High Court
Case Details
WP(C) 295/2009 BEFORE HON’BLE MR JUSTICE B.K. SHARMA The petitioner who has been declared as foreign national (illega l Bangladeshi migrant) seeks to claim Indian citizenship and that too, by birth, 1. with the following statement. (cid:28)2. That the petitioner is a poor woman. The petitioner as well as her father we re born and brought up at village Sonaiberapam, P.O., Balikatia under Juria Poli ce State in the district of Nagaon, Assam. The petitioner got married in the yea r 1994 with one Md. Ichamuddin, Son of Late Jaher Uddin of village, Potia Chapor i, P.O. Dhing, P.S. Dhing in the District of Nagaon, Assam and since then she ha s been permanently residing at her husband’s house as stated above. Due to their wed-lock four children were born and all are minors and between the age group o f 2, 4, 6 and 8 and needs parental care. 3. That the petitioner begs to state that she is a citizen of India by birth. He r father Abul Kasem is an inhabitant of village, Sonaiberapam, P.O., Balikatia, P.S. Juria in the District of Nagaon, Assam and was born on 1955. Her father Abu l kasem is the elder son of Late Abul Hasen. The name of late Abul Hasen appeare d in the Electoral Roll of 1965 under 87 No. Rupahihat Legislative Assembly Cons tituency at village, Sonaiberapam, Mouza, Alitngani in Part No. 14, House No. 7, Serial No. 17. The petitioner’s father name also appeared in the electoral roll of 2007 under Rupahihat legislative Assembly Constituency in Serial No. 52, Hou se No. 318 at village, Sonaibera- Simolouati under Nagaon Sadar (Mahukuma). The petitioner begs to state that she has been living in the above place permanently . (cid:29) 2. In support of the aforesaid contention, the petitioner has placed relian ce on Annexure-B photo copy of the voter list of 1965 and the photo copy of vote r list of 2007 (not very legible). Although the petitioner has declared her age as 34 years on the date of swearing the affidavit in support of the writ petitio n (27.01.2009), but could not annex any document including any voter list conta ining her name.
Decision
3. As stated in the writ petition, the reference made against the petitione r was registered and numbered as FT Case No. 344/2006. On receipt of the notice from Foreigners’ Tribunal, the petitioner appeared before the Tribunal and took time to file written statement. As stated in paragraph-4, (cid:28)But unfortunately due to lack of communication with the counsel whom she had engaged, she could not file her written statement on date (cid:29) . Further statement made is that the Tribuna l vide ex parte judgement and order dated 05.02.2008 declared her as foreigner, who entered India after 25.03.1971 without giving the petitioner any opportunity of being heard and to produce the records in support of her defence which cause d great injustice/prejudice to the petitioner. 4. The ex parte proceeding and the order dated 05.02.2008 is the result of non-appearance of the petitioner before the Tribunal even on receipt of notice and appearance at the first instance praying for time to file written statement. However, when the petitioner no further responded to the proceeding before the Tribunal, it had no other option than to proceed ex parte. There is absolutely n o statement and/or pleadings in the writ petition as to what prevented the petit ioner from appearing before the Tribunal after appearance at the first instance praying for time to file written statement. The plea of communication gap with h er engaged counsel is as vague as anything and this Court exercising the writ ju risdiction cannot give any indulgence to such a plea, more particularly when the burden was on the petitioner to prove her Indian citizenship as envisaged under Section 9 of the Foreigner’s Act, 1946 about which much has been emphasised in Sarbananda Sonowal vs. Union of India reported in AIR 2005 SC 2920. 5. I have heard Mr. G.P. Bhowmik, learned counsel for the petitioner as wel l as Mr. B.K. Chetri, learned State counsel. None appears for the Union of India . I have also gone through the materials available on record. Although the reco rds from the Tribunal were called for, but as stated by the learned State counse l, same having been misplaced, could not be produced. 6. Mr. Bhowmik, learned counsel for the petitioner submits that the petitio ner is required to be given another opportunity to prove her case. However, on being asked as to why the petitioner did not respond to the proceeding before th e Tribunal, he could cannot furnish any satisfactory explanation. On being furth er queried as to on what documents the petitioner could be declared as Indian citizen and that too, by birth, he referred to the aforesaid documents only. 7. Mr. Chetri, learned State counsel submitted that the facts stated in the writ petition themselves would go to show that the petitioner is not an Indian citizen as has been claimed by her. As regards the records of the Tribunal, he s ubmitted that the records contained the notice served on her; her application pr aying for time to file written statement and the orders pertaining to ex parte hearing and the impugned order which are very much available in this proceedin g. 8. Irrespective of the aforesaid position, I have considered the case proje cted by the petitioner in the writ petition. As noted above, as per own declara tion of the petitioner, her age as on 27.01.2009 (date of swearing the affidavit ), was 34 years. If that be so and having regard to her plea of being an Indian citizen by birth, she could have produced the valid documents, more particularly the voter list containing her name therein. The only documents on which she has placed reliance are Anenxures- A, B, C and D. Annexure-A is the photo copy of c ertificate issued by the Secretary of the particular G.P. certifying that the na me of the petitioner’s purported father Md. Abul Kasem was enlisted in the elect oral roll of 1997. The said voter list is pertaining to Dhing LAC. Annexure-B is the photo copy and extract of voter list of 1965 containing the name of one Abd ul Hasen aged 35 years whom the petitioner claims to be her grand father. The said voter list is of Rupahihat LAC. Annexure-C is the certificate issued by the Govt. Gaonburah certifying inclusion of her grand father’s name in 1965 elector al roll. Annexure-D is the photo copy of the voter list of 2007 (not very legibl e) containing the name of Abul Kasem whom the petitioner claims to be her father . There is absolutely no explanation as to why her purported father and gr 9. and father’s names did not appear in any other voter lists except 1965 and 2007. There is also no explanation as to why the name of the petitioner has not been included in any voter lists. I hasten to add that it is not for the writ Court t o analyse and appreciate the documents annexed to the writ petition to arrive a t a finding relating to citizenship. However, the claim of the petitioner that s he is Indian citizen by birth is belied by her own documents. As has been held b y the Apex Court in Bharat Singh vs. Dallu reported in AIR 1988 SC 2181 , when a point which is ostensibly a point of law is required to be substantiated by fac ts, the party raising the point if he is the writ petitioner, must plead and pro ve such facts by evidence which must appear from the writ petition. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition, the Court will not entertain the point. In a writ petition not on ly the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. Merely because the petitioner claims to be an Indian citizenship by birt 10. h (without enclosing any supporting documents) and has placed reliance on the af orementioned documents, the same cannot establish her Indian citizenship she hav ing failed to prove the said documents as per the provision of Evidence Act. Dea ling with the question of its admissibility of evidentiary value of school regis ter for determination of age, the Apex Court in Babloo Pasi vs. State of Jharkha nd reported in (2008) 13 SCC 133, observed that entry regarding age of a person in a school register has not much evidentiary value to prove the age of the pers on in absence of material on which the age was recorded (see Biradmal Singvi vs. Anand Puruhit reported in 1988 Suppl. SCC 604). In the instant case, the docume nts in which the petitioner has placed reliance cannot be accepted as she has f ailed to establish that the names therein are relatable to her. 11. As has been held by the Apex Court in Life Insurance Corporation of Indi a vs. Ram Pal Singh Bisen reported in (2010) 4 SCC 491, mere admission of a doc ument in evidence does not amount to its proof. In other words, mere making of a n exhibit of a document does not dispense with its proof which is required to be done in accordance with law. In paragraph-31 of the judgment, it has been obser ved thus: (cid:28)31. Under the law of evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the mos t, admission of documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the Evidence Ac t cannot be relied upon by the court. Contents of the document cannot be proved by merely filing in a court. (cid:29) 12. Mr. Bhowmik, learned counsel for the petitioner emphasising the fundamen tal rights guaranteed under the constitution of India, submitted that the petiti oner is entitled to get another opportunity. The petitioner having not availed the opportunity provided to her and even in the writ petition having failed to e stablish her case, I am of the considered opinion that such a plea is totally mi splaced. As per the declaration made by the Tribunal, the petitioner is not a ci tizen of India. She is therefore, a foreigner as defined in the Foreigners Act. As has been held by the Apex Court in Anowar Vs. State of J & K reported in (197 1) 3 SCC 104, a person who is not an Indian citizen is normally not entitled to any fundamental rights guaranteed by Article-19 of the Constitution of India. It was held that the petitioner involved in the said case had no right to remain w ithin the territories of India. As in the said case, in the instant case also, i t is not the case of the petitioner that she had come to India in accordance wit h law. The only rights which she can claim are those contained in Article 20 to 22. 13. The petitioner having failed to discharge her burden of proof she is an Indian citizen, she is not entitled to any further right, not to speak of Consti tutional rights. Under Section-9 of the Foreigners Act, whenever a question aris es whether a person is or is not a foreigner, the onus of proving that he/she is not a foreigner lies upon him/her. The burden was therefore upon the petitioner to establish that she is a citizen of India in the manner claimed by her and th erefore, she is not a foreigner. This burden having not been discharged by the p etitioner, it has rightly been held that she is a foreigner and her claim in th e writ petition that she is an Indian citizen by birth on the basis of the docum ents annexed to the writ petition cannot be accepted. 14. As has been observed by the Apex Court in Bhanwaroo Khan vs. Union of In dia and ors. reported in (2002) 4 SCC 346, even in a case of long stay in the co untry and enrolment in the voter’s list would not confer any right on an alien t o continue to stay in the country. 15. For all the aforesaid reasons, I do not find any merit in the writ petit ion and accordingly it is dismissed. The interim order operating in this proceed ing stands vacated. The petitioner is already in custody (in detention camp) pur suant to her surrender before the Superintendent of Police (B), Nagaon from 09.0 3.2009. The Deputy Commissioner, Nagaon and the Superintendent of Police (B), Na gaon shall ensure deletion of her name from the voter list, if any, and her depo rtation to the country of her origin immediately. 16. Let the copies of this judgement and order be furnished to the Deputy Co mmissioner, Nagaon and the Superintendent of Police (B), Nagaon. Another copy be sent to the Union of India in the Home Ministry. Let another copy of this judgm ent be furnished to Mr. B. Chetri, learned State counsel for his necessary follo w up action. List the matter after one month for furnishing compliance report by the Deputy Commissioner, Nagaon and the Superintendent of Police (B), Nagaon.