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2021 DIGILAW 769 (GAU)

Marjina Begum v. Union of India

2021-12-06

MALASRI NANDI, N.KOTISWAR SINGH

body2021
JUDGMENT : N. KOTISWAR SINGH, J. Heard Mr. G. Kakoti, learned counsel for the petitioner. Also heard Ms. L. Devi, learned counsel appearing on behalf of Mr. R.K. Dev Chouhdury, learned Asstt. SGI appearing for respondent Nos. 1 and 4; Ms. A. Verma, learned special counsel, F.T. appearing for respondent Nos. 2 and 6; Mr. A.I. Ali, learned standing counsel, ECI, appearing for respondent No. 3 and Ms. U. Das, learned State counsel, Assam, appearing for the respondent No. 5. 2. Considering the nature of the case and also after hearing the learned counsel for the parties, we are of the view that the present petition can be disposed of at this stage without issuing any formal notice to the respondents. 3. In this petition the petitioner has challenged the impugned opinion dated 20.7.2018 passed by the Foreigners Tribunal No. 7th, Tezpur, Balipara, Assam, in F.T. Case No. FT-2/2017 corresponding to reference TZP(B)/411/2017 by which the petitioner was declared a foreigner who came to India after 25.03.1971. 4. Learned counsel for the petitioner submits that apart from the various grounds raised in the writ petition, the said proceeding suffers from serious irregularities, inasmuch as, the petitioner was seeking to examine certain official witnesses like the Headmaster of No. 1 Gudamghat Primary School, Tezpur, who had issued the School Certificate to the petitioner, which could have proved her linkage with the projected father Nur Mahammad, but the Tribunal rejected her application. Learned counsel for the petitioner submits that the Tribunal also did not examine various documents relied upon by the petitioner. 5. Be that as it may, what we have noticed as submitted by the learned counsel for the petitioner that the petitioner had filed an application on 10.7.2018 being No. 12/18 seeking to prove the said School Certificate adduced by her by calling the issuing Authority (the Headmaster of the said school). However, the said prayer was rejected by the Tribunal on the same date on 10.7.2018 by stating that the matter was fixed for hearing and the Petition No. 12/18 was not filed on the date of evidence. The aforesaid order dated 10.7.2018 is reproduced herein below: “The concern advocate filed petition No. 12/18 to give further evidence but this petition was not filed on the date of evidence. So, this Tribunal fixed 10.7.2018 for argument. In the stage of argument the further evidence would not be allowed. The aforesaid order dated 10.7.2018 is reproduced herein below: “The concern advocate filed petition No. 12/18 to give further evidence but this petition was not filed on the date of evidence. So, this Tribunal fixed 10.7.2018 for argument. In the stage of argument the further evidence would not be allowed. The proceedee is absent without appearance of the proceedee, this petition could not be considered because appearance of the proceedee is mandatory in the foreigner case. So, this petition is rejected.” 6. Though, the matter might have been fixed for oral hearing, the fact remains that the petitioner had sought to substantiate the School Certificate by examining the Headmaster of the said School which according to the petitioner would clinch the issue in her favour. 7. In this regard, we have also noticed the observation made by the learned Tribunal in his opinion dated 20.7.2018 that the State of Assam had not engaged its advocate to cross-examine the evidence on affidavit filed by the proceedee. Further, it was also observed that the burden of proof lies upon the proceedee entirely under the rule of civil procedure. The observations made by the Tribunal in its opinion dated 20.7.2018 are reproduced herein below: “The State of Assam has not engaged it's advocate to cross-examine the evidence on affidavit filed by the proceedee, hence, the burden of proof lies upon the proceedee entirely under the rule of Civil Procedure Code if a evidence on affidavit is not cross-examined by the other party then the affidavit is presumed to be admitted fact and also stating cross declined. On rebuttal of the affidavit on evidence is amount admission by the other parties these principle of civil cases is not applied in the foreigners cases because of section 9 of the Foreigners’ Act, 1946 which is exception provision of LAW Foreigners’ Act, 1946. So, I discussed the affidavit on evidence without rebuttal by the other parties. In my consideration a person can be declared Indian No. 1 if she and her father's documents are not to be suspicious, No. 2 if her linkage certificate to her father and mother are not to be doubtful. No. 3 if she and her parents shall be continues residing in Assam till toady, in other words she and her parents shall be ordinary resident of Assam.” 8. No. 3 if she and her parents shall be continues residing in Assam till toady, in other words she and her parents shall be ordinary resident of Assam.” 8. Therefore, if the State had not cross-examined or sought to rebut the evidence and if the petitioner had filed an application for examining the official witnesses which would have helped to prove her linkage, in our view, it ought to have been allowed as it would not cause any prejudice to the State, more so, when they did not seek to question the evidence of the petitioner. Further, the Full Bench of this court in State of Assam v. Moslem Mondal, (2013) 1 CLT 809 had emphasised that the Tribunal is expected to follow meticulously the procedure to ensure fair trial and also to afford reasonable opportunity. In para 99 of Moslem Mondal (supra) it was held as follows: “99. Fair trial and reasonable opportunity required to be afforded to a proceedee also includes supply of the certified copy of any public document, including the copy of the relevant electoral rolls which has also been recognized by sub-section (2) of section 6 A of the 1955 Act as relevant document for the purpose of establishment of the citizenship, to the proceedee, whenever asked for, which may be necessary for the purpose of demonstrating by the proceedee that he is not a foreigner. Certified copies of such documents, if applied for, must be supplied promptly, otherwise, it may result in delay in disposal of the reference proceeding, as the proceedee in that case may ask for time, till such documents are made available to him. The same may also amount to denial of reasonable opportunity to the proceedee, as he may not be able to discharge his burden of proof that he is an Indian national, in the absence of such documents. Such delay in disposal of the proceeding would also be against national interest. The interest of justice, therefore, requires supply of the certified copies of such documents, that too promptly, whenever asked for.” 9. Such delay in disposal of the proceeding would also be against national interest. The interest of justice, therefore, requires supply of the certified copies of such documents, that too promptly, whenever asked for.” 9. Though the said para was in reference to providing for certified copy of the documents to enable the proceedee to discharge his/her burden of proof, in our view the same principle will also be applicable with full force when an application is made by a proceedee to examine the official witness to prove the document issued by such official witness. 10. Thus, in the present case, we are of the view that denial of the application of the petitioner to examine the Headmaster of No. 1 Gudamghat Primary School, Tezpur, who had issued the school certificate, will vitiate the present opinion rendered by the Tribunal as it amounts to denial of fair trial and reasonable opportunity to the proceedee to prove her case. 11. Learned counsel for the State has also fairly admitted that refusal of the Tribunal to examine the official witnesses may amount to denial of fair trial and reasonable opportunity. 12. Citizenship is one of the most important rights of a person in today's world. It is the key to enjoyment of the rights guaranteed by law of the land. It is through citizenship that a person can enjoy and enforce fundamental rights and other legal rights conferred by the Constitution and other statutes, without which a person cannot lead a meaningful life with dignity. A person stripped of citizenship would be rendered a stateless person, if any other country refuses to accept him or her as its citizen. Such is the overarching significance and importance of citizenship to a person. Therefore, any such proceeding which the potential of depriving citizenship ought to be accordingly, examined from that perspective also. In a normal proceeding before a court of law, in spite of any adverse finding, the person will continue to enjoy the rights as a citizen. Such is the overarching significance and importance of citizenship to a person. Therefore, any such proceeding which the potential of depriving citizenship ought to be accordingly, examined from that perspective also. In a normal proceeding before a court of law, in spite of any adverse finding, the person will continue to enjoy the rights as a citizen. Though a proceeding under the Foreigners’ Tribunal, is merely quasi-judicial in nature, yet an adverse opinion by the Tribunal that the proceedee is a foreigner almost seals the fate of the proceedee as far as the issue of citizenship is concerned, as the authorities are expected to declare such a person a foreigner in terms of the opinion of the Tribunal and he would be liable to be detained and deported. Thus, ordinarily, such an opinion of the Tribunal, in our view, ought to be given only after giving full opportunity to the proceedee to prove his/her case 13. Accordingly, without going into the merit or the other grounds raised in the petition, we allow this petition by setting aside the impugned opinion dated 20.7.2018 passed by the Foreigners Tribunal No. 7th, Tezpur, Balipara in Case No. F.T.2/2017 and allow the petitioner to examine the official witness(es) to prove the documents relied upon by her. 14. Accordingly, the matter is remanded to the Foreigners Tribunal No. 7th, Tezpur, Balipara to decide the case of the petitioner afresh. The petitioner will submit the application again on or before 8.1.2022 for calling the official witness(es) to prove the documents which have been filed in support of her claim and after examining the official witness(es), the Tribunal will pass a fresh opinion in accordance with law. 15. It is made clear that since the nationality of the petitioner has come under cloud, she will be allowed to remain on bail on furnishing a bail bond of Rs. 5,000 with one local surety of the like amount to the satisfaction of the Superintendent of Police (Border), Sonitpur during the pendency of the proceeding before the Tribunal. The concerned Superintendent of Police (Border) shall also take steps for capturing the fingerprints and biometrics of the iris of the petitioner. The petitioner also shall not leave the jurisdiction of Sonitpur district without furnishing the details of the place of destination and necessary information including contact number to the Superintendent of Police (Border), Sonitpur. 16. The concerned Superintendent of Police (Border) shall also take steps for capturing the fingerprints and biometrics of the iris of the petitioner. The petitioner also shall not leave the jurisdiction of Sonitpur district without furnishing the details of the place of destination and necessary information including contact number to the Superintendent of Police (Border), Sonitpur. 16. The writ petition stands disposed of accordingly. 17. Copy of this order be furnished to the Superintendent of Police (B), Sonitpur for doing the needful.