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2018 DIGILAW 709 (GAU)

Khudeja Khatoon v. Union of India

2018-04-26

AJIT BORTHAKUR, UJJAL BHUYAN

body2018
JUDGMENT : Ujjal Bhuyan, J. 1. This case was heard on 29.03.2014 and 25.04.2018 was fixed for delivery of order. However, because of unavoidable circumstances, order is being delivered today. We have heard Mr. A. Deb, learned counsel for the petitioner and Mr. A. Kalita, learned Special Counsel, Foreigners Tribunal (FT). 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 25.10.2016 passed by the Foreigners Tribunal 5th, Morigaon in Case No. FT(D) 257/2015 (New Number) (State v. Smti. Khudeja Khatoon) declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from Bangladesh after 25.03.1971. 3. This Court by order dated 22.12.2016 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), Morigaon and furnishing of adequate surety. 4. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record, including the record requisitioned from the Tribunal. 5. In her written statement filed before the Tribunal on 04.03.2016, petitioner stated that she was a citizen of India by birth. She was born at village Durabandi Beel under Moirabari Police Station in the district of Morigaon on 12.01.1981. She had studied till Class-II in Uttar Durabandi Beel Primary School. At the appropriate age, she had married Md. Abdul Mutalib, son of Rusmat Ali of Moirabari village under Moirabari Police Station in the district of Morigaon. Her father's name was Jonab Ali and grandfather's name was Aainuddin @ Aainuddin Sk @ Aainuddi. Father was a voter of 1965 in respect of Lahorighat Constituency and again in 1970. Both grandfather and father had landed property. 6. This was all that the petitioner stated in her written statement, which was wholly inadequate to establish her identity as a citizen of India having regard to the mandate of Section 9 of the Foreigners Act, 1946 as explained by the Supreme Court in paragraph 26 of Sarbananda Sonowal v. Union of India reported in (2005) 5 SCC 665 , which is extracted hereunder:- "26. 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. 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 (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship. Sometimes the place of birth of his grandparents may also be relevant like under Section 6-A(1)(d) of the Citizenship Act. All these facts would necessarily be within the personal knowledge of the person concerned and not of the authorities of the State. After he has given evidence on these points, the State authorities can verify the facts and can then lead evidence in rebuttal, if necessary. If the State authorities dispute the claim of citizenship by a person and assert that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the aforesaid points. 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." 6.1. In addition to inadequate pleading, what is interesting to note is that while the petitioner remembered her exact date of birth i.e., 12.01.1981, she did not remember when she got married. She very vaguely stated that she had married Md. Abdul Mutalib "at the appropriate age", which is indeed very surprising! 7. Petitioner deposed as her witness. She stated that her father was Jonab Ali and mother was Alokjan. Grandfather was Aainuddin. Father received land from grandfather. His father had six brothers. Three of mem including father had expired. Father had expired about 4 years ago. This deposition was recorded on 11.05.2016. Therefore, as per the version of the petitioner herself, father had expired around 2012. 8. Therefore, what is discernible from the above is that according to the petitioner, her grandfather Aainuddin and father Jonab Ali were citizens of India. Being their granddaughter and daughter respectively, petitioner was therefore a citizen of India. 9. Let us examine whether petitioner could prove the above facts in issue by adducing cogent, reliable and admissible evidence. 10. 8. Therefore, what is discernible from the above is that according to the petitioner, her grandfather Aainuddin and father Jonab Ali were citizens of India. Being their granddaughter and daughter respectively, petitioner was therefore a citizen of India. 9. Let us examine whether petitioner could prove the above facts in issue by adducing cogent, reliable and admissible evidence. 10. We take up first the issue relating to linkage of the petitioner with Jonab Ali whom she claimed to be her father because unless this linkage is proved, it would not be necessary for us to examine the related issue as to whether Jonab Ali was a citizen of India or not. 11. Ext. A. is a transfer certificate dated 09.01.2016 issued by the Head Master of Uttar Durabandhi Beel LP School certifying that Musstt. Khudeja Khatoon was the daughter of Lt. Jonab Ali of Durabandhi Beel village under Moirabari Police Station in the district of Morigaon. She had left the school on-31.12.1988 after passing Class-II. As per admission register, her date of birth was 12.01.1981. This certificate cannot be accepted as a valid piece of evidence for more than one reason. Firstly, the State Emblem of India is embossed in the certificate. The State Emblem of India (Regulation of Use) Rules, 2007 has been framed by the Central Government in exercise of powers conferred by Section 11 of the State Emblem of India (Prohibition of Improper Use) Act, 2005. This Act was enacted by the Parliament to prohibit improper use of the State Emblem of India. Section 3 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 authorisation. Head Master of LP School is not authorised to use the State Emblem of India in any manner. Such unauthorised use of the State Emblem of India has rendered Ext. A inadmissible in evidence. Secondly, as per this certificate, petitioner had left the school on 31.12.1988. This certificate was issued 28 years thereafter on 09.01.2016. Head Master of LP School is not authorised to use the State Emblem of India in any manner. Such unauthorised use of the State Emblem of India has rendered Ext. A inadmissible in evidence. Secondly, as per this certificate, petitioner had left the school on 31.12.1988. This certificate was issued 28 years thereafter on 09.01.2016. Such belated issuance would naturally cast serious aspersion on the bonafides of such certificate which is heightened by the unauthorised use of the State Emblem of India, that too, not as per the statutory format. Thirdly and most importantly, the author of the said certificate did not appear before the Tribunal alongwith the school admission register to prove the contents of the said certificate, more particularly, date of birth and relation with Lt. Jonab Ali. How the date of birth in school certificate has to be proved has been settled by the Supreme Court long back in Birad Mal Singhvi v. Anand Purohit reported in 1988 (Supl) SCC 604 and further reiteration is not necessary. Therefore, Ext A besides not been proved, is also inadmissible in evidence. 12. Ext. B is a certificate dated 13.2.2016 issued by the Gaonburah certifying that Khudeja Khatoon was the wife of A. Matalib. This certificate also has got the State Emblem of India embossed on it and that too not as per the statutory format. For the reasons mentioned above, this certificate is also liable to be discarded However, notwithstanding the same, even if we accept this certificate at its face value, it only certifies that Khudeja Khatoon was the wife of A. Matalib; thus no linkage is established with Jonab Ali; whom the petitioner claimed to be her father. 13. Ext. C is a certificate dated 13.2.2015 of the Gaonburah of Durabandhi village certifying that Khudeja Khatoon was the daughter of Lt. Jonab Ali. For the reasons mentioned above, this certificate was also not proved. Mere filing of a document or marking of a document as exhibit is not enough. The certificate as well as the contents thereof would have to be proved, so also the truthfulness thereof, in accordance with law. 14. Ext. D is a certificate dated 15.6.2015 issued by the Secretary, Goriabori Gaon Panchayat certifying that Khudeja Khatoon was the daughter of Jonab Ali. At the top of this certificate, "Government of Assam" was prominently printed. The certificate as well as the contents thereof would have to be proved, so also the truthfulness thereof, in accordance with law. 14. Ext. D is a certificate dated 15.6.2015 issued by the Secretary, Goriabori Gaon Panchayat certifying that Khudeja Khatoon was the daughter of Jonab Ali. At the top of this certificate, "Government of Assam" was prominently printed. It was also mentioned in the certificate that the same was issued on the basis of the evidence placed before the Secretary. 14.1. Firstly, this document does not appear to be a genuine document inasmuch as a Gaon Panchayat is not a department of the Govt. of Assam. Therefore, Gaon Panchayat is not authorised to use a letter head with "Govt. of Assam" printed therein. Secondly, the Secretary of the Gaon Panchayat did not testify before the Tribunal alongwith the evidence on the basis of which Ext D certificate was issued to prove the certificate as well as the contents thereof. Therefore, this certificate was not proved. Thirdly, Supreme Court has clarified in Rupjan Begum v. Union of India reported in (2018) 1 SCC 579 , that such a certificate of the Gaon Panchayat Secretary is by no means proof of citizenship. Such a certificate has to be verified at two stages. At the first stage, authenticity of the certificate itself is required to be verified to find out as to whether it is genuine or not The second stage of verification relates to verification of the contents. There is nothing on record to show that Ext. D had undergone any such verification exercise. Therefore, Ext D cannot be accepted as a valid piece of evidence. 15. At this stage, we may mention that learned counsel for the petitioner had argued that petitioner had submitted an application dated 24.08.2016 to the Tribunal to summon the Gaonburah, school authority and the Gaon Panchayat Secretary to prove the above documents but no summons were issued. We need to clarify that in a proceeding before the Foreigners Tribunal, burden is on the procedee to prove his documents. This is made clear by Section 9 of the Foreigners Act, 1946 which has got overriding effect over the provisions of the Indian Evidence Act, 1872. Therefore, if the procedee wishes to rely on certain documents, it is he who has to prove the said documents in accordance with law. This is made clear by Section 9 of the Foreigners Act, 1946 which has got overriding effect over the provisions of the Indian Evidence Act, 1872. Therefore, if the procedee wishes to rely on certain documents, it is he who has to prove the said documents in accordance with law. In so far the present case is concerned, it was the responsibility of the petitioner to have ensured the presence of the Gaonburah, school Head Master and the Gaon Panchayat Secretary before the Tribunal and to prove the above exhibits. Petitioner ought to have given notice to the above persons and if such persons did not respond to such notice, in such a case petitioner would have been justified in filing the above application before the Tribunal to summon the above persons under paragraph-4 of the Foreigners (Tribunals) Order, 1964. This would be in tune with the requirement of Section 66 of the Indian Evidence Act, 1872. However, there was no mention in the application that petitioner had notified the above persons but despite notice they had refused to testify. 16. Net result of the above discussion is that petitioner had failed to establish her linkage with Jonab Ali whom she claimed to be her father, relatable to a period prior to 25.3.1971 which is the cut-off date for identification of foreigners in the State of Assam as per Section 6A of the Citizenship Act, 1955, as amended. 17. Resultantly, we are of the view that petitioner had failed to discharge her burden under Section 9 of the Foreigners Act, 1946 to prove that she was not a foreigner but a citizen of India. 18. Consequently, we do not find any merit in the writ petition. Accordingly, writ petition is dismissed. Interim order passed earlier stands vacated. 19. Registry to send down the LCR forthwith and inform the concerned Foreigners' Tribunal, Deputy Commissioner and Superintendent of Police (B) for taking necessary follow-up steps. Copies of this order may also be furnished to learned Standing Counsel, Election Commission of India and State Coordinator, NRC, Assam.