Dismissed

Musst. Nuraton Nessa @ Nuriton Nessa v. the Union of India and 4 Ors.

Gauhati HC4 Jun 2018Review.Pet./81/2017

Case brief

AI extract

What is this about?

Review petition dismissed. Court held that a subsequent order declaring the petitioner's alleged father not a foreigner does not provide grounds to review a final judgment dismissing the petitioner as a foreigner, especially where no link was established between the two cases and the original evidence was sufficient.

What did the court decide?

Review petition dismissed; copy furnished to Election Commission and State Coordinator, NRC, Assam.

Musst. Nuraton Nessa @ Nuriton Nessa… — Constitutional and Fundamental Rights | Gauhati HC (2018)

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GAHC010026862017

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Review. Pet. 81/2017

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1:MUSST. NURATON NESSA @ NURITON NESSA D/O. MD. KADER ALI ALIAS KASER ALI, R/O. VILL. ODALGURI, P.O. KHAGRABARI, P.S. DHALIGAON, DIST. CHIRANG, BTAD, ASSAM.

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VERSUS

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1:THE UNION OF INDIA and 4 ORS

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REP. BY THE SECY., MINISRTY OF HOME AFFAIRS, GOVT. OF INDIA, SHASTRI BHAWAN, NEW DELHI.

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2:THE STATE OF ASSAM THROUGH THE SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GUWAHATI-781006.

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3:THE SUPERINTENDENT OF POLICE BORDER KAMRUP P.O. and P.S. KAMRUP GUWAHATI-781001.

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4:DY. COMMISSIONER CHIRANG BTAD ASSAM.

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5:THE OFFICER-IN-CHARGE DHALIGAON POLICE STATION DHALIGAON CHIRANG ASSAM

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Advocate for the Petitioner : MS.N DEKA

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Advocate for the Respondent : GA, ASSAM

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BEFORE HONBLE MR. JUSTICE UJJAL BHUYAN HONOURABLE MRS. JUSTICE RUMI KUMARI PHUKAN

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ORDER

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Date : 04-06-2018

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Ujjal Bhuyan, J.

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Heard Ms. D Ghosh, learned counsel for the review petitioner and Mr. J Payeng, learned Special Counsel, Foreigners Tribunal (FT).

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This petition seeks review of judgment and order dated 06.01.2017, passed by the writ court in WP(C) No.805/2016, filed by the review petitioner as the writ petitioner assailing the legality and correctness of the order dated 29.10.2015, passed by the Foreigners Tribunal, Chirang in Case No. BNGN/FT (CHR) 585/2007 (State Vs. Musstt. Nuraton Nessa), declaring the petitioner to be a foreigner who had illegally entered into India (Assam) after 25.03.1971.

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It may be mentioned that initially reference was made against the petitioner by the jurisdictional Superintendent of Police (Border) under the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act), suspecting the petitioner to be an illegal migrant as defined under the said Act i.e., a foreigner who had unauthorizedly entered into India after 25.03.1971. After the IMDT Act was declared unconstitutional by the Supreme Court in Sarbananda Sonowal Vs. Union of India , reported in (2005) 5 SCC 665 , the reference was re-registered under the Foreigners Act, 1946 read with the Foreigners (Tribunals) Order, 1964 and after creation of additional Tribunals was assigned to the Foreigners Tribunal, Chirang (Tribunal). We find that the reference was fully contested by the review petitioner by filing written statement and by adducing evidence. Tribunal considered the entire materials on record and thereafter passed a detailed order on 29.10.2015 answering the reference in favour of the State.

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Such a finding returned by the Tribunal based on appreciation of evidence was a finding of fact. Ordinarily, a writ court would not interfere with such a finding of fact. Nonetheless, the writ court had re-appreciated the entire evidence on record, including the record requisitioned from the Tribunal whereafter, the finding of fact arrived at by the Tribunal was affirmed and consequently, the writ petition was dismissed vide the judgment and order dated 06.01.2017. Relevant portion of the judgment and order dated 06.01.2017 is extracted hereunder: -

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“ 17. On due consideration we find no merit or infirmity in the view taken by the Tribunal. As already notice above, petitioner in her deposition recorded on 04-09-2015 declared her age as 35 years. In other words, she was born in and around the year 1980. She stated that she has been residing in her present place of residence at village Odalguri No.2 after her marriage at around 25 years of age. If the statement is taken literally it would mean that she got married at around 25 years of age. However, this interpretation may not be correct as petitioner further stated in her deposition that she has 7 children, the eldest being 2 3 years of age. Therefore, considering the petitioner’s version as a whole, the only logical interpretation would be that she has been residing in her present place of residence since about 25 years ago. If this is the version of the petitioner, then she got married at the age of 10 years and her first child was born when she was 12 years of age. In other word petitioner got married in 1990 and he r first child was born in 1992.

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Keeping the above testimony of the petitioner in mind, we may now examine the different exhibits relied upon by the petitioner. Exhibit 1, as noticed above, is an extract of the voters list of 1966 in respect of No.40 Sidli Legislative Assembly Constituency (ST). In this exhibit, name of Kaser Ali appears at Sl .No.39 and his age is shown as 29 years. Name of Biyar Ali, brother of Kaser Ali, is shown at Sl.No.40 with his age recorded as 24 years. In the second exhibit i.e. extract of voters list of 1971 in respect of No.32 Bongaigaon Legislative Assembly Constituency, Kaser Ali is shown as aged about 37 years and Biyar Ali as aged about 34 years. A comparison between exhibits 1 and 2 clearly reveals wide discrepancy in the age of Kaser Ali and Biyar Ali. If Kaser Ali was 29 years of age in 1966 he ought to have been 34 years of age in 1971; but his age was show n as 37 years. Likewise, age of Biyar Ali was shown as 24 years in 1966; therefore he should have been 29 years in 1971. But his age was shown as 34 years. That apart, in exhibit 2, name of Fuljan Bibi appears as wife of Biyar Ali. If that be so, her name ought to have appeared in the voters list immediately after her husband but that is not the case. In this exhibit while name of Biyar Ali appear s at Sl. No.97, name of his wife Fuljan Bibi appears at Sl.No.101. That apart, t here is clear overwriting in respect of age of Fuljan Bibi making it impossible to decipher her recorded age.

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Moving on to exhibit 3, this is a certificate dated 25-11-2012 issued by the Secretary, Hapachara Gaon Panchayat who certifies that he knows the petitioner who resides at village Dankinamari. Firstly, this certificate was issued 5 years after the proceeding was started against the petitioner before the Tribunal in the year 2007. Secondly, as per petitioner’s own version in her evidence she stated that she has been residing at village Odalguri No.2 since the last 25 years following her marriage. Therefore no reliance can be placed on such certificate. Besides, this exhibit is contradicted by exhibit 4 issued by the same authority. In this exhibit the date given is 22/2015 which makes no sense at all. T he certificate is counter signed by Block Development Officer, Manikpur Development Block but there is no date. As per this exhibit 4, petitioner got married to Hasen Ali, son of Biyar Ali and Fuljan Bibi on 02-061993. If the version of the petitioner in her oral testimony is accepted, she came to Odalguri No.2 village after her marriage in 1990 and her first son was born on 1992 which materially contradicts exhibit 4. Such material contradiction makes this exhibit totally unreliable.

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Exhibit 5 is an extract of the voters list of 1997 in respect of No.32 Bongaigaon Legislative Assembly Constituency. Here petitioner’s name appears at S l. No.121 and her age is shown as 22 years. If this is accepted, then petitioner was born in the year 1975. If this exhibit is to be believed then the oral testimony of the petitioner as well as the other exhibits cannot be believed. Again Biyar Ali is shown as aged about 57 years. If he was 24 years in 1966 (exhibit 1), he would have been 55 years in 1997 and if he was 34 years in 1971 (exhibit 2), he would have been 60 years in 1997. In any case, the voters list of 1997 being a post 1971 document and there is nothing to link up the petitioner with Kaser Ali, her projected father with a pre 1971 document, exhibit 5 is not only of n o legal consequence but rather fatally dents the claim of the petitioner of being an Indian citizen.

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The last exhibit i.e. exhibit 6 is a certificate of the school Headmaster where the petitioner studied in class II. As per this certificate petitioner studied in the school in 1992. This certificate was issued 20 years after petitioner left the school. As per this certificate petitioner was born on 10-071984. As already noticed above, this certificate having been issued after 20 years and that too after the proceeding commenced before the Tribunal, cannot be relied upon. That apart the author of the certificate was not examined to establish the correctness of the contents of the certificate. Therefore, no reliance can be placed on this document. However, if the date of birth given in this document is accepted and if the oral testimony of the petitioner is considered parallelly, it would mean petitioner got married in the year 1990 at the age of 6 years and gave birth to her first child in the year 1992 at the age of 8 years when she was studying in class II. As such, the evidence adduced on behalf of the petitioner are not only contradictory but borders on absurdity.

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Therefore, on a careful analysis of the entire evidence adduced by the

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petitioner, it is more that evident that petitioner has failed to prove her India n citizenship. She has failed to discharge the burden which was on her as per mandate of Section 9 of the Foreigners Act, 1946.

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Thus on a thorough consideration of the matter, we do not find any error or infirmity in the view taken by the Tribunal to warrant interference. Consequently, we find no merit in the writ petition which is accordingly dismissed.”

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Review has been sought for on the ground that in the case of Kader Ali, whom the petitioner claims to be her father, Foreigners Tribunal No.1, Bongaigaon had passed an order dated 28.11.2016 in BNGN/FT/Case No.25/2009, declaring him to be not a foreigner. It is contended that since father has been declared to be not a foreigner, therefore the judgment and order passed in the case of the petitioner is liable to be reviewed.

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We are afraid we can accept such submission made on behalf of the petitioner for more than one reason. Firstly, the judgment and order in the case of the review petitioner was delivered on 06.01.2017. The order in the case of Kader Ali was passed by the Tribunal prior thereto on 28.11.2016. If indeed Kader Ali was her father, this order could have been immediately brought to the notice of the writ court by the review petitioner before delivery of the judgment. But that was not done. Secondly, it is seen that neither in the reference of the petitioner, Kader Ali had deposed as her father nor in the reference of Kader Ali, petitioner has deposed as his daughter. It is only after dismissal of the related writ petition that this order dated 28.11.2016 is now being presented before us contending that when the father has been declared as not foreigner, the same benefit should be extended to the daughter. Thirdly, petitioner identified herself in the writ petition as Musstt. Nuraton Nessa @ Nuriton Nessa, daughter of Md. Kader Ali @ Kaser Ali, resident of village Odalguri under Dhaligaon Police Station in the district of Chirang. On the other hand, we find Kader Ali to be a resident of village Donkinamari under Bongaigaon Police Station, district - Bongaigaon. There is nothing on record to show that Kader Ali of BNGN/FT/Case No.25/2009 is the father of the review petitioner. Fourthly, we have carefully gone through the order dated 28.11.2016, passed by the Foreigners Tribunal No.1, Bongaigaon in the case of Kader Ali. Relevant portion of the said order dated 28.11.2016 is extracted hereunder: -

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“Ext-A is an NRC certificate, issued by some police station. However, rejected being alternatively produced another computer generated certificate of some nature. It was marked also as Ext-A. The Ext-A is revealed in the name of one Abdul Kadir, Who is opp in the case. Accepted. Ext-B is a voter list of 1966. The voter list is revealed in the name of one Sibon Seikh. Rejected being alternatively produced another voter list of the same year. Alternatively produced voter list of 1966 revealed in the name of one Kaser Ali. A separate affidavit in this regard marking as Ext-F has also produced by the opp. It reveals that the affidavit was years long ago dtd. 08.08.1994 before some Ld. Judicial Magistrate. Relevant part of the affidavit inter-alia stated that the name of opp was wrongly recorded in the voter list of 1966 as Kaser Ali instead of Abdul Kader. Accepted the Ext-B on the strength of Ext-F. After being heard both sides and perused over the documents, it reveal that the opp is an Indian citizen.”

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The above opinion of the Foreigners Tribunal No.1, Bongaigaon is devoid of any legal reasoning. Such an opinion is no opinion at all in the eye of law. Infact, the opinion was rendered contrary to the materials on record wherefrom it is evident that Kader Ali had not discharged his burden under Section 9 of the Foreigners Act, 1946. Tribunal had relied upon documents which were inadmissible in evidence. That apart, two voters lists of 1966 were filed, one in the name of Kaser Ali and one in the name of Kader Ali. An affidavit was filed stating that the name of Kaser Ali was wrongly inserted instead of Abdul Kader. If this be the position, then petitioner’s description of herself as daughter of Md. Kader Ali @ Kaser Ali would not stand to reason.

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However, since this opinion of the Foreigner Tribunal, Bongaigaon No.1 dated 28.11.2016 is not under challenge, we would not proceed further at this point of time. Suffice it to say that such an opinion is legally untenable and on that basis Kader Ali could not have been declared to be not a foreigner. The referral authority as well as the State may look into this aspect of the matter and take necessary steps as may be deemed fit and proper in accordance with law.

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Adverting to the review petition, we are therefore of the view that on the basis of this opinion, there is hardly any scope to review the judgment and order dated 06.01.2017. No case for review is made out.

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Review petition is accordingly dismissed.

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Registry to inform the concerned Foreigners Tribunal, Deputy Commissioner and

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Superintendent of Police (Border) for necessary follow-up steps.

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A copy of this order be furnished to learned Sanding Counsel, Election Commission of India and State Coordinator, NRC, Assam.

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JUDGE JUDGE