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2019 DIGILAW 1 (GAU)

Anima Das v. Union of India

2019-01-03

ACHINTYA MALLA BUJOR BARUA, PRASANTA KUMAR DEKA

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JUDGMENT : A.M. BUJOR BARUA, J. 1. Heard Mr. S Banik, learned counsel for the petitioner. Also heard Mr. A Ali, learned counsel for the Election Commission of India, Mr. J Payeng, learned standing counsel for the State of Assam appearing for the Foreigners Tribunal and Border Affairs, Ms. A Verma, learned standing counsel for the authorities under the NRC as well as Ms. G Sarma, learned counsel for the authorities under the Union of India. 2. The petitioner was initially referred under the Illegal Migrants (Determination by Tribunal) Act, 1983 (for short, the Act of 1983) resulting in IMDT Case No.1766/2003 before the IM(D)T, Nalbari. Upon the Act of 1983 being declared ultra vires by the Supreme Court, the reference against the petitioner was transferred to the Foreigners Tribunal at Nalbari and renumbered as F.T.(Nal) B.Case No.807/2007(old). Thereupon on bifurcation of the Nalbari district resulting in the creation of Baksa district, the reference against the petitioner was again transferred to the Foreigners Tribunal at Baksa at Tamulpur and further renumbered as in FT Case No.325/ Baksa/2015. 3. The reference against the petitioner was given a final consideration by the Foreigners Tribunal at Baksa as per the order dated 23.11.2016 by which an opinion was given that the petitioner is a foreigner and had entered India after 25.03.1971 without any valid document and without any authority. The order of 23.11.2016 of the Foreigners Tribunal Baksa in F.T.Case No.325/Baksa/2015 has been assailed in the present writ petition. 4. Before the Foreigners Tribunal at Baksa, the petitioner took a stand in her written statement that she is a citizen of India by birth and she was born in village Nakhola Grant, PS Morigaon in the district of Morigaon on 16.11.1966 and that the name of her father was Late Kunja Mohan Das, which finds place in the voters list of 1965 under No.82 Morigaon Legislative Assembly Constituency, bearing Sl. No.58, House No.17. 5. A further stand has been taken that in the voters list of 1965, the name of the father of the petitioner was recorded as Kunja Das. In order to substantiate that Kunja Das whose name appears in the voters list of 1965, is the father of the petitioner, a school transfer certificate dated 30.08.1993 issued by the Headmaster of NF Railway High School Jagiroad was exhibited as Ext.2 before the Tribunal. 6. In order to substantiate that Kunja Das whose name appears in the voters list of 1965, is the father of the petitioner, a school transfer certificate dated 30.08.1993 issued by the Headmaster of NF Railway High School Jagiroad was exhibited as Ext.2 before the Tribunal. 6. Against the order dated 23.11.2016 of the Foreigners Tribunal at Baksa, a review petition being Misc. Case No.01/Baksa/2018 was also preferred which was given a final consideration by the order dated 17.04.2018. In the order of 17.04.2018, the Tribunal had rejected the review preferred by the petitioner on the ground that there was a delay of 473 days in preferring the same, in a situation where firstly there was no prayer for condoning the delay and secondly a proceeding under the Foreigners Tribunals Order, 1964 being a summary proceeding there is no provision for condoning the delay. 7. In the review, the petitioner had taken a further stand by producing a certificate of the Headmaster dated 30.04.2018 that the date mentioned in the transfer certificate dated 30.08.1993 providing that she had left the school on 31.12.1993 was wrongly mentioned and instead the date of her leaving the school was 31.12.1984. The order dated 17.04.2018 in the Misc.Case No.01/Baksa/2018 has also been assailed in the present writ petition. 8. Both in the original order dated 23.11.2016 as well as in the review order dated 17.04.2018, the transfer certificate dated 30.08.1993 as stood corrected by the later certificate dated 30.04.2011, which was relied upon by the petitioner to establish that her father is Kunja Das whose name appeared in the voter's list of 1965, stood rejected on the ground that the petitioner had failed to examine the concerned Headmaster of the school who was the author of the certificate. 9. In the present writ petition, the petitioner takes the ground that the rejection of the certificates issued by the Headmaster of the school by the Foreigners Tribunal at Baksa is incorrect and that the contents of the certificate by itself discharges the burden of proving that the petitioner is a citizen of India, inasmuch as, the name of her father finds place in the voters list of 1965 in respect of No.82 Baksa Legislative Assembly Constituency. 10. 10. In view of such ground being taken, the question for determination in the present writ petition would be as to whether the Foreigners Tribunal, Baksa was right in rejecting the two certificates produced by the petitioner to establish that Kunja Das/ Kunja Mohan Das is the father of the petitioner and further as to whether a writ in the nature of certiorari would be justified in the present case in view of the law laid down by the Full Bench of this Court in State of Assam vs. Moslem Mondal reported in, (2013) 1 GauLT 809 . 11. Admittedly the two certificates dated 30.08.1993 and 03.04.2018 are both issued by the Headmaster of the school. The certificates so issued were not accepted by the Foreigners Tribunal, Baksa for the reason that the Headmaster of the school who had issued the two certificates was not examined. 12. The law as regards the acceptability and legality of a certificate issued by a school authority had been considered by the Supreme Court in its judgment rendered in Ram Suresh Singh –vs Prabhat Singh alias Chotu Singh and another reported in, (2009) 6 SCC 681 , wherein in paragraph-12 it had been held as follows:- "12 ................... An entry in a school register may not be a public document and, thus, must be proved in accordance with law, as has been held by this Court in Birad Mal Singhvi, but in this case the said entry has been proved." 13. In Birad Mal Singhvi vs. Anand Purohit reported in, AIR 1988 SC 1796 , in paragraph, in respect of certain school registers and other documents being produced as Exhibits-8, 9, 10, 11 and 12, it was held that merely because the documents Exhibits 8, 9, 10, 11 and 12 were proved, it does not mean that the contents of the documents were also proved. It was further held that mere proof of the documents Exhibits-8, 9, 10, 11 and 12 would not tantamount to a proof of all the contents stated in the documents. 14. It was further held that mere proof of the documents Exhibits-8, 9, 10, 11 and 12 would not tantamount to a proof of all the contents stated in the documents. 14. Again in respect of a certificate issued by the school authorities just a few days prior to the date of superannuation of the person who had issued the certificate, a view was taken by the Supreme Court in paragraph-9 of Union of India and others vs. Kantilal Hematram Pandya reported in, (1995) 3 SCC 17 that the document appeared to have been brought into existence for the benefit of the pending proceedings therein and therefore the concerned certificate was rightly not relied upon. 15. From the aforesaid propositions, it can be culled out that in respect of school records being produced as evidence: (i) An entry in school register may not be a public document and thus must be proved in accordance with law; (ii) Merely because documents pertaining to school records had been exhibited and proved, it by itself does not mean that the contents of the documents were also proved and a mere proof of the school records which are exhibited would not tantamount to a proof of all the contents of such school records. 16. In the Major Law Lexicon 4th Edition by P. Ramanatha Aiyar, a 'certificate' is defined in a very lucid manner to be as follows:- "A writing by which an officer or other person bears testimony that a fact has or has not taken place; a written testimony to the truth of any fact; a writing so signed and authenticated as to be legal evidence; a writing by which testimony is given that a fact has or has not taken place. A certificate, ex vi termini, imports that the party certifying knows the fact that he certifies." 17. From the aforesaid proposition, the following can be called out in respect of a certificate: (i) a certificate is a mere testimony that a fact has or has not taken place, which is signed and authenticated to be a legal evidence and which imports that the party certifying knows the fact that he certifies. From the aforesaid proposition, the following can be called out in respect of a certificate: (i) a certificate is a mere testimony that a fact has or has not taken place, which is signed and authenticated to be a legal evidence and which imports that the party certifying knows the fact that he certifies. (ii) the very aspect that the certificate imports that the party certifying knows the fact that he certifies also imports a corollary burden that the party certifying has to demonstrate through acceptable evidence as regards the source of his knowing the fact i.e. if the source is his knowledge, to bring on record as to from where he had acquired the knowledge and if it is from record, to exhibit and prove the record. 18. In view of the aforesaid proposition of law laid down by the Supreme Court as regards the entry in a school register and the meaning and purport of a certificate as indicated above, the view taken by the Foreigners Tribunal, Baksa that the two certificates dated 30.08.1993 and 03.04.2018 cannot be relied upon for establishing that Kunja Das/Kunja Mohan Das was the father of the petitioner inasmuch as, the Headmaster of the concerned school, who had issued the certificates was not examined, cannot be said to be an incorrect and unacceptable reasoning. 19. As the conclusion arrived is that the view taken by the Foreigners Tribunal, Baksa cannot be stated to be an incorrect view, a further question would remain as to whether the two orders of the Foreigners Tribunal, Baksa dated 23.11.2016 and 17.04.2018 can still be interfered in exercise of the certiorari jurisdiction under Article 226 of the Constitution of India. 20. In this respect reliance is placed on the on the proposition laid down by the Full Bench of this Court rendered in State of Assam vs. Moslem Mondal reported in, (2013) 1 GauLT 809 , wherein the scope of an interference of the orders of the Foreigners Tribunals in exercise of the certiorari jurisdiction under Article 226 of the Constitution of India had been provided, which is as follows:- ".............. Such error should not require any extraneous matters to show its incorrectness. Such error may include giving reasons that are bad in law or inconsistent, unintelligible or inadequate. Such error should not require any extraneous matters to show its incorrectness. Such error may include giving reasons that are bad in law or inconsistent, unintelligible or inadequate. It may also include the application of a wrong legal test to the facts found, taking irrelevant consideration into account and failing to take relevant consideration into account, and wrongful admission or exclusion of evidence as well as arriving at a conclusion without any supporting evidence. Such a writ can also be issued when there is an error in jurisdiction or authority whose order is to be reviewed has acted without jurisdiction or in excess of its jurisdiction or has failed to exercise the jurisdiction vested in him by law." 21. By taking a view that the certificates issued by the Headmaster of the school dated 30.08.1993 and 03.04.2018 cannot be relied upon to arrive at a conclusion that Kunja Das/Kunja Mohan Das is the father of the petitioner and in the absence of examination of the concerned Headmaster, it cannot be held that the Foreigners Tribunal had given a reason that is bad in law, inconsistent, unintelligible or inadequate. Neither, it can be said in view of the proposition laid down by the Supreme Court in Ram Suresh Singh (supra) and Birad Mal Singhvi (supra) that the said reasoning was arrived at by application of a wrong legal test or by taking irrelevant consideration into account or failing to take relevant consideration into account or that it had occasioned a wrongful admission or exclusion of evidence or that a conclusion was arrived without any supporting evidence. Nor it can be said that the Tribunal had acted in excess of its jurisdiction or had failed to exercise the jurisdiction vested in it or that there is an error in jurisdiction or authority while taking such a view. 22. In view of the above and by taking into consideration the extent of the certiorari jurisdiction under Article 226 of the Constitution of India as provided by the Full Bench in Moslem Mondal (supra), we are of the view that no case has been made out by the petitioner for interfering with the orders dated 23.11.2016 of the Foreigners Tribunal, Baksa in FT Case No.325/BAKSA/2015 and dated 17.04.2018 in Misc Case No. 01/BAKSA/2018 in exercise of the certiorari jurisdiction under Article 226 of the Constitution of India. 23. 23. In view of the above, the writ petition is devoid of any merit and the same is accordingly dismissed. However, no order as to cost. 24. The LCR be sent back. 25. The respondent authorities would be at liberty to act in accordance with law as required by the aforesaid two orders dated 23.11.2016 and 17.04.2018 of the Foreigners Tribunal, Baksa.