WP(C) 2730/2013 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (CAV) This v. Smt. Anima Sut radhar), by which the
Case Details
WP(C) 2730/2013 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (CAV) This writ petition is directed against the judgment and order 30/01/2013 passed by the learned Member, Foreigners Tribunal (III) Barpeta in Case No. FT Case No. 203(III)/2011 (Ref. IM(D)T Case No. 1199/2k) (State of Assam Vs. Smt. Anima Sut radhar), by which the petitioner has been declared to be a foreign national who illegally entered into Assam subsequent to 25.03.1971. 2. I have heard Mr. U. C. Rabha, learned counsel for the petitioner. Also h eard Mr. M. Bhagabati, learned CGC and Mr. N. Upadhyay, learned State Counsel. I have also perused the entire materials on record including the records received from the Tribunal. On receipt of the notice from the Tribunal, the petitioner appeared and 3. filed written statement claiming herself to be an Indian citizen, by birth. The relevant paragraphs of the written statement are reproduced below :- (cid:28)4. The real fact is that the O.P./2nd Party is an Indian citizen by birth ; and a permanent resident of Assam. The 2nd party is born in village Karertal, u nder Mouza Jania, Dist. Barpeta ; and daughter of Ranu Gopal Sutradhar. The name of the father of the 2nd party, Ranu Gopal Sutradhar is listed 5. in the Voter List of 1966 along with other voters in the Serial No. 925 of Voter list prepared for Vill : Keretal, Mouza : jania under No. 52 Baghbar LAC. 6. The name of the father of the 2nd party, Ranu Gopal Sutradhar is listed along with other voters in the, 1970, part No. 15, Mouza Jania, Dist. Barpeta un der No. 52, Baghbar LAC.
Legal Reasoning
7. The 2nd Party got married in the year 1989 with Shri Bibek Sutradhar S/o . Late Nani Mohan Sutradhar, Vill. Charalpara, Mouza Bhabanipur, Dist. Barpeta a s per Social custom and rites. After marriage, the name of the 2nd party is list ed in the Voter list of 1997, 2004 and 2009 along with other voters. (cid:29) In support of her aforesaid written statement, the petitioner produced o 4. ne certificate dated 6/11/1993 issued by the President of No. 57 Bhatkuchi Gaon Panchayat (Ext. 1). Similarly, 1966 voter list (Ext.2) containing the names of N ani Gopal Sutradhar, Dadhibala Sutradhar and Ranu Gopal Sutradhar and 1970 voter list (Ext.3) containing the same names. Although, in the written statement, the petitioner stated that her name also appeared in the voter list of 1997, 2004 a nd 2009 but no copy thereof was produced by her. In Ext.1 certificate it has been certified that the name of the petition 5. er’s father Ranu Gopal appeared in the 1996 voter list of 51 No. Jonia LAC but o n perusal of the 1966 voter list, it is evident that the same pertains to 52 No. Bagbhar LAC. Similarly, 1970 voter list is also of 52 No. Baghbar LAC. 6. The learned Tribunal having noticed the aforesaid discrepancies and ther e being no explanation coupled with the fact that although the petitioner claims that her name was included in the voter list of 1997, 2004 and 2009 but could n ot produce any one of the same, has held that the story made out by the petition er is not believable and that she could not discharged her burden of proof as en visaged under Section 9 of the Foreigners act, 1946. It has been held that altho ugh the petitioner has projected her father as Ranu Gopal Sutradhar but there is no explanation as to why she could not name her mother. She did not say anythin g about her mother either in the written statement or in the affidavit. In the w ritten statement, the petitioner also did not name her grand parents. 7. Above apart, on perusal of the records received from the Tribunal, it is found that in the report of the Enquiry Officer, the name of the petitioner’s f ather was indicated as Sachin Sutradhar and not Ranu Gopal Sutradhar. 8. 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) Above apart, merely by producing some photocopies, one cannot establish 9. 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. 10. 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 judgement and order requiring any interference of this Court exercisi ng its power of judicial review under Article 226 of the Constitution of India. 11.
Decision
The writ petition is dismissed. There shall be no order as to costs. 12. Let copies of this judgement be sent to SP(B), Barpeta and the Deputy Co mmissioner, Barpeta for taking further course of action towards detention of the petitioner in the detention camp for his deportation to his country of origin a nd 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 State Gov ernment in the Home Department for their necessary follow up action in terms of this judgement and order. Another copy be furnished to Mr. N. Upadhyay, the lear ned State Counsel for his follow up action. 13. 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.- (1) (a) - In the case of registration of citizens in the State of Gujarat, - 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. (2) In the case of registration of citizens in the State of Rajasthan, - (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) 14. 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 2 of the said judgment is quoted below: 219. A submission was made, particularly in WP(C) No. 32/2008 that the petitione rs being Hindus and even if they have come from Bangladesh, same being the resul t of oppression meted out to them there, they must not be branded as illegal mig rants 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 t o foreigners do not make any distinction in that line. The issue raised is purel y a political one and this Court is not the forum to comment upon the same, it b eing not in its scope, ambit and jurisdiction. 15. Let the LCR be sent down along with a copy of this judgement and order.