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2017 DIGILAW 600 (GAU)

Anowara Begum v. State of Assam

2017-05-17

PARAN KUMAR PHUKAN, UJJAL BHUYAN

body2017
JUDGMENT : Ujjal Bhuyan, J. 1. Heard Mr. A. Sharif, learned counsel for the appellant and Mr. T.C. Chutia, learned Government Advocate, Assam. This appeal is directed against the order dated 29.09.2015, passed by the learned Single Judge, dismissing the writ petition, being WP(C) No. 3162 of 2011, filed by the appellant against the order dated 17.05.2010, passed by the Foreigners' Tribunal, Nagaon, declaring the appellant to be a foreigner, who had illegally entered into India (Assam) from the specified territory, i.e., Bangladesh after 25.03.1971. 2. It appears that a reference was made by the Superintendent of Police (B), Nagaon, under the Foreigners' Act, 1946, based on the report of the Electoral Registration Officer, Nagaon, who recorded the petitioner as a doubtful voter following intensive revision of electoral roll. Be it stated that the appellant got her name entered in the draft electoral roll of 1997 in respect of Rupahihat constituency as a resident of Village-South Jeumari, under Rupahihat Police Station, in the district of Nagaon, when she was marked as a doubtful voter. 3. Notice issued by the Tribunal was served upon the appellant, whereafter, appellant appeared before the Tribunal by filing written statement, denying the allegation made and claimed to be a citizen of India by birth. Stand taken in the written statement was that her father, Kumud Ali was a voter in the year 1965 in respect of Kaliabor constituency. However, when the turn for evidence came, appellant remained absent. In such circumstances, Tribunal decided to proceed ex-parte. Since the appellant could not discharge her burden as per mandate of Section 9 of the Foreigners' Act, 1946, the reference was answered in favour of the State in the above manner. 4. Aggrieved by the aforesaid order of the Tribunal, petitioner preferred the related writ petition, being WP(C) No. 3162 of 2011. Learned Single Judge on due consideration declined to interfere with the order of the Tribunal and dismissed the writ petition vide order dated 29.09.2015. 5. Hence, this appeal. 6. At the outset, we enquired from Mr. Sharif, learned counsel for the appellant as to whether copy of the written statement has been annexed to the memo of the appeal; if not, whether he has a copy of the written statement. In response, Mr. Sharif submits that copy of the written statement is not available. 5. Hence, this appeal. 6. At the outset, we enquired from Mr. Sharif, learned counsel for the appellant as to whether copy of the written statement has been annexed to the memo of the appeal; if not, whether he has a copy of the written statement. In response, Mr. Sharif submits that copy of the written statement is not available. He, however, submits that this Court should re-examine all the documents annexed to the memo of appeal and, thereafter, remand the matter back to the Tribunal for a decision on merit. Further argument of Mr. Sharif is that it was the solemn duty of the Enquiry Officer to have visited the house of the appellant to find out as to how her name appeared in the draft electoral roll of 1997 for the first time. It was also the solemn duty of the Enquiry Officer to find out what was her age in 1997. He, therefore, submits that both the orders of the learned Single Judge and the Tribunal should be set aside and the matter be remanded back to the Tribunal for decision afresh. 7. On the other hand, learned counsel for the respondents supports the order of the Tribunal as well as the order of the learned Single Judge and seeks dismissal of the appeal. 8. Submissions made have been considered. 9. Before we advert to the submissions made by Mr. Sharif, learned counsel for the appellant, let us see the order passed by the Tribunal. Order dated 17.05.2010 of the Tribunal discloses filing of written statement by the appellant. A written statement is the basic statement of defence of a proceedee before the Foreigners' Tribunal. When his citizenship is questioned by the State, he has to disclose all relevant facts which are within his special knowledge and which are material to the question of citizenship at the first instance itself, i.e., in the written statement. It is a settled proposition of law that variation between pleadings and proof is not permissible. A proceedee cannot traverse beyond the pleadings. That apart, mere filing of written statement is not enough. Averments made in the written statement are required to be proved by adducing cogent and reliable evidence. 10. It is a settled proposition of law that variation between pleadings and proof is not permissible. A proceedee cannot traverse beyond the pleadings. That apart, mere filing of written statement is not enough. Averments made in the written statement are required to be proved by adducing cogent and reliable evidence. 10. Section 9 of the Foreigners' Act, 1946, mandates that it is the burden of the proceedee to prove by adducing cogent and reliable evidence that he is not a foreigner but a citizen of India. In Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665 , Supreme Court examined in details the requirement of Section 9 of the Foreigners Act, 1946 and held that there is good and sound reason for placing the burden of proof upon the person concerned, who asserts to be a citizen of a particular country. In order to establish one's citizenship, normally he may be required to give evidence of his date of birth, place of birth, name of his parents, their place of birth and citizenship; sometimes the place of birth of his grandparents may also be relevant. All these facts would necessarily be within the personal knowledge of the person concerned and not of the authorities of the State. Only after he has given evidence on these points, the State authorities can verify the points and then can lead evidence in rebuttal, if necessary. On the other hand, if the State is required to prove these facts, it would not only be difficult but almost impossible for the State to first lead evidence on the aforesaid points. Supreme Court further held that this is in accordance with the underlying policy of Section 106 of the Evidence Act, which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. 11. A Full Bench of this Court in State of Assam v. Moslem Mondal, 2013 (1) GLT 809, has clarified that if the proceedee does not contest the reference before the Tribunal, it would amount to failure to discharge his statutory burden under Section 9 of the Foreigners' Act, 1946. In such an eventuality, Tribunal would be justified in answering the reference in favour of the State. 12. In such an eventuality, Tribunal would be justified in answering the reference in favour of the State. 12. In the instant case, appellant had only filed a written statement, without leading any evidence to prove her contention that she is not a foreigner but a citizen of India by birth. When we asked for a copy of the written statement, learned counsel for the appellant is unable to produce the same. 13. Before the learned Single Judge, appellant raised the following grounds to justify her non-appearance before the Tribunal:- "3. That the petitioner states that she has read upto class-IV and thereafter, discontinued her studies in 1992 due to acute poverty. Her husband is also an illiterate person. Therefore, the petitioner and her husband engaged an Advocate and handed over to him all the relevant documents for taking necessary steps. After preparation and submission of the written statement, the petitioner was told by her learned counsel that she would be informed as and when her presence would be necessary for taking further steps, as required by law. Unfortunately, after submission of her written statement and after passing of several months, she received a copy of the impugned judgment and order dated 17.5.2010 passed in F.T. Case No. 639/07, whereby opinion was given therein by the Tribunal that she is a foreigner, who illegally entered into Assam from Bangladesh after 25.3.1971. 4. That the petitioner states that it reveals from the impugned judgment and order dated 17.5.2010 and the written statement submitted in the above noted case that the relevant documents, particularly, voter lists and school certificate were not submitted before the Tribunal. The written statement also does not reflect the case of the petitioner correctly and also no steps were taken by her learned counsel to produce her witnesses to examine them in support of her claim that she is not a foreigner but bona fide Indian citizen by birth." 14. According to the appellant, she was an illiterate person and suffered from acute poverty. After submission of the written statement, she was told by her lawyer that she would be informed as and when her presence was required. Alongwith the written statement, the lawyer did not enclose the relevant documents handed over to him by the appellant. According to the appellant, she was an illiterate person and suffered from acute poverty. After submission of the written statement, she was told by her lawyer that she would be informed as and when her presence was required. Alongwith the written statement, the lawyer did not enclose the relevant documents handed over to him by the appellant. Written statement also did not disclose the case of the appellant and no steps were taken by the lawyer to produce her witnesses. 15. Such an untenable contention of the appellant was rightly disbelieved and rejected by the learned Single Judge. Lawyer can only take steps as per instruction of the client; he could not have furnished on his own the list of witnesses and the list of documents if the appellant did not furnish the same. 16. Before us, it is submitted that we should now look into all the documents, which the appellant has annexed to the appeal, and, thereafter, the matter should be remanded back to the Tribunal. 17. We are afraid we can accept such a plea taken on behalf of the appellant. A proceeding before the Foreigners' Tribunal cannot be taken so lightly. When the citizenship of the proceedee is questioned, that too by the State and proceeding is drawn up before the Tribunal, it becomes the bounden duty of the proceedee to respond and co-operate with the Tribunal. In the instant case, more than reasonable opportunity was granted to the appellant. In so far remand is concerned, it is not automatic; it is not a matter of course. A case of remand has to be made out which the appellant has failed in the present case, that too at the appellate stage. In so far submission of Mr. Sharif that the Enquiry Officer ought to have found out the age of the appellant in the year 1997 is concerned, we find that in the related writ petition, i.e. WP(C) No. 3162 of 2011, appellant disclosed in paragraph-6 that she was born in the year 1980 and she was the youngest family member of her father Md Sabed Ali. It is the appellant's own statement that she was born in the year 1980, in which case her name ought not have appeared in the voters' list of the year 1997 as she would have been only 17 years of age then. It is the appellant's own statement that she was born in the year 1980, in which case her name ought not have appeared in the voters' list of the year 1997 as she would have been only 17 years of age then. Therefore, the State authorities had rightly marked her as a doubtful voter in 1997. Again, in the writ petition, petitioner disclosed the name of her father as Md Sabed Ali, whereas, in the written statement as recorded by the Tribunal, petitioner stated that the name of her father was Kumud Ali and he was a voter of Kaliabor constituency. Even if such discrepancy in the name of her father is overlooked, it has not been explained as to how the father was a voter of Kaliabor constituency whereas daughter was a voter of Rupahihat constituency, two different constituencies. But that apart, certainly, as per the own statement of the appellant, she could not have been a voter in the 1997 voters' List as she had not attained the age of franchise. 18. Having said that, let us now advert to the submissions of Mr. Sharif. 19. Thus, the narrative of the appellant is a bundle of contradiction rendering the same totally unreliable and untrustworthy. No case for interference is made out 20. In such circumstances, we find no merit in this appeal, which is accordingly dismissed. Registry to inform the concerned Foreigners' Tribunal, Superintendent of Police (Border) and Deputy Commissioner, for taking immediate follow-up steps.