Dismissed

Mariam Nessa @ Mariam Khatun v. the Union of India and 3 Ors.

Gauhati HC15 May 2018WP(C)/6688/2016

Case brief

AI extract

What is this about?

Gauhati High Court dismissed a writ petition seeking quashing of an order declaring the petitioner a foreigner. The court rejected the petitioner's evidence, including school certificates and voter lists, due to procedural flaws and lack of authentication, and upheld the Foreigners Tribunal's order.

What did the court decide?

Writ petition dismissed; interim order vacated; Letters of Request sent to concerned authorities.

Mariam Nessa @ Mariam Khatun Vs the… — Constitutional and Fundamental Rights | Gauhati HC (2018)

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GAHC010029022016

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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) 6688/2016

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1:MARIAM NESSA @ MARIAM KHATUN D/O. BADAR UDDIN, W/O. NAZIM UDDIN, VILL. GHORAMARA PART-I, P.O. RANGAPANI, P.S. ABHAYAPURI, DIST. BONGAIGAON, PIN-783348.

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VERSUS

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1:THE UNION OF INDIA and 3 ORS

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REP. BY THE SECRETARY TO THE GOVT. OF INDIA, DEPTT. OF HOME, NEW DELHI-01.

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2:THE STATE OF ASSAM REP. BY THE SECRETARY TO THE GOVT. OF ASSAM DEPTT. OF HOME DISPUR GHY.-06.

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3:THE DY. COMMISSIONER BONGAIGAON.

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4:THE SUPDT. OF POLICE B BONGAIGAON

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Advocate for the Petitioner : MS.M R DEVI

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

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

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ORDER

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Date : 15-05-2018 (Ujjal Bhuyan, J)

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This case was heard on 25.04.2018 and today is fixed for delivery of order(s).

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We have heard Mr A Roshid, 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 15.07.2016, passed by the Foreigners’ Tribunal, Bongaigaon No. 2 at Abhayapuri, in BNGN/FT/Case No. 966/09 ( State –Vs- Mariam Nesha), 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 08.11.2016, 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), Bongaigaon and furnishing of adequate surety.

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Sri Hridayjit Barman, Superintendent of Police (Border), Bongaigaon, respondent No. 4, has filed an affidavit supporting the order passed by the Tribunal.

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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 reference was made by the Superintendent of Police (Border), Bongaigaon, on 05.07.2004 to the Illegal Migrants (D) Tribunal, Goalpara under Section 8 (1) of the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act), suspecting the petitioner to be an illegal migrant as defined under the IMDT Act, i.e., a foreigner, who had unauthorizedly entered into India (Assam) after 25.03.1971.

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In the meanwhile, IMDT Act was declared unconstitutional by the Supreme Court in Sarbananda Sonowal –Vs- Union of India; reported in (2005) 5 SCC 665, whereafter, the related reference was transferred to the Foreigners’ Tribunal, Bongaigaon, and after creation of additional Tribunals, it was assigned to the Foreigners’ Tribunal, Bongaigaon No. 2 at Abhayapuri (Tribunal), where it was re-registered as BNGN/FT/Case No. 966/09.

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In her written statement, petitioner stated that her father was Badar Uddin, son of Late Sikkim Ali, and her mother’s name was Basiran Nesha. Petitioner was born at village-Ghoramara Part-1 under Mererchar Police Station in the district of Bongaigaon. After her marriage with Najim Uddin, son of Late Moyen Uddin, she has been residing at her matrimonial home, but in the same village, i.e., Ghoramara Part-I. Her father was enlisted as a voter in 1966 in respect of Abhayapuri North Constituency and again in 1985. Parents became voters in 1997 and thereafter, in 2010 and 2011. Petitioner was a voter in 1997, 2006 and 2013. Father had landed property.

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Thus from the written statement filed by the petitioner, what is discernible is that according to her though not expressly contended, father Badar Uddin was a citizen of India and she being the daughter of Badar Uddin was, therefore, a citizen of India.

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Let us now 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 18.01.2016, narrating the same thing as stated in the written statement. However, in her cross-examination, she disclosed her age as 38 years. If the petitioner was 38 years of age in 2016, it would mean that she was born sometime in the year 1978. She also stated that she was born on 05.01.1977 and she had studied in the Nararvita Primary School, North Salmara, in the district of Bongaigaon.

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Proceeding to the exhibits, we find that exhibit-1 is a certificate issued by the Head Teacher of Nararvita Ghoramara Primary School dated 22.08.2014, certifying that Mariam Khatun was the daughter of Badar Uddin. It was also certified that petitioner had left the school after passing Class-II in the third division on 31.12.1986. As per admission register, she was born on 05.01.1977. This document cannot be accepted as a valid piece of evidence for more than one reason. Firstly, there is unauthorized use of the State Emblem of India in the certificate, which is embossed at the top. Head Teacher of primary school is not authorized to use the State Emblem of India in any manner as per the State Emblem of India (Regulation of Use) Rules, 2007 and the State Emblem of India (Prohibition of Improper Use) Act, 2005. Such unauthorized use of the State Emblem of India has rendered this document inadmissible in evidence. Secondly, petitioner had left the school on 31.12.1986, but this certificate was issued 28 years thereafter on 22.06.2014. Such belated issuance would certainly raise legitimate doubts about the authenticity of the certificate, if not about the genuineness of the certificate itself. Thirdly, the Head Teacher of the School did not depose before the Tribunal along with school admission register to prove that Mariam Khatun was the daughter of Badar Uddin and that her date of

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birth was 05.01.1977. How the date of birth of a person has to be proved or entries in the school register or school certificate have to be proved, has been laid down in detail in Birad Mal Singhvi –VsAnand Purohit; reported in 1988 (Suppl.) SCC 604. Lastly, the certification that petitioner had passed Class-III Examination in the third division has raised serious doubts about the genuineness of the document. It is common knowledge that in India pupils in Class-III are not graded in first division or second division or third division. It clearly indicates that the certificate may not be genuine and certainly cannot inspire the confidence of the Court.

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As noticed above, it was the pleaded case of the petitioner that petitioner’s father was Badar Uddin, but in Exhibit-3, which is stated to be a certified copy of the voters’ list of 1966, the voter in question was Baseruddin and not Badar Uddin. This position is reiterated in Exhibit-8, where the voter in question was Baseruddin and not Badar Uddin. In addition, Exhibit-8, which is a copy of voters’ list of 1970, is only a translated copy of the electoral roll. Translated copy is not a certified copy and, therefore, is not secondary evidence. So, this document is neither primary evidence nor secondary evidence and, therefore, cannot be taken into consideration. But the fact remains that the voter in Exhibits- 3 and 8 is Baseruddin and not Badar Uddin.

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Petitioner tried to explain this discrepancy by filing an affidavit on 06.11.2012, sworn by Badar Uddin (Exhibit-11), stating that Basir Ali, Badar Uddin and Baseruddin was one and the same person. We are afraid we can accept such affidavit as a valid piece of evidence. A self-serving suo moto affidavit without any direction from the Court or Tribunal is neither proof nor evidence.

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However, Exhibit-11 discloses that Badar Uddin was alive at least till 06.11.2012 when the affidavit was sworn. If that be so, then what happened to him? Whether he was alive at the time of adducing evidence in the related reference? If he was alive then, why he did not depose in favour of the petitioner? These are legitimate questions but no explanations are forthcoming.

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Having noticed the above material discrepancies, we may revert back to the question of linkage between the petitioner and Badar Uddin.

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For the reasons mentioned above, we have already rejected Exhibit-1. Now, proceeding to Exhibit-2, which is a certificate dated 11.11.2014, issued by the Secretary, Rangapani Gaon Panchayat, we find that in this certificate the Secretary certified that Mariam Khatun was the daughter of Badar Uddin and that she had married Nazimuddin.

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For the reasons mentioned while rejecting Exhibit-1, Exhibit-2 is also rejected.

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Additionally, we may refer to the decision of the Supreme Court in Rupjan Begum Vs Union of India; reported in (2018) 1 SCC 579, wherein Supreme Court had examined the acceptability of a certificate issued by Gaon Panchayat Secretary in respect of married women linking them with their parents, but Supreme Court also made it very clear that the certificate issued by the Gaon Panchayat Secretary, by no means, is proof of citizenship but only a linkage document, which has to be verified at two stages. The first stage of verification would relate to genuineness of the certificate itself, whereas, in the second stage, the verification would relate to the authenticity of the contents of the certificate. There is nothing on record to show that any such exercise had taken place. In such circumstances, no reliance can be placed on Exhibit-2.

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Net result of the above discussion is that not only the petitioner could not prove her linkage with Badar Uddin, 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, but the very presence of Badar Uddin on Indian soil prior to 25.03.1971 is doubtful and full of material inconsistencies as noticed above.

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Upshot of the above discussion is that petitioner 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.

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Consequently, we do not find any merit in the writ petition to warrant interference with the impugned order passed by the Tribunal.

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Writ Petition 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

Mariam Nessa @ Mariam Khatun v. the Union of India and 3 Ors.

Case brief

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Mariam Nessa @ Mariam Khatun v. the Union of India and 3 Ors.

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