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2018 DIGILAW 735 (GAU)

Kadbanu Begum v. Union of India

2018-05-03

NELSON SAILO, UJJAL BHUYAN

body2018
JUDGMENT : UJJAL BHUYAN, J. 1. Heard Mr. N.H. Mazarbhuiyan, 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 3.5.2016, passed by the Foreigners Tribunal-5th, Morigaon in Case No. FT(D) 95/2015 (new number) (State v. Mrs. Kadbanu), declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from Bangladesh on or after 25.3.1971. 3. This court by order dated 22.11.2016 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, petitioner stated that she was a resident of Borbori village under Moirabari Police Station in the district of Morigaon. She was a citizen of India by birth. Her father was late Changcher Ali. Father was a voter of Bokani Constituency in the years 1965 and 1970. Petitioner's name was enlisted in the voters list of 1989 in respect of Lahorighat Constituency. 6. This was all that the petitioner stated in her written statement which by any account 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, (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. 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 6A(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. Sometimes the place of birth of his grandparents may also be relevant like under section 6A(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.” 7. From whatever was disclosed in the written statement what is discernible is that according to the petitioner, her father Changcher Ali was a citizen of India and she being his daughter was, therefore, a citizen of India. 8. Petitioner deposed before the Tribunal on 6.7.2015 disclosing her age as 52 years, which would mean that she was bom sometime in the year 1963. She stated that her father was Changcher Ali but did not disclose the name of her mother or paternal grand-parents. 9. This court has held that material facts have to be disclosed in the written statement which are thereafter required to be proved by adducing cogent, reliable and admissible evidence. Failure to disclose material facts in the written statement would lead to drawal of adverse presumption against the proceedee. 10. Gaonburah Dondi Ram Saikia deposed as DW-2 on behalf of the petitioner. In his cross-examination, he stated that petitioner did not have any land in the village over which he had jurisdiction. 11. Petitioner exhibited two documents. Ext-1 was a certified copy extract of voters list of 1966 in respect of Bokani Constituency where one of the voters was Changcher Ali. Similarly, Ext. 2 was a certified copy extract of the voters list of Bokani Constituency for the year 1970 where one of the voters was Changcher Ali. There was no evidence to show that petitioner was the daughter of Changcher Ali. Even the documents which were not exhibited, i.e., Family. 12. Similarly, Ext. 2 was a certified copy extract of the voters list of Bokani Constituency for the year 1970 where one of the voters was Changcher Ali. There was no evidence to show that petitioner was the daughter of Changcher Ali. Even the documents which were not exhibited, i.e., Family. 12. Identity Card issued by the Food, Civil Supplies and Consumer Affairs Department, unverified voters list extract of 1989 of Lahorighat Constituency and certificate dated 18.11.2012 issued by the President of Borbori Gaon Panchayat, described her as wife of Alai Uddin. This court has already held that in a proceeding before a Foreigners Tribunal while discharging the burden under section 9 of the Foreigners Act, 1946, a proceedee has to prove that she is not a foreigner but a citizen of India through documentary evidence. Mere filing of written statement and evidence-in-chief by way of affidavit or tendering of oral evidence cannot be a substitute for documentary evidence in a case of this nature. Citizenship of India has to be proved by documentary evidence. 13. As rightly pointed out by the Tribunal, there is nothing on record to show linkage of the petitioner to Changcher Ali whom the petitioner claimed to be her father. That being the position, we have no other option but to hold 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. 14. Resultantly, we do not find any merit in the writ petition, which is accordingly dismissed. 15. Interim order passed earlier stands vacated. 16. Registry to send down the LCR and inform the concerned Foreigners Tribunal, Deputy Commissioner and Superintendent of Police (Border) for necessary follow-up steps. Copy of this order be furnished to learned standing counsel, Election Commission of India and State Coordinator, NRC.