Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 1060 (GAU)

Sakina Khan @ Sakina Begum v. Union of India

2019-09-18

KALYAN RAI SURANA

body2019
JUDGMENT : K.R. Surana, J. Heard Mr. M.U. Ahmed, the learned counsel for the petitioner. Also heard Ms. G. Hazarika, learned CGC for respondent No.1, Mr. J. Payeng, learned standing counsel for respondents No.2, 5 & 6, Ms. B. Das, learned standing counsel for respondent No.3 and Ms. U. Das, learned standing counsel for respondent No.4. 2. By this writ petition filed under Article 226 of the Constitution of India, the petitioner has challenged the impugned opinion dated 13.06.2019 passed by the learned Member, Foreigners Tribunal No.1st, Barpeta in F.T. Case No.339/2016, thereby declaring the petitioner to be foreigner of post 25.03.1971, having illegally entered into India. 3. By referring to the written statement filed by the petitioner, the learned counsel for the petitioner has submitted that the petitioner was born and brought up in Village-Kumullipara, Mouza-Gilazari, P.S. and District-Barpeta and she has married Sahjibur Rahman @ Mozibur Rahman of Village-Rangapani, Mouza-Jamia, P.O. & Dist. Barpeta. The petitioner claims Ismail Sikdar as her father, Kumedjan Nessa as her mother, and Darbesh Ali as her brother, whose names appear in the voters list of 1966 and 1970 of village-Kumullipara. The petitioner has projected that her parents had expired prior to year 1997. The petitioner claims that, therefore, the name of her brother-Habez Uddin and his wife Samatan Nessa appears in the voters list of 1997 of Village-Kumullipara. The petitioner had stated in her written statement that her name has appeared in the voters list of 1989 and 1994 at her marital home. It has been stated that against her name, mark "D" was written in the electoral roll of 1997. The learned counsel for the petitioner has submitted that the learned Tribunal had failed to appreciate the relevant documentary evidence which has been exhibited by the petitioner in proper perspective and were wrongly rejected due to existence of minor discrepancies for which the petitioner was not responsible. For the same reasons of existence of minor discrepancies, the evidence tendered by the petitioner's elder brother, namely, Habez Uddin (DW-2) and the Gaonburas (DW-3 & DW-4) were also discarded. 4. Heard the learned counsel for the parties and perused the documents annexed to the writ petition. For the same reasons of existence of minor discrepancies, the evidence tendered by the petitioner's elder brother, namely, Habez Uddin (DW-2) and the Gaonburas (DW-3 & DW-4) were also discarded. 4. Heard the learned counsel for the parties and perused the documents annexed to the writ petition. It is seen that in connection with this case, the petitioner has examined 4 witnesses including herself (DW-1), Habez Uddin Sikdar, elder brother of the petitioner (DW-2), Abubakkar Siddique, Gaonbura of Kumallipara (DW-3), and Konjit Patowari, Gaonbura of Gajia (DW-4). The petitioner has exhibited the following documents viz. (1) voters list of 1966, containing the name of Ismail Sikdar (projected father), Kumedjan Nessa (projected mother) and Darbesh Ali (projected brother) (Ext.A), (2) voters list of 1966, containing same names as in the 1966 voters list (Ext.B), (3) voters list of 1977, stated to contain the names of Habez Uddin and Samatan Nessa (not annexed to this writ petition) (Ext.C), (4) voters list of 1989, containing the names of Ismail Sikdar (projected father) and Kamela Khatun (projected mother) (Ext.D), (5) Gaonbura's certificate dated 15.01.2017 issued by Abubakkar Siddique (DW-3) (Ext.E), (6) Gaonbura's certificate dated 31.03.2017 issued by Sri Konjit Patowari (DW-4) (Ext.F), (7) affidavit for the purpose of correction of names (not annexed to this writ petition) (Ext.G), (8) voters list of 1989 containing the names of petitioner's brothers and their family (Ext.H), (9) voters list of 1989 of Village-Rangapani containing the names of the petitioner and her husband (Ext.I), (10) voters list of 2010 containing the names of the petitioner and her husband (Ext.J), (11) Elector Photo Identity Card of DW-2 (Ext.K), (12) voters list of 2016 containing the name of DW-2, his wife and his daughter-in-law (Ext.L). 5. It is seen that the petitioner had exhibited the voters list of 1966 and 1970 (Ext.A and B) of her parents. However, the voters list of 1989 (Ext.H) was exhibited by DW-2, where the name of the projected mother of DW-2 is Kamela Khatun. However, in the voters list of 1966 and 1970, the name of the projected mother of the petitioner appears as Kumedjan Nessa. It is seen that after the year 1966 and 1970, there is no mention of the name of Darbesh Ali in any other voters list. However, in the voters list of 1966 and 1970, the name of the projected mother of the petitioner appears as Kumedjan Nessa. It is seen that after the year 1966 and 1970, there is no mention of the name of Darbesh Ali in any other voters list. There is also no explanation by the petitioner as to why his name did not appear after the voters list of 1966 and 1970. As per the written statement filed by the petitioner, her parents had expired prior to 1977, but as per the statement made in para-5 of the evidence-on-affidavit filed by the petitioner, her parents had expired after the year 1997. However, as per the statement of the DW-2 in his cross-examination, he has stated that his father had expired 20 years back and his mother had expired 4 years back. Therefore, as per the statement made by DW-2, his mother had expired 4 years back, and that as per the statements made by the petitioner, her mother had died in or around the year 1977. Under such circumstances, it appears that this Court has two options, (i) to discard the statement of either the petitioner or the DW-2 as regards the year when their mother had died, (ii) to presume that the petitioner and the DW-2 have different mothers. 6. The petitioner has failed to show any document, where her name appears together with her projected parents, whose names appear in the voters list of 1966 and 1970. Therefore, from the twelve exhibits relied upon by the petitioner, the only "link document" is the Gaonbura's certificate (Ext.E) issued by Abubakkar Siddique (DW-3). In this regard, the DW-3 has stated in his cross-examination that Ext.E was issued on the basis of the voters list of 1971, but no such voters list of the year 1971 has been exhibited by the petitioner. Therefore, the document based on which Ext.E has been prepared was not exhibited, as such, no cognizance can be taken by this writ court about the correctness of the contents of Ext.E. Moreover, the said Ext.E has been rendered inadmissible in evidence because of the unauthorised use of State Emblem i.e. "Lion Capital of Asoka at Sarnath" as described in Appendix I and II of the State Emblem of India (Prohibition of Improper Use) Act, 2005, which does not empower a Gaonbura to use the State Emblem. The petitioner has not been able to show any provision in the Executive Instructions contained in the Assam Land and Revenue Regulation, 1886 by which a Gaonbura is required to maintain an official record of residents of the village under his charge who are married to persons outside the village of their charge. Therefore, the entry in Ext.E is not shown to have been prepared on the basis of any official record. Accordingly, through Ext.E, the petitioner has not been able to establish her link with her projected father and/or her projected mother whose names appeared in the voters list of 1966 (Ext.A) and voters list of 1970 (Ext.B), which are the only documents prior to the cut-off date i.e. 25.03.1971. 7. 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. 8. The primary issue in a proceeding under the Foreigners Act, 1946 and the 1964 Order 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 read with Section 106 of the Evidence Act, 1872. 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. Hence, this writ petition fails and the same is dismissed, leaving the parties to bear their own cost. 10. The Registry shall communicate a copy of this order to the Foreigners Tribunal No.1st, Barpeta, to be made a part of the concerned records for future reference.