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2018 DIGILAW 377 (GAU)

Jarida Khatun v. Union of India

2018-02-28

NELSON SAILO, UJJAL BHUYAN

body2018
JUDGMENT : UJJAL BHUYAN, J. 1. Heard Mr. F.U. Borbhuiya, learned counsel for the petitioner and Mr. A. Kalita, learned Special counsel, F.T. 2. By filing this petition under article 226 of the Constitution of India, petitioner seeks quashing of order dated 30.6.2016 passed by the Foreigners Tribunal, Nagaon Court No. 7th at Lanka, Nagaon in F.T./L/Case No. 141/2015 (State v. Musstt. Jarida Khatun) declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from Bangladesh after 25.3.1971. 3. This court by order dated 4.10.2016 had issued notice while requisitioning the case record and passed an interim order to the effect that petitioner should be allowed to remain on bail subject to her appearance before the Superintendent of Police (Border), Nagaon and furnishing of adequate surety. 4. Mr. Borbhuiya, learned counsel for the petitioner has at the very outset submitted that the notice issued by the Tribunal did not indicate the grounds for suspecting the petitioner to be a foreigner. The notice was silent as to the stream of foreigners to which she allegedly belonged having regard to the provisions contained in section 6A of the Citizenship Act, 1955, as amended. His further submission is that in the enquiry conducted by the Local Verification Officer (‘LVO’) prior to making of reference, nothing was recorded in the report which could be the basis for making of reference. There was no prior investigation preceeding making of the reference. Another submission of Mr. Borbhuiya is that evidence tendered by the petitioner asserting that she was the daughter of Hussain Ali remained un-rebutted as she was not cross-examined. Therefore, such evidence of the petitioner should be treated as admitted and on that basis petitioner's assertion ought to have been declared as proved. He, therefore, submits that impugned order passed by the Tribunal is not sustainable in law and is liable to be set aside. 5. Mr. A. Kalita, learned special counsel in his submission supports the order passed by the Tribunal and contends that petitioner could not prove the crucial factum that she was the daughter of Hussain Ali. He submits that petitioner was required to prove two aspects, i.e., firstly, Hussain Ali was a citizen of India and secondly, petitioner was the daughter of Hussain Ali and thereby she was a citizen of India. He submits that petitioner was required to prove two aspects, i.e., firstly, Hussain Ali was a citizen of India and secondly, petitioner was the daughter of Hussain Ali and thereby she was a citizen of India. Referring to the Ext.-1 certificate which was issued by the Gaonburah, he submits that this certificate is not based on any evidence and was rightly discarded by the Tribunal. If this certificate is excluded, there is no linkage of the petitioner with Hussain Ali whom the petitioner claimed to be her father. Therefore, narrative of the petitioner is not at all believable and was rightly not believed by the Tribunal. 6. Submissions of learned counsel for the parties have been considered. Also perused the materials available on record, including the record requisitioned from the Tribunal. 7. We will come to the impugned order passed by the Tribunal a little later. 8. Scrutiny of the record has disclosed an interesting development. We find from the record that initially the reference was made under section 8(1) of the Illegal Migrants (Determination by Tribunals) Act, 1983 (‘IMDT Act’) by the Superintendent of Police (Border), Nagaon suspecting the petitioner to be an illegal migrant. Be it stated that under section 3(1)(c) of the IMDT Act, an illegal migrant was defined as a foreigner who had un-authorisedly entered into India after 25.3.1971. 9. The reference was registered by the Illegal Migrants Determination Tribunal, Hojai (‘IMD Tribunal’) as Case No. IMDT/H/159/98 (D) (State v. Musstt.]arida Khatun). Notice was issued to the petitioner on 24.12.1998. Order sheet discloses that petitioner was present before the IMD Tribunal on 12.5.1999 but thereafter she remained absent compelling the IMD Tribunal to proceed ex parte. On 9.2.2001, the LVO was present and he deposed on behalf of the State. Government Advocate argued on behalf of the State whereafter order was reserved. Finally, order was delivered on 13.2.2004. Relevant portion of the order dated 13.2.2004 is extracted hereunder: “From the evidence of the Local Verification Officer, it is found that he was entrusted by the Electoral Registration Officer, 91-Hojai Assembly Constituency to enquire about the citizenship of opposite party. Accordingly he went to the locality and interrogated her. During the course of enquiry the opposite party could not produce any document in support of her claim as Indian citizen. Accordingly he went to the locality and interrogated her. During the course of enquiry the opposite party could not produce any document in support of her claim as Indian citizen. The Local Verification Officer also verified the voter list of the constituency but her name or her father's name were not found in any voter list of the constituency. After completion of enquiry he has submitted his report in Annexure ‘A’ Ext.-1, Ext.-1(i) is his signature. As the opposite party did not contest her case, the evidences put forwarded by the State side remained unrebutted. We have carefully gone through the report of the Local Verification Officer. In the report he has mentioned that her name was only appeared in the draft electoral roll of 1997 but her father's name was not registered as an elector of any constituency in India. This fact goes to prove that her father was not an Indian citizen whose name was not enrolled in any voters list. The Local Verification Officer has clearly stated that during the course of enquiry the opposite party could not produce any document in support of her case. The Local Verification Officer in an official witness who has performed his official duty We have nothing to disbelieve his evidence. So we are constrained to believe that the opposite party is an illegal migrant within the meaning of this Act. This reference is accordingly decided and answered in the affirmative and against the opposite party declaring her to be an illegal migrant.” 10. Thus, from the above, it is seen that according to the evidence of the LVO, in the course of his enquiry petitioner could not produce any document in support of her claim as Indian citizen. On verification of the voters list neither the name of the petitioner nor the name of her father could be traced out in any voters list of the constituency. He proved his report as Ext.-1. IMD Tribunal after scrutiny of Ext.-1 accepted the same. IMD Tribunal noticed that name of the petitioner was enrolled in the draft voters list of 1997 for the first time. But her father's name was not registered as an electorate in any constituency of India. It was held that this fact would go to prove that her father was not an Indian citizen whose name was not enrolled in any voters list. But her father's name was not registered as an electorate in any constituency of India. It was held that this fact would go to prove that her father was not an Indian citizen whose name was not enrolled in any voters list. IMD Tribunal further observed that LVO in his evidence had clearly stated that in the course of enquiry petitioner could not produce any document in support of her nationality. Holding that LVO was an official witness who had performed his official duty, IMD Tribunal took the view that there was nothing to disbelieve his evidence and accordingly answered the reference in favour of the State declaring the petitioner as an illegal migrant. 11. This was the final order of the IMD Tribunal passed on 13.2.2004. 12. In the meanwhile, Supreme Court in Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665 had declared the Illegal Migrants (Determination by Tribunals) Act, 1983 as unconstitutional. This judgment was delivered on 12.7.2005 by which a consequential direction was issued to the effect that references which were pending before the Tribunals constituted under the IMDT Act were required to be transferred to the Tribunals constituted under the Foreigners Act, 1946 read with the Foreigners (Tribunals) Order, 1964. 13. As noticed above, the related reference was already disposed of on 13.2.2004 by holding the petitioner to be an illegal migrant. Therefore, it was not a pending reference which could have been transferred to a Foreigners Tribunal constituted under the Foreigners Act, 1946. If that be so, order dated 13.2.2004 has attained finality as the same has not been put to challenge in any higher forum. 14. Most surprisingly and oblivious of such direction of the Supreme Court, the above disposed of reference was transferred to the Foreigners Tribunal, Hojai at Sankar Dev Nagar where it was registered as Case No. F.T./H./127/06 (State v. Musstt. Jarida Khatun). Foreigners Tribunal, Hojai at Sankar Dev Nagar again disposed of the reference on 28.5.2007 by declaring the petitioner to be a foreigner. This order was passed ex parte as the petitioner defaulted in her appearance despite notice and initial appearance. As noticed above, there was no necessity at all for re-registration of the disposed of reference under the Foreigners Act, 1946 and thereafter to pass an order on 28.5.2007 in the above manner. 15. This order was passed ex parte as the petitioner defaulted in her appearance despite notice and initial appearance. As noticed above, there was no necessity at all for re-registration of the disposed of reference under the Foreigners Act, 1946 and thereafter to pass an order on 28.5.2007 in the above manner. 15. Be that as it may, petitioner filed an application before the Foreigners Tribunal, Hojai at Sankar Dev Nagar for setting aside the ex parte order dated 28.5.2007. This was registered as Misc. Case No. 4/07. State filed objection to the prayer made. 16. After hearing the matter, Foreigners Tribunal, Hojai at Sankar Dev Nagar passed the order dated 18.11.2008 observing that the ground given by the petitioner for setting aside the ex parte order was reasonable and acceptable. The order itself discloses that according to the petitioner she could not remain present before the Tribunal due to her illness. But what was the nature of illness which prevented the petitioner from appearing before the Tribunal is not discernible. Be that as it may, by order dated 18.11.2008, the earlier order dated 28.5.2007 was set aside. 17. Thereafter, FT Case No. FT/H./127/06 (State v. Musstt. Jarida Khatun) proceeded at a snail's pace. During 2009 petitioner was generally present but sought adjournments after adjournments which were granted liberally by the Tribunal. This continued during the year 2010 and thereafter in 2011. In the earlier part of 2012, petitioner was absent only to reappear before the Tribunal on 6.7.2012 whereafter petitioner was represented by her lawyer. This continued throughout 2013 and 2014. 18. During 2015, additional Tribunals were created. At that point of time the case record was transferred from the Foreigners Tribunal, Hojai at Sankar Dev Nagar to the Foreigners Tribunal, Nagaon Court No. 7th at Lanka (Tribunal). On transfer to the Tribunal the reference was reregistered as FT/L/Case No. 141/15 and fresh notice was issued to the petitioner on 9.9.2015. 19. It is in the above context that the submissions of learned counsel for the petitioner may now be examined. Petitioner was all throughout aware that she was suspected to be an illegal migrant under the IMDT Act which meant a foreigner of post-25.3.1971 stream. Petitioner was served notice in the IMDT proceeding which culminated in her being declared as an illegal migrant. Petitioner was all throughout aware that she was suspected to be an illegal migrant under the IMDT Act which meant a foreigner of post-25.3.1971 stream. Petitioner was served notice in the IMDT proceeding which culminated in her being declared as an illegal migrant. Notwithstanding finality of such decision, the case record was unnecessarily transferred to the Foreigners Tribunal at Hojai where again she was declared to be a foreigner, which order was, however, subsequently recalled. Petitioner continued to be represented by her counsel for years together. Therefore, to contend now after 17 years that the notice did not reflect the stream of foreigners to which the petitioner allegedly belonged and, therefore, was invalid is wholly unacceptable and untenable. The notice was issued by the Tribunal only as a reminder to the petitioner regarding continuation of the proceeding before the Tribunal though strictly speaking, the order passed by the IMD Tribunal way back on 13.2.2004 had attained finality and continues to hold the field till this date. 20. Second contention of the petitioner that the report of the LVO did not contain any material to justify initiation of reference against the petitioner cannot be entertained at this stage, more so, when the IMD Tribunal had already recorded in its order dated 13.2.2004, which is part of the record, that the LVO had conducted local verification. He had gone to the locality where the petitioner resided and also examined her. During the enquiry petitioner could not produce any document in support of her claim as an Indian citizen. LVO found that though the name of the petitioner appeared for the first time in the draft electoral roll of 1997, her father's name was not enlisted as a voter in any constituency in India. Therefore, the IMD Tribunal recorded that this fact would prove that the father was not an Indian citizen. 21. This aspect of the matter would be adverted at a subsequent stage. For the moment we find that the IMD Tribunal had accepted the testimony of the LVO and clearly observed that there was nothing to disbelieve his evidence. In the light of the testimony of the LVO and acceptance of the same by the IMD Tribunal which has attained finality, it is not open to the petitioner to question the report of the LVO on the ground on which it is being questioned. 22. In the light of the testimony of the LVO and acceptance of the same by the IMD Tribunal which has attained finality, it is not open to the petitioner to question the report of the LVO on the ground on which it is being questioned. 22. At this stage, we may mention that under the IMDT Act and the Rules framed thereunder, the provisions were made so stringent that not to speak of detection and deportation of illegal migrants, even making of a reference was made extremely difficult and cumbersome. The Rules provided for constitution of screening committee and only after the screening committee approved making of reference, did the reference used to be made. Supreme Court in Sarbananda Sonowal (supra) observed that there was no legal sanctity for existence of such screening committees. Supreme Court also adversely commented that the entire IMDT Act and Rules were structured in such a manner that it favoured the illegal migrants rather than facilitating their detection which was the ostensible object of the Act. Moreover, unlike under the Foreigners Act, 1946, under the IMDT Act, the burden was on the complainant or the State to prove that the suspect was an illegal migrant. It was an onerous burden which worked against the interest of the State. This aspect was taken note of by the Supreme Court while declaring the IMDT Act as unconstitutional. 23. In spite of such stringent conditions, not only the reference was made, State had also discharged its burden and successfully proved that the petitioner was an illegal migrant by adducing evidence which remained unchallenged. Therefore, the second contention of the petitioner has also got no legs to stand. 24. Coming to the third submission of learned counsel for the petitioner, we are of the view that the same has to be construed in the light of the nature of evidence vis-a-vis section 9 of the Foreigners Act, 1946. 25. Section 9 says that notwithstanding anything contained in the Evidence Act, 1872, burden would be on the proceedee to prove that he is not a foreigner but a citizen of India. This fact in issue would have to be proved by adducing cogent, reliable and admissible evidence. It is only when the proceedee adduces admissible evidence to support her assertion of being an Indian citizen, will the question of State rebutting such evidence arise. This fact in issue would have to be proved by adducing cogent, reliable and admissible evidence. It is only when the proceedee adduces admissible evidence to support her assertion of being an Indian citizen, will the question of State rebutting such evidence arise. If the “evidence” of the proceedee is no evidence in the eye of law, question of rebuttal by the State would not arise. Failure to cross-examine would also not convert inadmissible evidence into admissible evidence. 26. It is on the touch stone of the above principle that we may now examine the claim of the petitioner before the Tribunal. 27. In her written statement petitioner stated that she was the daughter of Hussain Ali. Her parents, both father and mother, had expired when she was a young child. She was brought up in the residence of other person. After she attained majority she married Abdul Aziz of the same locality. Her father was a voter in 1966. Her name appeared in the voters list in 1997. However, petitioner neither mentioned her age nor her date of birth. Her statement that her father was a voter of 1966 would not inspire confidence because in the order of the IMD Tribunal it was recorded that her father's name was not enlisted as a voter in any constituency of India. Be that as it may, even if we overlook such material omission for the time being, petitioner was required to prove two things : Firstly, Hussain Ali was a citizen of India : Secondly, petitioner was the daughter of Hussain Ali and thereby she was a citizen of India. 28. Petitioner narrated in her evidence-in-chief the same thing as stated in the written statement. She was subjected to cross-examination. In support of her contention, petitioner filed 4 documents which were marked as Exts. 1, 2, 3 and 4. Out of these 4 documents, the only document which shows the petitioner to be the daughter of late Hussain Ali is a certificate dated 20.10.2008 issued by one Azim Uddin, Gaonburah of Paschim Dablong village (Ext. 1). As per this certificate petitioner was the daughter of late Hussain Ali whose name was enlisted in the voters list of 1970 and that she had married Azid Ali of the same village. The Gaonburah certified that he knew the petitioner and wished her well. 29. 1). As per this certificate petitioner was the daughter of late Hussain Ali whose name was enlisted in the voters list of 1970 and that she had married Azid Ali of the same village. The Gaonburah certified that he knew the petitioner and wished her well. 29. We are afraid we can accept this certificate as a valid piece of evidence for more than one reason. Firstly, the manner in which the certificate was issued without any proper format itself raises legitimate doubts about its bona fides. That apart and more importantly, the author of the said certificate did not testify before the Tribunal to prove the said certificate as well as the contents thereof. In the absence of such proof; such a document would have no probative value. It is trite that mere filing of a document or marking of a document as exhibit is not enough. Not only the document would have to be proved but the contents thereof would also have to be proved by the author of the certificate on the basis of the contemporarious record. That apart, in he written statement petitioner stated that she had married Abdul Aziz but in this document the name of the husband was mentioned as Azid Ali. 30. If Ext. 1 is excluded from consideration, we are left with a situation where there is no other document, admissible or otherwise, to show that petitioner was the daughter of Hussain Ali. If that be so, then petitioner's crucial linkage is not established. If the linkage between the petitioner and Hussain Ali falls through, it may not be necessary to delve into the other issue of citizenship status of Hussain Ali. As it is, IMD Tribunal had long back declared the father of the petitioner to be not an Indian citizen. 31. We are, therefore, faced with a situation where we have two orders of similar content, one declaring the petitioner to be an illegal migrant and the other declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from the specified territory, i.e., Bangladesh on or after 25.3.1971. 32. The first order was passed when the burden was on the State to prove that the petitioner was an illegal migrant. The second order was passed when the burden was on the petitioner to prove that she was not a foreigner but a citizen of India. 32. The first order was passed when the burden was on the State to prove that the petitioner was an illegal migrant. The second order was passed when the burden was on the petitioner to prove that she was not a foreigner but a citizen of India. While the State could discharge its burden to prove the petitioner as illegal migrant, petitioner could not discharge her burden under section 9 of the Foreigners Act, 1946 which led to her declaration as an illegal foreigner. Either way, the declaration of the petitioner as an illegal migrant by the IMD Tribunal on 13.2.2004 has only been reinforced by the impugned decision of the Tribunal dated 30.6.2016. Even if the order dated 30.6.2016 is not taken into consideration, the fact would remain that there is the declaration of the petitioner as an illegal migrant by the IMD Tribunal on 13.2.2004, which decision has since attained finality. 33. At this stage we can only say that the two decisions passed by two different Tribunals following divergent standards of proof have coalesced into a well considered definitive finding of fact that petitioner is a foreigner from the specified territory, i.e., present day Bangladesh who had illegally entered into India (Assam) on or after 25.3.1971. 34. Thus, no case for interference is made out. 35. Writ petition is devoid of any merit and is accordingly dismissed. 36. Interim order passed earlier stands vacated. 37. Registry to send down LCR forthwith and inform the concerned Foreigners' Tribunal, Deputy Commissioner and Superintendent of Police (B) for doing the needful. 38. Copy of this order may also be furnished to learned standing counsel, Election Commission of India and State Co-ordinator, NRC.