Dismissed

Hamida Begum v. the Union of India and 3 Ors.

Gauhati HC6 Jun 2018WP(C)/2294/2016

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a writ petition seeking to quash the Foreigners Tribunal's declaration as an illegal foreigner. The court held the petitioner failed to prove her citizenship under Section 9 of the Foreigners Act due to inadequate documentary evidence and lack of witness corroboration regarding her lineage.

What did the court decide?

The writ petition is dismissed; the interim order allowing bail is vacated.

Hamida Begum Vs the Union of India and… — Constitutional and Fundamental Rights | Gauhati HC (2018)

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Page No.# 1/6

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GAHC010109992016

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

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Case No. : WP(C) 2294/2016

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1:HAMIDA BEGUM

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D/O- ABDUL WAHAB @ A. WAHAB, W/O- ABDUL SUKKUR, VILL.- SAJPUR, P.O.- BISHNUNAGAR, P.S. and DIST.- KARIMGANJ, ASSAM, PIN- 788712.

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VERSUS

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1:THE UNION OF INDIA REP. BY THE SECY., MINISTRY OF HOME AFFAIRS, NEW DELHI- 1.

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2:THE STATE OF ASSAM REP. BY THE SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY- 6. 3:THE SUPERINTENDENT OF POLICE B KARIMGANJ P.O. and P.S.- KARIMGANJ DIST.- KARIMGANJ ASSAM PIN- 788710.

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4:THE DY. COMMISSIONER KARIMGANJ P.O. and DIST.- KARIMGANJ ASSAM PIN- 788710

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Advocate for the Petitioner : MR.R ALI

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Advocate for the Respondent :

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

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ORDER

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Date : 06-06-2018

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( Ujjal Bhuyan, J .)

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We have heard Mr. R. Ali, learned counsel for the petitioner and Mr. J. Payeng, learned Special Counsel, Foreigners Tribunal (FT).

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2 . By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 28.01.2016 passed by the Foreigners Tribunal-1, Karimganj in FT Case No.482/2012 (State Vs. Hamida Begum) declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from Bangladesh after 25.03.1971.

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3. This Court by order dated 28.04.2016 had issued notice while requisitioning the case record and passed an interim order to the effect that petitioner should be allowed to remain on bail subject to her appearance before the Superintendent of Police (Border), Karimganj and furnishing of adequate surety.

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4. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record, including the record requisitioned from the Tribunal.

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5. Before examining the record, we find that the reference was duly contested by the petitioner by filing written statement and by adducing evidence. Petitioner also exhibited a number of documents. After due consideration, Tribunal disbelieved the version of the petitioner and opined that she was an illegal foreigner of post 25.03.1971 stream.

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6. This finding returned by the Tribunal is a finding based on appreciation of evidence. It is a finding of fact. Ordinarily, a writ Court would not interfere with such a finding of fact because the jurisdiction exercised under Article 226 of the Constitution of India is not appellate but supervisory.

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7. Notwithstanding the same, to re-assure ourselves about the correctness or otherwise of the order passed by the Tribunal, we have once again looked into and re-appreciated the materials on record.

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8. In her written statement filed before the Tribunal, petitioner stated that her father was

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late Abdul Wahab and grandfather was Khusid Ali. Both of them used to reside at village Jatua under Karimganj Police Station in the district of Karimganj. Father was a voter in 1966 in respect of North Karimganj constituency and then again in 1971. Petitioner was born on 20.05.1978 in the aforesaid address. She studied in Zarerbazar ME School up-to Class-VI. In 1996, she married Abdul Sukkur of village Saidpur under Karimganj Police Station. After marriage, her name was enlisted in the voters list of 2005 in respect of North Karimganj constituency and again in 2011.

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9. This was all that the petitioner stated in his written statement which by any account was wholly inadequate to establish her identity as a citizen of India having regard to the mandate of Section 9 of the Foreigners Act, 1946 as explained by the Supreme Court in paragraph 26 of Sarbananda Sonowal Vs. Union of India, (2005) 5 SCC 665, which is extracted hereunder:-

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“26. There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country. In order to establish 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 necessarily be within the personal knowledge of the person concerned and not of the authorities of the State. After he has given evidence on these 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 citizenship by a person and assert that he is a foreigner, it will not only be difficult 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 person, the burden of proving that fact is upon him.”

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10. Amongst other omissions, petitioner did not mention the names of her paternal grandmother and mother, not to speak of brothers and sisters, if any, which are material facts for establishing one’s citizenship.

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11. Be that as it may, from whatever was disclosed by the petitioner in her written statement, what is discernible is that according to the petitioner, her grandfather Khusid Ali and father Abdul Wahab were citizens of India and she being their granddaughter and daughter respectively was, therefore, a citizen of India.

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12. Let us examine as to whether petitioner could prove the above facts-in-issue by

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adducing cogent, reliable and admissible evidence.

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13. Petitioner deposed as her witness before the Tribunal on 22.09.2015 where she disclosed her age as 34 years. If the petitioner was 34 years of age as on 22.09.2015, it would mean that she was born sometime in the year 1981 which contradicts the date of birth mentioned by the petitioner in her written statement, i.e., 20.05.1978.

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14. In her deposition, petitioner narrated more or less the same thing as stated in the written statement. Here also, her mother was conspicuous by her absence.

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15. In her cross-examination, she admitted that Ext.3, i.e., school certificate was under objection of the Assistant Government Pleader representing the State.

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16. Proceeding to the exhibits, we find that Ext.1 is a certified copy extract of the voters list of 1966 in respect of North Karimganj constituency where the voter was Ang. Wahab, son of Khusid Ali.

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17. In Ext.2, i.e., voters list of 1970 of the said constituency, the voter was Abdul Wahab, son of Khusid Ali.

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18. Exhibits 5, 6 and 7 are extracts of the voters lists of 1997, 2005 and 2011. Here, Hamida Begum was a voter and she was shown as wife of Ang. Sukkur.

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19. Ext.8 is an Elector Photo Identity Card stated to have been issued by the Election Commission of India where the elector’s name was mentioned as Hamida Begum and relation’s name was mentioned as Ang. Sukkur.

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20. Exhibits 5 to 8 would not be of much assistance to the petitioner inasmuch as these documents are no way indicative of petitioner’s linkage with A. Wahab or Ang. Wahab or Abdul Wahab of Exhibits 1 and 2 whom she claimed to be her father.

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21. This brings us to Exhibits 3 and 4.

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22. Ext.3 is a School Leaving/Transfer Certificate dated 28.08.2002 issued by the Headmaster of Zarerbazar ME School, Karimganj certifying that Hamida Begum was the daughter of late Md. Abdul Wahab and that she had left the school on 31.12.1989 after passing Class-V examination. As per admission register, her date of birth was 20.05.1978.

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23. This certificate was pressed into service by the petitioner as proof of age and as proof

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of her linkage with Abdul Wahab.

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24. This certificate can be of no assistance to the petitioner for more than one reason. Firstly, as per this certificate, petitioner had left the school on 31.12.1989. This certificate was issued 13 years thereafter on 28.09.2002. Such belated issuance of the certificate would naturally raise legitimate questions about the bona fides of the said certificate. That part, law on this point is well-settled. School admission register is not a public record within the meaning of Section 35 of the Indian Evidence Act. Therefore, it is necessary that contents of the school admission register would have to be proved.

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25. Supreme Court has clarified that the standard of proving an entry in such a record is the same as applied in a criminal proceeding. In Birad Mal Singhvi Vs. Anand Purohit,

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1988 (Supp) SCC 604, Supreme Court has held that date of birth recorded in school certificate or school register would have no evidentiary value unless the person who made the entry or who gave the information relating to the date of birth is examined. In the absence of evidence of such person, entries contained in school register or certificate would have no probative value. It has also been held that it is necessary for examination of the parents or the person on whose information the entry might have been made and in the absence of connecting evidence, documents produced to prove the age of the certificate holder or other entries would have no evidentiary value. In the instant case, neither the Headmaster of the school deposed before the Tribunal to prove Ext.3 nor the school admission register was produced before the Tribunal to prove the contents of Ext.3. Thus, Ext.3 was not proved. Therefore, no reliance can be placed on Ext.3.

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26. Proceeding to Ext.4, according to the petitioner, it is a kabinnama dated 12.12.1996 regarding marriage of the petitioner with Abdul Sukkur.

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27. As rightly pointed out by the Tribunal, this document was written on a plain piece of paper and for all intent and purpose, was a private document. If that be so, then it was required to be proved in accordance with law. At this stage, we may point out that Abdul Sukkur whom the petitioner claimed to be her husband did not come forward to depose before the Tribunal in favour of the petitioner. Neither the Qazi who had performed the nikah nor the persons who were present at the nikah as witnesses deposed before the Tribunal to

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prove Ext.4. Therefore, Ext.4 was not proved.

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28. If Exts.3 and 4 are excluded from consideration, there is nothing on record to show or establish linkage between the petitioner and Abdul Wahab or Ang. Wahab whom the petitioner claimed to be her father relatable to a period prior to 25.03.1971 which is the cutoff date for identification of foreigners in the State of Assam as per Section 6A of the Citizenship Act, 1955, as amended.

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29. Before parting with the record, we may mention that till this point of time, we do not know who is the mother of the petitioner as her presence is not traceable either in the pleadings or in the documents. Thus, it cannot be said that petitioner had discharged her burden under Section 9 of the Foreigners Act, 1946 to prove that she was not a foreigner but a citizen of India.

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30. Resultantly, we do not find any merit in the writ petition, which is accordingly dismissed. Interim order passed earlier stands vacated.

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31 . Registry to send down the LCR and inform the concerned Foreigners Tribunal, Superintendent of Police (B) and Deputy Commissioner for taking necessary follow-up steps.

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32. Copies of this order may also be furnished to learned Standing Counsel, Election Commission of India and State Coordinator, NRC.

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JUDGE JUDGE

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Comparing Assistant

Hamida Begum v. the Union of India and 3 Ors.

Case brief

What is this about?

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Hamida Begum v. the Union of India and 3 Ors.

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