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2018 DIGILAW 1678 (GAU)

Majiron Nessa v. Union of India

2018-11-30

MANOJIT BHUYAN, NANI TAGIA

body2018
ORDER : NANI TAGIA, J. 1. Heard Mr. U. Das, learned counsel for the petitioner as well as Ms. P. Baruah, learned counsel for respondent No. 1; Mr. J. Payeng, learned counsel for respondent Nos. 2, 5 & 6; Ms. N. Upadhyay, learned counsel for respondent No. 3 and Ms. A. Verma, learned counsel for respondent No. 4. 2. By this petition, under Article 226 of Constitution of India, the petitioner has challenged the legality and validity of the order dated 04.08.2018 passed by the learned Member, Foreigners' Tribunal No. 5th, Goalpara in F.T. Case No. F.T./5/59/MA/17 (Reference Case No. 459/2007) whereby the petitioner/opposite party has been held to be a foreigner, who had entered into Assam after 25.03.1971. 3. A reference case against the writ petitioner/opposite party was initiated by Supdt. of Police, Goalpara under Foreigners Tribunal Act in F.T. Reference Case No. 459/2007 expressing doubt about the nationality of the opposite party, namely, Musst. Majiron Nessa of village-Nigam Santipur under PS-Matia in the district of Goalpara with a prayer to decide as to whether the opposite party is a foreigner. In view of Govt. W.T. Message No. PLB. 101/2005/116 dated 19.07.2005, the case stood transferred to Foreigners' Tribunal No. 5th, Goalpara. Accordingly, Notice was issued to the writ petitioner/opposite party and on receipt of the Notice, the opposite party filed her written statement. 4. In her written statement, it has been stated that she was born and brought up at village-Baguan Pt.-IV (Hahsorabari) under P.S.-Goalpara and Mojil Rahman and Sakara Khatun were her parents and Ajob Ali and Jamiran Nessa were her grandparents. The names of her grandparents were recorded in the Voter List of 1965 at village-Baguan Pt. IV under PS-Dudhnoi as Ajob Ali and Jamiran Nessa. The said names of her parents and grandparents also appeared in the Voter Lists of 1970 and 1979. Thereafter, she got married with one Amir Hussain, S/o. Forid Sk. of village-Sidhabari Krishipam Nigam Pt. II under P.S.-Matia in the district of Goalpara and she was shifted to her matrimonial house. It is further stated that the writ petitioner/opposite party casted her first vote in the year 1985 along with her husband at village-Sidhabari Pt. II. Thereafter, her name also appeared in the Voter Lists of 1997, 2005 and 2016 at the same village-Sidhabari pt. II. 5. It is further stated that the writ petitioner/opposite party casted her first vote in the year 1985 along with her husband at village-Sidhabari Pt. II. Thereafter, her name also appeared in the Voter Lists of 1997, 2005 and 2016 at the same village-Sidhabari pt. II. 5. In order to show that the names of parents and grandparents of the writ petitioner/opposite party were appeared in the Voter Lists of 1965, 1970 at village-Baguan Pt. IV under Dudhnoi PS in the district of Goalpara, the writ petitioner has exhibited the Voter Lists of 1965 and 1970 as Exhibits-A & B respectively. 6. In order to prove that the writ petitioner had casted her vote in the year 1985 from her matrimonial place at village-Sidhabari Krishipam Nigam Pt. II under P.S.- Matia in the district of Goalpara, she has exhibited the Voter List of 1985 as Exhibit-C. 7. Three exhibits mentioned above shows that the names of the parents and grandparents had appeared in the Voter Lists of 1965 and 1970 vide Exhibit-A & B and that the name of the writ petitioner/opposite party had appeared in the Voter List of 1985 vide Exhibit-C. But, none of the above three exhibits establishes a link of the petitioner with her father, namely, Mojil Rahman. 8. The writ petitioner/opposite party, therefore, seeks to establish the link with her father, Mojil Rahman vide Exhibit-D & F. Exhibit-D is a certificate dated 10.06.2015 issued by the Secretary, Baguan Kathalbari Gaon Panchayat wherein Majiran Nessa has been certified to be the daughter of Majil Rahman and her age is shown as 51 years. 9. Exhibit-'F' is the School Certificate of the writ petitioner/opposite party issued by the Headmaster, Fulnoi LP School whereby it has been certified that the petitioner, Majiron Nessa is the daughter of Mojil Rahman and Sakara Khatun, she was reading in Class-II in 1975 and her date of birth has been certified to be 01.01.1966. 10. 9. Exhibit-'F' is the School Certificate of the writ petitioner/opposite party issued by the Headmaster, Fulnoi LP School whereby it has been certified that the petitioner, Majiron Nessa is the daughter of Mojil Rahman and Sakara Khatun, she was reading in Class-II in 1975 and her date of birth has been certified to be 01.01.1966. 10. On perusal of the case projected by the petitioner and the records thereof, it is found that the petitioner, in order to claim that she is a citizen of India, seeks to establish her linkage with her father, Mojil Rahman vide the two exhibits such as Exhibit-D, which is a certificate issued by the Secretary of Baguan Kathalbari Gaon Panchayat and Exhibit-F, which is a school certificate dated 13.02.2007 issued by the Headmaster, Fulnoi LP School with a State Emblem embossed on top of the said certificate. Therefore, what is to be decided by this Court is to whether the petitioner has been able to conclusively prove herself as the daughter of Mojil Rahman by exhibiting the aforesaid two Exhibits-D & F respectively. 11. On perusal of the Exhibit-D and the records thereof, it is found that the said certificate was not proved by examining the Secretary who had issued the said certificate before the Tribunal so as to testify the correctness of the contents of the said certificate. In absence of any such deposition being made before the learned Tribunal by the author of the certificate testifying the veracity of the document as well as the contents of the documents on the basis of the original records maintained thereof, the said school certificate cannot be relied on by this Court in favour of the petitioner. The law in this regard has been conclusively laid down by the Hon'ble Supreme Court in Rupajan Begum Vs. Union of India reported in (2018) 1 SCC 579 , wherein, in paragraph-16, it has been held as follows: "16. The certificate issued by the G.P. Secretary, by no means, is proof of citizenship. Such proof will come only if the link between the claimant and the legacy person (who has to be a citizen) is established. The certificate has to be verified at two stages. The first is the authenticity of the certificate itself; and the second is the authenticity of the contents thereof. Such proof will come only if the link between the claimant and the legacy person (who has to be a citizen) is established. The certificate has to be verified at two stages. The first is the authenticity of the certificate itself; and the second is the authenticity of the contents thereof. The latter process of verification is bound to be an exhaustive process in the course of which the source of information of the facts and all other details recorded in the certificate will be ascertained after giving an opportunity to the holder of the certificate." 12. Exhibit-F to which the petitioner has relied upon to establish her linkage with her father is the school certificate issued by the Headmaster, Fulnoi LP School on 13.02.2007 certifying that the petitioner is the daughter of Majil Rahman, she studied upto Class-11 and her date of birth is 01.01.1966. in respect of Exhibit- 'F' also, we find that neither the Headmaster, who had issued the certificate, had been examined before the Tribunal nor the authenticity of the contents of the certificate had been verified. In that view of the matter, Exhibit-F (School Certificate) also cannot be relied and acted upon to establish the petitioner's linkage with her father. The ratio laid down in the case of Rupajan Begum (supra) will also be applicable in regard to Exhibit-F. 13. There is yet another aspect with regard to Exhibit-F. On perusal of the Exhibit-F, we find that there is a State Emblem embossed on top of it. With regard to improper use of State Emblem in certificate, this Court vide order dated 20.11.2018 passed in W.P.(C) No. 7115/2016 (Sultana Begum Vs. Union of India & Ors.) has held as follows: ".....We would observe that the Central Government has framed statutory rules called State Emblem of India (Regulation of Use) Rules, 2007 (in short the Rules), in exercise of powers conferred by Section 11 of the State Emblem of India (Prohibition of Improper Use) Act, 2005 (in short the Act). Section 3 of the Act specifically prohibits improper use of the state emblem. Section 3 of the Act specifically prohibits improper use of the state emblem. It says that notwithstanding anything contained in any other law for the time being in force, no person shall use the emblem or any colourable imitation thereof in any manner which tends to create an impression that it relates to the Government or that it is an official document of the Central Government or the State Government, without the previous permission or authorization. This section starts with a non-obstante clause, meaning thereby that it has overriding effect over all the laws for the time being in force. Rule 5 of the Rules provides that use of the official emblem is restricted to the authorities specified in Schedule-I. Rule 10 makes the restriction more specific. It says that no person, including former Ministers, former Members of Parliament, former Members of Legislative Assemblies, former Judges and retired Government officials (other than those authorized under the Rules) shall use the emblem in any manner. Sub-rule (2) of Rule 10 clearly provides that no Commission or Committee, Public Sector Undertaking, Bank, Municipal Council, Panchayati Raj Institution, Non-Government Organization, University (other than those authorized under the Rules) shall use the emblem in any manner. Schedule-I to the Rules contains a list of constitutional and statutory authorities, Ministries and Departments of the Central Government, State Governments or Union Territory Administrations and other Government functionaries which may use the emblem....." 14. In the light of the law laid down in the aforesaid writ petition, the said certificate dated 13.02.2007 issued by the Headmaster, Fulnoi LP School (Exhibit-F) containing State Emblem, cannot be considered as a valid and acceptable document. If the State Emblem is improperly used and same being clear violation of the aforesaid Act and the Rules, as explained in Sultana Begum (supra), the school certificate (Exhibit-F) must be held to be an inadmissible piece of evidence. 15. For the reasons and discussions made here-in-above, we find no infirmity in the impugned order dated 04.08.2018 passed by the learned Member, Foreigners' Tribunal No. 5th, Goalpara in F.T. Case No. F.T./5/59/MA/17. 16. The writ petition, therefore, is devoid of merit and the same stands dismissed with no order as to cost. 17. Registry to send back the case records to the concerned Tribunal forthwith.