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2018 DIGILAW 261 (GAU)

Malida Bibi v. Union of India

2018-02-12

AJIT BORTHAKUR, UJJAL BHUYAN

body2018
JUDGMENT : 1. Heard Mr. M.U. Mondal, learned counsel for the petitioner and Mr. S.P. Choudhury, learned Govt. Advocate, Assam. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 18.03.2016 passed by the Foreigners Tribunal No. 7, Dhubri at Bilasipara in FT-7 Dhubri Case No. 151/BBR/2015, State vs. Malida Bibi, declaring the petitioner to be a foreigner who had unauthorizedly entered into India (Assam) from Bangladesh after 25.03.1971. 3. Notice in this case was issued on 18.08.2016. While requisitioning the case record, an interim order was passed to the effect that the petitioner should not be taken into custody and deported from India subject to her appearance before the Superintendent of Police (Border), Dhubri and furnishing of adequate surety. 4. Detailed submissions have been made by learned counsel for the parties which have been duly considered. Also perused the materials on record, including the record requisitioned from the Tribunal. 5. Record discloses that Election Commission of India had ordered intensive revision of electoral rolls in respect of No. 26 Bilasipara West Constituency in the State of Assam with reference to 01.01.2005 as the qualifying date. In this connection, a house to house enumeration was carried out. Though the name of the petitioner was included in the draft electoral roll, Electoral Registration Officer for the said constituency expressed doubts about the citizenship status of the petitioner and got the matter verified by an on the spot local verification. On consideration of the report of such verification, Electoral Registration Officer recorded reasonable doubt that the petitioner was not a citizen of India. Accordingly, a reference was made to the Illegal Migrants Determination Tribunal, Dhubri under the illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) with the allegation that petitioner was an illegal migrant. 6. In the meanwhile, IMDT Act was declared unconstitutional by the Supreme Court in Sarbananda Sonowal vs. Union of India, (2005) 5 SCC 665 . Therefore, the reference was made by the Superintendent of Police (Border), Dhubri on 01.06.2011 to the Foreigners Tribunal-II, Dhubri under the Foreigners Act, 1946 read with the Foreigners (Tribunals) Order, 1964. It may be mentioned that the reference was registered as F.T. Case No. 349/BBR/2011. 7. Therefore, the reference was made by the Superintendent of Police (Border), Dhubri on 01.06.2011 to the Foreigners Tribunal-II, Dhubri under the Foreigners Act, 1946 read with the Foreigners (Tribunals) Order, 1964. It may be mentioned that the reference was registered as F.T. Case No. 349/BBR/2011. 7. After creation of additional Tribunals, the reference was assigned to the Foreigners Tribunal No. 7, Dhubri at Bilasipara (Tribunal) where it was re-numbered as FT-7 Dhubri Case No. 151/BBR/2015. 8. In her written statement filed before the Tribunal, petitioner stated that she was born at village Golapara Pt-III. Her father was Abdul Hamid Khan; he was born at village Sundarpara Pt-I under South Salmara Police Station in the district of Dhubri. Paternal grandfather was Hazi Mobarak Ali. Petitioner married Kurban Ali of village Singimari under Bagribari Police Station in the district of Kokrajhar. Father was a voter in 1966 as well as in 1970. Petitioner became a voter in 1997. Father had also purchased a plot of land in 1966. His name was recorded in the National Register of Citizens (NRC) of 1951. Though petitioner did not mention her date or year of birth, she disclosed her age in the supporting affidavit as 40 years as on 12.01.2016. 9. Thus, from the written statement what is discernable is that petitioner's father is Abdul Hamid Khan and paternal grandfather is Hazi Mobarak Ali. Father's name appeared in the NRC of 1951 and he had also purchased land in 1956. His name appeared in the voters lists of 1966 and 1970 whereas petitioner became a voter in 1997. Petitioner was 40 years of age at the time of swearing the affidavit on 12.01.2016 which could mean that she was born sometime in the year 1976. 10. Petitioner stated more or less the same thing in her evidence-in-chief which she filed by way of affidavit. In response to a query put the Tribunal, petitioner stated that her father had 7 (seven) brothers of whom only 1 (one) was surviving whose name however she did not know. 11. To prove her case, petitioner exhibited as many as 6 (six) documents. Ext.A is a certificate dated 10.06.2015 issued by the Secretary, Golapara Banglapara Gaon Panchayat certifying that Malida Bibi (petitioner) was daughter of Lt. Abdul Hamid Khan and that she got married on 05.03.1994 to Kurban Ali. 12. 11. To prove her case, petitioner exhibited as many as 6 (six) documents. Ext.A is a certificate dated 10.06.2015 issued by the Secretary, Golapara Banglapara Gaon Panchayat certifying that Malida Bibi (petitioner) was daughter of Lt. Abdul Hamid Khan and that she got married on 05.03.1994 to Kurban Ali. 12. Shri Manabendra Nath Das, the Gaon Panchayat Secretary who issued Ext.A deposed before the Tribunal and stated that he had issued Ext.A certificate. He stated that he came to know that the petitioner was the daughter of Lt. Abdul Hamid Khan from the village people and from the members of his Gaon Panchayat. He had not seen Lt. Abdul Hamid Khan. He had also not seen or verified any register of the village at the time of issuing the certificate. He stated that he knew the son of Lt. Abdul Hamid Khan who was Bilal Khan but he did not know the names of the brothers of late Abdul Hamid Khan. He further deposed that he did not know anything more regarding the family members of Malida Bibi. 13. From the evidence of the Gaon Panchayat Secretary, while it can be said that Ext.A was issued by him, but having regard to the nature of testimony, it cannot be said that the contents of Ext.A were proved in accordance with law. He himself stated that he had neither seen nor had known Lt. Abdul Hamid Khan. It was only from the villagers that he came to know that the petitioner was the daughter of Lt. Abdul Hamid Khan and on that basis he had issued the certificate. He had also stated that he had not verified any register of the village at the time of issuing the certificate. Though he stated that son of Lt. Abdul Hamid Khan was Bilal Khan i.e. brother of the petitioner, petitioner nowhere stated in her written statement as well as in her evidence that she had a brother by the name of Bilal Khan. Surprisingly, Bilal Khan did not depose before the Tribunal in support of the petitioner. When Abdul Hamid Khan died, which is a relevant fact, was also not stated. That being the position, not much reliance can be placed on Ext.A. 14. In this connection, we may refer to a recent decision of the Supreme Court in Rupjan Begum vs. Union of India, (2018) 1 SCC 579 . When Abdul Hamid Khan died, which is a relevant fact, was also not stated. That being the position, not much reliance can be placed on Ext.A. 14. In this connection, we may refer to a recent decision of the Supreme Court in Rupjan Begum vs. Union of India, (2018) 1 SCC 579 . In that case, Supreme Court was considering validity of a certificate issued by the Gaon Panchayat Secretary for inclusion of name of the certificate holder in the NRC. While holding that such certificate can be used for that purpose, it has however been made clear that a certificate issued by the Gaon Panchayat Secretary is by no means proof of citizenship. Such a certificate cannot be legitimately and validly used to establish a claim of citizenship. It is only a link certificate. It has to be verified at 2 stages, namely, authenticity of the certificate itself and authenticity of the contents. Having regard to the above, we are afraid, on the strength of such testimony, contents of Ext.A certificate can be said to have been proved. 15. Ext.B is an extract of the voters list of 1997 in respect of Sidli Constituency. The three voters include Malida Khatoon, daughter of Hamid, aged 22 years. Even if we ignore the discrepancies in the name i.e. Malida Bibi and Malida Khatoon, this Ext. indicates only the relationship of the petitioner with one Hamid. As per Ext.A, Malida Bibi had married Kurban Ali on 05.03.1994. If that be so, in Ext.B, she should have been shown as wife of Kurban Ali, resident of Singimari village under Bagribari Police Station in the district of Kokrajhar. But very surprisingly Malida Khatoon was not shown as wife of Kurban Ali in Ext.B. On the other hand, Malida Khatoon could not have been shown as daughter of Hamid because Abdul Hamid Khan was a resident of Sundarpara Pt.-I village under South Salmara Police Station whereas Ext.B pertains to Patabari Forest village under Sidli Police Station, two different places altogether. As such, Hamid and Abdul Hamid Khan cannot be said to be one and the same person. That apart, what happened to Bilal Khan? Why his name did not appear in the voters list of 1997 (Ext.B) as son of Hamid or Abdul Hamid Khan? Instead the name which appears is Jaffar Khan, son of Hamid. 16. As such, Hamid and Abdul Hamid Khan cannot be said to be one and the same person. That apart, what happened to Bilal Khan? Why his name did not appear in the voters list of 1997 (Ext.B) as son of Hamid or Abdul Hamid Khan? Instead the name which appears is Jaffar Khan, son of Hamid. 16. Ext.C is an extract of the voters list of 1966 in respect of South Salmara constituency. In this exhibit, one of the voter is Abdul Hamid Khan, S/o. Hazi Mobarak Ali, aged 40 years. He was shown as resident of Sundarpara Part-I village. Likewise, exhibit D is an extract of the voters list of 1970 in respect of South Salmara constituency where Abdul Hamid Khan, son of Hazi Mobarak Ali was a voter. Interestingly, in Ext.D, age of none of the voters including Abdul Hamid Khan were mentioned. 17. From a cumulative analysis of Exts. B, C and D, it is evident that the petitioner Malida Khatoon or Malida Bibi could not establish her linkage with Abdul Hamid Khan of Sundarpara Part-I village in the district of Dhubri whom she claimed to be her father. That apart, there is a more important aspect. Exts. B, C and D are photo copies of voters lists. Even if the photo copies have been made from the certified copies, the fact remains that the contents of these exhibits are required to be proved on the basis of primary evidence i.e. original electoral roll with the testimony of the lawful custodian of the primary evidence. In the absence thereof, contents of such exhibits cannot be said to have been proved. 18. Ext.E is a photo copy of what is stated to be a sale deed between Abdul Hamid Khan and Hazarat Khan. This document was also not proved by production of original copy and the testimony of the custodian of the original copy i.e. concerned Sub-Registrar. The last of the exhibits is Ext.F, which is stated to be an extract of the NRC details of 1951. In this certificate, though the name of Abdul Hamid Khan appears, there is no mention about his father's name. That apart, as per this document, Abdul Hamid Khan and his family members were residents of Numberpara village under Abhayapuri Police Station in the then district of Golapara. In this certificate, though the name of Abdul Hamid Khan appears, there is no mention about his father's name. That apart, as per this document, Abdul Hamid Khan and his family members were residents of Numberpara village under Abhayapuri Police Station in the then district of Golapara. In the written statement, petitioner has stated that her father was born at Sundarpara Part-I village under South Salmara Police Station. If that be so, name of Abdul Hamid Khan could not have been entered in the NRC as a resident of Numberpara village under Abhayapuri Police Station in the erstwhile district of Goalpara. That apart, even this exhibit was also not proved in accordance with law. 19. Net result of the above discussion is that the petitioner had failed to prove that Abdul Hamid Khan was a citizen of India as his presence on Indian soil prior to 25.03.1971, which is the cut off date for identification of foreigners in the State of Assam as per Section 6 A of the Citizenship Act, 1955, as amended, could not be established by adducing cogent and reliable evidence. Additionally, she also failed to prove that she was the daughter of Abdul Hamid Khan. In such circumstances, we do not find any error or infirmity in the view taken by the Tribunal to warrant any interference. 20. There is no merit in the writ petition, which is accordingly dismissed. Interim order passed earlier stands vacated. 21. Registry to send down the LCR forthwith and inform the concerned Foreigners Tribunal, Deputy Commissioner and Superintendent of Police (Border) for necessary follow up steps. 22. A copy of this order may also be furnished to the learned standing counsel for Election Commission of India and State Coordinator, NRC.