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2019 DIGILAW 465 (GAU)

Chandi Rani Barman v. Union of India

2019-04-10

MANOJIT BHUYAN, SANJAY KUMAR MEDHI

body2019
JUDGMENT : S.K. 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. 9, Dhubri, vide Judgment & Order dated 27.07.2017 passed in Case No. F.T. 9/16/GKJ/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 Tura in the West Garo Hills. Her grandfather was late Khudiram Barman and Grandmother was Satyamayee Barman and her father is late Prafulla Kumar Barman alias Prafulla Barman and mother late Usha Rani Barman. It has been stated that the names of the father of the petitioner namely, Prafulla Barman appears in the NRC of 1966 and in the voters list of 1966 and 1970. Two certificates respectively issued by the school of the petitioner and Panchayat were also produced before the Tribunal by marking those as exhibits to bring the linkage between the petitioner and her projected father Prafulla Barman. 5. The petitioner had adduced evidence through herself as DW-1 and had exhibited 7 numbers of documents as Exhibits A to Exhibit G. 6. We have heard Sri P.C. Dey, learned counsel for the petitioner. We have also heard Sri A. Kalita, Standing Counsel, FT, Miss. U. Das, S.C. NRC as well as Sri A.I. Ali, S.C. Election Commission. None appears for the respondent No. 1. Considering the nature of the dispute, this writ petition is taken up for disposal at the motion stage. 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. Considering the nature of the dispute, this writ petition is taken up for disposal at the motion stage. 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/over looked. 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 27.07.2017 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 document to be the School certificate (Exhibit C) and the Panchayat Certificate (Exhibit D) to show the linkage between her and her projected father Prafulla Barman and the Voters List of 1966 and 1970 where his name appears had been proved as Exhibits A & B. Though in the aforesaid two certificates (Exhibits-C & D), the name of the projected father of the petitioner Prafulla Barman appears, the person who had issued the said certificates were not produced as witnesses and therefore, the same were not proved in accordance with law. The Honble Supreme Court in the case of Narbada Devi Gupta reported in (2003) 8 SCC 745 and in the case of LIC reported in (2010) 4 SCC 491 has categorically laid down that mere marking of a document as exhibit does not dispense the requirement of proving the contents. 10. The learned counsel for the petitioner seeks to rely upon the case of Sham Lal alias Kuldeep Vs. 10. The learned counsel for the petitioner seeks to rely upon the case of Sham Lal alias Kuldeep Vs. Sanjeev Kumar and others reported in (2009) 12 SCC 454 to contend that since Exhibit C is a School Certificate, the same is a public document having evidentiary value. However, a bare look at the said certificate (Annexure-c) would show that the certificate is not of a Govt. School but a Govt. Aided School and there is vast difference between the two. 11. In the aforesaid case of Sham Lal (supra), one of the issues was with regard to a School Leaving Certificate, which was exhibited as Ext.P-2 issued by the Headmaster, Government Primary School, recording Sham Lal to be the son of one Sri Balak Ram. The District Judge deciding the suit observed to the effect that the said School Leaving Certificate as Ext.P-2 issued by the Headmaster, Government Primary School, is a public document recording Sham Lal as the son of Sri Balak Ram. Before the Supreme Court the defendants in the suit questioned the findings of the District Judge holding Exhibit P-2 as a public document and for admitting the same without formal proof. The same was answered by the Supreme Court by holding that the defendants in the suit cannot question the same in the appeal before the Supreme Court since no objection was raised by them when such document was tendered and received in evidence. 12. Whether a document, which is marked as an exhibit, is a public document within the meaning of Section 74 of the Indian Evidence Act and would be admissible per se without formal proof, the test would be that it must satisfy the nature of the documents as described in the said Section 74. A school certificate without any particulars as regards its date of establishment, proof of its recognition and provincialisation by the State authority, absence of any particulars of having its name captured in the District Information System for Education (DISE) data, as required under the law, per se cannot be held to be a public document, as in the Exhibit-C school certificate in the instant case. Further, the Exhibit-C school certificate cannot be deemed to be part of any public records kept in any State of private documents. Further, the Exhibit-C school certificate cannot be deemed to be part of any public records kept in any State of private documents. This certificate showing the petitioner as daughter of Late Prafulla Barman is a document which can only be obtained from the school in question. If school certificates in the nature of Exhibit- C are deemed to be public documents and made admissible per se without formal proof, in our considered opinion it will be adding a new definition to the meaning of public documents in Section 74 of the Indian Evidence Act. This is clearly not permissible. 13. In absence of any other credible evidence, it cannot be said that the opinion expressed by the learned Tribunal suffer from any material infirmity or illegality. 14. 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. All consequent actions upon the opinion of the learned Foreigners Tribunal No. 9, Dhubri, be taken accordingly.