Dismissed

Mustt. Tohiran Nessa v. the Union of India and 3 Ors.

Gauhati HC1 Jun 2018WP(C)/7013/2016

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a writ petition seeking to quash the Foreigners' Tribunal order declaring the petitioner a foreigner. The court found the petitioner failed to establish identity as an Indian citizen due to discrepancies in her written statements, lack of evidentiary value in submitted documents—including NRC 1951 entries and voter lists—and failure to prove linkage to an Indian pa

What did the court decide?

Writ petition dismissed; interim order to remain on bail vacated; no relief granted to petitioner.

Mustt. Tohiran Nessa Vs the Union of… — Constitutional and Fundamental Rights | Gauhati HC (2018)

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GAHC010121862016

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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) 7013/2016

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1:MUSTT. TOHIRAN NESSA

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W/O. MD. JARIF ALI, VILL. NO.2, DAUKHANAGAR, P.O. KHAGRABARI, P.S. DHALIGAON, DIST. CHIRANG BTAD, 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 SECRETARY, MINISTRY OF HOME AFFAIRS,, NORTH BLOCK, NEW DELHI-110001.

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2:THE STATE OF ASSAM REP. BY THE SECRETARY MINISTRY OF HOME AFFAIRS SECRETARIAT DISPUR ASSAM PIN-781006.

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3:THE SUPDT. OF POLICE B KAJALGAON DIST. CHIRANG ASSAM.

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4:THE DY. COMMISSIONER CHIRANG KAJALGAON DIST. CHIRANG ASSAM

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Advocate for the Petitioner : MR.B J MUKHERJEE

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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 : 01-06-2018

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(Ujjal Bhuyan, J)

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This case was heard on 04.05.2018 and today is fixed for delivery of order(s).

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We have heard Mr S S Sharma, learned Senior Counsel, assisted by Ms M Mazumdar, 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 03.06.2016, passed by the Foreigners’ Tribunal, Chirang, in Case No. BNGN/FT (CHR) 954/2008 ( Union of India –Vs- Tahiron 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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This Court by order dated 01.12.2016 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), Chirang 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 requisition from the Tribunal.

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In her written statement filed before the Tribunal on 04.02.2009, petitioner stated that her name was Musstt. Tahiron Nessa and that she was a citizen of India by birth. Her father was Taga Mondal and her husband was Md Jarif Ali @ Jarip Ali. Name of Father Taga Mondal was enrolled in the National Register of Citizens (NRC) of 1951. Petitioner was enrolled as a voter in the year 2005 in respect of Bongaigaon constituency. This was all that the petitioner stated in her written statement,

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which was wholly inadequate to establish her identity as a citizen of India, having regard to the

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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, (2005) 5 SCC 665.

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Petitioner deposed before the Tribunal as her witness on 08.06.2012, disclosing her age as 46 years, which would mean that petitioner was born sometime in the year 1966. In her deposition, she stated that her father was Late Taga Mondal. She stated that Chairman of Roumari Village Council Development Committee had issued a certificate, certifying that she was the daughter of Taga Mandal.

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It appears that at a subsequent date, i.e., on 30.01.2016, petitioner filed another written statement this time, stating that she was born and brought up at Village No. 2, Dawkhanagar under Dhaligaon Police Station in the district of Chirang. She referred to her father as Taga Mondal @ Tafiluddin @ Tafil Sheikh and referred to her mother as Samijan Bibi. Father was a voter in 1966 in respect of Sidli constituency, whereas petitioner became a voter of Bongaigaon constituency in the year 1993 as well as in 1997.

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She deposed again before the Tribunal on 30.04.2016. Here, she stated that her grandfather was Late Samatullah. She also stated that her father Taga Mondal @ Tafiluddin had one son, i.e., Momin Ali and one daughter, i.e., herself. Her mother was Momirun Nessa.

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Petitioner was also cross-examined.

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Before proceeding to the exhibits, we may briefly compare what the petitioner pleaded in her two written statements and what she deposed in her evidence. In her first written statement, petitioner mentioned her father’s name as Taga Mandal, but in the second written statement she not only mentioned his name as Taga Mandal, but further added that Taga Mondal was also known as Tafiluddin @ Tafil Sheikh. She identified her mother as Samijan Bibi. But in her evidence, she mentioned that her mother was Momiran Nessa. This is a significant discrepancy which was not explained by the petitioner. That apart, in both the written statements there was no mention about Momin Ali, who

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according to the petitioner was her only brother.

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Exhibit-1 is an NRC certificate dated 10.10.1986, issued by the Officer-In-Charge, Bijni Police Station. It was certified that Taga Mandal, son of Samatullah Mandal, Kachua, son of Taga Mandal and Samijan Bibi, wife of Taga Mandal, were included in the NRC, 1951 as residents of village 106 South Tengnamari under Bijni Police Station. According to the petitioner, Taga Mondal and Samijan Bibi were her parents. However, as per her evidence, she had only one brother by the name of Momin Ali, but as per this document, the son of Taga Mondal was shown as Kachua and not Momin Ali. But most importantly, this Court has held that entries in NRC, 1951 would have no evidentiary value because NRC, 1951 was prepared under the provisions of the Census Act, 1948 and Section 15 of the Census Act, 1948 makes it abundantly clear that an entry in the Census can neither be looked into nor would it have any evidentiary value. On the above premise, it has been held that entry in NRC 1951 would have no evidentiary value.

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Exhibit-2 is a certified copy extract of the voters’ list of 1966 in respect of Sidli constituency. Here, the three voters were Tafiluddin, son of Samatullah, aged 46 years; Mamiron Bibi, wife of Tafil, aged 36 years; and Meher Ali, son of Tafil, aged 26 years. They were residents of village 219 Dowkhanagar No. 1.

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Despite Exhibit 1 being inadmissible in evidence, if we compare Exhibit-1 with Exhibit-2 , it is evident that Taga Mondal of Exhibit-1 and Tafiluddin of Exhibit-2 was not one and the same person because Taga Mandal was a resident of Village South Tengnamari No. 106, whereas Tafiluddin was a resident of village 219 Dowkhanagar No. 1. Samijan Bibi of Exhibit-1 and Momiran Bibi of Exhibit-2 was also not one and the same person. Son of Toga Mondal in Exhibt-1 was Kachua, whereas, son of Tafiluddin in Exhibit-2 was Meher Ali, two different persons altogether, though according to the petitioner, her only brother was Momin Ali.

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Exhibit-3 is a photostat copy of additional voters’ list of 1990 in respect of Bongaigaon constituency, where the voter at Serial No. 780 was Tahiron Nessa, wife of Jarif Ali. This document is not the original copy of the voters’ list. Therefore, it is not primary evidence. It is also not a certified copy of the voters’ list. As such, it is not secondary evidence. Under the Indian Evidence Act, 1872, a document has to be proved either by primary evidence or by secondary evidence. Therefore, it is quite evident that Exhibit-3 was neither proved by comparing with the primary evidence nor by production of certified copy, i.e., secondary evidence. Therefore, it has got no evidentiary value. Notwithstanding the same, if we look into this document, we find that the voter in question is Tahiron Nessa, wife of Jarif Ali. It is not indicative of her relationship with either Tafiluddin of Exhibit-2 or Taga Mandal of Exhibit-1.

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Similar is the position in respect of voters’ lists of 1993 (Exhibit-4), 1997 (Exhibit-5) and 2005 (Exhibit-6) where the voter was Tahiron Nessa, wife of either Jarif Ali or Jorib Ali. Therefore, Exhibits – 4, 5 and 6 would be of no assistance to the petitioner.

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That brings us to Exhibit-7, which is a certificate dated 10.07.2015, issued by Lot Mondal Rabindra Wary of Sidli Revenue Circle, certifying that Tahiron Nessa was the daughter of Toga Mondal and Samijan Bibi; and that she had got married to Jorip Ali on 01.03.1984. It was mentioned that the said certificate was issued on the basis of the evidence placed before the Lot Mandal. Now, as per this document petitioner was the daughter of Toga Mondal and Samijan Bibi, whose existence are traceable to Exhibit-1. Both Toga Mondal and Samijan Bibi are conspicuous by their absence in all the remaining documents. Though petitioner tried to present a narrative that Taga Mandal and Tafiluddin was one and the same person, there was no evidence to that effect. Moreover, the discrepancy between Samijan Bibi and Momiran Bibi remained unexplained, but the most crucial part is that this document was not proved before the Tribunal. The author of the said certificate, Sri Rabindra Wary did not depose before the Tribunal along with the contemporaneous record to prove Exhibit-7 as well as the contents thereof.

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In the absence thereof, no reliance can be placed on Exhibit-7.

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Exhibit-8 was an application filed by the petitioner Tahiron Nessa for inclusion of her name in the updated NRC. Such an application form filled up by the petitioner herself can neither be proof nor evidence to support her claim of being an Indian citizen. Exhibit-8 is an application filed for inclusion of name in NRC. Currently NRC updation exercise is going on in the State of Assam but the same is still at the draft stage. Therefore, no finality can be attached to such application form, when the NRC itself has not been finalized.

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Thus, it is quite evident 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. The narrative presented by the petitioner suffered from multiple material contradictions rendering the same wholly improbable. In such circumstances, 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. 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

Mustt. Tohiran Nessa v. the Union of India and 3 Ors.

Case brief

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Mustt. Tohiran Nessa v. the Union of India and 3 Ors.

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