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2020 DIGILAW 272 (GAU)

Golokjan Bibi v. Union Of India

2020-02-25

KALYAN RAI SURANA, NELSON SAILO

body2020
JUDGMENT K.R. Surana, J. - Heard Mr. M.U. Mondal, the learned counsel for the petitioner, Mr. U.K. Nair, learned senior counsel, appearing as Senior Standing Counsel for the respondents No. 2 to 5 and Ms. A. Varma, the learned standing counsel for the Coordinator, NRC. 2. At the outset, it would be appropriate to mention herein that by order dated 18.02.2020, on oral prayer made by the learned counsel for the petitioner, he was permitted to implead the Co-ordinator, NRC as respondent No.7, further permitting the necessary corrections to be done in the presence of the learned Registrar (Judicial). As per the office note dated 19.02.2020, no one had appeared before the learned Registrar (Judicial) to make the necessary corrections. Thus, as no corrections has been made, the order dated 18.02.2020 has not been implemented and, as such, there is no respondent No.7 in this review petition. 3. The petitioner was the proceedee before the Member, Foreigners Tribunal 6 th Dhubri at Bilasipara in F.T. Case No. 6 th Dhubri1-213/2015. The said learned Tribunal by its opinion dated 27.06.2016, answered the reference made by the S.P. (Border), Dhubri (originally referred by the Election Registration Officer, 26 Bilasipara West L.A.C. as D Voter) in the affirmative by holding that the petitioner was a foreigner who came to Assam on or after 25.03.1971. 4. The said opinion was challenged by the petitioner before this Court by filing a writ petition under Article 226 of the Constitution of India , which was registered as W.P.(C) No. 7641/2016. Upon hearing the learned counsel for the parties and by discussing the pleadings and evidence on record in extensio, it was held that the petitioner had failed to discharge her burden under Section 9 of the Foreigners Act, 1946 to prove that she was not a foreigner but a citizen of India, and the writ petition was dismissed by the Division Bench of this Court by judgment and order dated 12.04.2018. 5. By this petition under Order XLVII Rule 1 and Section 151 CPC , the petitioner has called upon the Court to review the said judgment and order dated 12.04.2018. The learned counsel for the petitioner has referred to the 11 grounds of review and it is submitted that the name of Sukur Ali Sk, grand- father of the petitioner appears in the voter list of 1966. The learned counsel for the petitioner has referred to the 11 grounds of review and it is submitted that the name of Sukur Ali Sk, grand- father of the petitioner appears in the voter list of 1966. The voter list of 1970 and 1985 contains the name of Jhomar Ali (father) and Mohiron Bibi (mother) of the petitioner. The voter list of 1997, 2008 and 2010 contains the name of the petitioner and her husband. It is submitted that the linkage certificates dated 06.07.2015, 07.12.2015 and notice to the petitioner dated 06.12.2015 would show that the petitioner is the daughter of Jhomar Ali (father) and wife of Nobin Hoque. It is submitted that the said documents as well as Electoral Rolls are public documents, not required to be proved as per Sections 74, 76, 78 and 90 of the Evidence Act, 1872. It is also submitted that the entry of the name of the petitioner in the voter list leads to a strong presumption under Section 16(1)(a) of the Representation of Peoples Act, 1950 that the petitioner is prima facie a citizen of India. It is submitted that the Local Verification Officer (LVO for short) report dated nil would show that there was no physical verification in respect of the petitioner as none of the columns except Sl. No.1 to 5 were filled up. It is submitted that the Gaon Panchayat certificate issued towards linkage certificate was rendered inadmissible in evidence because of the unauthorised use of State Emblem i.e. 'Lion Capital of Asoka at Sarnath' as described in Appendix I and II of the State Emblem of India (Prohibition of Improper Use) Act, 2005, which does not empower the Secretary of a Gaon Panchayat to use the State Emblem, but the petitioner was not the accused, as such, she cannot be punished and made to loose her citizenship for unauthorized use of State Emblem by the Secretary of Gaon Panchayat. It is also submitted that the petitioner has procured more documents like voter list and land documents to establish her linkage to her parents and grand- parents, which could be produced earlier despite exercise of due diligence. It is also submitted that the names of all her siblings has appeared in the Final National Register of Citizens (NRC for short) by using the same legacy data, which is used by the petitioner. It is also submitted that the names of all her siblings has appeared in the Final National Register of Citizens (NRC for short) by using the same legacy data, which is used by the petitioner. Accordingly, it is submitted that this is a fit and proper case where the Court is required to exercise power of review so as to prevent injustice to the petitioner. 6. Per contra, the learned senior standing counsel for the respondents No.2 to 6 has submitted that except for the additional documents now produced by the petitioner, this Court as well as the learned Tribunal had dealt with all the grounds raised by the petitioner. It is submitted that in the written statement, the petitioner did not give the description of her siblings and did not produce any documents which would show them to be the bona fide citizens of India. This Court, after minutely examining all the documents, had arrived at a conclusion in paragraph 13 of the impugned judgment and order that other than the Panchayat Certificate, i.e. Ext.A and Ext.B, there was not a single document from where it can be deduced that the petitioner, namely, Golakjan Bibi is the daughter of Jhomar Ali. It is submitted that this Court had relied upon the decision rendered in the case of Rupjan Begum Vs. Union of India, reported in (2018) 1 SCC 579 , wherein it had been categorically held that certificate issued by Gaon Panchayat Secretary by itself is no proof of citizenship and that at best it is a linkage document which would require further corroboration. It is also submitted that the said Ext.A and Ext.B contains certificate that those certificates were issued on the basis of evidence placed before it and this Court had held that the said certificates as well as its contents were required to be proved on the basis of the evidence placed before the secretary of the Gaon Panchayat, but that was not done. It is submitted that it has been very categorically held by the Supreme Court of India in the case of Abdul Kuddus Vs. It is submitted that it has been very categorically held by the Supreme Court of India in the case of Abdul Kuddus Vs. Union of India & Ors., reported in (2019) 6 SCC 604 that orders of the learned Tribunal would have primacy, which means that the NRC entry would not prevail over the opinion of the learned Tribunal constituted under Foreigners Act, 1946 as such, the inclusion of names of the siblings of the petitioner would not constitute a valid ground for reviewing the judgment and order impugned herein. Accordingly, he prays for dismissing the petition. 7. The learned standing counsel for the Coordinator, NRC is present. Though she has made her submissions, but as respondent No.7 has not been impleaded by correcting the cause title, it would not be appropriate to record her submissions, opposing this application. 8. The petitioner has now produced the following additional documents, viz., (1) kecha patta (i.e. provisional patta of land), without containing date of issue or period for which it was issued; (2) voter list of 1989, containing the name of parents, grand-mother, uncle and siblings, (3) Income Certificate by Circle officer dated 01.06.2018, (4) Extract of Muslim Marriage Certificate dated 08.01.2001 regarding marriage of petitioner solemnized on 21.09.2000; (5) PAN card of the petitioner indicating date of birth as 21.02.1988; (6) Final NRC print-out. 9. The provisional patta is only a draft and no document has been produced to show that a patta was issued on the basis of the said provisional patta. The voter list of 1989 does not link the petitioner with the persons whose name appears in the said voter list. The income certificate also does not link the petitioner with her parents. The PAN card and the marriage certificate do not inspire the confidence of the Court because as per the affidavit sworn by the petitioner in support of this review petition, her age as on 04.10.2019 (date of filing) is 37 years, which would make the year of birth of the petitioner to 1982, however, as per the PAN card, the petitioner was born on 21.02.1988, and as per the marriage certificate, she was married on 21.09.2000, at the purported age of 12 years, which is not possible. Thus, the additional documents do not inspire confidence. Moreover, this Court as well as the learned Tribunal had dealt with all other documents produced by the petitioner. Thus, the additional documents do not inspire confidence. Moreover, this Court as well as the learned Tribunal had dealt with all other documents produced by the petitioner. The learned counsel for the petitioner could not demonstrate that in the written statement, the petitioner had given the description of her siblings and their respective documents disclosing them to be the bona fide citizens of India. This Court, upon examining all the documents, had held that other than the Panchayat Certificate, i.e. Ext.A and Ext.B, there was not a single document from where it can be deduced that the petitioner is the daughter of Jhomor Ali. However, the Panchayat Certificate could not be accepted in view of the law laid down in the case of Rupjan Begum (supra), wherein it had been categorically held that certificate issued by Gaon Panchayat Secretary by itself is no proof of citizenship and that at best it is a linkage document which would require further corroboration. 10. This Court in the case of Diluwara Khatun Vs. Union of India, reported in 2019 (1) GLT 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. In the present case, Ext.A and Ext.B contains State Emblem printed on it and there is nothing to show that the Secretary of the Gaon Panchayat is authorized to use the Countrys Emblem. Hence, the non- reliance on the said certificates cannot be faulted with. 11. The learned counsel for the petitioner could not show that the evidence produced before the Secretary, Gaon Panchayat, which formed the basis of issuing Ext.A and Ext.B were placed before the learned Tribunal. Thus, the said certificates, Ext.A and Ext.B and its contents were not proved in accordance with law. 12. This leads to the last point urged by the learned counsel for the petitioner that the names of the siblings of the petitioner have appeared in the Final NRC. In this regard, we are informed that the Final NRC has not yet been accepted and/or notified by the competent authority i.e. the Registrar General of Citizenship Register. 12. This leads to the last point urged by the learned counsel for the petitioner that the names of the siblings of the petitioner have appeared in the Final NRC. In this regard, we are informed that the Final NRC has not yet been accepted and/or notified by the competent authority i.e. the Registrar General of Citizenship Register. Moreover, in the case of Abdul Kuddus (supra), it has been held that the finding by the learned Tribunal would have primacy, as such, the NRC entry would not prevail over the opinion of the learned Tribunal constituted under Foreigners Act, 1946 as such, the inclusion of names of the siblings of the petitioner would not constitute a valid ground for reviewing the judgment and order impugned herein. 13. Thus, the present case does not attract the ingredients of review as provided for in Section 114 CPC and/or in Order XLVII Rule 1 CPC, rather, it appears that this review petition is n appeal in disguise, as such, this revision fails and the same is dismissed. However, there shall be no order as to cost.