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2020 DIGILAW 273 (GAU)

Sufia Khatun v. Union Of India

2020-02-25

KALYAN RAI SURANA, NELSON SAILO

body2020
JUDGMENT K.R. Surana, J. - Heard Mr. M. Khan, 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. 2. The petitioner was the proceedee before the Member, Foreigners Tribunal No.5, Morigaon in Case No. F.T.(D) 300/2015. The said learned Tribunal by its opinion dated 04.11.2016, answered the reference made by the S.P. (Border), Morigaon in the affirmative by holding that the petitioner was a foreigner who came to Assam on or after 25.03.1971. 3. 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. 7217/2016. 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 consequently, the writ petition was dismissed by the Division Bench of this Court by judgment and order dated 05.04.2018. 4. By this petition under Order XLVII Rule 1 CPC , the petitioner has called upon the Court to review the said judgment and order dated 05.04.2018. The learned counsel for the petitioner has referred to the statements made in this review petition. It is submitted that the petitioner had assailed the said order of this Court before the Supreme Court of India, which was registered as SLP (Civil) Diary No(s). 32844/2019. Thereafter, this review petition has been filed as per liberty granted by the Supreme Court of India by order dated 18.12.2019 granted in the said Special Leave Petition. 5. It is submitted that all the documents exhibited by the petitioner duly established that the petitioner is the daughter of Late Abdul Mannan, whose name appeared in the voter list of 1965 and subsequent voter lists till he died in the year 2007. It is submitted that although the petitioner had handed over all the documents to her counsel and those documents were also exhibited in her evidence, but due to fault of the learned counsel for the petitioner, no steps were taken to summon and examine official witnesses like the Gaonbura and Gaon Panchayat Secretary who had issued certificates in favour of the petitioner. It is submitted that the petitioner is an illiterate lady and she had entered into marriage before attaining the age of majority, as such, she has no document other than the link certificates the Gaonbura and Gaon Panchayat Secretary, having her name with her father. It is also submitted that the other DWs examined by the petitioner had proved her linkage with her father. However, by rejecting the defence of the petitioner, the reference was answered by opinion dated 30.09.2016. 6. It is submitted that against the said opinion, the petitioner had filed a review petition before the learned Tribunal, which was registered as Misc. Case No. 34/2016, and thereby a prayer was made to allow the petitioner to summon the Gaonbura and Gaon Panchayat Secretary. However, the said prayer made in Misc. Case No. 34/2018 was rejected by order dated 04.11.2016 and the learned Tribunal had upheld its opinion dated 30.09.2016. Thereafter, the petitioner had unsuccessfully challenged the said opinion before this Court and W.P.(C) No. 7217/16 was dismissed by this Court. 7. It is submitted that this Court had failed to consider the documents exhibited by the petitioner without considering the stand of the petitioner in her writ petition before this Court to the effect that she was married to one Ajijul Haque of Madarguri before attaining the age of majority as already mentioned herein before, but they had changed their place of residence to village- Bhajaikhaiti and then to Village- Borthal Kacharigaon. It is also submitted that the evidence of her own brother, i.e. DW-2 and DW-3, who was her own son was discarded by this Court on the ground that the petitioner had not stated in her written statement or in her on evidence- on- affidavit that Md. Hafizur Rahman (DW-2) was her brother or that Emdadul Islam (DW-3) was her son. It is submitted that the writ petition was dismissed merely because of some minor discrepancies in the age, name, etc., which are very common. It is submitted that the petitioner stating in her evidence that she had five brothers, but without disclosing their names. It is lastly submitted that the name of the petitioners brothers, sisters, husband and children have found place in the final NRC, but the name of the petitioner is not reflected in the NRC because of her status as a declared foreigner. 8. It is lastly submitted that the name of the petitioners brothers, sisters, husband and children have found place in the final NRC, but the name of the petitioner is not reflected in the NRC because of her status as a declared foreigner. 8. It is submitted that in a similar case, the Supreme Court of India, by order dated 12.09.2018, passed in SLP (Civil) No. 8252/2018, had directed the State to conduct a full fledged enquiry by referring to materials made available then before the said Honble Court. Accordingly, it is submitted that the petitioner, as a citizen of India, had a right to a full fledged enquiry so that the truth may come out and in the process, the petitioner can establish her citizenship claim. 9. Per contra, the learned senior standing counsel for the respondents No.2 to 5 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, Sufia Khatun is the daughter of Late Abdul Mannan. It is submitted that in the case of Rupjan Begum Vs. Union of India, reported in (2018) 1 SCC 579 , 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. 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. 10. For the purpose of testing the veracity of the statements made by the petitioner, as a test case, we have seen that in support of the writ petition an affidavit was sworn on 22.11.2016, where the petitioner has declared her age to be 50 years, which means that she was born in the year 1966. The petitioners written statement was verified on 16.03.2016, wherein she had stated that she was married 31 years ago, which would put the year of her marriage in the year 1985 and, as such, her age at the time of marriage was 19 years. Thus, if the petitioner was 19 years, as seen herein before, the petitioner would be a major because as per Sub Section (1) of Section 3 of the Majority Act, 1875 , every person domiciled in India shall attain the age of majority on his completing the age of eighteen years and not before. In the order under review, it has been mentioned that as per the oral evidence, the petitioner had stated that she was married to Azizul Hoque of same village- i.e. Madarguri in the year 1983. Thus, it appears that to overcome her oral evidence, the stand of the petitioner in paragraph 14 of this review petition is that she had entered into marriage before attaining the age of majority. 11. This Court, while disposing of the writ petition, had given a categorical finding that in her written statement, the petitioner had not disclosed the name of her mother, and that she had not disclosed about her siblings or children as well. In the written statement, the petitioner had stated that she was married to Md. 11. This Court, while disposing of the writ petition, had given a categorical finding that in her written statement, the petitioner had not disclosed the name of her mother, and that she had not disclosed about her siblings or children as well. In the written statement, the petitioner had stated that she was married to Md. Azizul Hoque of VillageBarthal Kacharigaon 31 years ago and she is still living in the matrimonial home, but as per the statement made in paragraph 29 of the review petition, the stand of the petitioner is that she was married to Md. Azizul Hoque of Madarguri, and subsequently, they residence was shifted to Bhaijaikhaiti and then to village- Barthal Kacharigaon. 12. Thus, in the guise of review, the petitioner is attempting to introduce new facts, which were not a part of previous pleadings on record. 13. This Court had dealt with all the exhibits exhibited by the petitioner before the learned Tribunal. Moreover, upon examining all the documents, it was held that other than the Gaonburas Certificate (Ext.A) and Panchayat Certificate (Ext.B), there was not a single document from where it can be deduced that the petitioner is the daughter of Abdul Mannan, but those documents were not admissible. We are not persuaded to take any other view because 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. Moreover, as both the Gaonburas Certificate (Ext.A) and Panchayat Certificate (Ext.B) contains State Emblem, the said documents are not admissible. In this regard, 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. 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 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. 14. It was urged by the learned counsel for the petitioner that the names of the siblings and children 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 and/or the children of the petitioner would not constitute a valid ground for reviewing the judgment and order impugned herein. 15. This brings us to the last point urged by the learned counsel for the petitioner that in terms of the herein before referred order dated 12.09.2018, passed by the Supreme Court of India in SLP (C) No. 8252/2018, this Court ought to issue direction to the State to make a full fledged enquiry to ascertain the truth regarding the citizenship status of the petitioner. In this regard, we are afraid that ordering a fresh enquiry by the State so as to enable the petitioner to fish out evidence in her favour is something which is not covered by the power of review as enshrined under Section 114 and Order XLVII Rule 1 CPC , as the said provisions do not envisage the application of the maxim of 'boni judicis est ampliare jurisdictionem', also called 'boni judicis est ampliare justitiam' - meaning 'it is the duty of a judge to extend its jurisdiction [see Brooms Legal Maxims, Tenth Edition (pp.44)]. In the context of powers conferred under Section 114 and Order XLVII Rule 1 CPC, the Court, in a given case may only be permitted to amplify its remedies, but without usurping jurisdiction by remaining within the four corners of the law. 16. Thus, we find 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 an appeal in disguise, as such, this revision fails and the same is dismissed. However, there shall be no order as to cost.