High Court
Case Details
WP(C) 1203/2013 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER This writ petition is directed against the judgment and order dated 04.12.2012 p assed by the learned Member, Foreigners Tribunal, Goalpara in FT Case No. 2419/G /10 (District Case No. 96/2004)( Union of India -Vs- Smti. Alo Rani Bose @ Alo B ose and 5 & others).
Legal Reasoning
2. I have heard Mr. P.C Dey, learned counsel for the petitioners. Also hear d Ms. H.M Phukan, learned State Counsel and Ms. B. Das, learned CGC. I have also gone through the entire materials on record including the record received from the Tribunal. 3. To defend the reference that was made against the petitioners, they had submitted written statement before the Tribunal contending inter-alia that the proceedee No. 2 namely, Nirmal Chandra Bose @ Late Dulal Chandra Bose died on 2 4.07.1960, when he was 57 years of old. It was stated that the petitioner No.1 i s the wife of Late Dulal Chandra Bose and the petitioners No. 2, 3, 4 and 5 are their children. According to the written statement, the petitioner No. 1 was bor n at village Krishnai Kharija Paian and brought up and resided there till her ma rriage. After her marriage with Late Dulal Chandra Bose, who is the proceedee No . 2 in the proceeding before the Tribunal, she started residing with him at vill age Krishnai, Babupara. According to the written statement, after her marriage, her name did not appear in any voter list. After marriage, while she was residin g in her husband’s place, her name was enlisted in the voter list of 1979 of Dud hnoi ST/ 36 Legislative Assembly Constituency. At that point of time, her age wa s 22 years and the name of her husband also appeared in the voter list recording his age as 27 years. 4. It was further stated in the written statement that her father’s name is Late Dinesh Ch. Bardhan, who was a resident of village Krishnai Kharija Paikan. His name appeared in the voter list of 1970 of Dudhnoi, ST/46 Legislative Assem bly Constituency. It was claimed in the written statement that his name was wron gly recorded as Didesh Ch. Bardhan. According to the written statement, their ch ildren i.e. the petitioners No. 2, 3, 4 and 5 were born at village- Krishnai, Ba bupara and they had been residing there since their birth. The name of the petit ioner No. 4, Smti. Manju Bose, appeared in the voter list of 2005 of Dudhnoi ST/ 36 Legislative Assembly Constituency recording her age as 20 years. It was also stated that the names of other petitioners were enlisted in the voter list of 20 10 of the same Constituency. 5. In support of the aforesaid plea, the petitioner examined 7 witnesses as DW 1 to DW 7. They submitted evidence in chief and were cross-examined by the S tate Counsel. Details of the evidences adduced have been discussed by the learne d Tribunal. 6. Bearing in mind that this Court exercising the power of Judicial Review under Article 226 of the Constitution of India cannot sit on appeal over the evi dence on record and the findings recorded by the learned Tribunal. I now proceed to deal with the impugned judgment and order. In the proceeding, the petitioner s had produced certain copies of the voter list of 1965, 1970, 1979, 1994, 1989, 1997 and 2010. They also submitted a citizenship registration certificate and l and document. In the evidence in chief, the petitioner No.1 while stating that h er father is Sri Dinesh Ch. Bardhan kept her mother’s name blank after stating (cid:28) that the name of my father is Sri Dinesh Ch. Bose and mother’s name is &.. (cid:29). As r ecorded in the impugned judgment and order, on scrutiny of her evidence, it is f ound that she was given on marriage with Late Dulal Bose and after 1 year of her marriage she attained puberty. If we go by her evidences, her name was enlisted as voter at the age of 10 years. Narendra Narayan Bose was her Father-in-Law, w ho migrated from East Pakistan as was heard by her, but she does not know the na me of the place where they resided. Late Sapala Bose was her Mother-in-Law. As p er her evidence she does not know how many sons and daughters Narendra had. She even does not know about the acquisition of citizenship by her Father-in- Law. 7. DW 3, 5 and 6 in their evidence failed to state anything about their par ents and the documents. The Tribunal has rightly held that if Basu Bardhan i.e t he brother of the petitioner No. 1 was born in 1957, there was discrepancy in he r age. She became the voter in 1979 with her husband which is not possible as sh e was only 9 years of age. 8. After discussing the serious discrepancies in the evidences, learned Tri bunal has held that the 1965 and 1970 voter lists cannot be relied upon. It was never the pleaded case of the petitioners that the name of the father of the pet itioner No. 1 was wrongly recorded as Didesh in 1965. Even if the purported mist ake is accepted then also in 1970 voter list, Dinesh becomes the son of Dinesh. The registration certificate dated 08.12.1956 containing the name of Narendra Na rayan Bose was not corroborated by any voter list and the first voter list produ ced by the petitioners pertaining to her husband was of 1979. The Tribunal has r ightly posing the question that if at all Narendra Narayan Bose obtained citizen ship in 1966, why his name was not enlisted in any subsequent voter list. The pe titioner No. 1 in her evidence admitted that her parents expired after her marri age i.e 1978. She also failed to produce any voter list showing enrollment of th e name of her mother. The aforesaid appreciation of evidence by the learned Tribunal with the 9. eventual findings that the petitioners are illegal migrants of post 1971 cannot be interfered with lightly exercising writ jurisdiction, as nothing could be do ne, the said findings of facts are perverse and/ or based on no evidence. 10. In Sarbananda Sonowal-I Vs. union of India reported in (2005) 5 SCC 665, the Apex Court while discussing the problem being faced by the State of Assam d ue to illegal migration and their continued presence in the State has been vivid ly discussed the alarming situation. While striking out the IM(D)T Act, 1983, th e Apex Court also dealt with the modality of proving one’s Indian citizenship. I t has been emphasized that the burden of proof is always on the proceedee as per provisions of Section 9 of the Foreigners Act, 1946. In Sarbananda Sonowal-I, t he Apex Court dealing with the burden of proof, made the following observation : - (cid:28)26. There is good and sound reason for placing the burden of proof upon the per son concerned who asserts to be a citizen of a particular country. In order to e stablish one’s citizenship, normally he may be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship. Sometimes the place of birth of his grandparents may also be relevant like under Section 6-A(1)(d) of the Citizenship Act. All these facts would be necessarily be within the personal knowledge of the person concer ned and hot of the authorities of the State. After he has given evidence on thes e points, the State authorities can verify the facts and can then lead evidence in rebuttal, if necessary. If the State authorities dispute the claim of citizen ship by a person and assert that he is a foreigner, it will not only be difficul t but almost impossible for them to first lead evidence on the aforesaid points. This is in accordance with the underlying policy of Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any per son, the burden of proving that fact is upon him. (cid:29) 11. Above apart, merely by producing some photocopies, one cannot establish his Indian citizenship. Even in case of production of certified copies of the do cuments, something more is required as per the Law of Evidence. As has been held by the Apex Court in (2010) 4 SCC 491 (LIC of India Vs. Ram Pal Singh Bisen), e ven admission of a document in evidence does not amount to its proof, in other w ords, mere making of exhibit of a document does not dispense with its proof, whi ch is required to be done in accordance with law. It was the duty of the petitio ners to have proved the documents in accordance with law. Under the Law of Evide nce also, it is necessary that contents of documents are required to be proved e ither by primary or by secondary evidence. At the most, admission of documents m ay amounts to admission of contents but not its truth. Thus, the documents (Phot ocopies) having not been produced and marked as required under the Evidence Act, cannot be relied upon by the Court. Contents of the document cannot be proved b y merely filing in a Court. 12. Needless to say that the High Court exercising its power of judicial rev iew under Article 226 of the Constitution of India cannot sit on appeal over the finding of facts recorded by the Court/Tribunal. It is only when the Court/ Tri bunal exercise a jurisdiction without being empowered or in excess of it or fail s to exercise the vested jurisdiction or acts illegally, the Writ Court exercisi ng its jurisdiction can interfere with the same. The High Court can interfere wi th the order of the Tribunal exercising its writ jurisdiction only if it is prov ed that it is a case of no evidence at all or there is error apparent on the fac e of the record. The power of judicial review under Article 226 of the Constitut ion is limited only to correction of errors apparent on the face of the records and does not need long drawn out process of reasons on points whether there may be conceivably two views. In the instant case, I do not find any infirmity in th e impugned judgment and order requiring any interference of this Court exercisin g its power of judicial review under Article 226 of the Constitution of India. 13.
Decision
The writ petition is dismissed. There shall be no order as to costs. 14. Let copies of this judgment be sent to SP(B), Goalpara and the Deputy Co mmissioner, Goalpara for taking further course of action towards detention of th e petitioner in the detention camp for his deportation to his country of origin and for deletion of his name from the voter list. Copies of this order shall als o be sent to the Union Govt. in the Ministry of Home and so also to the above tw o authorities for their necessary follow up action in terms of this judgment and order. Another copy be furnished to Mr. N. Upadhyay, learned State Counsel for his follow up action. 15. Before parting with the case records, I place on record the amended prov ision of Citizenship Rules 1956 and its application to the State of Gujarat and Rajasthan as was brought in by gazette notification dated 1.3.2004. By the said amendment, after Rule 8 of the Citizenship Rules, 1956, Rule 8A was inserted whi ch is quoted below: (cid:28)8A. Authority to register as Citizens in States of Gujarat and Rajasthan.- In the case of registration of citizens in the State of Gujarat, - (1) (a) in relation to the district of Kutch, Patan, Banaskantha and Ahmedabad, - (i) in respect of Pakistan nationals of minority Hindu community displaced c onsequent to the wars between India and Pakistan in the years 1965 and 1971, the dependants of such persons married to Indian Citizens or persons of Indian orig in, the authority to register a person as a citizen of India under Clauses (a), (c), (d) and (e) of sub-section (1) of Section 5 of the Act shall be the concern ed Collectors of the districts; (ii) in respect of minority Hindus with Pakistan citizenship who have migrated t o India more than five years back with the intention of permanently settling dow n in India and have applied for Indian citizenship, the authority to register a person as a citizen of India under Clauses (a), (c), (d) and (e) of sub-0section (1) of section 5 of the Act shall be the concerned Collector of the district wh ere the applicant is ordinarily resident; (b) in relation to the districts not covered under sub-clause (i) of clause (a), the authority to register a person as a citizen of India under clauses (a) (c), (d) and (e) of sub-section (1) of section 5 of the Act shall be the Secretary, Home Department of the State of Gujarat. In the case of registration of citizens in the State of Rajasthan, - (2) (i) in relation to the district of Badmar and Jaisalmer, in respect of Pakis tan nationals of minority Hindu community displaced consequent to the wars betwe en India and Pakistan in the years 1965 and 1971, the dependants of such persons married to Indian Citizens or persons of Indian origin, the authority to regist er a person as a citizen of India under clauses (a), (c), (d) and (e) of sub-sec tion (1) of section 5 of the Act shall be the concerned Collector of the distric t; (ii) in respect of minority Hindus with Pakistan citizenship who have migrated t o India more than five years back with the intention of permanently settling dow n in India and have applied for Indian citizenship, the authority to register a person as a citizen of India under clauses (a), (c), (d) and (e) of sub-section (1) of section 5 of the Acts hall be the concerned Collector of the district whe re the applicant is normally resident. (cid:29) 16. The aforesaid provision has been referred to in view of the submissions often made that the Hindus who have been displaced from Bangladesh and or have m igrated to Indian due to oppression there should be treated differently than the illegal Bangladeshi migrants. So far as this Court is concerned, it has already been observed in Mustt Sarabari Begum Vs. State of Assam & Ors. reported in 200 8 (3) GLT 272 that the issue being a political one and the laws relating to fore igners making no distinction in that line, this Court is not the appropriate for um to deal with the said issue and that too in this type of proceeding. In this connection, paragraph 224 of the said judgment is quoted below: (cid:28)224. A submission was made, particularly in WP(C) No. 32/2008 that the petition ers being Hindus and even if they have come from Bangladesh, same being the resu lt of oppression meted out to them there, they must not be branded as illegal mi grants and that having regard to the theme of partition of India, they should be regarded as refugees from Bangladesh. Suffice is to say that the laws relating to foreigners do not make any distinction in that line. The issue raised is pure ly a political one and this Court is not the forum to comment upon the same, it being not in its scope, ambit and jurisdiction. (cid:29) 17. Let the LCR be sent down along with a copy of this judgment and order.