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2019 DIGILAW 1040 (GAU)

Hasina Begum @ Khusbura Begum v. Union Of India

2019-09-12

KALYAN RAI SURANA, MANOJIT BHUYAN

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JUDGMENT : K.R. Surana, J. Heard Mr. U. Dutta, learned counsel for the petitioner. Also heard Mr. J. Payeng, learned standing counsel for the respondents No. 2 and 3 as well as Ms. A. Borgohain, learned standing counsel appearing for respondent No.4. None appears for respondent No.1. 2. By this writ petition filed under Article 226 of the Constitution of India, the petitioner has assailed the opinion dated 29.08.2018, passed by the learned Member, Foreigners Tribunal, Tezpur (1st), Sonitpur, Assam, by which the petitioner, namely, Musstt. Hasina Begum was declared to be a foreigner of post 24.03.1971. 3. The learned counsel for the petitioner has submitted that the petitioner has projected Md. Sofi and Khurma Begum as her grand-parents, of Narahiloidari Village under Teok Police Station of erstwhile Sivasagar District, whose names appeared in the voters list of 1966. It is projected that the grand-father of the petitioner had four sons, namely, (i) Majidur Rahman, (ii) Hussain Ali, (iii) Habibur Rahman, and (iv) Fajar Ali. The petitioner projects that Fajar Ali, her father shifted from Narahiloidari Village to Village-Naosolia under Dergaon P.S. and his name was enrolled in the voters list of 1989. The petitioner was born in the year 1979 and her name was recorded in Moabund Tea Garden High School as Khusbura Begum, where she studied upto Class X and she left the school in the year 1995. It is projected that in or around the year 1999- 2000, the father of the petitioner shifted with his family from Village-Naosolia to Village- Harigaon under Mahabhairab P.S. in Sonitpur District and the name of her father was enrolled in the electoral Roll of constituency No. 73 Tezpur LAC and he was issued a Elector Voter Identity Card. The father of the petitioner had expired on 05.03.2018. The petitioner was married to Khajaluddin Ahmed of Harigaon and the name of the petitioner appeared in the voters list of 2008. It is submitted that in order to prove her citizenship, the petitioner had exhibited sufficient documents. The learned counsel for the petitioner has submitted that the impugned opinion is arbitrary, unfair, unreasonable and violative of the petitioner's fundamental right. Accordingly, it is submitted that the impugned opinion be set aside and quashed and that the petitioner be declared as an Indian citizen. 4. The learned counsel for the petitioner has submitted that the impugned opinion is arbitrary, unfair, unreasonable and violative of the petitioner's fundamental right. Accordingly, it is submitted that the impugned opinion be set aside and quashed and that the petitioner be declared as an Indian citizen. 4. Having heard the learned counsel for the appearing parties, the records received from the learned Tribunal has been perused. It is seen that in order to prove her defence, the petitioner has examined four witnesses, viz., herself (DW-1), Ranjan Kumar Sarmah, Head Master of Moabund Tea Garden High School (DW-2) , Habibur Rahman, paternal uncle (DW-3), and Md. Jalal Uddin, younger brother of petitioner (DW-4), who did not appear for his cross-examination. The petitioner had exhibited the following documents, viz., School Certificate in the name of Khusbura Begum, wherein the date of birth is recorded as 31.12.1979 and that she had left the school on 31.12.1995 (Ext.-A); electoral roll of 1989 of Village-Naosolia, containing the name of Fajur Ali (Ext.B); electoral roll of 1966 of village-Narahiloidari, containing the name of Khurma Begum, wife of Md. Safi (Ext.C); affidavit dated 12.11.2013 by the petitioner declaring that Hasina Begum and Khushbuara Begum are both her name (Ext.D); voters list of 2008 of village Harigaon containing the name of the petitioner as Musstt. Hasina Begum, wife of Md. Khajauddin Ahmed (Ext.E); Elector Photo Identity Card of Habibur Rahman, son of Chafukur Rahman (Ext.F); Elector Photo Identity Card of Fajar Ali, son of Chafi Ali (Ext.G); Elector Photo Identity Card of Jalal Uddin Ali, son of Fajar Ali (Ext.H); Admission Register of Moabund Tea Garden High School (Ext.1), containing the page where name of Khusbura Begum appears [Ext. 1(1) and Ext.1(2)]. 5. On a perusal of School Certificate dated 18.11.2013 (Ext.A), it appears that it contains entry to the effect that the said certificate was issued to Khusbura Begum, daughter of Md. Fajar Ali, inhabitant of Naosolia Gejini Chapori, P.O. Satria. In paragraph 6 of the written statement filed on 06.08.2013, the petitioner has stated that she was born and brought up in Village-Narahiloidari, P.S. Teok, Mouza- Holongapara, Dist. Sivasagar, but due to financial hardship, her father had to move to Sonitpur District. However, in the contrary, in paragraph 1 of her examination- in- chief, the petitioner has stated on oath that she was born and brought up in Naosolia Grazing Chaparral. Sivasagar, but due to financial hardship, her father had to move to Sonitpur District. However, in the contrary, in paragraph 1 of her examination- in- chief, the petitioner has stated on oath that she was born and brought up in Naosolia Grazing Chaparral. Moreover, in the written statement, the petitioner has not disclosed that she had ever resided in the Naosolia Gejini Chapori village or that she had studied in Moabund Tea Garden High School. Further, on a perusal of the Ext.1 it is seen that as per the same, the petitioner was admitted in the said school on 14.01.1993 and in the register, the father's name of Khusbura Begum was written as Sit. Fazrauddin Ahmed, but the original entry was struck- off and instead, the name of Fajar Ali is written. It appears that the corrections were made on 18.11.2013 and the signature of person carrying out the corrections appears to be similar to the signature of the DW-2, i.e. Head Master of the Moabund Tea Garden High School. Thus, the correction of name of the father of the petitioner appearing in the school admission register was made on the date on which the certificate (Ext.A) was issued. Thus, in the absence of any disclosure in the written statement that the petitioner or her father had resided in the Naosolia Gejini Chapori village or that she had studied upto Class-X in Moabund Tea Garden High School, the school certificate (Ext.A) as well as the admission register [Ext.1, Ext.1(1) and Ext.1(2)], prima facie, appears to be not reliable. 6. As per the voters list of 2008, the petitioner's age is 28 years. Thus, she appears to be born in or about the year 1980 and accordingly, she became eligible to vote in the year 1998, but the petitioner has not produced and exhibited any voters list from 1998 to 2009 containing her name with her projected parents. There is no voters list containing the name of grand-father and grand-mother together, or the parents of the petitioner with her grand-parents together. In the voters list of 1966 (Ext.C), it is of Village- Narahiloidari and only the name of projected grand-mother appears and her husband's name is Md. Safi (or Md. Chafi), but the voters list of 1989 is of village- Naosolia, containing the name of Fajur Ali, son of Safi (or Chafi). In the voters list of 1966 (Ext.C), it is of Village- Narahiloidari and only the name of projected grand-mother appears and her husband's name is Md. Safi (or Md. Chafi), but the voters list of 1989 is of village- Naosolia, containing the name of Fajur Ali, son of Safi (or Chafi). Although in the written statement it was projected that the name of her father was enrolled in the electoral Roll of constituency No. 73 Tezpur L.A.C., but only voter list as exhibited by the petitioner containing the name of her father is of 1989 (Ext.B), but it is of 97- Dergaon (S.C.) L.A.C. The said voters list contains only one name although as per the written statement, the father of the petitioner had shifted to village-Naosolia with his family, but no voters list is produced which contains the name of the projected father of the petitioner with any of his family members or with the projected uncle (DW-3) and projected brother (DW-4). The petitioner has also not produced any voters list containing the name of her grand-parents with the projected uncle (DW-3). It may be pertinent to mention herein that although the DW-4 had submitted his evidence-on-affidavit, wherein he had projected to be the younger brother of the petitioner, but he did not appear for his cross examination and, as such, his evidence is deemed to have been expunged. It may also be mentioned herein that in her written statement, the petitioner has not stated about the existence of her siblings or about the siblings of her father and, as such, in view of the discussions above, the sudden appearance of DW-3 and DW-4 is not trustworthy. 7. In the written statement, the petitioner has mentioned that the Govt. of India has issued a Permanent Retirement Account number for retirement benefits to be given by the Central Govt., but the petitioner has not exhibited any document to prove the said statement. 8. Thus, in light of the discussions above, the petitioner has not been able to satisfy the Court regarding the existence of any document, which links her to her projected parents or with her projected grand-parents, or any document to link her projected uncle (DW-3) and/or projected brother (DW-4) with their respective parents or with the petitioner. 8. Thus, in light of the discussions above, the petitioner has not been able to satisfy the Court regarding the existence of any document, which links her to her projected parents or with her projected grand-parents, or any document to link her projected uncle (DW-3) and/or projected brother (DW-4) with their respective parents or with the petitioner. Thus, we are of the considered opinion that the petitioner has not been able to demonstrate that the impugned opinion is arbitrary, unfair, unreasonable and violative of the petitioner's fundamental right. Thus, the challenge to the impugned opinion is not found sustainable on facts and in law. 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. The Registry shall return the records received from the Foreigners Tribunal, Tezpur 1st, Sonitpur. A copy of this order shall be made a part of the records of F.T. Case No. 248/2012 for future reference.