Dismissed

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

Gauhati HC6 Jun 2018WP(C)/2854/2016

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a writ petition challenging the Foreigners' Tribunal's order declaring the petitioner a foreigner. The court held that the petitioner failed to provide cogent evidence, rendering her village panchayat certificate inadmissible due to unauthorized use of the State Emblem and lack of statutory verification.

What did the court decide?

Writ petition dismissed. Impugned order of the Foreigners' Tribunal affirmed. Interim bail order vacated.

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

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GAHC010015372016

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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) 2854/2016

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1:MOMENA BEGUM

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W/O TAZMAL BEPARI, VILL. PUTHIMARI, P.S. LAKHIPUR, DISTGOALPARA

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VERSUS

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1:THE UNION OF INDIA and 3 ORS

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REP. BY THE SECY. MINISTRY OF HOME AFFAIRS , NEW DELHI-

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2:THE STATE OF ASSAM REP. BY THE COMMISSIONER and SECY. GOVT. OF ASSAM HOME DEPTT. DISPUR GHY-6

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3:THE DY. COMMISSIONER GOALPARA

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4:THE SUPERINTENDENT OF POLICE BORDER GOALPARA ASSA

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Advocate for the Petitioner : MR.N UDDIN

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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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Heard Mr N Uddin, learned counsel for the petitioner and Mr J Payeng, learned Special Counsel, Foreigners’ Tribunal (FT).

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By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 16.02.2016, passed by the Foreigners’ Tribunal No. 1, Goalpara, in FT Case No. 5898/G/2013 ( Union of India –Vs- Momena 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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This Court by order dated 17.05.2016, 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), Goalpara and furnishing of adequate surety.

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Sri Anowar Hussain, Deputy Superintendent of Police (Border), Goalpara, has filed an affidavit

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on behalf of the Superintendent of Police (Border), Goalpara, respondent No. 4, supporting the impugned order passed by the Tribunal and seeking dismissal of the writ petition.

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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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In her written statement filed before the Tribunal on 07.10.2014, petitioner stated that she was born and brought up at village Kabaitary Part-IV, under the then North Salmara Police Station, in the erstwhile district of Goalpara (presently, Bongaigaon district) about 50 years ago, i.e., sometime around 1964. Her father was Late Kafur Sheikh and mother was Late Shohor Banu. They were voters of Bongaigaon constituency in 1966. Petitioner married Tazmal Bepari, son of Late Abdul Jobbar Bepari

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of village Puthimari, under Lakhipur Police Station in the district of Goalpara about 32 years ago, i.e., sometime around 1982. Petitioner became a voter of Goalpara West Constituency in 1985, 1989 and in 1997, but in 1997, she was marked as a doubtful (D) voter.

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Thus, from the written statement filed by the petitioner, what is discernible is that though not expressly stated, according to the petitioner, her parents Kafur Sheikh and Shohor Banu were citizens of India and she being their daughter was, therefore, a citizen of India.

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Let us examine whether petitioner could prove the above by adducing cogent, reliable and admissible evidence.

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Petitioner stated more or less the same thing in her evidence-in-chief, which she filed by way of affidavit.

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Petitioner was also subjected to cross-examination. She stated that she had three brothers and four sisters, the brothers being Manirul Hoque, Jahirul Hoque and Mahibul Hoque; Jahirul Hoque had expired but the other two were alive. She also stated that she had four sisters, namely, Rina Begum, Kofia Begum, Rafia Begum and Rafitun Begum. Petitioner admitted that in 1997, she was marked as doubtful (D) voter and from then onwards, she could not cast her vote.

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Proceeding to the exhibits, we find that there are two exhibits.

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11.1. Exhibit-A is a certified copy extract of the voters’ list of 1966 in respect of Bongaigaon Constituency. The two voters were Kafur Sheikh and Shohor Banu.

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Exhibit-B is a certificate dated 01.02.2016, issued by the Secretary of Kabaitary Gaon Panchayat, certifying that Momena Begum was the daughter of Kafur Sheikh of Kabaitary Part-IV village and that she had married Tazmal Bepari of village Puthimari in the district of Goalpara. This document cannot be accepted as a valid piece of evidence for more than one reason.

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12.1. Firstly, the author of the said certificate, i.e., the Secretary of Kabaitary Gaon Panchayat did not

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depose before the Tribunal along with the contemporaneous record to prove Exhibit-B as well as the contents thereof. Therefore, this document was not proved.

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12.2. Secondly, in Rupjan Begum –Vs- Union of India; (2018) 1 SCC 579, Supreme Court has indicated that such a document by itself would be no proof of citizenship unless it is thoroughly verified. It has to be verified at two stages. At the first stage, the genuineness of the document itself would have to be verified and at the second stage, the genuineness of the contents would have to be verified. There is nothing on record to even remotely suggest that the said certificate was subjected to such verification.

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12.3. Lastly, we notice that the State Emblem of India is embossed at the top of the certificate with the moto “ Satyameva Jayate”, printed in a crescent format below the lion capital. Rule 10 (2) and the Schedule of the State Emblem of India (Regulation of Use), Rules, 2007, framed under the State Emblem of India (Prohibition of Use) Act, 2005, specifically prohibits Panchayati Raj Institutions, such as, Gaon Panchayats from using the State Emblem of India in any manner whatsoever. Therefore, embossing of the State Emblem of India in Exhibit – B certificate in violation of the prohibitory mandate of Rule 10 (2) is clearly unauthorized. Such unauthorized use of the State Emblem of India has rendered the certificate inadmissible in evidence. That apart, as per the design prescribed in Appendix-I and Appendix-II to the aforesaid Act, the moto “ Satyameva Jayate” has to be written below the profile of the lion capital in Devanagari script in a straight line. Therefore, writing of the moto “ Satyameva Jayate” in crescent format deviating from the statutory format is a clear take away that this document may not be genuine.

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12.4. If Exhibit –B is excluded from consideration, there is nothing on record to establish linkage of the petitioner with Kafur Sheikh, whom she claimed to be her father and a citizen of India relatable to a period prior to 25.03.1971, which is the cut-off date for identification of foreigners in the State of Assam as per Section 6 –A of the Citizenship Act, 1955, as amended.

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Thus, petitioner has failed to discharge her burden under Section 9 of the Foreigners’ Act, 1946 to prove that she was not a foreigner, but a citizen of India. Neither his brothers nor his sisters came forward to depose before the Tribunal in his favour

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Resultantly, we find no merit in the writ petition, which is accordingly dismissed. Interim order passed earlier stands vacated.

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

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A copy of this order may also be furnished to learned Standing Counsel, Election Commission of India and State Coordinator, National Register of Citizens (NRC), for doing the needful.

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JUDGE JUDGE

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Comparing Assistant

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

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

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