State of Assam v. Amiran Nessa
Case Details
WP(C) 2564/2013 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (CAV) This writ petition is directed against the judgment and order 15.02.2013 passed by the learned Member, Foreigners Tribunal-III, Barpeta, Assam in FT Case No. 15 3(III)/2011 (ref. IM(D)T Case No. 7161/B/98 (State of Assam Vs. Amiran Nessa @ Z amiraon Nessa) declaring the petitioner to be foreigner (Illegal Bangladeshi Mig rant) who entered into Assam after the cut off date 25.03.1971.
Legal Reasoning
2. I have heard Mr. A.R. Sikdar, 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 materials on record including the records received from t he Tribunal. 3. In response to the reference against the petitioner suspecting her to be a foreign national, appeared before the Tribunal and submitted her written stat ement. In the written statement, she had contended that the name of her grand fa ther Darog Ali appeared in the electoral roll of 1965. Similarly, her father’s n ame (Hayed Ali) also appeared in the electoral roll of 1970. As per the written statement, she was born at Village Bahcha, Mouza- Sarukhetri, PS and district - Barpeta. She got married with one Mograb Ali, S/o. Late Hussen Ali of village Ka raguri Nonke 12 No. Block, Mouza- Paka, PS- Sarthebari, District - Barpeta. 4. In the written statement, the petitioner had further stated that her nam e appeared in the electoral roll of 1993 and that the Sarthebari PS (Border) reg istered the case against her without proper enquiry with the sole purpose of har assing her. Along with the written statement, the petitioner submitted the copie s of the voter list of 1965, 1970, 1993 and the certificate of Gaonbura. In the voter list of 1965 pertaining to 53 No. Sarukehtri LAC (Extract only), names of Darag Ali Mia and Kukimon Nessa, aged 47 and 41 years respectively appears. In t he 1970 voter list of the same constituency (extract only), the names of Hayed A li, Bosiran Nessa and Rahmat Mia aged 45, 35 and 21 appears. In the 1997 voter l ist, the name of Basiran Nessa aged 75 years appears. In the 1993 voter list, th e name of Amiran Nessa W/o. Magbar aged 38 years appears. The Gaonbura’s certifi cate is dated 12/09/2012 certifying the petitioner to be a resident of the parti cular locality. 5. Above are the documents on the basis of which the petitioner wanted to p rove her Indian citizenship, that too, by birth. The aforesaid documents had bee n exhibited in the Tribunal as Ext. A, B, C, D and E respectively. 6. The learned Tribunal appreciating the aforesaid evidence adduced by the petitioner has passed the impugned judgement and order dated 15/02/2013 holding the petitioner to be a foreign national. As recorded in the impugned judgement a nd order and also stated above, if the voter lists of 1965 and 1970 are to be be lieved, than the age difference between the projected father and grand father of the petitioner was only of 5 (five) years. In the 1965 voter list containing th e name of the projected father and mother, their respective age is 47 and 41 yea rs. If that be so, the projected father of the petitioner, namely, Hayed Ali cou ld not have been aged 45 years in 1970. Surprising, in the Ext. C voter list con taining the name of the projected mother of the petitioner and her age is record ed as 75 years while she was only 35 years of age in 1970. In Ext. D photocopy of the voter list of 1993, the name of Amiran Nessa 7. appears recording her age as 38 years. If she could become voter in 1993, she co uld have produced voter list of subsequent years containing her name. She ought to have produced voter list of pre 1993 containing her name. 8. As noted above, the certificate of Gaonbura has got nothing to do with t he question as to whether the petitioner is an Indian citizen or not. By the sai d certificate, it has only been certified that the petitioner is only a resident of the particular locality. The learned Tribunal has rightly recorded the findi ngs that if the parents of the petitioner were aged 45 and 35 years, their names ought to have been recorded in the earlier voter lists. No explanation could be furnished by the petitioner. This is no explanation as to why their names did n ot appear in any subsequent or earlier voter list including the 1965 voter list. 9. According to the petitioner, Amiran Nessa and Zariran Nessa is one and t he same person i.e. the petitioner. In the Gaonbura’s certificate referred to ab ove (Ext. E) one Amijan W/o. Magrab Ali has been recorded. It is not the case of the petitioner that she is also known as Amijan. Interestingly, apart from the above documents produced before the Tribunal, the petitioner in her over enthusi asm has also produced another voter list of 1959 showing the inclusion of names of her projected parents aged 63 and 31 years respectively. If her father was on ly 45 years old in 1970 it is not understood how he could be 63 years old in 195 5, even older than his father who was only 47 years old in 1965. Similarly, in t he 1997 voter list annexed as Annexure-9 to the writ petition, the petitioner’s mother become 75 years of age. This discrepancies are sought to be overcome by t he learned counsel for the petitioner with the submission that such mistakes are attributable to the Enumerators. It will have to be borne in mind that in the v oter lists, similar names, even to the extent of resembling with the names of fa ther’s and grand father’s are to be found. It could be the advantage of a foreig ner to identify any name from the voter list with the slightest of resemblance t o project as his parents and grand parents. 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) Above apart, merely by producing some photocopies, one cannot establish 11. 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 judgement and order requiring any interference of this Court exercisi ng 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 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. 12. Registry shall send down the case records to the Tribunal along with a c opy of this judgement and order. List after one month for furnishing report by t he respondents, more particularly, the SP(B), Barpeta and Deputy Commissioner, B arpeta regarding action taken in term of this judgement and order.