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2019 DIGILAW 556 (GAU)

Nur Bokto Sheikh @ Nur Bokto v. Union of India

2019-05-07

MANISH CHOUDHURY, MANOJIT BHUYAN

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JUDGMENT : Manish Choudhury, J. 1. Heard Mr. A.T. Sarkar, learned counsel for the petitioner as well as Mr. A. Kalita, learned counsel representing respondent nos. 2 to 4. There is, however, no representation on behalf of respondent no. 1. 2. The petitioner assails the order/opinion dated 12.04.2016 passed by the Foreigners Tribunal No. 2, Goalpara in F.T. Case No. 147/G/2014, whereby, the Tribunal had held that the petitioner, Nur Bokta Sk, son of Pana Sk of Village-Pancharatna N.C. under the then Goalpara Police Station to be an illegal migrant of post 25.03.1971 stream as he as the proceedee, failed to discharge the burden of proof as mandated under Section 9 of the Foreigners Act. 3. On a reference made by the Superintendent of Police (Border), Goalpara, the Tribunal issued notice and on receipt thereof, the petitioner duly entered appearance and contested the case by filing his written statement on 18.07.2014. Later on, the petitioner filed his evidence on affidavit and he was duly cross-examined. 4. In the written statement and in the evidence on affidavit, the petitioner stated that he and his parents are Indian nationals by birth. He mentioned Late Pana Poddar and Late Jelekha Bibi as his father and mother respectively, who were living at Village-Kaminirvita, Police Station-Lakhipur, District-Goalpara, Assam under 44 Goalpara West LAC and their names appeared in the Voters list of 1966 from there. Their names also appeared in the Voter list of 1979 of Village-Kaminirvita, Police Station-Lakhipur, District-Goalpara, Assam under 39 Jaleswar LAC. The petitioner further stated that he was born and brought up at Village-Kaminirvita, Police Station-Lakhipur, District-Goalpara, Assam and he got married with one Bhanu Khatun belonging also to Village-Kaminirvita. He also mentioned that his name also appeared as a voter in the Electoral Rolls of 1979, 1985, 1989 and 1993 of Village-Kaminirvita, Police Station-Lakhipur, District-Goalpara, Assam. He further pleaded that he shifted to Village-Pancharatna N.C., Police Station-Goalpara for his livelihood and when he proposed to enroll his name in the Electoral Roll of 1997 for 38 Goalpara LAC from Village-Pancharatna N.C. he was marked as "D" voter. It, thus, appears that the petitioner/proceedee did not disclose his date of birth and the details of his grandparents in the written statement. It, thus, appears that the petitioner/proceedee did not disclose his date of birth and the details of his grandparents in the written statement. It was only during his cross-examination on 22.03.2016, the petitioner stated his age as 57 years and mentioned Late Rohim Sk and Late Mosiron Khatun as his grandfather and grandmother respectively. The petitioner mentioned Late Appas Sk and Late Sebak Sk as his uncles and that he had 3 (three) brothers-Late Pamosa Sk, Late Nur Hussain and Jamat Ali and one sister-Jobeda Khatun. Both his uncles and his brothers were residents of Village-Kaminirvita. He had shifted to Village-Pancharatna about 20 years ago. He further stated that he was casting vote from Village-Kaminirvita since 1979 till date. From Pancharatna, he stated to have shifted to Pahartuli, adjacent to Kaminirvita. 5. The Tribunal had found inconsistencies in the names of the petitioners projected parents as well as in the name of the petitioner. The Tribunal had also found discrepancies in the ages of these persons which were reflected in the Voters Lists/Electoral Rolls mentioned above, the copies of which were submitted before the Tribunal. Finding those inconsistencies as irreconcilable and glaring, the Tribunal had opined that the petitioner/proceedee had failed to prove his claim that he was not an illegal migrant. 6. In the Voters List of 1966 submitted before the Tribunal, names of "Pana Poddar (45 years), son of Lt. Rohim Poddar" and "Jelenga Bibi (38 years), wife of Pana Poddar" appeared. In the Voters List of 1970 produced before the Tribunal, names appeared as "Pana Sheikh (45 years), son of Lt. Rohim Uddin" and "Jelenga Bibi (36 years), wife of Pana Sheikh". The Voters list of 1979, annexed to the writ petition as Annexure-1 and obtained on 23.07.2016, was never produced before the Tribunal as the Tribunal delivered its opinion on 12.04.2016. In the said Voter list of 1979, names appeared as "Panashek (57 years), son of Rohir", "Jelefa Khatun (48 years), wife of Panasheikh" and "Nurboksh (30 years), son of Panaseikh". These names are at variance with the names mentioned in the written statement and in the evidence of affidavit. In the Voters list of 1979 that was produced before the Tribunal, the name of "Pana Poddar, son of Rohim Poddar", "Panashek, son of Rohir" or "Pana Sheikh, son of Rohimuddin" did not appear. These names are at variance with the names mentioned in the written statement and in the evidence of affidavit. In the Voters list of 1979 that was produced before the Tribunal, the name of "Pana Poddar, son of Rohim Poddar", "Panashek, son of Rohir" or "Pana Sheikh, son of Rohimuddin" did not appear. In the Voters list of 1985, annexed to the writ petition as Annexure-2 and obtained on 23.07.2016, names appeared as "Nurbokto Porddar (26 years), son of Pana Porddar" and "Bhanu Khatun (23 years), wife of Nurbokto Porddar". This document was never produced before the Tribunal. In the Voters list of 1985, which was produced before the Tribunal, names of "Nurbokto Porddar (26 years), son of Pana Porddar" and "Bhanu Khatun (23 years), wife of Pana Porddar" appeared and names of "Pana Porddar (45 years), son of Rohin Porddar" and "Jelepa Khatun (24 years), wife of Pana Porddar" also appeared. In the translated copy of Voters list of 1989, which is annexed to the writ petition as Annexure-3, the petitioner stated that his name appeared at Serial No. 218 as "Nur Bokto, son of Araj Ali" and he projected the same to be his name. A perusal of the almost illegible vernacular copy of the Voters list of 1989 annexed to the writ petition and produced before the Tribunal shows that "Nur Bokto (age illegible)" appearing at Serial No. 218 was son of "Pamusa Seikh". Again on close perusal of the said Voters list of 1989, annexed to the writ petition, with the Voters list of 1989 submitted before the Tribunal, it could be seen that in the Voters list of 1989 before the Tribunal, names of "Pamusa Seikh" as the son of another person (almost illegible), but not of "Rohim Poddar"/"Rohir"/"Rohin Porddar"/"Rohim Sk", and "Khuki Nessa" as wife of "Pamusa Seikh" could be found. The same belies the averment made in the written statement as well as in the evidence on affidavit because in the Voters list of 1966 submitted before the Tribunal "Pana Poddar" was shown as the son of "Lt. Rohim Poddar", in the Voter list of 1979 annexed to the writ petition, "Panashek" was shown as the son of "Rohir" and in the Voter list of 1985 submitted before the Tribunal, "Pana Porddar" appeared as son of "Rohim Porddar". Similar was the case in the Voters list of 1989. Rohim Poddar", in the Voter list of 1979 annexed to the writ petition, "Panashek" was shown as the son of "Rohir" and in the Voter list of 1985 submitted before the Tribunal, "Pana Porddar" appeared as son of "Rohim Porddar". Similar was the case in the Voters list of 1989. In the Voters list of 1989, the names of another set of persons could also be seen which bore similarity. They were :-(i) Pana Poddar, son of Rohim, (ii) Bidya Khatun, wife of Pana and (iii) Nurbokto, son of Pana Porddar. In the extract copy of the Voters List of 1993, annexed to the writ petition as Annexure-4 but not produced before the Tribunal, names of (i) "Pana Poddar (95 years), son of Rohim, (ii) "Bidya Khatun (40 years), wife of Pana" and (iii) "Nurbokto (40 years), son of Pana Poddar" appeared. In Annexure-6 of the writ petition which the petitioner stated as extract of the Voters list of 1997, names appeared at Serial No. 224 as "Nur Seikh (45 years), son of Pana Seikh" and "Bhanuron Nessa (27 years), wife of Nur Bokto". But, this extract of the Voter list of 1997 which is annexed to the writ petition as Annexure-6, appeared to have not been produced before the Tribunal. Before the Tribunal, the petitioner produced an extract of the Voters list of 1997 wherein he projected that his name appeared at Serial No. 454 as "D" voter with his wife at Serial No. 455. In the extract of the said Voter list of 1997 produced before the Tribunal, the names shown at Serial No. 454 was "Nuh Bokt (38 years), son of Pana Seikh" and at Serial No. 455 was "Bhanu Nessa (33 years), wife of Nuh Bokt". Similar discrepancies were also found in respect of the names of the projected mother of the petitioner as "Jelenga Bibi", "Jelefa Khatun", "Jelepa Khatun", "Khuki Nessa", "Bidya Khatun", etc. which the petitioner did not explain satisfactorily. There appeared to be also discrepancies in the name of the wife of the petitioner as "Bhanu Khatun", "Bhanu Nessa", "Bhanron Nessa". Similar discrepancies were also found in respect of the names of the projected mother of the petitioner as "Jelenga Bibi", "Jelefa Khatun", "Jelepa Khatun", "Khuki Nessa", "Bidya Khatun", etc. which the petitioner did not explain satisfactorily. There appeared to be also discrepancies in the name of the wife of the petitioner as "Bhanu Khatun", "Bhanu Nessa", "Bhanron Nessa". As could be seen from above, there appears to be an attempt on the part of the petitioner to mislead the Tribunal as well as this Court by producing some documents before the Tribunal and by not producing those documents before this Court on one hand and on the other hand, by not producing some documents before the Tribunal and by producing those documents before this Court, which appears to be deliberate one intended to project a picture which is not correct. 7. In the Voter list of 1979 produced before the Tribunal as well as in this Court, the age of the petitioner was shown as 30 years. In the Voter list of 1985 produced before the Tribunal as well as in this Court, the age of the petitioner was shown as 26 years. In the Voter list of 1989 produced before the Tribunal as well as in this Court, his age was shown was 28 years. In the Voter list of 1993 submitted before this Court as Annexure-4, his age was shown as 40 years. In the Voters list of 1997 submitted before the Tribunal, the age of the petitioner was shown as 38 years. In his evidence on affidavit filed before the Tribunal on 18.07.2014, he stated his age to be 56 years. The Tribunal noted discrepancies in respect of the ages of the petitioner at different point of times. 8. The petitioner had sought to clarify the discrepancies found in respect of his name, and the names of his projected grandfather and projected parents by submitting a self-sworn affidavit dated 12.04.2016 i.e. on the date of order/opinion. It is a settled legal proposition that an affidavit is not "evidence within the meaning of Section 3 of the Evidence Act, 1872. Affidavits are not included within the purview of the definition of "evidence". It is a settled legal proposition that an affidavit is not "evidence within the meaning of Section 3 of the Evidence Act, 1872. Affidavits are not included within the purview of the definition of "evidence". It is held in Ayaaubkhan Noorkhan Pathan vs. State of Maharashtra and others, (2013) 4 SCC 465 , that the filing of an affidavit of ones own statement, in ones own favour, cannot be regarded as sufficient evidence for any Court or Tribunal, on the basis of which it can come to a conclusion as regards a particular fact situation. The pleaded case of the petitioner in the written statement has already been mentioned. The written statement was completely silent on those discrepancies. It is held by this Court in a number of cases that when the citizenship of a proceedee is questioned by the State, it is the duty of that proceedee to disclose at the first instance itself the material facts which are relevant to establish his identity as a citizen of India. The material facts which would have to be pleaded in the written statement which are thereafter required to be proved by adducing cogent and reliable evidence. The Court has further held that failure to disclose material facts in the written statement by itself may lead to drawal of adverse presumption against the proceedee. 9. A perusal of the order/opinion dated 12.04.2016 passed by the Tribunal shows that the Tribunal had appreciated the evidence led by the petitioner before it and, thereafter, had rendered the finding that the petitioner had failed to establish his claim to be a citizen of India by reliable and cogent documentary evidence. Such a finding being a finding of fact, a writ Court exercising jurisdiction under Article 226 of the Constitution of India does not, ordinarily, interfere with such finding of fact unless there is perversity because the jurisdiction so exercised is supervisory and not appellate. In view of the point raised on behalf of the petitioner, the evidence led before the Tribunal by the petitioner is once again revisited only to reassure as to whether there was any perversity in the order/opinion of the Tribunal. There being none, this writ petition is, resultantly, found to be bereft of merit and the same stands accordingly dismissed. There shall be no order as to costs. Interim order dated 09.09.2016 stands recalled. There being none, this writ petition is, resultantly, found to be bereft of merit and the same stands accordingly dismissed. There shall be no order as to costs. Interim order dated 09.09.2016 stands recalled. Concerned State authorities to take action accordingly. Office to send back the case records to the Tribunal forthwith.