Dismissed

Amiran Bibi @ Amiran Nessa Bibi v. the Union of India and 3 Ors.

Gauhati HC21 May 2018WP(C)/5861/2016

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a writ petition seeking to quash a Foreigners Tribunal order. The court held that the petitioner failed to discharge her burden of proving Indian citizenship due to contradictory evidence regarding her birth year and inadmissible documents.

What did the court decide?

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

Amiran Bibi @ Amiran Nessa Bibi Vs the Union of… — Writ and Judicial Review | Gauhati HC (2018)

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GAHC010118942016

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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) 5861/2016

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1:AMIRAN BIBI @ AMIRAN NESSA BIBI

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W/O SHAJ UDDIN SHEIKH @ SAHAB UDDIN SHEIKH, VILL- BANGALIPARA PT.II, P.O. and P.S. BILASHIPAR, DIST. DHUBRI, ASSAM.

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VERSUS

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1:THE UNION OF INDIA and 3 ORS

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TO BE REP. BY SECRETARY TO THE GOVT. OF INDIA, HOME DEPARTMENT, NORTH BLOCK, NEW DELHI.

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2:STATE OF ASSAM

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TO BE REP. BY COMMISSIONER and SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI -06.

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3:ADDITIONAL DIRECTOR GENERAL OF POLICE ASSAM BORDER BHANGAGARH GUWAATI-05.

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4:DEPUTY COMMISSIONER DHUBRI ASSAM.

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5:SUPERINTENDENT OF POLICE BORDER DHUBRI ASSAM

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Advocate for the Petitioner : MR.N H MAZARBHUYAN

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Advocate for the Respondent : ASSTT.S.G.I.

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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 26.04.2018 and today is fixed for delivery of order.

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Heard Mr. N. Islam, learned counsel for petitioner and Mr. U. K. Nair, learned Sr. 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 18.06.2016 passed by the Foreigners Tribunal-6^th , Dhubri at Bilashipara in FT Case No. 6^th Dhubri-40/2015 (State Vs Amiron Bibi) 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 05.10.2016 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.

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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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Record discloses that Election Commission of India had ordered intensive revision of electoral rolls in respect of No. 26 Bilasipara West Assembly Constituency in the State of Assam with reference to 01.01.2005 as the qualifying date. In this connection, a house to house enumeration was carried out. Though the name of the petitioner was included in the draft electoral roll of the said Constituency, Electoral Registration Officer of the said Constituency

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expressed doubts about the citizenship status of the petitioner and got the matter verified by an on the spot local verification. On consideration of the report of such verification, Electoral Registration Officer recorded reasonable doubt that the petitioner was not a citizen of India. Following the same the matter was forwarded to the Superintendent of Police (Border), Dhubri.

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It may be mentioned that Electoral Registration Officer had forwarded the case of the petitioner for making of a reference under the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act). However, by the time necessary formalities were carried out, the IMDT Act was declared unconstitutional by the Supreme Court in Sarbananda Sonowal Vs Union of India reported in (2005) 5 SCC 665 . Thereafter the reference was converted to one under the Foreigners’ Act, 1946 read with the Foreigners’ (Tribunals) Order, 1964 and was forwarded to the Foreigners Tribunal-II, Dhubri by the Superintendent of Police (Border), Dhubri on 16.03.2011.

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Unfortunately, no steps were taken by the then Foreigners Tribunal-II, Dhubri. It was only after creation of additional Tribunals that the reference was transferred from the Foreigners Tribunal –II, Dhubri to the newly created Foreigners Tribunal 6^th , Dhubri at Bilasipara (Tribunal) on 18.08.2015 where the reference was registered as FT Case No. 6^th Dhubri-40/2015.

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In her written statement filed before the Tribunal on 19.10.2015, petitioner stated that she was born at village Baruapara under Kokrajhar Police Station. Golap Uddin Sk was her grandfather and his name appeared in the National Register of Citizens (NRC), 1951. Names of father Abdul Gani Sk as well as that of the petitioner appeared in the NRC, 1951. Father became a voter in 1966. Petitioner also became a voter in 1966 alongwith her husband Sahabuddin, whom she had married on 10.08.1960 as per Muslim Personal Law (Shariat) Application Act, 1937. Thereafter petitioner and her husband continued to be voters.

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Thus from the written statement filed by the petitioner what is discernible is that

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according to the petitioner, she was a citizen of India by birth as her name was included in the NRC, 1951 and in the voters list of 1966. Her father Abdul Gani Sk and grandfather Golap Uddin Sk were also citizens of India. Therefore, she was a citizen of India.

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Petitioner stated more or less the same thing in her evidence-in-chief which she filed by way of affidavit. Interestingly, in neither the written statement nor in the evidence-in-chief, petitioner mentioned her date or year of birth. Consequently, there was no disclosure of her age.

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Petitioner filed a large number of documents which were marked as exhibits. However, we will consider only those documents which have a relevance to the facts in issue.

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Ext. A is a marriage certificate dated 10.10.2015 issued by the Gaonburah of Baruapara village certifying that Sahabuddin Sheikh, son of late Asar Mamud Sheikh and Amiron Nessa, daughter of late Abdul Gani Sk had married in 1960. This certificate can be of no assistance of the petitioner inasmuch as Gaonburah is not competent and authorized to register marriages and to issue certificates thereof. Therefore, it was incumbent upon the Gaonburah to have deposed before the Tribunal alongwith the contemporaneous record to prove Ext. A and its contents. The same having not been done, Ext. A was not proved. That apart even if we go back this certificate, marriage had taken place sometime in 1960 that too without mentioning the date but the certificate was issued 55 years thereafter which naturally raises grave doubts about the bonafides of such a certificate.

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Ext. C is a certificate dated 09.10.2015 issued by the Head Master of No. 83 Medhipara LP School certifying that Amiron Nessa, daughter of late Abdul Goni Sheikh was a student of the said School in 1952. She had studied in Class-I and as per admission register of the School, she was 4 years 6 months of age i.e. she was born sometime in 1947. This certificate is also of no assistance to the petitioner for more than one reason. Petitioner had left the School in 1952 whereas the certificate was issued 63 years thereafter in 2015. Such belated issuance of certificate itself raises grave doubts about the bonafides of the said certificate. The

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Head Master of the said School did not depose before the Tribunal alongwith the school admission register to prove Ext. C and its contents. In Birad Mal Singhvi vs Anand Purohit reported in 1988 (Supp) SCC 604 Supreme Court held that entries in school certificate or school admission register would have no evidentiary value unless the person who made the entry or who had given the information are examined. Besides, the parents and the person on whose information the entry might have been made would have to be examined. In the absence of connecting evidence, the document produced to prove the age or other particulars of the certificate holder would have no evidentiary value.

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Ext. D is a certificate issued by the Inspector of Police, Kokrajhar Police Station dated 29.08.1987 certifying that names of 11 persons mentioned therein to be included in the NRC, 1951. This includes Golap Uddin Sheikh, aged 70 years; Abdul Goni Sheikh, aged 34 years; and Amiron Nessa, aged 5 years.

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This Court has already held that having regard to the provisions contained in Section 15 of the Census Act, 1948 on the basis of which NRC, 1951 was prepared, the same has no evidentiary value. Section 15 of the Census Act makes it very clear that record of census is not open to inspection and also not admissible in evidence. Therefore extract of NRC, 1951 is not admissible in evidence. This position was made clear by a Single Bench of this Court in Bhanbhasa Sk. Vs Union of India , reported in ALR 1970 Assam and Nagaland 206 . This decision has since been approved by a Division Bench of this Court in Abdul Majid-vs-Union of India , WP(C) No. 6090/2016, disposed of on 15.03.2018.

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Notwithstanding the above, we find that Amiron Nessa was 5 years of age in 1951 which could mean that she was born sometime in the year 1946 which contradicts Ext. C.

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Ext. E is stated to be a statement of voter details obtained from the Office of the State Coordinator, NRC. Here the name of the voter is Amiron Nessa with father’s name mentioned as Abdul Goni. This statement has been extracted from the NRC, 1951. Therefore, for the same reasons for not accepting Ext. D, this document cannot also be accepted as a valid piece of evidence. In addition, there is no certification or authentication by a responsible

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officer of the department certifying or authenticating Ext. E as per requirement of Section 65 B(4) of the Indian Evidence Act. Therefore, no reliance can be placed on this document.

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Ext. H is a certified copy extract of the voters list of 1966 in respect of Bilasipara Constituency where the two voters were Sahab Uddin Sheikh, son of Aser Mahmud, aged 40 years; and Amiron Bibi, wife of Sahab Uddin, aged 28 years. If Amiron Bibi was 28 years of age in 1966 it would mean, she was born sometime in the year 1938 in which event the year of birth of the petitioner deduced from Ext C (1947) and Ext. D (1946) would stand contradicted. Similar is the position in respect of Ext. I (voters list of 1970) but in Ext. I the sole voter was Amiron Bibi. Sahab Uddin Sk was conspicuous by her absence.

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The absurdity of the petitioner’s version is demonstratable from Ext. J which is a certified copy extract of the voters list of 1993 in respect of Kokrajhar East Constituency. In this document, Sahabuddin Sheikh and Amiron Begum were voters. Amiron Begum was shown as 23 years of age which could mean that she was born sometime in the year 1970, which is completely at variance with her other years of birth as discussed above.

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Net result of the above discussion is that the narrative presented by the petitioner suffers from multiple material contradictions and omissions rendering the same wholly improbable. In the facts and circumstances of the case, 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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Consequently, we do not find any merit in the writ petition which is accordingly dismissed.

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Interim order passed earlier stands vacated.

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

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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

Amiran Bibi @ Amiran Nessa Bibi v. the Union of India and 3 Ors.

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Amiran Bibi @ Amiran Nessa Bibi v. the Union of India and 3 Ors.

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