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2019 DIGILAW 557 (GAU)

Khairun Nessa v. Union of India

2019-05-07

MANISH CHOUDHURY, MANOJIT BHUYAN

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JUDGMENT : Manojit Bhuyan, J. 1. Heard Mr. A.R. Sikdar, learned counsel for the petitioner as well as Mr. J. Payeng, learned counsel representing respondent nos. 2, 3 and 4. None appears for the respondent no. 1. 2. Petitioner assails the order/opinion dated 30.09.2016 passed by the Foreigners Tribunal No. 2, Goalpara in FT 2 Case No. 125/K/2016, declaring her to be a foreigner/illegal migrant of post 25.03.1971 stream. Also assailed is the order dated 09.11.2016 passed in Misc. Case No. 06/2016, whereby the petition for review of the original order dated 30.09.2016 was dismissed. 3. The petitioner Khairun Nessa projects one Lalchan Sheikh @ Nalchan Sheikh as her father and Ashiron Nessa @ Ashiya Khatun as her mother, both names appearing in the Voter List of 1966 (Exhibit-A) and Voter List of 1970 (Exhibit-B) of village Buduchar under 45 No. Goalpara East LAC. The Exhibit-C Voter List of 1997 of village Mujkuri Islampur under 36 No. Dudhnoi (ST) LAC was brought on record to show that her name was enrolled therein along with her husband Rajab Ali. The Voter ID Card of the petitioner of village Mujkuri Islampur was produced as Exhibit-D. To link herself to her projected father Nalchan Sheikh, she produced the Exhibit-E certificate, issued by the Secretary of Buduchar Gaon Panchayat. 4. On the above exhibits, the primary issue would be as to whether the petitioner could successfully establish linkage to her projected parents of the Voter List of 1966 and 1970. Without any dispute, the petitioner utterly failed in this respect, inasmuch as, the only link document at Exhibit-E did not stand proved through the legal testimony of the issuing authority. The petitioner could not prove that she is not a foreigner through cogent, legal and admissible evidence. 5. In the application filed for review of the order declaring her to be a foreigner, the petitioner brought on record an order passed way back on 04.09.2012 by the Foreigners Tribunal, Goalpara in FT Case No. 3075/G/2011 to show that in the said proceedings initiated against her projected father Lalchan Ali, projected mother Asiya Khatun, her two brothers Asrup Ali and Hussain Ali, together with her sister Sahara Khatun @ Jahura Khatun, they had been declared as not to be illegal migrants of post 1971 stream. 6. 6. It is argued on behalf of the petitioner that in the order dated 09.11.2016 dismissing the review petition, no discussion or finding was recorded in respect of the aforesaid order dated 04.09.2012 whereby the reference made against her projected parents, brothers and sister was answered in the negative. 7. The submission of Mr. Sikdar that the benefit of the order dated 04.09.2012 ought to have been extended to the petitioner being an immediate family member, we are of the view that the said order dated 04.09.2012 can come to the aid of the petitioner if and only if she can satisfactorily and conclusively demonstrate linkage to her projected parents Lalchan Ali and Asiya Khatun. As discussed above, the petitioner failed to do so, inasmuch as, the only link document at Exhibit-E, being the certificate issued by the Secretary of the Gaon Panchayat, rendered itself as inadmissible in evidence as the said certificate nor the contents thereof stood proved through the legal testimony of the issuing authority. Therefore, the linkage not having been established, as required under the law, the petitioner cannot claim benefit of the aforesaid order dated 04.09.2012. We may note that the petitioner made no mention of the order dated 04.09.2012 either in her written statement or evidence-on- affidavit. It is difficult to comprehend that if the petitioner claims to be an immediate family member of the proceedees in FT Case No. 3075/G/2011, how could she not have knowledge or be ignorant of an order passed in favour of her projected parents, brothers and sister during the entire proceedings initiated against her. 9. Mr. Sikdar makes further argument to say that the Police reference against the petitioner was made without any fair investigation of documents. It is stated that in the written statement as well as in the evidence-on-affidavit categorical statement has been made with regard to frivolous investigation. On this, we have perused the case records and find that during investigation by the Electoral Registration Officer, documents were not made available and the matter was referred to the competent authority. The Superintendent of Police, Goalpara made endorsement to the effect that having regard to the report of the Electoral Registration Officer it appeared to him that the petitioner is a doubtful illegal migrant. On such satisfaction, the case was forwarded to the Tribunal for decision. The records do not suggest absence of investigation. The Superintendent of Police, Goalpara made endorsement to the effect that having regard to the report of the Electoral Registration Officer it appeared to him that the petitioner is a doubtful illegal migrant. On such satisfaction, the case was forwarded to the Tribunal for decision. The records do not suggest absence of investigation. Rather, it was the petitioner who failed to produce documents. The objection made by Mr. Sikdar that the investigation was not in terms of the directions made in paragraph 97 of the Full Bench decision in State of Assam and Ors. v. Moslem Mondal and Ors., reported in 2013 (1) GLT 809 thereby vitiating the entire proceedings, in our considered opinion, such objection is without any merit. The records of the case itself would serve as an answer to the objection, making it as one without any substance. 10. As the primary issue in a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 relates to determination as to whether the proceedee is a foreigner or not, the relevant facts being especially within the knowledge of the proceedee, therefore, the burden of proving citizenship absolutely rests upon the proceedee, notwithstanding anything contained in the Indian Evidence Act, 1872. This is mandated under section 9 of the aforesaid Act, 1946. In the instant case, the petitioner not only failed to discharge the burden but also failed to disclose relevant facts in the written statement as well as in her evidence. On a mere perusal of the records in original it is seen that the Tribunal rendered its opinion after due appreciation of the entire facts, evidence and documents brought on record. In this respect we may usefully observe that the scope of interference under Article 226 of the Constitution of India to a decision of the Tribunal is limited to correcting errors of jurisdiction or when decision is made by the Tribunal without giving opportunity of hearing or when judgment is rendered in violation of the principles of natural justice or where there appears to be an error apparent on the face of the record. None of the above grounds exists in the present case. The certiorari jurisdiction of the writ court being supervisory and not appellate jurisdiction, this Court would refrain from reviewing the findings of facts reached by the Tribunal. None of the above grounds exists in the present case. The certiorari jurisdiction of the writ court being supervisory and not appellate jurisdiction, this Court would refrain from reviewing the findings of facts reached by the Tribunal. No case is made out by the petitioner that interference is warranted on ground that the Tribunal had either acted on evidence which is legally impermissible and/or that it refused to admit admissible evidence and/or that the Tribunal gave findings not supported by any evidence at all. On the discussions and findings above, we find no merit in the writ petition. Accordingly, the same stands dismissed, however, without any order as to cost. Interim order passed by this Court on 10.01.2017 stands recalled. The directions made by the Tribunal to the authorities concerned shall now be complied with. Office to send back the case records to the Tribunal forthwith.