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2018 DIGILAW 916 (GAU)

ROMILA KHATUN v. UNION OF INDIA

2018-06-08

RUMI KUMARI PHUKAN, UJJAL BHUYAN

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ORDER : UJJAL BHUYAN, J. 1. Heard Mr. J Mollah, learned counsel for the petitioner and Mr. U.K. Nair, learned Senior Special Counsel, Foreigners Tribunal (FT). 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 31.05.2016, passed by the Foreigners Tribunal No. 4, Kamrup (R) at Hajo in H.FT Case No. 385/2015 (new) (State v. Mrs. Ramila Khatoon), declaring the petitioner to be a foreigner. 3. This Court by order dated 23.06.2016 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), Kamrup (R) and furnishing of adequate surety. 4. Sri. Nandan Sharma, Deputy Superintendent of Police (Border), Kamrup has filed an affidavit on behalf of the Superintendent of Police (Border), Kamrup, respondent No. 3, supporting the order passed by the Tribunal and seeking dismissal of the writ petition. 5. Mr. Mollah, learned counsel for the petitioner has taken us to the written statement and evidence tendered by the petitioner and thereafter submits that petitioner had proved that she was not a foreigner but a citizen of India. Tribunal had taken too technical a view in disbelieving the contention of the petitioner that Nimai Miah @ Nimai Chan was her father and whose presence in India can be traced prior to 25.03.1971. He also relies upon an affidavit sworn by the petitioner explaining the discrepancies in the name of her father. He, therefore, submits that impugned order passed by the Tribunal is unsustainable and should be interfered with by this Court. 6. On the other hand Mr. Nair, learned Senior Special Counsel submits that it was the pleaded case of the petitioner that she was the daughter of Nimai Miah and Nimai Miah was a citizen of India. Therefore on the basis of such lineage, petitioner claimed to be a citizen of India but petitioner could not prove or establish the above linkage. The evidence introduced by the petitioner were clearly inadequate or rather, inadmissible to prove the above fact. Therefore, there was error or infirmity in the view taken by the Tribunal and no case for interference is made out. 7. Submissions made by learned Counsel for the parties have been considered. Also perused the record, including the record requisitioned from the Tribunal. 8. Therefore, there was error or infirmity in the view taken by the Tribunal and no case for interference is made out. 7. Submissions made by learned Counsel for the parties have been considered. Also perused the record, including the record requisitioned from the Tribunal. 8. Record discloses that initially reference was made against the petitioner under the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act), suspecting the petitioner to be an illegal migrant, that is, a foreigner who had unauthorisedly entered into India after 25.03.1971. 9. Therefore, the allegation against the petitioner was that she was a foreigner who had illegally entered into India (Assam) from the specified territory i.e., present day Bangladesh after 25.03.1971. 10. In her written statement filed before the Tribunal, petitioner stated that her father was Nimai Miah of village - Kukarpar. Father was a voter in 1965 in respect of Sarukhetri Constituency. His name was enlisted in the National Register of Citizens (NRC), 1951. Petitioner married Saijuddin Ahmed of village - Hirajani under Hajo Police Station in the district of Kamrup. Post marriage, she became a voter in 1977, 2010 and 2015. 11. Thus from the written statement filed by the petitioner what is discernible is that according to the petitioner, her father was Nimai Miah and he was a citizen of India; being his daughter, she was therefore a citizen of India. 12. Let us now examine whether petitioner could prove the above facts in issue by adducing cogent, reliable and admissible evidence. 13. Petitioner filed her evidence-in-chief by way of affidavit narrating more or less the same thing as stated in the written statement. Here also petitioner mentioned that she was the daughter of Lt. Nimai Miah and further mentioned that Kaitarjan Nessa was her mother. But till this point of time, there was no disclosure as to the date or year of birth of the petitioner and consequently, her age on the date of filing the written statement or the date of filing the evidence-in-chief by way of affidavit remained undisclosed. 14. One Md. Ramesh Ali, Gaonburah of the village had deposed before the Tribunal. We will come to the deposition of the Gaonburah when we examine the certificate issued by him. 15. One Abdus Sattar also filed evidence-in-chief before the Tribunal in favour of the petitioner. However, he did not mention as to how he was related to the petitioner. 14. One Md. Ramesh Ali, Gaonburah of the village had deposed before the Tribunal. We will come to the deposition of the Gaonburah when we examine the certificate issued by him. 15. One Abdus Sattar also filed evidence-in-chief before the Tribunal in favour of the petitioner. However, he did not mention as to how he was related to the petitioner. Only thing he mentioned was that he was an aged person and a senior citizen of Kukarpar village and that he knew the father and mother of the petitioner. But in the introductory paragraph, he disclosed his age as 56 years. At the age of 56 years, a person is not considered to be a senior citizen in India. Be that as it may, here also he mentioned that petitioner's father was Nimai Miah. 16. Proceeding to the exhibits, we find that Ext-A is a certified copy extract of the voters list of 1997 in respect of Hajo Constituency where the two voters were Saijuddin Ahmed, son of Basiruddin Dewani, aged 26 years; and Romila Bibi, wife of Saijuddin Ahmed, aged 20 years. Likewise, Ext-B is a certified copy extract of the voters list of 2011 in respect of the said constituency where the sole voter was Romila Bibi, wife of Saijuddin Ahmed, aged 32 years. Ext-D is a voters list extract of 2015 and Ext-E is a voters list extract of 2005 where the sole voter was Romila Bibi, wife of Saijuddin Ahmed. 17. Pausing here for a moment, we may mention that these four exhibits can be of no assistance to the petitioner inasmuch as it does not indicate any linkage between Romila Bibi on the one hand and Nimai Miah on the other hand. Ext-C is a voters list extract of 1965 in respect of Sorukhetri Constituency. Here the two voters were Nimai Mia, son of Ainuddin, aged 30 years; and Kaitorjan Nessa, wife of Nimai Mia, aged 22 years. They were shown as residents of village - Kukarpar under Barpeta Police Station. 18. According to the petitioner, Nimai Miah, as appearing in Ext-C, was her father. 19. This brings us to Ext-F certificate dated 04.11.2015, issued by one Md. Ramesh Ali, Gaonburah certifying that Ramila Bibi was the daughter of Nimai Chan of Kukarpar village under Sarthebari Police Station and that she was personally known to him. 18. According to the petitioner, Nimai Miah, as appearing in Ext-C, was her father. 19. This brings us to Ext-F certificate dated 04.11.2015, issued by one Md. Ramesh Ali, Gaonburah certifying that Ramila Bibi was the daughter of Nimai Chan of Kukarpar village under Sarthebari Police Station and that she was personally known to him. She had married Saijuddin of Hirajani Koripar village under Hajo Police Station. Md. Ramesh Ali deposed as a witness in favour of the petitioner. In his deposition, he stated that father of the petitioner was Nimai Mia. He also stated that petitioner had married Saijuddin Ahmed of village - Hirajani. He stated that Ext-1(a) was his signature. He identified the signature in Ext-F as that of his. According to Md. Ramesh Ali, the statements made by him were true to the best of his knowledge and belief. 20. It is trite that documentary evidence would have to be proved on the basis of the record and the contemporaneous record must substantiate and prove the contents of the document. Proof of document is one thing and proof of contents is another. Not only the document would have to be proved but its contents would also have to be proved. That apart, the truthfulness of the contents of the document would also have to be established from the record. A document or the contents of the document cannot be proved on the basis of personal knowledge. In so far Ext-F document vis-a-vis the petitioner is concerned, Nimai Miah was a resident of Kukarpar village. Petitioner after her marriage with Saijuddin had left the said village and started residing at village Hirajani under Hajo Police Station. When the petitioner got married and since when she had been residing at village - Hirajani has not come on evidence. When the petitioner was not a resident of village - Kukarpar on the date when the Gaonburah had issued the certificate, Gaonburah could have issued the certificate only on the basis of the record maintained in his office. We also do not know what happened to Nimai Miah after his name appeared in one of the documents i.e., voters list of 1965 (Ext- C). Nimai Miah was 30 years of age in 1965 and in the ordinary course, he would have been around much beyond 25.03.1971. We also do not know what happened to Nimai Miah after his name appeared in one of the documents i.e., voters list of 1965 (Ext- C). Nimai Miah was 30 years of age in 1965 and in the ordinary course, he would have been around much beyond 25.03.1971. From the voters list of 1997 (Ext-A), we find that Ramila Bibi was 20 years of age. This is the first time the age of the petitioner has come on record. If Ramila Bibi was 20 years of age in 1997, she would have born in the year 1977, which means that her father ought to have been alive atleast till 1976. Therefore, on the basis of the testimony of Md. Ramesh Ali, as discussed above, it cannot be said that Ext-F was proved. Besides, there is unauthorised use of the State Emblem of India by the Gaoburah which has rendered Ext-F inadmissible in evidence. Under the State Emblem of India (Regulation of Use) Rules, 2007, Gaonburah is not authorised to use the State Emblem of India in any manner. If Ext-F is excluded from consideration, there is nothing on record to establish that Ramila Bibi or Ramila Khatun was the daughter of Nimai Miah of Ext-C (1965). We notice that at that stage, petitioner had introduced Ext-G, an affidavit sworn by the petitioner on 06.05.2016 stating that her father's actual name was Nimai Chan but in the documents, it was wrongly mentioned as Nimai Miah or Nimai Sheikh. Nimai Chan, Nimai Miah and Nimai Sheikh was one and the same person. 21. Such a self-serving suo-moto affidavit is neither proof nor evidence in the light of sections 1 and 3 of the Indian Evidence Act, 1872 and Order 19, Rule 1 of the Civil Procedure Code. Even then here also petitioner did not mention as to what was her age. 22. Be that as it may, on the basis of the above, 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. We, therefore, do not find any good ground in the writ petition, which is accordingly dismissed. 23. Interim order passed earlier stands vacated. 24. 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. We, therefore, do not find any good ground in the writ petition, which is accordingly dismissed. 23. Interim order passed earlier stands vacated. 24. 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. 25. Copy of this order be furnished to learned Standing Counsel, Election Commission of India and State Coordinator, NRC.