High Court
Case Details
WP(C) 990/2013 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER (CAV) This writ petition is directed against the judgment and order dated 16.12.2012 p assed by the learned Member of the Foreigners’ Tribunal No. III, Barpeta, in FT Case No. 71(III)/2011 (IM(D)T) Ref. Case No. 3569/B/1998 (Government of Assam-Vs -Fateman Nessa).
Legal Reasoning
4. According to the written statement, the petitioner got married with one Shaizuddin son of Rahizuddin of village- Pithadigaon and that her name appeared in the Electoral Roll of 1985 of 46 No., Sarukhetri, L.A.C. In support of her af oresaid claim in the written statement, the petitioner produced the photocopy of voter list of 1965 containing the name of one Mobed Ali and photocopy of purpor ted N.R.C containing 4 names, one of whom she seeks to identify as her father. H owever, the contents of the said purported N.R.C are not legible and prima facie the name of Mobed Ali is not discernible. The petitioner also produced photocop y of voter list of 1985 containing the name of one Fateman Nessa along with Shai zuddin, whom she claims to be her husband. She also produced photocopy of a sale deed containing the name of Mobed Ali Bepari, son of Late Haji Osimuddin. No da te of the sale deed is discernible and prima facie appears to be un-registered. The petitioner also produced the voter lists of 1970 and 1971 containing the nam e of one Sobed Ali. 5. Learned Tribunal appreciating the evidence on record has held that the p etitioner failed to establish that she is an Indian citizen and that too by birt h. The petitioner in her evidence on oath as DW1 stated that she was born and br ought up at village-Purbalowashur. In reference to the written statement, she al so stated about the documents and exhibited the photocopies of the same i.e. vot er lists of 1970, 1971 and 1985, the certificate of village Gaonburah and the sa le deed as Ext. A, B, C, D and E respectively. 6. The petitioner also examined one Md. Sadulla Ahmed as DW2 who in his dep osition stated that the petitioner is his own elder sister and that their father Late Mobed Ali had landed property at village Nalirpur under PS and District Ba rpeta. He also stated that his name appeared in the voter lists of 1985, 1997 an d 2010 (Ext. G, H and I). He further stated that, he was born in 1970 and that t he petitioner was elder to him by about 30-40 years and also that he was only 2 years of age when his sister i.e. the petitioner was given on marriage as told t o him by his mother Late Amina Khatun. He further stated in his deposition that his father expired in the year 1980 and thereafter his mother in 2006. 7. The learned Tribunal on careful consideration of the written statement f iled by the petitioner and the evidences adduced by her including the documentar y evidences found discrepancies narrated in the impugned judgment and order lead ing to failure of the petitioner to establish that she is an Indian Citizen by b irth. In her written statement supported by an affidavit dated 20.07.2011, the p etitioner has stated that the name of her father Mobed Ali appeared in the Elect oral Roll of 1965 and also in the NRC of 1951. However, she did not file, exhibi t or prove any certified copy of the Electoral Roll of 1965 or the certified tru e copies of NRC of 1951 showing the name of Mobed Ali. The photo copy of the NRC even if considered to be true, it is found to be of no help to the case of the petitioner. Though the petitioner stated in her written statement that her fathe r Mobed Ali’s name appeared in the NRC of 1951, but as discussed by the learned Tribunal in the impugned judgment and order, she is completely silent about the same in her evidence recorded on oath. She has not stated anything in her eviden ce regarding the NRC. 8. As discussed above, in the photo copy of the NRC, the contents are not l egible, but even if it is accepted that Mobed Ali’s name is there with Bhanu Nes sa and Khatu Nessa, but the petitioner did not state anything about the same eit her in her written statement or in her evidence on oath. 9. DW 2, in his evidence has stated that he was about 2 years old when the petitioner i.e his sister was given on marriage. It has rightly been held by the learned Tribunal that even if the name of Mobed Ali appeared in the NRC of 1951 but in absence of any cogent proof that the said person is the father of the pe titioner, mere production of the same is of no help to the case of the petitione r. It has rightly been recorded by the learned Tribunal that non-mentioning of t he name of the petitioner’s father is very vital. No document was produced and p roved to show that the name of the mother of the petitioner is Amina Khatun. If Amina Khatun is, in fact her mother, she having died only in 2006, there cannot be any earthly reason as to why no certified copy of any voter list showing her name could be produced by the petitioner. If Mobed Ali is accepted to be the fat her of the petitioner then also it is not understood as to why the names of his two wives did not appear in any of the voter lists. 10. Learned Tribunal after the elaborate discussion of the entire evidence a nd recording the huge discrepancies easily discernible from the said evidence ha ving held that the petitioner could not discharge the burden of proof to establi sh that she is an Indian Citizen and that too by birth, this Court exercising it s power of Judicial Review under Article 226 of the Constitution of India cannot sit on appeal over the said findings by scrutinizing the evidence so as to retu rn another finding. 11. 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) 12. 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. 13. 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. 14.
Arguments
2. I have heard Mr. B Banerjee, learned counsel for the petitioner. Also he ard Mr. M Bhagawati, learned CGC and Mrs. H.M Phukan, learned State Counsel. I h ave also considered the entire materials on record including the records receive d from the Tribunal. 3. On receipt of notice from the Tribunal, the petitioner upon appearance f iled her written statement on 27.07.2011 inter-alia stating that she is a Bonafi de citizen of India by birth and that her father’s name Mobed Ali appeared in th e Electoral Roll of 1965 of the then No. 48 Bhawanipur, LAC. In the written stat ement, she also claimed that her father’s name also appeared in the N.R.C of 195 1 and that her father purchased a plot of land measuring 1 Bigha 17 Lachas cover ed by Dag No. 150 under periodic patta No. 10 of village-Purbalowashur under P.S , Barpeta, through a registered sale deed No. NIL/1969 dated 19.12.1969.
Decision
The writ petition is dismissed. There shall be no order as to costs. 15. Let copies of this judgment be sent to SP(B), Barpeta and the Deputy Com missioner, Barpeta for taking further course of action towards detention of the petitioner in the detention camp for his deportation to his country of origin an d for deletion of his name from the voter list. Copies of this order shall also be sent to the Union Govt. in the Ministry of Home and so also to the above two authorities for their necessary follow up action in terms of this judgment and o rder. Another copy be furnished to Mrs. H.M. Phukan, the learned State Counsel f or her follow up action. 16. List after one month for furnishing report by the respondents, more part icularly, the SP(B), Barpeta and Deputy Commissioner, Barpeta regarding action t aken in favour of this judgment and order. 17. Let the LCR be sent down along with the copy of this judgment and order.