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2019 DIGILAW 455 (GAU)

Lobjan @ Labjan Bibi v. Union of India

2019-04-09

MANOJIT BHUYAN, SANJAY KUMAR MEDHI

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JUDGMENT : Sanjay Kumar Medhi, J. 1. The extra-ordinary jurisdiction conferred on this Court under Article 226 of the Constitution of India has been sought to be invoked by filing the instant petition. The petitioner has put to challenge the opinion rendered by the learned Foreigners Tribunal No.7, Lanka, Nagaon vide Judgment & Order dated 30.03.2017 passed in F.T./L/422/2016. By the impugned judgment, the petitioner has been declared to be a foreigner and consequent directions have been passed. 2. The facts of the case may be narrated briefly as follows: 3. A reference was made by the Referral Authority to the learned Tribunal for an opinion on the status as to whether the petitioner was a foreigner or an Indian citizen. On registration of the reference, notices were issued and the petitioner who was the opposite-party had contested the reference by filing written statement and adducing evidence. 4. The pleaded case of the petitioner before the learned Tribunal was that she was an Indian citizen having born at village Pavijuri and her fathers name Monaf Ali son of Machad was recorded in the voter list of 1966 under No. 93 Hojai LAC as well as in the voter list of 1970. On 05.02.1974, the petitioner got married to Abdul Gunik and since then, she has been residing in the village Karoiuni in the district of Nagaon. The petitioner has also stated that she has been enrolled in the voter list of the year 2014 under No. 90 Jamunamukh LAC. 5. As stated above, the petitioner adduced evidence through herself and her brother Abdul Noor from her side. Along with her evidence on affidavit, 6 nos. of documents were annexed by the petitioner whereas 5 more documents were annexed by her brother as D.W. 2. 6. We have heard Mr. D.P. Borah, learned counsel for the petitioner as well as Mr. U.K. Nair, learned Senior Advocate representing respondent nos. 2 to 5. None appears for respondent no. 1. The records which were requisitioned vide earlier order have also been carefully examined. 7. Coming to the merits of the case, this Court has to keep in mind that in exercise of power under Article 226 of the Constitution of India, it is the decision making process which would constitute the subject matter of scrutiny. 1. The records which were requisitioned vide earlier order have also been carefully examined. 7. Coming to the merits of the case, this Court has to keep in mind that in exercise of power under Article 226 of the Constitution of India, it is the decision making process which would constitute the subject matter of scrutiny. This Court is not an appellant Court and would not make a roving enquiry and go into the details of the evidence recorded before the learned Tribunal. Interference would generally be refused with the opinions of the Tribunal which are findings of facts unless i. The findings are perverse; ii. Relevant materials are ignored/overlooked; iii. Irrelevant and extraneous materials are taken into consideration; iv. The findings are so unreasonable and arbitrary that no reasonable person of ordinary prudence would have arrived at the same. 8. Having reminded ourselves of the self imposed restrictions, the impugned Judgment & Order dated 30.03.2017 is sought to be scrutinised. It is also necessary to be kept in mind that under section 9 of the Foreigners Act, 1946, the proceedee has a heavy burden to discharge and not only all the facts are required to be pleaded, the same are required to be proved by cogent evidence and in accordance with law. 9. Amongst the various documents brought on record, the petitioner has projected the link documents to be the voters list of the year 1966 containing the name of one Manaf Ali, son of Masad, the voter list of the year 1970 containing the name of Manaf Ali, son of Masad, voters list of 1997 containing the name of the petitioner as wife of Abdul Goni and voter list of 2005 containing the name of the petitioner as wife of Abdul Goni. No link is established between the petitioner and the voters list of either 1966 or 1970 where the name of Manaf Ali appears though the petitioner has alleged that Manaf Ali is her father. 10. The petitioner has also relied on the evidence of her brother Abdul Noor who has also exhibited the voter list of 1993 containing the name A. Noor being son of Manaf Ali. Though this document has not been annexed to the writ petition, on scrutiny of the records the same is found at Page 31 which was proved as Exhibit 9 before the Tribunal. Though this document has not been annexed to the writ petition, on scrutiny of the records the same is found at Page 31 which was proved as Exhibit 9 before the Tribunal. Considering the age of her alleged brother and the petitioner herself, the best evidence would have been to produce the voters list for the period in between 1970 to 1997 which would have ideally contained the names of the petitioner along with her father Manaf Ali and brother Abdul Noor. In absence of such clinching evidence the petitioner cannot be held to have been successfully able to discharge her burden. Shri Borah, the learned counsel though makes a desperate attempt to assail the opinion of the Tribunal by referring to the certificate issued by the Karoiuni Gaon Panchayat dated 11.07.2015 which was marked as Exhibit 1, a bare perusal of the same from the records read with the depositions would reveal that the author of the said certificate was not examined and therefore the said certificate does not have any evidentiary value. In the said certificate, though the age of the petitioner has been stated to be 59 years and the date of marriage as 05.02.1974, the source of such information has not been disclosed. It becomes apparent that the certificate which is dated 11.07.2015 is a procured one and in any case lacks any credence to be accepted as legal evidence. In absence of any other credible evidence, it cannot be said that the opinion expressed by the learned Tribunal suffers from any material infirmity or illegality. 11. In view of the above, we hold that the writ petitioner has failed to make out a case for interference and accordingly the writ petition is dismissed. Consequently, the interim order dated 04.05.2017 stands vacated. All consequent actions upon the opinion of the learned Foreigners Tribunal No. 7, Lanka, Nagaon be taken accordingly. 12. Registry is directed to send back the records to the concerned Tribunal forthwith.