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2019 DIGILAW 466 (GAU)

Jahanara Begum 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.4, Nagaon, vide Judgment & Order dated 29.12.2018 passed in F.T. Case No. 18/2016. 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 Pub-Mukanda Ati in the Nagaon district. It has been stated that the names of the grand parents of the petitioner namely, Jafar Ali and Sonaban are enlisted in the Voters list of the years 1965 and 1970. In the same list the name of the projected father of the petitioner Noimuddin also appears. Certified copy of the aforesaid two voters list were exhibited as Exhibits 2 and 3 respectively. Reference is also made to a Sale Deed of the year 1971 in which Noimuddin is a party. 5. The petitioner had adduced evidence through herself and submitted two numbers of affidavits and had exhibited 4 numbers of documents as Exhibits 2 to 5. It may be mentioned that no document was marked or exhibited as exhibit 1. It may also be noted that in the instant case there was an earlier order from this Court dated 22.06.2018 by which a fresh trial was ordered as it was found that without passing any detailed opinion, the reference was said to be answered vide order dated 13.02.2017. 6. We have heard Sri J. Ahmed, learned counsel for the petitioner. We have also heard Sri J. Payeng, Standing Counsel, FT, Miss. U. Das, S.C. NRC as well as Sri A.I. Ali, S.C. Election Commission. Considering the nature of the dispute, this writ petition is taken up for disposal at the motion stage. 6. We have heard Sri J. Ahmed, learned counsel for the petitioner. We have also heard Sri J. Payeng, Standing Counsel, FT, Miss. U. Das, S.C. NRC as well as Sri A.I. Ali, S.C. Election Commission. 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/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 29.12.2018 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 Electoral Rolls of the years 1965 and 1970 and the Sale Deed which were exhibited as exhibits 2,3 and 4. Though in the aforesaid exhibits, the name of the projected father of the petitioner Noimuddin appears, there is no connection made out between the said Noimuddin and the petitioner. It is probably for this reason that a transfer certificate issued by the School authorities dated 15.09.1995 was sought to be introduced. Though the said certificate states that the petitioner is the daughter of Md. Noimuddin, the same certificate is not on the Letter Head of the school in question. Moreover, the author of the said certificate was not produced as an witness before the Tribunal. Though the said certificate states that the petitioner is the daughter of Md. Noimuddin, the same certificate is not on the Letter Head of the school in question. Moreover, the author of the said certificate was not produced as an witness before the Tribunal. Though another such certificate dated 01.01.2019 has been brought on records, both the said certificates have not been proved or even marked as Exhibits. The Hon’ble 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 even mere marking of a document as exhibit does not dispense the requirement of proving the contents. 10. 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. 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. All consequent actions upon the opinion of the learned Foreigners Tribunal No. 4, Nagaon be taken accordingly.