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2019 DIGILAW 1014 (GAU)

Noor Jahan Khatun v. Union Of India

2019-09-10

KALYAN RAI SURANA, MANOJIT BHUYAN

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JUDGMENT : K.R. Surana, J. Heard Mr. A.H. Alamgir, the learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel for respondent no.1 and Mr. A. Kalita, learned Standing counsel, Foreigners Tribunal for the respondents no.2 to 5. 2. By this writ petition filed under Article 226 of the Constitution of India, the petitioner has challenged the opinion dated 31.05.2017 passed by the learned Member, Foreigners Tribunal No. 7th, Nagaon at Lanka in F.T. Case No. 337/2016 arising out of I.M. (D)T. Case No.117/2002, whereby the petitioner was declared as a foreigner who had entered India after 25.03.1971. 3. Referring to the written statement and evidence- on- affidavit filed by the petitioner, the learned counsel for the petitioner has submitted that the petitioner was born and brought up in Village- Pachim Dablong, P.S. Lanka. The petitioner has projected that Boshir Uddin and Juleka Bibi are her parents and that her father's name appeared in the Voters list of 1966 and 1970. She also projects that her name had been enrolled in the voters list of 1996 and 2011. In order to establish the link of the petitioner with her parents, the learned counsel for the petitioner has referred to the Marriage Certificate issued by the Secretary of Laskar Pathar G.P., which was countersigned by the BDO, Dalpukhuri. It is submitted that the learned Tribunal had failed to consider the documentary evidence available on record and that the marriage certificate (Ext.5), Gaonbura's Certificate (Ext.6) and jamabandi (Ext.9) were wrongly discarded and, as such, by not considering the evidence available on record, the petitioner has been declared as a foreigner. Hence, it is submitted that the impugned opinion be set aside and quashed and that the petitioner be declared as an Indian citizen. 4. Considered the submissions of the learned counsel for the appearing parties and perused the records received from the learned Tribunal. It is seen that in support of her case, the petitioner has examined two witnesses, including herself (DW-1) and one Samir Uddin, her purported brother (DW-2), and she has exhibited the following documents, viz., voters list of 1966 (Ext.1), voters list of 1970 (Ext.2), voters list of 1996 (Ext.3), voters list of 2010 (Ext.4), marriage certificate (Ext.5), residency certificate issued by the Govt. Gaonbura (Ext.6), land revenue receipts dated 21.12.1989 and 22.09.1994 (Ext.7 and 8), copy of jamabandi (Ext.9). Gaonbura (Ext.6), land revenue receipts dated 21.12.1989 and 22.09.1994 (Ext.7 and 8), copy of jamabandi (Ext.9). It may be pertinent to mention herein that the copy of jamabandi that is annexed to this writ petition as Annexure-F (pp.23-24) does not match with the document marked in the record as Ext.9. Ordinarily, we would have dismissed the writ petition for misleading the Court by annexing incorrect document in the writ petition, but as the petitioner has raised the issue of his claim of citizen of the Country, we have refrained from doing so. 5. As per statements made in paragraph 11 and 12 of her written statement filed on 07.04.2016, the petitioner had stated that her name was enlisted in the voters list of the year 1996 and 2011. The age of the petitioner as disclosed in her evidence- on- affidavit is 47 years as on 19.07.2016, as such, she would be eligible to exercise her right of franchise in the year 1989 on attaining the age of 18 years, but no voters list containing the name of the petitioner has been exhibited and proved by the petitioner. The voters list of 2010 (Ext.4) does not contain the name of the petitioner and that in the written statement filed by the petitioner, she has not made any mention about the persons whose names appear in the voters list of the year 2010. Thus, the voters list of 1966 (Ext.1) and 1970 (Ext.2) are stand-alone documents, which is yet to be connected. 6. Hence, it is required to be examined whether the marriage link certificate dated 29.06.2015 issued by Secretary of Laskar Pathar Gaon Panchayat (Ext.5), Gaonbura's certificate (Ext.6), land revenue paid receipts (Ext.7 & 8), and jamabandi (Ext.9) can successfully link the petitioner with her projected parents. It is seen that the petitioner has not examined the authors of marriage certificate (Ext.5) and residency certificate issued by Govt. Gaonbura (Ext.6), as such, both the documents stand “not proved”. Land revenue paid receipts (Ext.7 & 8) are dated 21.12.1989 and 22.09.1994 respectively, which record that revenue was paid by one “Md. Khod” on behalf of “Md. Boshir Uddin Shekh Goi:” and that both names find no mention in the written statement filed by the petitioner. Gaonbura (Ext.6), as such, both the documents stand “not proved”. Land revenue paid receipts (Ext.7 & 8) are dated 21.12.1989 and 22.09.1994 respectively, which record that revenue was paid by one “Md. Khod” on behalf of “Md. Boshir Uddin Shekh Goi:” and that both names find no mention in the written statement filed by the petitioner. In so far as the jamabandi (Ext.9) is concerned, it is seen that it pertains to total land measuring 9B-3K-3L, covered by Dag No. 102,98 and 99 of Patta No. 70 of Village- Paschim Dablong, but the same does not contain either the name of the petitioner i.e. Musstt. Noor Jahan Khatun or her projected father i.e. Boshir Uddin. However, in the copy of jamabandi annexed to the writ petition as Annexure-F, it is not the exhibited document. The annexed jamabandi is in respect of same land, but the document is of the year 1968-69, containing the name of Boshir Uddin, son of Kajimuddin, as such, Annexure-F to the writ petition is a different than Ext.9, which is prepared in different point of time. It is for the said precise reason that we had indicated herein above that had the claim of citizenship not been the issue herein, we would have ordinarily dismissed the writ petition for misleading the Court by annexing a document in this writ petition that was not exhibited before the learned Tribunal. 7. Having dealt with the various exhibited documents, we have examined the evidence tendered by Samir Uddin (DW-2). It is seen that the petitioner has not stated in her written statement or in her evidence- on- affidavit sworn on 19.07.2016 that she has any brother by the name of Samir Uddin. Moreover, DW- 2 has stated in his evidence- on-affidavit sworn on 22.05.2017 that his age was 65 years, as such, he would have born on or about the year 1952 and he had attained the voting age of 21 years in or about the year 1973. However, as per voters list of 2010 (Ext.3), age of Samir Uddin is mentioned as 53 years, which would lead to inference that the person was born in or about the year 1957, which does not tally with age of the petitioner declared in his evidence- on- affidavit. However, as per voters list of 2010 (Ext.3), age of Samir Uddin is mentioned as 53 years, which would lead to inference that the person was born in or about the year 1957, which does not tally with age of the petitioner declared in his evidence- on- affidavit. As the petitioner has not made any mention that she has a brother, the sudden appearance of DW-2, the evidence tendered as the brother of the petitioner cannot be relied upon to link the petitioner with her projected father. 8. Thus, the petitioner has not been able to link herself with her projected parents, whose names are appear in voters list of 1966 and 1970. Thus, there are no grounds on which the opinion impugned herein is liable to be interfered with. 9. The primary issue in a proceeding under the Foreigners Act,1946 and the Foreigners (Tribunals) Order,1964 relates to determination as to whether the proceedee is a foreigner or not. Therefore, as the relevant facts are within the knowledge of the proceedee, notwithstanding anything contained in the Evidence Act,1872, the burden of proving citizenship absolutely rests upon the proceedee as per the provisions of Section 9 of the Foreigners Act,1946. In the present case in hand, the petitioner has failed to discharge the burden and to prove that she is an offspring of parents of Indian origin. 10. In light of discussions above, this Court does not find that the impugned opinion rendered by the learned Tribunal is vitiated by any jurisdictional error or that there was any failure of giving opportunity of hearing to the petitioner. Therefore, as the Court is exercising supervisory jurisdiction and not appellate jurisdiction, no case is made out for substituting the opinion rendered by the learned tribunal with the view of the Court. This is not a case where the learned Tribunal had refused to admit admissible evidence or that its finding is dehors the evidence on record. 11. Hence, this writ petition fails and the same is dismissed, leaving the parties to bear their own cost. 12. A copy of this order may be made a part of the records of the learned Tribunal for future reference. The case records of the Tribunal be returned.