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2019 DIGILAW 1046 (GAU)

Sufia Khatun v. Union Of India

2019-09-16

KALYAN RAI SURANA, MANOJIT BHUYAN

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JUDGMENT : K.R. Surana, J. Heard Mrs. H. Ahmed, learned counsel for the petitioner. Also heard Ms. G. Hazarika, learned CGC for respondent No.1, Mr. U.K. Nair, Senior counsel, assisted by A. Kalita, SC for the respondents No.2, 4 and 6, Ms. A. Borgohain, learned SC for respondent No.3 and Ms. A. Verma, SC for respondent No.5. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has challenged the opinion dated 10.04.2019, passed by the learned Foreigners Tribunal-5th, Barpeta in Case No. FT (5th) 768/2016, corresponding to IMDT Case No. 5388/B/98, thereby declaring Sufia Khatun, the petitioner, to be a foreigner entering into Assam after 25.03.1971. 3. The learned counsel for the petitioner has referred to the written statement of the petitioner. It is submitted that the petitioner has projected that her father is Nayeb Ali and her mother is Saheran Nessa, whose names appear in the voters list of 1966 of Village-Malipara, Mouza-Chenga, PS-Tarabari of the then Kamrup District. She has stated that the name of her parents appears in the voters list of 1970 of Village-Baisha, Mouza-Sarukhetri, PS-Barpeta of the then Kamrup District, but the name of her mother wrongly appears as Sayeran Nessa instead of Saheran Nessa and that her father's age is wrongly mentioned as 60 years instead of 54 years and that her mother's age is wrongly mentioned as 50 years instead of 41 years. The petitioner has projected that her mother's name appears in the voters list of 1997 of Village-Baisha, but her age is wrongly mentioned as 24 years instead of 88 years. The petitioner has projected that she was born and brought up at Village-Baisha, Mouza-Sarukhetri, PO-Bagodi, PS-Sarthebari, Dist. Barpeta. The petitioner has projected that she is married to Nasrul Hoque and that she is now residing at Village-Balikuri, MouzaJania, PS-Kalgachia, Dist. Barpeta. it has been submitted that the name of the petitioners appeared in the voters list of 1989 of 44 No. Jania LAC in respect of Village-Balikuri, but her husband's name is wrongly mentioned as Nazrul Hoque instead of Nasrul Hoque. The petitioner has also projected that the name of her brother appears in voters list of 2010 of Village-Baisha. 4. In order to establish that she is not a foreigner, the petitioner has examined three witnesses including herself (DW-1), Babur Ali projected brother of the petitioner (DW2), and Mazuruddin, Govt. Gaonbura (DW-3). The petitioner has also projected that the name of her brother appears in voters list of 2010 of Village-Baisha. 4. In order to establish that she is not a foreigner, the petitioner has examined three witnesses including herself (DW-1), Babur Ali projected brother of the petitioner (DW2), and Mazuruddin, Govt. Gaonbura (DW-3). The petitioner had exhibited the following documents, viz., (i) voters list of 1966 of Village-Malipara, containing the names of (1) Nayeb Ali, (2) Hayet Ali, (3) Saheran Nessa, and (4) Lalman Nessa (Ext.A); (ii) voters list of 1970 containing the names of (1) Nayeb Ali, (2) Sayeran Nessa, and (3) Asrab Ali (Ext.B); (iii) voters list of 1989 of Village-Balikuri Nonke, containing the names of (1) Lal Bhanu Bidhaba, (2) Nazrul Hoque, and (3) Sufia Khatun (Ext.D); (iv) electoral roll of 1997 of Village-Baisha, containing the names of (1) Saheran Nessa, and (2) Babur Ali (Ext.D); (v) Electoral roll of 2010 of Village-Baysa, containing the name of Babar Ali (Ext.E); (vi) Family Identity Card in the name of Sufia Khatun (Ext.F); (vii) Certificate issued by Gaonbura of Village-Baisha (Ext.G); (viii) affidavit sworn by petitioner on 01.07.2017 to clarify about the discrepancy in the names (Ext.H); (ix) identity card of DW-2 admitted in evidence by Member, Foreigners Tribunal on 25.05.2018 (Ext.I); (x) identity card of DW-3 admitted in evidence by Member, Foreigners Tribunal on 13.12.2018 (also marked as Ext.I). 5. It is seen that in the written statement, the petitioner had not mentioned about the existence of a brother by the name of Babur Ali (DW-2). It is merely mentioned that in the voters list of 2010, her father's name is wrongly mentioned against her brother's name as Nayeb instead of Nayeb Ali. For the first time in her cross-examination the petitioner had mentioned that she has four brothers and two sisters. 6. The petitioner has not mentioned her date of birth in her written statement or in her evidence-on-affidavit. As per evidence-on-affidavit, the age of the petitioner as on 25.08.2017 is 45 years, as such, she appears to have born in or about the year 1972. Babur Ali, who has appeared as DW-2, had claimed that he was the elder brother of the petitioner. As per his evidence-on-affidavit, the age of DW-2 as on 17.03.2018 is 45 years, as such, the DW-2 is presumed to have been born in or about the year 1973. Babur Ali, who has appeared as DW-2, had claimed that he was the elder brother of the petitioner. As per his evidence-on-affidavit, the age of DW-2 as on 17.03.2018 is 45 years, as such, the DW-2 is presumed to have been born in or about the year 1973. As per voters list of 1997 (Ext.D), the age of DW-2 is 25 years as on 01.01.1997, as such, he is presumed to have been born in or about the year 1972. As per the statement made in his cross-examination, the DW-2 had statement that they were four brothers and two sisters and that he was the fourth one and the petitioner was the youngest one. In her cross examination, the petitioner had stated that she was the youngest of four brothers and two sisters, and that her father died prior to her birth and that her mother was pregnant at that time. Thus, the statement of the DW-1 and DW-2, if read together is bereft of any credibility because in between 1972 and 1973, three siblings of the petitioner, being fourth brother (DW-2), fifth sibling and the petitioner were born, which is not believable because the father of the petitioner had died before the birth of the petitioner. In voters list of 1997, age of Saheran Nessa of Village-Baisha is 24 years. The petitioner claims in her cross-examination that her mother died 10 years ago, but no death certificate has been produced. The evidence of DW-1 and DW-2 appears to contradictory to the statement of the DW-3 i.e. Gaonbura in his cross-examination, wherein he has stated that his age was 40 years as on 13.12.2018. As per his identity card, Mazuruddin (DW-3) was born on 01.01.1979. But, he claims to have seen Nayeb Ali, father of the petitioner, which, if true, would either mean that the father of the petitioner was alive at least till 01.01.1979 and not dead when the petitioner was born. However, the petitioner has not produced any document including voters list containing name of her projected father for the period from 1971 to 1978-79. It cannot be presumed that the DW-3 would know the date of death more correctly than the petitioner, who is the one who has lost her father. However, the petitioner has not produced any document including voters list containing name of her projected father for the period from 1971 to 1978-79. It cannot be presumed that the DW-3 would know the date of death more correctly than the petitioner, who is the one who has lost her father. Therefore, the entries made in the Gaonbura's Certificate appears to be based on faulty knowledge of the DW-3 and not based on any public records maintained by his office in regular course of duty attached to his office. The Executive Instructions appended to the Assam Land and Revenue Regulation, 1886, does not cast any duty to the Gaonbura to maintain record of citizens born in the Lot under his charge or register containing names of females in Lot under his charge who are married to persons outside the Lot under his charge. 7. Therefore, as petitioner has not disclosed the existence of Babur Ali as her brother in her written statement, the sudden appearance of the said person as DW-2, claiming to be the brother of the petitioner does not inspire the confidence of the Court. Thus, in the considered opinion of the Court, with the failure of the link certificate (Ext.G) issued by the Gaonbura (DW-3), this writ petition also fails as there is no documentary evidence to connect the petitioner with her projected parents or grand-parents. The rest of the exhibits appear to be stand-alone documents, which do not establish a valid link between the petitioner with her projected parents or grand-parents. 8. Therefore, 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. 9. Hence, this writ petition is dismissed, leaving the parties to bear their own cost. 10. A copy of this order may be made a part of the records of the learned Tribunal for future reference.