Dismissed

Basiron Nessa v. the Union of India and 3 Ors.

Gauhati HC21 May 2018WP(C)/5493/2017

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a writ petition challenging the Foreigners' Tribunal's declaration of the petitioner as a foreigner. The Court held that the petitioner failed to prove her linkage to her alleged father prior to 25th March 1971 due to deficiency and inadmissibility of documentary evidence, under Section 9 of the Foreigners' Act, 1946.

What did the court decide?

The writ petition is dismissed; the impugned order declaring the petitioner a foreigner is upheld. Earlier interim order staying deportation is vacated.

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

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GAHC010219592017

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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) 5493/2017

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1:BASIRON NESSA

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W/O KAMAR UDDIN D/O LT. ABDUL BAREK, R/O BHOKUWAMARI, P.S. SAULKUCHI RIVER, DIST. KAMRUP R, ASSAM.

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VERSUS

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1:THE UNION OF INDIA and 3 ORS.

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REP. BY THE MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, SASTRI BHAWAN, NEW DELHI, PIN - 110001.

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2:THE STATE OF ASSAM

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REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-6.

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3:THE SUPERINTENDENT OF POLICE B KAMRUP RURAL DIST. KAMRUP ASSAM PIN - 781030.

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4:THE DEPUTY COMMISSIONER KAMRUP P.O. AMINGAON DIST. KAMRUP ASSAM PIN - 781030

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Advocate for the Petitioner : MR. M A SHEIKH

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Advocate for the Respondent : GA, ASSAM

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BEFORE

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HONOURABLE MR. JUSTICE UJJAL BHUYAN HONOURABLE MR. JUSTICE NELSON SAILO

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ORDER

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Date : 21-05-2018

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(Ujjal Bhuyan, J)

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This case was heard on 07.05.2018 and today is fixed for delivery of order(s).

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We have heard Mr M A Sheikh, learned counsel for the petitioner and Mr U K Nair, learned Senior 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 13.07.2017, passed by the Foreigners’ Tribunal No. 1, Kamrup (Rural), Ulubari, Guwahati, in GFT (R) Case No. 03/2017 ( State –Vs- Musstt Basiran Nessa), declaring the petitioner to be a foreigner, who had illegally entered into India (Assam) from Bangladesh after 25.03.1971.

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After the aforesaid order was passed, petitioner was taken into custody.

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This Court by order dated 06.09.2017, had issued notice while requisitioning the case record and passed an interim order to the effect that petitioner should not be deported from India until further order(s).

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Mr Sheikh, learned counsel for the petitioner submits that the fact that petitioner was the daughter of Late Barek Ali was proved by the Gaonburah (DW-2), who had not only issued certificate to that effect (Exhibit-A), but also proved the same by deposing before the Tribunal. Just because, DW2 did not bring the original record or the official register, his evidence cannot be brushed aside.

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On the other hand, learned Senior Special Counsel submits that petitioner had failed to establish her linkage with Barek Ali. That apart, even Barek Ali’s presence in India prior to 25.03.1971 could not be proved. Therefore, view taken by the Tribunal rejecting the narrative of the petitioner does not suffer from any infirmity.

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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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Before examining the record, we may advert to the impugned order passed by the Tribunal on 13.07.2017. We find that the reference was duly contested by the petitioner by filing written statement and by adducing evidence, including documentary evidence, which were marked as Exhibits-A to D.

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After considering the entire materials on record, Tribunal came to the conclusion that it was difficult to accept that petitioner was the daughter of Abdul Barek. Therefore, the reference was answered by the Tribunal in favour of the State in the above manner.

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Ordinarily, a writ Court would not interfere with such a finding returned by a Tribunal. Such a finding based on appreciation of evidence on record is a finding of fact and ordinarily would not be interfered with by the writ Court, because the jurisdiction exercised is supervisory and not appellate.

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Notwithstanding the same, to re-assure ourselves about the correctness or otherwise of the order dated 13.07.2017, passed by the Tribunal, we have once again looked into the materials on record.

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In her written statement filed on 19.04.2017, petitioner identified herself as wife of Kamaruddin and daughter of Abdul Barek. She stated that she was born at village Bhokuwamari under Chaygaon Police Station in the district of Kamrup (Rural). Her father was a voter of Chaygaon Constituency in the year 1966 and again in the year 1970. Petitioner married Kamaruddin, whereafter, she cast her vote for the first time in the year 1985. Thereafter, she cast her vote in the year 1990, but in 1997, she was marked as a doubtful (D) voter. Interestingly, petitioner did not mention her date or year of birth. Consequently, her age on the date of filing the written statement was not disclosed. Even in the supporting affidavit, the portion relating to the age of the petitioner remained blank.

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Be that as it may, from the written statement filed by the petitioner before the Tribunal, what is discernible is that according to the petitioner, Abdul Barek was her father and he was a citizen of India. Being the daughter of Abdul Barek, she was, therefore, a citizen of India.

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

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Petitioner filed her evidence-in-chief by way of affidavit on 22.02.2017. This time, she declared her age as 43 years. If the petitioner was 43 years of age in 2017, it would mean that she was born sometime in the year 1974.

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Petitioner narrated more or less the same thing as stated in the written statement.

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Petitioner was subjected to cross-examination on 03.06.2017. For the first time, she disclosed her mother’s name as Razia Khatun and her grandfather’s name as Naimuddin. She also stated that her father had expired about 20 years ago, which would be sometime in the year 1997.

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Md Suburuddin Ahmed, who identified himself as the Gaonburah filed evidence-in-chief by way of affidavit in respect of the petitioner as DW-2. He was also cross-examined. We will examine the

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testimony of DW-2 when we would advert to the certificate issued by him.

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Proceeding to the exhibits, we find that Exhibit-B is a voters’ list extract for the year 1966 in respect of Chaygaon constituency. Here, the two voters were Abdul Barek, son of Naiyam, aged 34 years; and Rabia Khatun, wife of Barek aged 25 years. A close scrutiny of this document would reveal that there is no certificate written at the foot of such copy that it is a true copy or part thereof of the voters’ list of 1966. The said document did not also carry the official seal of the Electoral Registration Officer, certifying the said document. Section 76 of the Indian Evidence Act, 1872 provides that every Public Officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be and such certificate shall be dated and subscribed by such officer with his name and his official title and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies.

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Therefore, having regard to the requirement of Section 76 of the Indian Evidence Act, 1872, Exhibit-B cannot be said to be a certified copy. Obviously, it is not primary evidence. Since it is not a certified copy, it is also not secondary evidence as per Section 63 of the Indian Evidence Act, 1872. Therefore, Exhibit-B being neither primary evidence nor secondary evidence is inadmissible in evidence and no reliance can be placed thereon.

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Exhibit-C is a certified copy extract of the voters’ list of 1970 in respect of Chaygaon constituency. Here, out of the four voters, Abdul Barek, son of Naiyam, aged 32 years; and Rabina Khatun, wife of Barek, aged 29 years were voters. The second voter in this exhibit as noticed above was Rabina Khatun. In her cross-examination, petitioner had stated that her mother was Rajia Khatun. However, for the moment, we may overlook such discrepancy in name.

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Exhibit-D is a certified copy extract of the voters’ list of 1985 in respect of Chaygaon constituency, where the two voters were Kamaruddin Ali and Kasiron Nessa, wife of Kamaruddin, aged 25 years. In her evidence, petitioner had asserted that she was a voter in 1985 along with her husband Kamaruddin and had referred to this document as Exhibit-D. We may overlook the discrepancy in the name of the petitioner, i.e., Basiron Nessa and Kasiron Nessa. However, what is significant to note is that in Exhibit-D (1985) Kasiron Nessa was 25 years of age. If that be so, her year of birth would be 1960, but from the evidence-in-chief of the petitioner, we find that her year of birth was 1974. Petitioner could not have been born in 1960 and in 1974 at one and the same time. Both cannot be

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correct at the same time. If the petitioner as born in 1974 as per her own declaration on oath, she would have been 11 years of age in 1985 and in that event, she could not have been a voter in Exhibit-D (1985).

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This brings us to Exhibit-A, which is a certificate dated 18.04.2017, issued by Md Suburuddin Ahmed, Gaonburah, certifying that Basiron Nessa was the daughter of Late Abdul Barek and Rabia Khatun. She had married Kamaruddin.

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As noted above, Md Suburuddin Ahmed deposed on behalf of the petitioner as DW-2. He was subjected to cross-examination. He stated that he was serving as Gaonburah since 2006. He stated that a register was maintained containing particulars of persons inhabiting the village over which he had jurisdiction. He, however, stated that he did not bring the said register to the Tribunal. He also stated that while in his evidence-in-chief he had mentioned that he had known the petitioner for the last 45/40 years, he did not know when she was born. He further stated that he had issued the certificate after looking at the voters’ list of 1966 and 1971. He admitted that the factum of issuing certificate to the petitioner was not entered in his register. He further admitted that he had been issuing such identity certificates to unknown persons.

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From a careful analysis of the testimony of the Gaonburah (DW-2), it is evident that he had issued Exhibit-A certificate by just looking at the voters’ list of 1966 and 1971. The factum of issuance of such certificate was not entered in the register mentioned in his office, which he did not produce before the Tribunal. DW-2 also admitted that he had been issuing such type of certificates to unknown persons. Therefore, on the basis of such testimony, it cannot be said that Exhibit-A or its contents were proved. Learned Senior Special Counsel is right in his submission that documentary evidence has to be proved from the record and not solely by oral testimony. It is trite that not only the document has to be proved, but its contents would also have to be proved. That apart, the truthfulness of the contents have to be proved too. Viewed in the above context, Exhibit-A was not proved and, therefore, it does not have any probative value.

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Net result of the above discussion is that petitioner had failed to prove her linkage with Abdul Barek, whom she claimed to be her father 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 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. Resultantly, we do not find any merit in the

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writ petition, which is accordingly dismissed.

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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

Basiron Nessa v. the Union of India and 3 Ors.

Case brief

What is this about?

What did the court decide?

Basiron Nessa v. the Union of India and 3 Ors.

Case brief

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