citizenship were not disclosed by the appellant. The second witness on behalf of the appellant Md. Samsuddin Ahmed, who was the Gaonburah of village Ghansimuli and Alikash, stated that he did not know the father of the appellant. In the cross-examination, he stated that he did not know about the birth of the appellant. Likewise, the third witness Md. Alam Sheikh, who was Gaon Burah of village Konakatapara, stated in cross-examination that he did not know the age of the appellant. He also stated that he did not maintain birth register. He did not know about the birth of the appellant. Therefore, no reliance can be placed on such evidence. 19. From a thorough analysis of the evidence adduced on behalf of the appellant, it is clear that appellant had failed to discharge her burden to prove that she was not a foreigner but a citizen of India. The relevant material facts were not disclosed by the appellant and she could not show any document establishing her linkage with late Hajar Ali whom she claimed to be her father relatable to the period prior to 25.03.1971. It is inconceivable that during her 55 years of existence, appellant's name did not appear as a voter in any of the voters list even once. Therefore, it is quite evident that appellant had no documents to show that she was not a foreigner but a citizen of India. It is inconceivable that during her 55 years of existence, appellant's name did not appear as a voter in any of the voters list even once. Therefore, it is quite evident that appellant had no documents to show that she was not a foreigner but a citizen of India. Consequently, appellant had failed to discharge her burden under Section 9 of the Foreigners Act, 1946 which was rightly decided by the Tribunal and affirmed by the learned Single Judge. 20. As a result, we find no merit in the writ appeal, which is accordingly dismissed. 21. Registry to inform the concerned Foreigners Tribunal, Deputy Commissioner and Superintendent of Police (Border) for taking immediate follow-up steps.