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2019 DIGILAW 59 (GAU)

ANOWARA KHATUN D/O TANU MIYA v. UNION OF INDIA

2019-01-21

ACHINTYA MALLA BUJOR BARUA, AJIT BORTHAKUR

body2019
JUDGMENT : (A.M. Bujor Barua, J) Heard Ms. D Ghosh, learned counsel for the petitioner. Also heard Mr. A Ali, learned counsel for the Election Commission of India, Mr. J Payeng, learned standing counsel for the State of Assam appearing for the Foreigners Tribunal and Border Areas, Ms. A Verma, learned standing counsel for the authorities under the NRC as well as Ms. G Sarma, learned counsel for the authorities under the Union of India. 2. On being referred by the Superintendent of Police, Borders, Barpeta District, the IM(D)T Case No.1909/C/98 was registered before the Illegal Migrants (Determination by Tribunal) at Barpeta. Upon the Illegal Migrants (Determination by Tribunals) Act of 1983 being declared to be ultraviresby the Supreme Court, the reference made against the petitioner was transferred to the Foreigners Tribunal No.1 Barpeta and was renumbered as FT Case No.266/2016. In the written statement before the Tribunal, the petitioner took the stand that she is the daughter of Tanu Miya, son of Buku Miya, whose name appears at Sl.No.176 of the voters list of 1966 pertaining to village Bhera, Sub-Division: Barpeta of the erstwhile Kamrup district in respect of No.51 Jania Legislative Constituency. Apart from the evidence of a person whom the petitioner claims to be her brother who was examined as DW-2, the petitioner also relies upon the certificate issued by the Secretary of No.77, Gajia Medhirtary Gaon Panchayat, Barpeta dated 28.06.2015, wherein it is stated that the petitioner is the daughter of Late Tanu Miya of village Bheragaon under the concerned Gaon Panchayat. The certificate also states that the petitioner was married on 11.10.1985 to Sri Fazal Haque, son of Late Darog Ali also of village Bheragaon. The author of the certificate being the Secretary of the Gaon Panchayat was examined as a DW and in his deposition he had stated that he was the Secretary of the No.77, Gajia Medhirtary Gaon Panchayat, Barpeta for the past four years. He also states that he had issued a linkage certificate to the petitioner and that the name of the father of the petitioner is Tanu Miya of village Bheragaon. The deposition also states that the husband of the petitioner is Sri Fazal Haque and that he had given a certificate certifying that the father of the petitioner is Tanu Miya and that her husband is Fazal Haque. 3. Mr. The deposition also states that the husband of the petitioner is Sri Fazal Haque and that he had given a certificate certifying that the father of the petitioner is Tanu Miya and that her husband is Fazal Haque. 3. Mr. J Payeng, learned counsel for the State of Assam appearing for the Foreigners Tribunal and Border Areas has raised objection by contending that the evidences led by the Secretary of the concerned Gaon Panchayat does not disclose as to the source of the information from where the Secretary had stated that the father of the petitioner is Tanu Miya of village Bheragaon. In this respect, the learned counsel for the parties, relies upon the pronouncement of the Supreme Court rendered in Rupajan Begum Vs. Union of India and Others reported in (2018) 1 SCC 579 . 4. In paragraph 16 of the Judgment of the Supreme Court in Rupajan Begum (supra), it has been held as follows: “16. The certificate issued by the G.P. Secretary, by no means, is proof of citizenship. Such proof will come only if the link between the claimant and the legacy person (who has to be a citizen) is established. The certificate has to be verified at two stages. The first is the authenticity of the certificate itself; and the second is the authenticity of the contents thereof. The latter process of verification is bound to be an exhaustive process in the course of which the source of information of the facts and all other details recorded in the certificate will be ascertained after giving an opportunity to the holder of the certificate. If the document and its contents is to be subjected to a thorough search and probe we do not see why the said certificate should have been interdicted by the High Court, particularly, in the context of the facts surrounding the enumeration and inclusion of the documents mentioned in 16 the illustrative list of documents, as noticed above.” 5. From the pronouncement of the Supreme Court in paragraph 16 of Rupajan Begum (supra), it can be culled out that the certificate of the concerned Gaon Panchayat Secretary has to be verified in two stages: first is the authenticity of the certificate and second is the authenticity of the contents thereof. 6. From the pronouncement of the Supreme Court in paragraph 16 of Rupajan Begum (supra), it can be culled out that the certificate of the concerned Gaon Panchayat Secretary has to be verified in two stages: first is the authenticity of the certificate and second is the authenticity of the contents thereof. 6. As regards the authenticity of the contents it has been provided that the verification of the certificate is bound to be an exhaustive process in the course of which the source of information of the facts and other details recorded in the certificate would have to be ascertained after giving an opportunity to the author of the certificate. It had further been held that if the documents and its contents are subjected to a thorough search and probe, then there is no reason as to why such certificate should not be relied upon. 7. Apparently, the requirement is for the verification in an exhaustive process where the documents and its contents are subjected to a thorough search and probe. 8. In such view of the matter, the evidence led by the Secretary of the Gaon Panchayat in its present form cannot be accepted to fulfill the requirement that the authenticity of the contents of certificate had been duly proved, but at the same time, we have also taken note that the certificate clearly indicates that Tanu Miya of village Bheragaon is the father of the petitioner and if it is so, the same by itself will provide the linkage with the voters list of 1960 and 1970 with Tanu Miya of village Bheragaon. 9. In view of the above, we are of the view that interest of justice would be met if the matter is remanded back to the Tribunal and the Tribunal shall examine whether the requirement of verification in an exhaustive process as regards the source of the information and other details recorded in the certificate had been satisfied in the instant case and subject the Secretary of the Gaon Panchayat to a thorough search and probe by means of cross examination for determining the same. 10. 10. Accordingly, the matter is remanded back to the Tribunal for a limited consideration whether the Secretary of the Gaon Panchayat had discharged the above burden as regards the source of the information of the facts and other details recorded in the certificate dated 26.06.2015 which is exhibited as exhibit-G. 11. It is clarified that the matter is not being sent back for a re-adjudication, but only for a limited purpose that the Secretary of the Gaon Panchayat be subjected to a thorough search and probe for determining the sources of the information and other details contained in the certificate. For the purpose the Tribunal may subject the Secretary of the Gaon Panchayat to further cross-examination and under no circumstances, the petitioner be allowed to adduce any further evidence. 12. The writ petition stands allowed to the extent indicated hereinabove. The petitioner shall appear before the Tribunal on 21.02.2019 and upon her appearance, the Tribunal shall decide the matter as indicated hereinabove within a period of 30 days. It is provided that in the event, the petitioner does not appear or does not cooperate with the Tribunal, the Tribunal would be at liberty to pass any order as it may deem fit and proper. 13. In terms of the above, this writ petition stands disposed of.