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2020 DIGILAW 751 (GAU)

Fatema Bidhaba v. Union Of India

2020-11-10

MANOJIT BHUYAN, SOUMITRA SAIKIA

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JUDGMENT Soumitra Saikia, J. - Heard Mr. F.U. Barbhuyan, learned counsel appearing for the petitioner and Ms. G. Hazarika, learned standing counsel, NRC, Ms. B. Das, learned standing counsel, Election Commission, Mr. A. Kalita, learned standing counsel, Foreigners' Tribunal appearing for the respondents. 2. By way of this writ petition, the petitioner has assailed the opinion dated 29-11-2019 passed in F.T. Case No. (Bpt/11th) 1910/2017 corresponding to I.M. (D)T. case No. 3594/A/98, rendered by the Member, Foreigners' Tribunal No. 11, Barpeta, declaring the petitioner to be foreigner/illegal migrant who had entered Assam on or after 25-03-1971 and thereby answering the reference in affirmative. The learned Member, Foreigners' Tribunal, Barpeta answered the reference in affirmative holding the petitioner to be a foreigner of post 1971 stream liable for appropriate follow up action. 3. To discharge the burden as required under section 9 of the Foreigners' Act 1946 to prove that the petitioner is not a foreigner, the petitioner projected one Abdul Kader Ali and one Musstt Moyfal Nessa as her father and mother respectively. She also projected one Kader Ali to be her grandfather. The petitioner as the proceedee duly contested the case before the Tribunal by filing her written statements. In her written statements she denied that there was any cause of action against her for filing the instant reference. She stated that she was born in the year 1965 at village Pota under Sarupeta Revenue Circle of Barpeta district. The petitioner stated in her written statement that Abdul Kader Ali, Mayful Nessa and Hazera Bewa as her father, mother and grandmother respectively. Their names were recorded in the voter lists of 1965. She stated that the names of her father Abdul Kader and mother Mayfal Nessa were recorded in the Electoral Roll of the year 1970. In the Electoral Roll 1989, the names of her mother- Moyfal Nessa, her brother-Abdul Ahamed and other family members' names were recorded under No. 41, Bhawanipur LAC, vide Part No. 71, village Dakshin Pota and house NO. 129. To substantiate her claim before the Tribunal, the petitioner exhibited the following documents: (i) Exhibit-1 is the electronically generated extract of Electoral Roll of 1965 showing the name of Abdul Kader Ali at serial no. 280, Moyfal Nessa at serial no. 281 and Hazera Beowa at serial no. 282. The petitioner claims them to be her father, mother and grandmother respectively. 280, Moyfal Nessa at serial no. 281 and Hazera Beowa at serial no. 282. The petitioner claims them to be her father, mother and grandmother respectively. This Electoral Roll pertains to 48 No. Bhawanipur Legislative Assembly (LAC), under village- Pota, MouzaBhawanipur, Sub-Division-Bajali, Dist-Barpeta. (ii) Exhibit-2 is the electronically generated extract of Electoral Roll of 1970 showing the name of Abdul Kader Ali at serial no. 327, Moyfal Nessa at serial no. 328 who are projected as her father and mother respectively. This Electoral Roll also pertains to 48 No. Bhawanipur L.A.C. under village- Pota, Mouza- Bhawanipur, Sub-Division-Bajali, Dist-Barpeta. However, name of the grandmother Hazera Bewa is not recorded in the said Electoral Roll. (iii) Exhibit-3 is the electronically generated extract of Electoral Roll of 1985 showing the name of Abdul Rezzak at serial no. 548 and Fatema Khatun at serial no. 549- namely the petitioner herein. This Electoral Roll pertains to 44 Jania, LAC under village-Haldhia, Mouza- Rupshi, Sub-Division-Barpeta (sadar). (iv) Exhibit-4 is the electronically generated extract of Electoral Roll of 1997 showing the name of the petitioner at serial no. 946. This Electoral Roll also pertains to 44 Jania, LAC under village-Haldhia, Mouza- Rupshi, SubDivision-Barpeta (sadar). (v) Exhibit-5 is the electronically generated extract of Electoral Roll of 2017 showing the name of the petitioner, her two sons and her daughter-in-law namely, Rahina Khatun at serial no. 136, petitioner at serial no. 137, Farman Ali at serial no. 138 and Saman Ali at serial no. 139. This Electoral Roll also pertains to 44 Jania, LAC under village-Haldhia gaon, Sub-Division-Barpeta (sadar). (vi) Exhibit-6 is also another electronically generated extract of Electoral Roll of 2018 showing the name of Abdul Kalam Ahamed at serial no. 851 and Nur Nehar Ahmed at serial no. 852 whom the petitioner projected as her brother and sister-in-law. This Electoral Roll pertains to 41 Bhawanipur LAC under village-Pota, Sub-Division-Bajali. (vii) Exhibit-7 is the certificate issued by the Secretary of 108 No. Majgaon Gaon Panchayat dated 12-10-2015. This certificate was exhibited to prove that the petitioner was the daughter of Late Abdul Kader and Late Moyfal Nessa of Pota village and was a resident of the said area. It is further stated that she got married on 01-01-83 to Late Abdur Razzak, son of Late Juran Fakir who was a resident of village Haldia under Haldia Gaon Panchayat at Kalgachia Revenue Circle in the district of Barpeta. It is further stated that she got married on 01-01-83 to Late Abdur Razzak, son of Late Juran Fakir who was a resident of village Haldia under Haldia Gaon Panchayat at Kalgachia Revenue Circle in the district of Barpeta. The certificate was countersigned by the Block Development Officer, Bhawanipur Block. (viii) Exhibit-8 is a copy of the Jamabandi of 3 (three) plots of land shown to be inherited by the legal heirs of Abdul Kader, the father of the petitioner. By this said document it was sought to be proved that the petitioner and 17 (seventeen) others patta holders inherited the schedule land from the No. 1 Patta holder i.e Abdul Kader, son of Sagar Ali vide Mutation Case No. BAR/SARR/2018/19/1014/FMUT and the order of the C.O. dated 06-05-2019. The petitioner also examined 2 (two) witnesses namely, the petitioner herself as DW 1 and her brother namely, Abdul Kalam Ahmed as DW 2. 4. On perusal of the evidence and exhibited documents before the Tribunal from the records, it is seen that the petitioner relied on Exhibit 1 and Exhibit 2 to prove that she is the daughter of Abdul Kader Ali who is the son of Kader Ali. However by Exhibit 8, the copy of Jamabandi exhibited by the petitioner, the petitioner projected that 3 (three) plots of land covered by Dag No. 280, 281 and 296 and PP No. 64 situated at village Pota under Sarupeta Revenue Circle were inherited by the petitioner and her siblings, it is projected therein that the petitioner's name appears in the serial no. 13 of the said copy of the Jamabandi. However, on close scrutiny it is seen that the name of the No. 1 patta holder namely, Abdul Kader is shown to be the son of Sagar Ali. 5. It is submitted by the learned counsel appearing for the petitioner that Kader Ali and Sagar Ali are one and the same person and who was the grandfather of the petitioner. Therefore, the learned counsel for the petitioner submits that the petitioner has been able to establish her linkage with her father Abdul Kader @ Abdul Kader Ali, who was the son of Kader Ali @ Sagar Ali. 6. It is also necessary to refer to the written statements filed by the petitioner available on record. Therefore, the learned counsel for the petitioner submits that the petitioner has been able to establish her linkage with her father Abdul Kader @ Abdul Kader Ali, who was the son of Kader Ali @ Sagar Ali. 6. It is also necessary to refer to the written statements filed by the petitioner available on record. A perusal of the written statements reveal that there is no statement made by the petitioner before the Tribunal that Abdul Kader @ Abdul Kader Ali was the son of Kader Ali @ Sagar Ali. It is nowhere stated that Kader Ali @ Sagar Ali, projected to be the grandfather of the petitioner are one and the same person. Consequently the Exhibit 1 and Exhibit 2 presented by the petitioner trying to establish her linkage to her father Late Abdul Kader @ Abdul Kader Ali as well as the Exhibit 8, copy of the Jamabndi, are in conflict. The projected father Abdul Kader @ Abdul Kader Ali is shown as son of Kader Ali as reflected in Exhibit 1 and 2 and the person Kader whose name is reflected in the Jamabandi of No. 1 Patta Holder is shown to the son of Sagar Ali. As such both these names cannot said to be that of one and same person. As discussed above that there is no statement made by petitioner in her written statement filed before the Tribunal that Kader Ali @ Sagar Ali was one and same person. Consequently, the Exhibit 1, 2 and Exhibit 8 do not establish any linkage with the petitioner. 7. The Exhibit 7, the certificate issued by the Secretary of Gaon Panchayat is also not admissible in evidence in view of the fact that the same was not verified with the Office record by confronting and examining by the author issuing the certificate. Consequently, Exhibit 7 also does not come to aid of the petitioner in establishing the linkage with her late father. 8. Regarding the evidence of DW2 namely, Abdul Kader Ahmed who was projected to the brother of the petitioner, although in his evidence he stated that the petitioner is his elder sister and he is a regular voter since 1989, but he could not cast his vote along with his father and mother in the year 1989. He also adduced evidence that Sagar Ali is his grandfather. He also adduced evidence that Sagar Ali is his grandfather. Upon perusal of the evidence of DW2, it is seen that although he projected himself to be the brother of the petitioner and grandson of Late Sagar Ali, he also could not adduce any documentary evidence to establish that he is the son of Abdul Kader @ Abdul Kader Ali and grandson of Kader Ali @ Sagar Ali. Although the petitioner in her evidence stated that her grandfather's name is Sagar Ali but she has failed to support the linkage sought to be projected between the Abdul Kader @ Abdul Kader Ali who was the son of Kader Ali @ Sagar Ali, by any documentary evidence. 9. 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/petitioner is a Foreigner or not, the relevant facts being especially within the knowledge of the proceedee, therefore, the burden of proving citizenship absolutely also rests upon the proceedee. This is the mandate under section 9 of the aforesaid Act 1946. In the instant case as observed above, the petitioner not only failed to discharge the burden but also utterly failed to prove the most crucial aspect, that is, establishing linkage to his projected parents by any of the exhibits produced before the Tribunal below. 10. On the available materials, we find that the Tribunal rendered opinion upon due appreciation of the entire facts, evidence and documents brought on record. We find no infirmity in the findings and opinion recorded by the Tribunal. We would observe that 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 that the impugned opinion was rendered without affording opportunity of hearing or in violation of the principles of natural justice and/or that it suffers from illegality on any ground of having been passed by placing reliance on evidence which is legally impermissible in law and/or that the Tribunal refused to admit admissible evidence and/or that the findings arrived at are not supported by any evidence at all. In other words, the petitioner has not been able to make out any case demonstrating any errors apparent on the face of the record to warrant interference of the impugned opinion. 11. In other words, the petitioner has not been able to make out any case demonstrating any errors apparent on the face of the record to warrant interference of the impugned opinion. 11. 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. 12. A copy of this order be made part of the case records of the Tribunal for future reference.