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2019 DIGILAW 1018 (GAU)

Musstt Khadeja Begum v. Union Of India

2019-09-10

KALYAN RAI SURANA, MANOJIT BHUYAN

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JUDGMENT : Kalyan Rai Surana, J. Heard Mr. U. Dutta, the learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel for respondent No.1 and Mr. U.K. Nair, learned Standing counsel, Foreigners Tribunal for the respondents no.2 to 7. 2. By this writ petition filed under Article 226 of the Constitution of India, the petitioner has challenged the impugned order dated 20.09.2017 passed by the learned Member, Foreigners Tribunal No.5th, Goalpara, Assam in F.T. Case No. F.T/5/141/ MA/16 whereby the petitioner was declared a foreigner who illegally entered into India on or after 25.03.1971. 3. The learned counsel for the petitioner has referred to the written statement filed by the petitioner and it is submitted that the petitioner was born and brought up in Village- Bhatnapaitir Char (Narener Char), P.S. Baghbar, Dist. Barpeta. The petitioner has projected that Rusul Uddin and Sukhjan Nessa are her parents, whose names appeared in the voters list of 1966,1970,1997, and 2005. It is claimed that in the voters list, the names of the petitioner appeared differently. In the voters list of the year 1966 it appeared as Rusul Uddin, father- Mobarak and Sukhjan Nessa, husband- Rusul, in respect of villageBhatnapaitir Char. In voters list of 1970, their names appeared as Rusul Uddin, fatherMobarak and Sukhjan Nessa, husband- Rusul in respect of Village- Bhatnapaitir Char. In voters list of 1997, their names appeared as Rosul Uddin, father- Mobarak Ali Munchi and Sukhjan Nessa, husband- Rosul Uddin in respect of Village- 138 Pakhiura. In voters list of 2005, their names appeared as Rosul Uddin, father- Mobarak Ali and Sukhjan Nessa, husband- Rosul Uddin in respect of Village- 138 Pakhiura. The petitioner had stated that her parents had shifted their residence from Village- Bhatnapaitir Char to Village- 138 Pakhiura. The petitioner also projects that she was married to Abu Taher of Village- Uzirar Char, P.S. Alopati Char, Dist. Barpeta, Assam and she had shifted to her matrimonial home. Thereafter, her husband had shifted to Village- Bakaitari Pt.III, P.S. Matia, Dist. Goalpara and that the name of the petitioner had appeared in the voters list of 2016 along with her husband. Barpeta, Assam and she had shifted to her matrimonial home. Thereafter, her husband had shifted to Village- Bakaitari Pt.III, P.S. Matia, Dist. Goalpara and that the name of the petitioner had appeared in the voters list of 2016 along with her husband. The learned counsel for the petitioner has submitted that the learned Tribunal had failed to consider the oral and documentary evidence on record and had whimsically passed the impugned opinion by taking a hyper- technical view by taking into account minor discrepancy in the names and age of persons recorded in the voters list. It is submitted that for no apparent reason, the evidence tendered by the father of the petitioner as DW-2 was ignored. Accordingly, the learned counsel for the petitioner had prayed for dismissing the impugned order as she had never entered India illegally and that the proceeding has been brought falsely against her. 4. Upon hearing the learned counsel for the appearing parties, the materials available in the records including the records called for from the learned Tribunal has been perused. It is seen that in support of her defence, the petitioner has examined - witnesses, including herself (DW-1), Rusul Uddin, the projected father (DW-2), Akkabar Ali, cousin brother (DW-3) and she had exhibited 4 documents, viz., (i) the electoral roll of 1966 of Village- Bhatnapaitir Char containing the name of grand-parents and parents of the petitioner (Ext.A), (ii) electoral roll of 1970 of Village- Bhatnapaitir Char containing the name of grandparents and parents of the petitioner (Ext.B), (iii) school certificate of the petitioner dated 08.12.2012, issued by Head Teacher of 158 No. Pub- Pakhiura L.P. School (Ext.C), and (iv) the Gaon Panchayat issued by the Secretary of 51 No. Baladmari G.P. (Ext.D). It is seen that the petitioner (DW-1) and her projected father (DW-2) had both exhibited Ext.A and Ext.B. The DW-3, who is projected to be cousin brother, has exhibited Ext.A, Ext.B, Ext.C and Ext.D. 5. It is seen that that along with her evidence- on- affidavit, the petitioner had annexed photocopy of voters list of 1997,2005 and 2016 as Annexures-I, II and III, but for reasons best known to the petitioner, those documents were not exhibited and/or proved by the petitioner. Hence, those un-exhibited documents cannot be looked into at this stage. 6. It is seen that that along with her evidence- on- affidavit, the petitioner had annexed photocopy of voters list of 1997,2005 and 2016 as Annexures-I, II and III, but for reasons best known to the petitioner, those documents were not exhibited and/or proved by the petitioner. Hence, those un-exhibited documents cannot be looked into at this stage. 6. It is seen that it is not the case projected in the written statement of the petitioner or in her evidence- on- affidavit that Akkabar Ali (DW-3) is the proper custodian of school certificate of the petitioner dated 08.12.2012, issued by Head Teacher of 158 No. Pub-Pakhiura L.P. School (Ext.C), and (iv) the Gaon Panchayat Certificate issued by the Secretary of 51 No Baladmari G.P. (Ext.D). Therefore, we have no hesitation to hold that the said Ext.C and Ext.D were not proved by examining their authors, as such, the said two exhibits carry no evidentiary value and accordingly, we are of the considered view that the voters list of 1966 and 1970 (Ext.A and Ext.B) remained as stand-alone documents, and that the petitioner had not been able to prove her linkage to her projected parents and grand-parents, whose name is claimed to appear in the said Ext.A and Ext.B. 7. The mere oral statement by DW-2 and DW-3 is not sufficient to prove that the petitioner was the daughter of DW-2 in the absence of any documentary evidence to establish such relationship. Thus, there are no grounds on which the opinion impugned herein is liable to be interfered with. 8. 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. 9. 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. 9. 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. 10. Hence, this writ petition fails and the same is dismissed, leaving the parties to bear their own cost. 11. Let the case records be returned to the learned Tribunal together with a copy of this order for future reference.