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2018 DIGILAW 1432 (GAU)

Nureja Bibi v. Union of India

2018-09-25

MANOJIT BHUYAN, PRASANTA KUMAR DEKA

body2018
ORDER : MANOJIT BHUYAN, J. 1. Heard Mr. M.U. Mondal, learned counsel for the petitioner as well as Ms. P. Baruah, learned counsel for respondent no. 1 and Mr. U.K. Nair, learned senior counsel for respondent nos. 2 to 8. 2. Petitioner assails the order dated 15.12.2015 passed by the Foreigners' Tribunal 6th Dhubri at Bilasipara in F.T. Case No. 6th Dhubri-100/2015, declaring the petitioner to be a foreigner/illegal migrant who illegally entered into Assam on or after 25.3.1971. Finding recorded is that the petitioner failed to produce link certificate that her father Nur Ali Pramanik is the son of her projected grand-father Alimuddin @ Ajimuddin Pramanik, meaning thereby that the petitioner failed to prove that she is the granddaughter of said Ajimuddin Pramanik and a descendant of an Indian father and grand-father. 3. To test the findings and opinion of the Tribunal, it will be useful to take notice of the documents which were produced before the Tribunal as well as the deposition of one Mahadev Brahma, Chairman of Bhatipara VCDC, who deposed as DW-2. 4. Without much deliberation, we are satisfied from the available records that the petitioner Nureja Bibi @ Begum has been able to establish that she is the daughter of one Nur Ali Paramanik. The bone of contention is whether the petitioner could prove her lineage from one Alimuddin @ Ajimuddin Pramanik, who is projected as her grand-father. No Voter List recording the name of her father Nur Ali Pramanik was produced, exhibited or proved before the Tribunal. Linkage to the projected grand-father Alimuddin @ Ajimuddin Pramanik is made with the purpose that in the two documents placed for consideration, i.e. the Sale Deed dated 14.02.1964 and the Voter List of 1970, the name of the projected grand-father is recorded. The Sale Deed dated 14.02.1964 mentions one Md. Ajimuddin Paramanik, son of Joan Paramanik, whereas the Voter List of 1970 records the name of one Alimuddin Paramanik, son of Joan. This is the linkage the petitioner sought to establish to say that she is the grand-daughter of the person named in the Sale Deed dated 14.02.1964 and the Voter List of 1970. 5. Turning to the documents which have been exhibited to establish the relationship between her father and her projected grandfather, reliance was first placed on the Elector Photo Identity Card (Ext. 5. Turning to the documents which have been exhibited to establish the relationship between her father and her projected grandfather, reliance was first placed on the Elector Photo Identity Card (Ext. 2), issued by the Election Commission of India, wherein he name of the petitioner's father Nur Ali Paramanik is shown, as being related to one Ajij. The second document relied upon is the Identity Card (Ext. 4), issued from the Office of the Executive Engineer, Kokrajhar Division (Irrigation), wherein the name Late Md. Ajimuddin Paramanik is shown as the father of Md. Nur Ali Paramanik. Reliance was also placed to the evidence adduced by one Mahadev Brahma, Chairman of Bhatipara VCDC and the author of the 'Link Certificate' dated 13.10.2015, who deposed that he knew that the father's name of Nur Ali Paramanik is Ajij Paramanik. 6. It is seen that the documents at Ext. 2 and Ext. 4 above, read with the deposition of Mahadev Brahma, there are at least three different names of the projected grandfather i.e. Ajij, Md. Ajimuddin Paramanik and Aziz Paramanik. The discrepancy in the names of the projected grand-father was explained by means of an Affidavit dated 28.09.2015, produced as Ext. 8, and executed by the petitioner's father Nur Ali Poramanik. By the said affidavit, the petitioner sought to establish that Azdi Poramanik, Alimuddin Poramanik, Aziz and Aziz Poramanik are one and the same person and that the actual and correct name of her projected grand-father is Aziz Poramanik. 7. The contention put forth that Aziz Poramanik, by whatever name cal led, was the grand-father of the petitioner and the father of Nur Ali Poramanik, in view of the documents at Ext. 2 and Ext. 4 read with the deposition of DW-2, cannot be accepted. The Ext. 8 Affidavit, being a self-serving document, which is not 'evidence' within the meaning of Section 3 of the Evidence Act, 1872, cannot be regarded as sufficient evidence or proof to say that Ajij as appearing in Ext. 2, Md. Ajimuddin Poramanik as appearing in Ext. 4 are one and the same person. In that view of the matter, it is neither known nor the petitioner could establish as to the actual identity of her grand-father. Surely, she failed to establish her linkage to either one Md. Ajimuddin Paramanik or Alimuddin Poramanik as her grand-father through her father Nur Ali Poramanik. 4 are one and the same person. In that view of the matter, it is neither known nor the petitioner could establish as to the actual identity of her grand-father. Surely, she failed to establish her linkage to either one Md. Ajimuddin Paramanik or Alimuddin Poramanik as her grand-father through her father Nur Ali Poramanik. In other words, the petitioner failed to show that she is a descendant of either one Md. Ajimuddin Poramanik, whose name finds mention in a Sale Deal of 14.2.64 and/or to one Alimuddin Poramanik, whose name was recorded in the Voter List of 1970 of the concerned village. 8. The legal proposition that an Affidavit is not "evidence" within the meaning of Section 3 of the Evidence Act, 1872, the same was observed in the case of Ayaaubkhan Noorkhan Pathan Vs. State of Maharastra & Ors, reported in (2013) 4 SCC 465 . At paragraph 31 thereof, the Supreme Court held as follows: "31. It is a settled legal proposition that an affidavit is not "evidence" within the meaning of Section 3 of the Evidence Act, 1872 (hereinafter referred to as "the Evidence Act"). Affidavits are, therefore, not included within the purview of the definition of "evidence' as has been given in Section 3 of the Evidence Act, and the same and can be used as "evidence" only if, for sufficient reasons, the court passes an order under Order 19 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC"). Thus, the filing of an affidavit of one's own statement, in one's own favour, cannot be regarded as sufficient evidence for any court or tribunal, on the basis of which it can come to a conclusion as regards a particular fact situation." The above legal proposition was reiterated by a coordinate Bench of this Court at paragraph 21 in the case of Romila Khatun Vs. Union of India & Anr. reported in 2018 (4) GLT 373. 9. As a last ditch effort, the petitioner places reliance in the documents enclosed to the affidavit-in-reply dated 02.08.2018, which are copies of Electoral Roll of 1997, 2005 and 2010, to show that the name of the father of Nur Ali Poramanik in each of the Electoral Roll is shown as Aziz. reported in 2018 (4) GLT 373. 9. As a last ditch effort, the petitioner places reliance in the documents enclosed to the affidavit-in-reply dated 02.08.2018, which are copies of Electoral Roll of 1997, 2005 and 2010, to show that the name of the father of Nur Ali Poramanik in each of the Electoral Roll is shown as Aziz. On this, we express our view that the said documents cannot stand for consideration, the same not having been produced, exhibited and proved before the Tribunal at the first instance. 10. For all the discussions and findings above, we affirm that the petitioner could not establish her linkage to either Md. Ajimuddin Poramanik, whose name finds recorded in the Sale Deed dated 14.02.1964, as well as to one Md. Alimuddin Poramanik, whose name finds recorded in the Voter List of 1970. In so far as her father Nur Ali Poramanik is concerned, we reiterate that no evidence is placed where his name finds recorded in any Voters List etc. showing his presence in India on any date prior to 01.01.1966, or for that matter on any date prior to 25.03.1971. We hold that the writ petition is devoid of merit. Accordingly it stands dismissed, however, without any order as to cost. Registry to send back LCR forthwith.