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2018 DIGILAW 877 (GAU)

RUKIA BEGUM v. UNION OF INDIA

2018-05-29

AJIT BORTHAKUR, UJJAL BHUYAN

body2018
ORDER : UJJAL BHUYAN, J. 1. Heard Mr. MA Choudhury, learned counsel for the petitioner and Mr. J Payeng, 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 14.10.2015, passed by the Foreigners Tribunal-I, Karimganj in FT Case No.156/2011 (State v. Rukia Begum), 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 08.11.2016 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), Karimganj and furnishing of adequate surety. 4. Smti. Leena Doley, Addl. Superintendent of Police (HQ), Karimganj has filed an affidavit on behalf of Superintendent of Police (Border), Karimganj, respondent No.4, supporting the order passed by the Tribunal. 5. Mr. Choudhury, learned counsel for the petitioner submits that Tribunal was not justified in excluding Exts-1 and 6 from consideration. He further submits that there was no objection towards filing of Exts-1 and 2 by the petitioner on behalf of the State. Since, there was no objection by the State, the two exhibits should have been deemed to have been proved by comparing with the originals produced by the petitioner. 6. On the other hand, learned Special Counsel supports the order passed by the Tribunal and contends that petitioner had failed to prove that she was not a foreigner but a citizen of India by adducing cogent, reliable and admissible evidence. 7. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record, including the record requisitioned from the Tribunal. 8. In her written statement filed before the Tribunal on 30.09.2014, petitioner identified herself as wife of Abdul Malik and daughter of Pakhi Mia. She stated that father Pakhi Mia, son of Lt. Isbor Ali, was a resident of village Barkatpur under Karimganj Police Station. He was enrolled as a voter in 1966, 1970, 1977 and 1985 in respect of South Karimganj Constituency. Petitioner was born on 06.05.1974 at the said address and had read upto Class- IV in the 656 No. Barkatpur LP School. In 1991, she got married to Abdul Malik. Isbor Ali, was a resident of village Barkatpur under Karimganj Police Station. He was enrolled as a voter in 1966, 1970, 1977 and 1985 in respect of South Karimganj Constituency. Petitioner was born on 06.05.1974 at the said address and had read upto Class- IV in the 656 No. Barkatpur LP School. In 1991, she got married to Abdul Malik. Her name appeared in the voters lists of 1993 in respect of South Karimganj Constituency and thereafter in 1997, 2005 and 2011. 9. Though the petitioner omitted to mention various material particulars, such as, names of mother, parental grandmother, brothers and sisters, if any, etc., from whatever were disclosed in the written statement, what is discernible is that according to the petitioner, her father Pakhi Mia was a citizen of India and she being his daughter was, therefore, a citizen of India. 10. Let us now examine whether petitioner could prove the above facts in issue by adducing cogent, reliable and admissible evidence. 11. Petitioner deposed as her witness. She narrated more or less the same thing as stated in her written statement but admitted that in the voters list of 1997, she was marked as a doubtful (D) voter. 12. We find that petitioner exhibited as many as 10 documents though Exts-2 to 6 were marked under objection by the Assistant Government Pleader. 13. Exts-2 to 5 are certified copy extracts of voters lists of 1966, 1970, 1977 and 1985. In all the above exhibits, the electors were marked as doubtful electors. While in 1966 there were two voters, namely, Pakhi Mia, son of Isbor Ali, aged 27 years, and Monai Bibi, wife of Pakhi Mia, aged 23 years; in the voters lists of 1970, 1977 and 1985, Monai Bibi disappeared. If she was the wife of Pakhi Mia and by implication mother of the petitioner (petitioner did not disclose the name of her mother), she ought to have been present in Exts-3, 4 and 5 but she was conspicuous by her absence. 14. Exts-7 and 8 are certified copy extracts of the voters lists of 1993 and 1997 where one of the voters was Pakhi Mia, son of Abdul Malik. Here also the voters were marked as doubtful (D) voters. But these two documents are not indicative of linkage between Rukia Begum and Pakhi Mia, who according to the petitioner, was her father. 15. Here also the voters were marked as doubtful (D) voters. But these two documents are not indicative of linkage between Rukia Begum and Pakhi Mia, who according to the petitioner, was her father. 15. Ext-9 is an affidavit sworn by the petitioner explaining the discrepancies in the name of her husband. Even though such an affidavit is neither proof nor evidence and therefore inadmissible, the affidavit only concerns the husband Abdul Malik and does not indicate any linkage with Pakhi Mia. 16. Ext-10 is a photo copy of passport in the name of Abdul Malik, which again is of no relevance to the facts in issue. 17. That leaves us Exts-1 and 6. 18. Tribunal in the order dated 14.10.2015 had kept out of consideration these two documents because these two documents were not legible and did not carry any signature of the issuing authority, including date of issue. Ext-6 was written on a plain piece of paper without any seal or signature of the competent authority. Therefore, these two documents were kept out of consideration by the Tribunal. 19. In so far Ext-1 is concerned, we find that many portion of the said certificate is indeed illegible. However, petitioner has annexed in the writ petition a legible copy of the said certificate. 20. The said certificate (Ext-1) was signed by the Head Teacher of No.656 Barkatpur LP School certifying that Rukia Begum was the daughter of Md. Pakhi Mia and her date of birth was 06.05.1974. She had left the school on 31.12.1986 and the reason mentioned for leaving was "course complete". It was also certified that petitioner had secured second division. 21. This certificate is quite unusual inasmuch as it was not issued in the letter head of the school but as per order of the Deputy Inspector of Schools, Karimganj dated 24.07.1985. Why such a certificate was issued has not been explained. Neither the Head Teacher of the School nor any responsible official from the office of the Deputy Inspector of Schools, Karimganj deposed before the Tribunal to explain as to why such a certificate was issued as well as to prove the said certificate and the contents thereof. The certificate was shown to be issued on 31.12.1986 i.e., on the date of leaving the school by the petitioner. It is also unusual that the certificate mentions the petitioner to have secured second division. The certificate was shown to be issued on 31.12.1986 i.e., on the date of leaving the school by the petitioner. It is also unusual that the certificate mentions the petitioner to have secured second division. Ordinarily, pupils in our country are not graded division wise; be it first division, second division or third division at the elementary school level. This itself casts grave doubts about the genuineness of the said certificate, which doubt was further fortified by the absence of the author of the certificate before the Tribunal. 22. In so far contention of learned counsel for the petitioner that since the State did not raise any objection as to the filing of such certificate and marking of the same as exhibit, therefore, the said certificate should be accepted as a valid piece of evidence at its face value, we are afraid we can accept such a sweeping contention on behalf of the petitioner. Under paragraph 3A (3) of the Foreigners (Tribunals) Order, 1964, a Foreigners Tribunal shall have the powers to regulate its own procedure for disposal of the references expeditiously in a time bound manner. Therefore, while conducting a proceeding, a Foreigners Tribunal has the power to regulate its own procedure. Paragraph 4 of the said Order says that a Foreigners Tribunal shall have the powers of a Civil Court while trying a suit under the Code of Civil Procedure, 1908 in respect of summoning and enforcing the attendance of any person and to examine him or her on oath; requiring the discovery and production of any document; issuing commissions for the examination of any witness and directing the proceedee to appear before it in person. Therefore, applicability of the Code of Civil Procedure to a proceeding before the Foreigners Tribunal is confined to the four situations as enumerated in paragraph 4. A proceeding before the Foreigners Tribunal is summary in nature and having regard to the scheme of the Foreigners (Tribunals) Order, 1964, it will be too farfetched to hold that detailed rules and procedure laid down under the Code of Civil Procedure and practiced in the Civil Courts shall be applicable in letter and spirit in a proceeding before the Foreigners Tribunal. A Foreigners Tribunal is not bound by the strict rules and procedure provided under the Code of Civil Procedure. A Foreigners Tribunal is not bound by the strict rules and procedure provided under the Code of Civil Procedure. This is more so, because in a proceeding before the Foreigners Tribunal, burden of proof is always on the proceedee and he has to prove that he is not a foreigner but a citizen of India by adducing evidence which are admissible, proved and relevant having regard to the mandate of section 9 of the Foreigners Act, 1946. This burden which lies upon the proceedee never shifts. Therefore, the evidence that is tendered by the proceedee must be admissible in evidence, must be proved in accordance with law and must have relevancy to the facts in issue. Just because objection to a document marked as exhibit by the proceedee is not taken by the State would not make that document admissible in evidence if it is otherwise inadmissible. 23. Having said that, we may advert to the case in hand. In view of what we have discussed above, we are of the firm view that since petitioner had placed reliance on Ext.1 certificate, burden was on the petitioner to prove the said certificate as well as the contents thereof irrespective of whether objection was raised by the State or not. 24. As noticed above, this certificate was not proved. As a matter of fact, none of the exhibits were proved in accordance with law. Therefore, such a certificate would have little or no probative value in the eye of law. 25. Even then, if we consider the content of this certificate (Ext-I) at face value, we find that as per this certificate, petitioner was born on 06.05.1974. However, in Ext-7 i.e., voters list of 1993, petitioner i.e., Rukia Begum was shown as 29 years of age, which would mean that she was born sometime in the year 1964. Therefore, the date of birth mentioned in Ext-1 is at considerable variance from the age of the petitioner that can be deduced from Ext-7 exposing both the documents to great deal of suspicion and thereby impeaching the credibility of the documents which, in any event, were not proved. 26. The same would also be the position in respect of Ext.6 which is stated to be a Kabinnama dated 08.05.1991 between petitioner and Abdul Malik. Though in this document, petitioner was described as daughter of Md. 26. The same would also be the position in respect of Ext.6 which is stated to be a Kabinnama dated 08.05.1991 between petitioner and Abdul Malik. Though in this document, petitioner was described as daughter of Md. Pakhi Mia, in the absence of any authentication by a responsible and competent authority, no credence can be placed on Ext.6. As a matter of fact, none of the witnesses to Ext.6 nor any Qazi deposed before the Tribunal to prove the contents of Ext.6. Or for that matter, Abdul Malik did not appear before the Tribunal to say that he had married Rukia Begum as per Kabinnama dated 08.05.1991. Moreover, as rightly pointed out by the Tribunal, Ext.6 Kabinnama is not in prescribed form as maintained by the office of the Qazi. Therefore, no reliance can be placed on Ext-6. If these two documents are excluded from consideration, there is nothing on record to establish linkage of the petitioner with Md. Pakhi Mia whom she claimed to be her father relatable to a period prior to 25.03.1971, which is the cutoff date for identification of foreigners in the State of Assam as per section 6A of the Citizenship Act, 1955, as amended. 27. Therefore, it cannot be said that petitioner had discharged her burden under section 9 of the Foreigners Act, 1946 to prove that she was not a foreigner but a citizen of India. 28. On thorough consideration, we do not find any merit in the writ petition, which is accordingly dismissed. Interim order passed earlier stands vacated. 29. Registry to send down the LCR and inform the concerned Foreigners Tribunal, Deputy Commissioner and Superintendent of Police (Border) for necessary follow-up steps. 30. Copy of this order may be furnished to learned Standing Counsel, Election Commission of India and State Coordinator, NRC.