High Court
Case Details
WP(C) 18/2013 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER (CAV) This writ petition is directed against the judgment and order dated 15.11.2012 p assed by the learned Member, Foreigners Tribunal, 2nd, Morigaon, in FT(D) Case N o. 17/09 (Police Ref. D/M Case No. 2796 dated 04.07.1998 and E.R.O Ref. No. 83/8 9/5 dated 17.10.1997) (State of Assam -Vs- Sahnaj @ Sahnaj Begum). 2.
Legal Reasoning
I have heard Mr. D.P. Chaliha, learned senior counsel assisted by Mr. U. P. Chaliha, learned counsel for the petitioner. Also heard Mr. M Bhagawati, lea rned CGC and Mrs. H. M. Phukan, learned State Counsel. I have also considered th e entire materials on record including the records received from the Tribunal. 3. Responding to the notice received from the Tribunal, the petitioner appe ared before the Tribunal on 30.12.2009 and prayed for time, which was allowed fi xing the matter on 15.02.2010. Thereafter, also she kept on praying for time and instead of granting several adjournments, when no written statement was filed, an ex-parte hearing was ordered, but on 12.10.2010 the petitioner filed a petiti on seeking vacation of the order for an ex-parte hearing. The prayer was allowed and thereafter the petitioner filed her written statement. 4. The reference against the petitioner was made upon her failure to produc e any document supporting Indian Citizenship. Thereafter, the enquiry officer su bmitted his report suspecting the petitioner to be illegal migrant who entered i nto Assam after 25.03.1971. In the written statement submitted by the petitioner , it was contended that she is an Indian Citizen by birth. In support of her suc h claim, she referred to a certificate issued by the Gaonburha and the voter lis t of 1965 purportedly containing the name of her father without naming him. Howe ver, in paragraph-3, she claimed to be the resident of Vill- Gormari under PS Mi kirbheta in the District of Nagaon, daughter of Md. Rohul Amin. In the said para graph, she also stated that she got married with one Md. Abdul Hai of Vill- Saha riapam under PS Mikirbheta in the District of Marigaon. 5. It is with the aforesaid statement in the written statement, the petitio ner claimed Indian Citizenship by birth. In the proceeding before the Tribunal, the petitioner examined 2 witnesses i.e. herself and another. Prosecution examin ed one witness i.e. the Verification Officer, who in his deposition stated about the intensive revision of Electoral Roll and his engagement to verify and corre ct the voter list containing the identification ’D’ of No. 83 Dhing Legislative Assembly Constituency. According to his deposition, he had visited the residence of the petitioner along with village headman and other local people and asked t he petitioner to show documents in support of her Indian citizenship, but she fa iled to produce anything. He proved the report furnished by him suspecting the p etitioner to be a foreign national who entered into Assam from Bangladesh withou t any valid document after 25.03.1971. Exhibit 1 is the report and Exhibit-1 (1) is his signature. 6. DW-1 i.e. the petitioner stated in her deposition that her father’s name is Rohul Amin, who is alive. She also stated that she got married with Abdul Ha i about 15 years back. Referring to the voter list containing the alphabet ’D’, she in her deposition stated that because of such identification, she could not cast vote in the election. She exhibited certain documents, which are marked as Exhibit ka, kha, ga, gha unga, cha, chha, ja, jha, nya. 7. The aforesaid documents are the copies of voter lists of 1965 and 1971; Certificate of Village Headman; periodic Khiraj patta; copy of Jamabandi, revenu e paying receipt etc. The learned Tribunal discussing the said documents has hel d that the petitioner failed to discharge her burden of proof as envisaged in Se ction-9 of the Foreigners Act, 1946 so as to establish that she is an Indian cit izen. Even if we leave aside the fact that exhibits ka and kha copies of the vot er lists are not in the proper format, the names contained therein do not establ ished any link to the petitioner. That apart, in the Exhibit-ga certificate issu ed by the village headman also does not bear any issue number and date. The peti tioner in her cross-examination also admitted that no periodic Patta No. was sub mitted in her father’s name. Although, she in her deposition stated that she rea d upon to Class-IX, but failed to produce any school certificate. She was re-exa mined on 02.04.2012 and she produced the other exhibits referred to above. As di scussed by the learned Tribunal, the said document did not contain the name of h er alleged father Rohul Amin nor her husband Abdul Hai. Mere production of some documents without proving the contents thereof, establishing the link of the pet itioner to the contents thereof, cannot help the case of the petitioner. 8. DW-2 i.e. the village headman admitted in his deposition that he issued the PRC (Ext. Ga) without any authority. The certificate also does not bear any issue number and date. 9. 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) 10. 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. Needless to say that the High Court exercising its power of judicial rev 11. 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. 12.
Decision
The writ petition is dismissed. There shall be no order as to costs. Let copies of this judgment be sent to SP(B), Morigaon and the Deputy Co 13. mmissioner, Morigaon 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 Mrs. H.M. Phukan, the learned State Counsel for her follow up action. 14. List after one month for furnishing report by the respondents, more part icularly, the SP(B), Morigaon and Deputy Commissioner, Morigaon regarding action taken in favour of this judgment and order. 15. Let the LCR be sent down along with the copy of this judgment and order.