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2019 DIGILAW 38 (GAU)

Seti Bibi v. Union of India

2019-01-17

ACHINTYA MALLA BUJOR BARUA, PRASANTA KUMAR DEKA

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JUDGMENT : Prasanta Kumar Deka, J. Heard Mr. MU Mahmud, learned counsel for the petitioner as well as Ms. G Sarma, learned counsel representing respondent no. 1 and Mr. A Kalita, learned counsel representing respondent nos. 2 to 5. 2. Order/opinion dated 31.08.2016 passed in Case No. F.T-4/169/2015 by the learned Member, Foreigners’ Tribunal 4th, Dhubri is put under challenge. Reference was received by the tribunal from the Superintendent of Police (Border), Dhubri against the present petitioner who was suspected to be a foreigner under the provisions of the Foreigners’ Act, 1946. On receipt of the notice the petitioner, Seti Bibi filed her written statement and adduced her evidence along with documents relied upon by her in support of her claim. It is her contention that she is an Indian citizen by birth. The petitioner exhibited the following documents:- (i) One Photo copy of Certified copy of Voter list of 1966 of Village- 92 Geramari Part-I under 34 Gauripur L.A.C. where in the name of one Setu Sk., S/o- Farej Sk. is recorded in Sl. No. 38 and House No. 7 (ka) marking as Ext-1. (ii) One Photo copy of Certified copy of Voter list of 1970 of Village- 92 Geramari Part-I under 34 Gauripur L.A.C. where in the name of one Setu Sk., S/o- Farej Sk. is recorded in Sl. No. 41 and House No. 13 marking as Ext-1. (iii) Annexure-5 is one Photo copy of Legacy of 1966 of Village- Geramari Part-I in the name of Setu Sk. S/o- Farej Sk. (iv) Annexure-4 is one Photo copy of N.R.C. 1951 Geramari N/H 48 Union No. 9 where in 8 (eight) members of name recorded including Setu Sk. S/o- Faraj. (v) One Photo copy of Registered Land Sale Deed the date of Registered not visible where in Setu Sk. is purchaser, marked as Ext-5. (vi) One Photo copy of Elector Photo Identity Card in the name of Seti Bibi relations name Sabed Ali. 3. The tribunal held that the petitioner failed to discharge her burden to prove that she is not a foreigner and accordingly she was held to be a foreigner post 25.03.1971. The tribunal while appreciating the evidence held as follows:- “6. (vi) One Photo copy of Elector Photo Identity Card in the name of Seti Bibi relations name Sabed Ali. 3. The tribunal held that the petitioner failed to discharge her burden to prove that she is not a foreigner and accordingly she was held to be a foreigner post 25.03.1971. The tribunal while appreciating the evidence held as follows:- “6. On very careful reading of evidence of D.W. 1 & D.W. 2 and scrutinizing the documents submitted by the Proceedee is support of her claim, it is found that the Proceedee is failed to submit any linkage or any witness to prove that her father’s name is Setu Sk. The Proceedee also fails to disclose the name of Grand father in her evidence. From the evidence it is found that Proceedee born at Village- Alomganj Part-I and her father also a resident of Alomganj Part-I till date. The Proceedee has submitted the photo copy of Voter list of 1966 & 1970 belong to the Village- Geramari Part-I where in the name of one Setu Sk. is recorded, which is a different village. The Proceedee also submitted photo copy of N.R.C. Legacy of 1966 (Annexure-3) and photo copy of N.R.C. 1951 (Annexure-5). The Proceedee is a 70 (seventy) years old lady as deposed in Cross examination. Thus the years of birth of Proceedee is (2016-70) 1946 and as such she ought to have submit the N.R.C. or Voter list prior to 1970. But the Proceedee has submitted no Voter list in her name in support of her claim. The Proceedee also fails to prove the submitted documents as a primary or secondary evidence. Thus the Proceedee is miserably failed to discharge her burden to prove that she is not a foreigner. Needless to say that a Proceedee will have to establish her claim of Indian Citizenship with cogent and invincible evidence and not merely on the basis of surmises and conjectures.” 4. Mr. Mahmud, learned counsel for the petitioner, submits that it is on record that the name of the petitioner is recorded in the NRC entry of 1951 wherein she has been shown as the daughter of Setu Sk. and her age is 20 years of village Geramari. The voters’ list of 1966 (Ext. 1) supports the said fact wherein the name of Setu Sk aged 45 years is recorded. and her age is 20 years of village Geramari. The voters’ list of 1966 (Ext. 1) supports the said fact wherein the name of Setu Sk aged 45 years is recorded. Exhibit 2 is the voters’ list of the year 1970 showing the name of Setu Sk aged 49 years. The finding of the tribunal that the petitioner failed to show her lineage from her father Setu Sk is purely a wrong appreciation of the evidence amounting the same to be an error apparent on the face of the order. In the case records the petitioner relied leaving aside those exhibits the legacy data, draft patta and a voter list of the year 1997 and accordingly, the same ought to have been considered in the proper perspective. Moreover, a certificate was also issued in the year 1996 by the Secretary of the Alomganj Gaon Panchayat and in addition to that Exhibit 5 is the sale deed in order to support the fact that the father of the petitioner purchased land in the year 1974. Mr. Mahmud accordingly sought for setting aside the impugned opinion and remanding the same back to the concerned tribunal for passing the opinion afresh. 5. The submission of Mr. Mahmud is opposed by Mr. Kalita on the ground that the petitioner though tried to project her father as Setu Sk but she has failed to show that she is the daughter of the projected father. If the name of the petitioner was recorded in the NRC 1951 showing her age to be 20 years at least her name ought to have been recorded in the voters’ lists of 1966, 1970 and all along till 2015. 6. Considered the submission of the learned counsel. We have perused the records called for. In the written statement, the petitioner pleaded that she was born and brought up at village Alomganj Part-I under P.S. Gouripur in the district of Dhubri. Setu Sk, the father of the petitioner is a resident of Alomganj Part-I village and his name is recorded in the voters’ list of 1966, House No. 7(ka) under 34, Gouripur L.A.C. The name of the father of the petitioner is also recorded in the voters’ list of 1970. Setu Sk, the father of the petitioner is a resident of Alomganj Part-I village and his name is recorded in the voters’ list of 1966, House No. 7(ka) under 34, Gouripur L.A.C. The name of the father of the petitioner is also recorded in the voters’ list of 1970. The name of the petitioner is also recorded in the voters’ list of 1997 and 2015 under 24, Gouripur L.A.C. The name of the father of the petitioner is also recorded in the sale deed dated 19.01.1974. From the evidence it is seen that the petitioner is aged about 70 years. Her father is still casting his vote from village Alomganj Part-I. Similarly, she has also deposed that she is also casting the vote till date. Her husband Sabed Ali deposed as DW 2 who simply deposed that the petitioner is his wife and they were married 40 years back. 7. The issue before the tribunal is to examine whether the petitioner is successful in showing her lineage derived from her father Setu Sk whose name is recorded in the voter list of 1966. The tribunal held that the petitioner failed to prove her lineage from neither her projected father nor any witness is examined in support of such lineage from her projected father. The tribunal came to the conclusion that the petitioner was born in village Alomganj Part-I and her father is also resident of the same village. But the voters’ lists of 1966 and 1970 show the name of the village as Geramari Part-I which is a different village. Against the said finding, Mr. Mahmud submits that in fact Geramari Part-I village is the revenue village under which the village Alomganj Part-I falls. On a specific query to Mr. Mahmud as to how the petitioner proved the lineage from her projected father Setu Sk, Mr. Mahmud submits that the NRC 1951 shows the name of the petitioner along with her father Setu Sk and as such, the same is sufficient read with the registered sale deed of the year 1974 by way of which the uncle of the petitioner sold land to her father. The name of the said uncle is also reflected in the NRC 1951. The name of the said uncle is also reflected in the NRC 1951. The said submission cannot be accepted inasmuch as even if we consider the said NRC 1951 (though not proved) if the name of the petitioner was recorded in the NRC 1951 showing her age to be 20 years then the name of the petitioner ought to have been recorded in the voters’ lists of 1966, 1970 and onwards. From the deposition of the DW 2, the husband of the petitioner, it appears that they are married since 40 years back. If that is also considered coupled with the NRC 1951 then also the name of the petitioner ought to have been recorded along with her husband at least prior to the year 1976. The tribunal as referred hereinabove held that the petitioner failed to submit voters’ list in her name in support of her claim. In our considered opinion, the said finding of the tribunal is proper inasmuch as if the submission of Mr. Mahmud as referred hereinabove is considered, no logical conclusion can be arrived so far derivation of the lineage of the petitioner from her projected father Setu Sk. is concerned. Under such circumstances, we are not inclined to interfere with the findings of the tribunal and as a result, this writ petition stands dismissed. No costs. 8. Interim order passed earlier stands vacated. 9. Send back the LCRs.