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2019 DIGILAW 906 (GAU)

Lilijan Bibi v. State of Assam

2019-08-16

KALYAN RAI SURANA, MANOJIT BHUYAN

body2019
JUDGMENT : 1. Heard Mr. Utpal Das, learned counsel for the petitioner, Ms. G. Hazarika, learned CGC appearing for respondent No.1, Ms. A. Borgohain, SC for respondent No.2, Mr. A. Kalita, learned SC for respondents No.3 to 5 and 7 and Ms. A. Verma, learned SC, for respondent No.6. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has challenged the opinion dated 29.04.2019, passed by the learned Foreigners Tribunal-8th, Tezpur in F.T.(8) Case No. 1668/2017, by which the petitioner was declared to be a foreigner entering into Assam on or after 25.03.1971. 3. The learned counsel for the petitioner has referred to the written statement of the petitioner and has submitted that the case before the learned Tribunal was registered after receipt of reference from the Superintendent of Police (B), Sonitpur, Tezpur. It is submitted that in her written statement, the petitioner has projected one Samiruddin @ Md. Samir Munshi, resident of Village-Kadamani Pathar, P.S. Dhing, Dist. Nagaon as her grandfather, Usan Ali Shekh as father and Zubeda Khatun as mother. It was also projected that in the year 1958, the grand-father of the petitioner shifted to Village-Baligaon Bangali, P.S. Dkekiajuli, Dist. Darrang, Assam and used to live there, where he had also purchased a plot of land measuring 2 bigha. The name of her grand-father appeared in the voters list of 1970. Thereafter, in the year 1975, the petitioner's grand-father had shifted to Village-Fakoli, P.S. Kampur, Dist. Nagaon, Assam, where he had purchased a plot of land measuring 2 bigha-4 katha-121 / 2 lechas by a sale deed registered on 22.03.1982 in the Office of the Sub-Registrar, Kampur, Dist. Nagaon. The petitioner has further projected that she was married on 08.02.1989 to Abu Sama, son of San Miya of Village-Arakhuti Pathar, P.S. Themlamara, Dist. Sonitpur, Assam and that their names appeared in the voters list in the year 1989 and onwards. Nagaon. The petitioner has further projected that she was married on 08.02.1989 to Abu Sama, son of San Miya of Village-Arakhuti Pathar, P.S. Themlamara, Dist. Sonitpur, Assam and that their names appeared in the voters list in the year 1989 and onwards. In support of her defence, the petitioner has relied on the following exhibits, viz., Copy of PAN Card (Ext.1 original not produced); Gaonbura's certificate [Ext.2 and Ext.2(a)]; Copy of NRC of 1951 (Ext.3 original not produced); Sale Deed dated 14.02.1959 (Ext.4); Copy of voters list of 1965 (Ext.5 original not produced); Copy of order dated 31.08.1966 in Case No. 193/66, Quit India order No. 451/66, passed by the learned Foreigners Tribunal, Tezpur, where the name of the applicant was Samir Munchi, son of Late Kasim Ali (Ext.6); voters list of 1971 (Ext-7 Original not produced); Report dated 20.09.1979 of the enumerator of the Election Department (Ext.8 and Ext.9); Sale Deed dated 22.03.1982 (Ext.10); Marriage Link Certificate issued by Secretary, Gerjaipam Panchayat (Ext.11); voters list of 1989 (Ext.12); voters list of 1993 (Ext.13); voters list of 2005 (Ext.14); Voter Identity Card (Ext.15). 4. The learned counsel for the petitioner has submitted that the petitioner had submitted all the necessary documents including the 1951 NRC of her paternal grand-father and voters list of 1966 and 1971 of her father along with grand-father. It is submitted that the petitioner had submitted the two sale deeds showing linkage between Ushan Ali and Samiruddin Munchi, and moreover, she had examined the Gaonbura to prove his certificate. Accordingly, it is submitted that although the petitioner had proved her case, but by the impugned opinion, the learned Tribunal had mechanically declared the petitioner to be a foreigner who had come into India (Assam) from the specified territory on or after 25.03.1971. 5. It is seen that the petitioner had examined three witnesses including herself (DW-1), Sri Liladhar Pator, Sarkari Gaonbura (DW-2), and Puheswar Koch, Sarkari Gaonbura (DW-3). 6. Having heard the learned counsel for the parties, the documents annexed to the writ petition have been perused. While there is no doubt that the documents lead to a conclusion that one Ushan Ali was the son of Samir Munchi @ Samiruddin Munchi, which can be culled out from Ext.4 and Ext.6. 6. Having heard the learned counsel for the parties, the documents annexed to the writ petition have been perused. While there is no doubt that the documents lead to a conclusion that one Ushan Ali was the son of Samir Munchi @ Samiruddin Munchi, which can be culled out from Ext.4 and Ext.6. From the Foreigners Tribunal order dated 31.08.1966, it appears that Samir Munchi is not a foreigner, as such, the said Ushan Ali is also not a foreigner. 7. However, there is no voters list where the name of the petitioner appears with her projected paternal grand-father or parents. In the voters list i.e. Ext.12, Ext.13 and Ext.14, the name of the petitioner appears together with her projected husband, namely, Abu Sama. The Marriage Link Certificate issued by Secretary, Gerjaipam Panchayat (Ext.11) stands "not proved" as its author was not examined. Although the petitioner had exhibited the Gaonbura's certificate dated 03.02.2012 (mentioned in the impugned opinion as dated 03.02.2019) (Ext.2), but the said piece of document is of no value at all. Rather, the said exhibited document is prima facie inadmissible in evidence because of the fact that the Country's Emblem i.e. "Lion Capital of Ashoka at Sarnath" has been used in the said certificate. This Court in the case of Diluwara Khatun Vs. Union of India, (2019) 1 GauLT 382 , after discussing the various provisions of the applicable Acts and Rules in respect of use of "State Emblem", has categorically held that any document or certificate issued by an authority using the State Emblem, who are otherwise not authorized to use the State Emblem under the Act and the Rules are inadmissible piece of evidence and therefore, no reliance can be placed on such document. We are bound to follow the said ratio in this case as the said Gaonbura's Certificate (Ext.2) contains Country's Emblem printed on the document and there is nothing to show that the DW-2 is authorized to use the Country's Emblem. The said Ext.2 contains a disclosure to the effect that DW-2 is the Gaonbura of Village-Biringa Ati, Sunaruguri and Hatikhuti. Therefore, the finding by the learned Tribunal to the effect that DW-2 was not the Gaonbura of Fakoli cannot be faulted with. The said Ext.2 contains a disclosure to the effect that DW-2 is the Gaonbura of Village-Biringa Ati, Sunaruguri and Hatikhuti. Therefore, the finding by the learned Tribunal to the effect that DW-2 was not the Gaonbura of Fakoli cannot be faulted with. However, in this writ petition, the petitioner has heavily relied on a copy of the order bearing Memo No. KRC.4/2017/869 dated 30.05.2019, passed by the Circle Officer, Kampur Revenue Circle by which the DW-2, Sarkari Gaonbura was authorised temporarily to look after the activities and task of village (i) Balisaria, (ii) Kaziranga, and (iii) Fakoli Revenue Village, all under Mouza-Gorubat. Normally, while exercising certiorari jurisdiction over the Foreigners Tribunal, the writ Court is not to consider any document which was not tendered in evidence before learned Tribunal, however, in this case, while going through the contents of the said document, it prima facie appears that on and from 30.05.2019, Liladhar Pator (DW-2) was authorised to look after the activities and task of three villages including Fakoli Revenue Village. The same would also mean that prior to the date of 30.05.2019, the DW-2 was not authorised to look after the activities and task of the said Village-Fakoli. Thus, the evidence tendered by the DW-2 is of no help to the petitioner. 8. The Gaonbura's Certificate [Ext.2(a)] is not found to be annexed to the writ petition. Therefore, the Court has no option but to rely on the finding recorded by the learned Tribunal to the effect that the said exhibit proved that the petitioner was the wife of Abu Sama and resident of Erasuti Pathar. Nonetheless, the said exhibited document is not the conclusive proof that the petitioner is the daughter of her projected father. Thus, the said exhibited document i.e. Ext.2(a) as well as the evidence tendered by DW-3 is of no help to the petitioner to establish that she is the daughter of Md. Ushan Ali or grand-daughter of Samir Munchi @ Samiruddin Munchi. Similarly, though the voters list Ext.12, Ext.13 and Ext.14 establish the relationship of the petitioner with the projected husband, but the said exhibits do not prove that the petitioner was the daughter of her projected parents. Ushan Ali or grand-daughter of Samir Munchi @ Samiruddin Munchi. Similarly, though the voters list Ext.12, Ext.13 and Ext.14 establish the relationship of the petitioner with the projected husband, but the said exhibits do not prove that the petitioner was the daughter of her projected parents. The petitioner claims to have been born on 12.06.1972, as such, her name would not appear in voters list till she attains the voting age, as such, the entries made in Ext.5 to Ext.10 are of no help to the petitioner to establish that Ushan Ali was the father of the petitioner. The petitioner has not annexed Elector Photo Identity Card (Ext.15), but it is not the proof to establish who the father of the petitioner was. Thus, none of the exhibited documents is a proof to establish that the petitioner was the daughter of Ushan Ali. 9. Therefore, in light of discussions above, this Court does not find that the impugned opinion rendered by the learned Tribunal is vitiated by any jurisdictional error or that there was any failure of giving opportunity of hearing to the petitioner. Therefore, as the Court is exercising supervisory jurisdiction and not appellate jurisdiction, no case is made out for substituting the opinion rendered by the learned tribunal with the view of the Court. This is not a case where the learned Tribunal had refused to admit admissible evidence or that its finding is dehors the evidence on record. 10. Hence, this writ petition fails and the same is dismissed, leaving the parties to bear their own cost. 11. A copy of this order may be made a part of the records of the learned Tribunal for future reference.