Dismissed

Khuki Bibi @ Khuky Bibi v. the Union of India and 3 Ors.

Gauhati HC3 May 2018WP(C)/5582/2016

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a writ petition seeking quashing of the Foreigners Tribunal's declaration that the petitioner was a foreigner entering from Bangladesh after 1971. Petitioner failed to establish linkage with an Indian parent before the cut-off date, and an exhibit (Gaon Panchayat certificate) was rendered inadmissible due to unauthorized use of the State Emblem.

What did the court decide?

The writ petition is dismissed; the Tribunal order confirming the petitioner as a foreigner is upheld.

Khuki Bibi @ Khuky Bibi Vs the Union of India and 3… — Writ and Judicial Review | Gauhati HC (2018)

¶1

Page No.# 1/6

¶2

GAHC010025062016

¶3

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

¶4

Case No. : WP(C) 5582/2016

¶5

1:KHUKI BIBI @ KHUKY BIBI

¶6

W/O- NASER ALI, R/O VILL.- MADHYAPETIA, P.O. and P.S.- TAMARHAT, DIST.- DHUBRI, ASSAM.

¶7

VERSUS

¶8

1:THE UNION OF INDIA and 3 ORS

¶9

REP. BY THE MINISTRY OF HOME DEPTT., NEW DELHI- 1.

¶10

2:THE STATE OF ASSAM

¶11

REP. BY THE COMMISSIONER and SECY. TO THE GOVT. OF ASSAM HOME DEPTT., DISPUR GHY- 6.

¶12

3:THE SUPERINTENDENT OF POLICE B DHUBRI, ASSAM.

¶13

4:THE OFFICER-IN-CHARGE TAMARHAT POLICE STATION DIST.- DHUBRI, ASSAM.

¶14

Advocate for the Petitioner : MS. P DAS

¶15

Advocate for the Respondent :

¶16

Page No.# 2/6

¶17

BEFORE

¶18

HONBLE MR. JUSTICE UJJAL BHUYAN HON BLE MR. JUSTICE NELSON SAILO

¶19

ORDER

¶20

Date : 03-05-2018

¶21

(UJJAL BHUYAN, J)

¶22

Heard Mr. S. K. Sarkar, learned counsel for the petitioner and Mr. U. K. Nair, learned Sr. Special Counsel, Foreigners Tribunal (FT).

¶23

By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 07.01.2016 passed by the Foreigners Tribunal-10^th , Dhubri in FT Case No. FT-10/TMH/18/2015 (Union of India Vs Khuki Bibi) declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from Bangladesh on or after 25.03.1971.

¶24

This Court by order dated 04.10.2016 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), Dhubri and furnishing of adequate surety.

¶25

One Sirajul Hoque, Deputy Superintendent of Police (Border), Dhubri has filed an affidavit on behalf of the Superintendent of Police (Border), Dhubri supporting the impugned order passed by the Tribunal. It is stated that in the course of the enquiry preceding the reference, the enquiry officer had visited the village of the petitioner and had asked her to produce documents to prove her Indian nationality but she failed to do so. Thereafter, enquiry report was submitted which was accepted following which reference was made under the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) to the IMDT Tribunal at Dhubri where it was registered as IMDT Case No. 5233/1998. After the impugned order was passed by the Tribunal, petitioner could not be traced out as she was found absconding. Only after this Court passed the interim order, she appeared before the Superintendent of Police

¶26

Page No.# 3/6

¶27

(Border), Dhubri and was granted bail.

¶28

Petitioner has filed a reply affidavit.

¶29

Record discloses that there was complete standstill in the reference, initially before the IMDT Tribunal, Dhubri and thereafter before the Foreigners Tribunal (2^nd ), Dhubri till creation of additional Tribunals in the year 2015 whereafter the reference was assigned to the Foreigners Tribunal 10^th , Dhubri (Tribunal) where it was re-registered as FT Case No. FT10/TMH/18/2015.

¶30

In her written statement petitioner stated that she was born and brought up at village-Natabari Part-I under Tamarhat Police Station in the district of Dhubri. Her father’s name was Karimullah Sk and mother’s name was Kharejan Bibi. Karimullah Sk was the son of Khate. Father’s name was registered in the National Register of Citizens (NRC), 1951. Names of both the parents were included in the voters list of 1966 and 1970.

¶31

That was all that the petitioner stated in her 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 reported in (2005) 5 SCC 665. However, from whatever was disclosed, what is discernible is that according to the petitioner her father was Karimullah Sk. who was a citizen of India. Being the daughter of Karimullah Sk., she was therefore a citizen of India.

¶32

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

¶33

Petitioner filed her evidence-in-chief by way of affidavit on 12.10.2015 narrating more or less the same thing as stated in her written statement except that this time she stated

¶34

Page No.# 4/6

¶35

that she had married Naser Ali of village Madhya Petla. Interestingly, in the affidavit there was no mention about the date or year of birth of the petitioner like in the written statement and consequently her age remain undisclosed.

¶36

Proceeding to the exhibits, we find that Ext. 1 is a photostat copy of voters list extract of 1966, in respect of Gossaigaon Constituency, where the two voters were Karimullah Sk, son of Khate, aged 43 years; and Kharejan Bibi, wife of Karimullah, aged 29 years. They were shown as residents of Natabari village under Gossaigaon Police Station.

¶37

Similar is the position in respect of Ext. 2 which is a photostat copy of the voters list extract of 1970 in respect of the said Constituency.

¶38

Ext. 3 is a certificate dated 31.12.2008 of the Kumarganj Gaon Panchayat certifying that Khuki Bibi was the wife of Naser Ali of village Madhya Petla under Gossaigaon Police Station under Gossaigaon Police Station in the district of Dhubri. This exhibit was taken on record under objection. Tribunal was correct in disbelieving this certificate because who had issued this certificate is not at all discernible from the certificate. Consequently, we do not know the author of the said certificate. Incidentally, neither the President nor the Secretary of the said Gaon Panchyat deposed before the Tribunal to prove Ext. 3 and its contents. That apart, there is unauthorized use of the State Emblem of India in this certificate by the Kumarganj Gaon Panchayat. Rule 10 (2) of the State Emblem of India (Regulation of Use) Rules, 2007 read with Schedule 1 thereto clearly prohibits Panchayati Raj Institutions, such as Gaon Panchayats, from using the State Emblem of India in any manner. Such unauthorised use of the State Emblem would therefore render Ext. 3 to be inadmissible in evidence, besides not been proved. That apart this certificate only says that Khuki Bibi was the wife of Md. Naser Ali and does not indicate any linkage with Karimullah Sk whom the petitioner claimed to be her father.

¶39

14. Ext. 4 is a photocopy of a provisional patta issued in the name of five persons by the Revenue and Settlement Officer, Goalpara. The last pattadar was Chandal Sk, son of Khate

¶40

Page No.# 5/6

¶41

Sk. According to the petitioner, her father was Karimullah Sk but Karimullah Sk is not traceable in this exhibit. That apart in the absence of any linkage between the petitioner and Karimullah Sk, Ext. 4 would hardly have any probative value.

¶42

15. Ext. 5 is a certificate issued by the President of Tamarhat Gaon Panchayat certifying that Karimullah Sk and Chandal Sk was the same person. For the reasons indicated above, this certificate cannot also be of any assistance to the petitioner besides not being proved. This certificate does not indicate any linkage between Khuki Bibi on the one hand and Karimullah Sk or Chandal Sk on the other hand.

¶43

16. The last exhibit i.e. Ext. 6 is an elector photo identity card dated 01.10.2013 stated to have been obtained from the Election Commission of India where the name of the elector is mentioned as Kharijan Bewa and the relation’s name mentioned as Chandal. If Kharijan Bewa is the same person as Kharijan Bibi of Exts. 1 & 2, it is not understood as to how she completely disappeared after 1970, only to resurface in 2013 with the elector photo identity card. Question is if Kharijan Bewa was alive, it belies any comprehension as to why she stayed away from the Tribunal to depose in favour of her daughter who was facing a proceeding before the Tribunal desperate to prove her citizenship. This is contrary to normal human behaviour expected of a mother, if indeed she was the mother. That apart even if this exhibit is accepted at its face value, it does not establish any linkage between Khuki Bibi and Karimullah Sk.

¶44

Net result of the above discussion is that petitioner had failed to establish her linkage with an Indian parent 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. Thus she had 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.

¶45

Consequently, we do not find any merit in the writ petition which is accordingly dismissed.

¶46

Page No.# 6/6

¶47

Interim order passed earlier stands vacated.

¶48

20 . Registry to send down the LCR forthwith and inform the concerned Foreigners’ Tribunal, Deputy Commissioner and Superintendent of Police (B) for doing the needful.

¶49

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

¶50

JUDGE JUDGE

¶51

Comparing Assistant

Khuki Bibi @ Khuky Bibi v. the Union of India and 3 Ors.

Case brief

What is this about?

What did the court decide?

Khuki Bibi @ Khuky Bibi v. the Union of India and 3 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Musstt Rahima Khatun Vs the Union of India

Sharifa Khatun @ Sarifa Bibi Vs the State of Assam

Raju Uddin Vs the Union of India and 5 Ors.

Ms. Kadbanu Begum @ Kadbanu Vs the Union of India and 4 Ors.

Ms. Safia Begum Vs the Union of India and 6 Ors.

Md. Abubakkar Siddique Vs the Union of India and 6 Ors.