Dismissed

Khudeja Begum v. the Union of India and 5 Ors.

Gauhati HC13 May 2019WP(C)/2889/2019

Case brief

AI extract

What is this about?

In a challenge to a Foreigners Tribunal order declaring the petitioner a foreigner, the High Court upheld the Tribunal's finding that the petitioner failed to prove citizenship prior to 1971 due to lack of reliable documentary evidence and improper use of the State Emblem.

What did the court decide?

The writ petition is bereft of merit and stands dismissed; no order as to costs.

Khudeja Begum Vs the Union of India and 5 Ors. — Writ and Judicial Review | Gauhati HC (2019)

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GAHC010093642019

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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) 2889/2019

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1:KHUDEJA BEGUM

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D/O LT. AKSHAD ALI, W/O. LT. OMAR ALI, VILL. NO. 2 DANGARGAON, P.O. NAGRIJULI, P.S. TAMULPUR, DIST. BAKSA, BTAD, ASSAM. PIN- 781368

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VERSUS

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1:THE UNION OF INDIA AND 5 ORS.

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REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI- 110001.

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2:THE STATE OF ASSAM REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY.-06. 3:THE DY. COMMISSIONER BAKSA PIN- 781367. 4:THE ELECTION COMMISSION OF INDIA NEW DELHI- 110001.

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5:THE STATE CO-ORDINATOR NATIONAL REGISTER OF CITIZENS ASSAM GUWAHATI- 781005. 6:THE SUPERINTENDENT OF POLICE (B) BAKSA DIST.- BAKSA PIN- 781367

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Advocate for the Petitioner : MR H R A CHOUDHURY

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

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BEFORE HONOURABLE MR. JUSTICE MANOJIT BHUYAN HONOURABLE MR. JUSTICE MANISH CHOUDHURY

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ORDER

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Date : 13-05-2019 Manish Choudhury, J)

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Heard Ms. H. Ahmed, learned counsel for the petitioner as well as Mr. A. Kalita, learned counsel representing the respondent nos. 2, 3 and 6. Also heard Ms. B. Das, learned counsel representing respondent no. 4 and Ms. A. Verma, learned counsel representing respondent no. 5. None appears for respondent no. 1.

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The petitioner assails the order/opinion dated 28.02.2019 passed by the Foreigners Tribunal, Baksa, Tamulpur in F.T. Case No. 2674/BAKSA/2016, whereby, the Tribunal held that the petitioner, Khudeja Begum, w/o Lt. Omar Ali, Village – No. 2 Dangargaon, Police Station – Tamulpur, District – Baksa, BTC, Assam as the proceedee, failed to discharge her burden of proof as mandated under Section 9 of the Foreigners Act, 1946 and accordingly, she was declared to be a foreigner of post 25.03.1971 stream, having illegally entered into the territory of India from the specified territory without any valid document.

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The primary issue for determination is as to whether the petitioner, Khudeja Begum succeeded to establish her linkage with her projected father, Akshad Ali and projected mother, Manikjan Nessa. The Tribunal had, inter-alia, held that the petitioner as the proceedee, could not produce any Electoral Roll of any period prior to 1997 having her name as a voter till the age of 50 years, which she declared to be her age and thus, the petitioner had failed to prove her Indian nationality.

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On a reference made by the Superintendent of Police (Border), Nalbari, the Tribunal issued notice and on receipt thereof, the petitioner duly entered appearance and contested the case by filing her written statement and later on, by adducing her evidence on affidavit as O.P.W.1 exhibiting 9 (nine) Nos. of documents. The petitioner also adduced evidence of 3

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(three) witnesses viz. Hajarat Ali (O.P.W.2), Lal Bhanu (O.P.W.3) and Nurul Islam Ahmed (O.P.W.4).

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In her written statement, the proceedee stated that she was born in the year 1966 at Village – Agmandia in the district of Barpeta and her parents’ names were Lt. Akshad Ali and Manikjan Nessa. It was mentioned that the name of her father was entered in the NRC details (1951) in the district of Barpeta as well as in the Electoral Roll of 1966 under 52 No. Baghbar LAC. The proceedee got married with Omar Ali of Village – No. 2 Dangargaon, District – Baksa and she had been living with her husband since then. Save and except as above, the proceedee did not disclose any other details like the year of her birth and names of her grandparents and her siblings, etc. No explanation is made, in the written statement, as about such non-disclosure. In Sarbananda Sonowal vs. Union of India and another, (2005) 5 SCC 665, it is held that in order to establish one’s citizenship, normally he may be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship. In a proceeding under the Foreigners Act, 1946 read with Foreigners (Tribunals) Order, 1964 the issue is whether the proceedee is a foreigner or not and Section 9 of the Foreigners Act, 1946 casts the burden of proof on the proceedee to prove that he is not a foreigner. The same is based on the legal principle that the facts which are within the personal knowledge of a person should be proved by him and not the party who avers the negative because those facts are within the personal knowledge of the person concerned and not of the authorities of the State. After such proceedee has given evidence on the above points, the State authorities can verify the facts and can, thereafter, lead evidence in rebuttal, if necessary.

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In her evidence on affidavit, the proceedee besides reiterating the statements made in the written statement, as indicated above, further stated that her parents’ names were enrolled in the Electoral Roll of the year 1970 from same village as in 1966 and her name was enrolled along with her husband and son in the Electoral Roll of 1997 from Village – No. 2 Dangargaon under 58 No. Tamulpur LAC. She further stated that she had two sons and one daughter.

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For the purpose of discharging the burden as not being a foreigner, the petitioner sought to link herself with her projected parents and to establish the link, the following

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documents were exhibited :-

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(i) Ext.-1 – Certified copy of extract of Electoral Roll of 1966 pertaining to Village – Agmandia under 52 No. Baghbar LAC showing (i) Akshad Ali (40 years), son of Shahar Ali and (ii) Manikjan Nessa (33 years), wife of Akshad Ali as voters;

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(ii) Ext.-2 – Certified copy of extract of Electoral Roll of 1970 pertaining to Village – Agmandia under 52 No. Baghbar LAC showing (i) Akshad Ali (44 years), son of Shahar Ali and (ii) Manikjan Nessa (37 years), wife of Akshad Ali as voters;

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(iii) Ext.-3 – Certificate dated 25.02.2018 issued by Gaonbura, Agmandia;

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(iv) Ext.-4 – Certified copy of extract of Electoral Roll of 1997 pertaining to Village – No. 2 Dangargaon in the then Nalbari district, showing (i) Omar Ali (60 years), son of Motuz Ali, (ii) Khudeja Begum (50 years), wife of Omar and (iii) Hanu Ali (35 years), son of Omar as voters;

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(v) Ext.-5 – Elector Photo Identity Card (EPIC) issued on 01.10.2013 to Khudeja Begum (57 years), relation name – Omar;

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(vi) Ext.-6 – Certified copy of Jamabandi obtained on 18.08.2018 in respect of a plot of land at Village – Agmandia for the year 1968 – 1969 showing the name of Akshad Ali, son of Sahar Ali;

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(vii) Ext.-7 – A pass book for National Rural Employment Guarantee Scheme of Department of Posts, India where the name of the account holder was not shown;

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(viii) Ext.-8 – A certificate dated 16.07.2015 issued by the Secretary, 85 No. Agmandia, Jadavpur Gaon Panchayat and countersigned by the Block Development Officer, Agmandia stating that Khudeja Begum got married to Amar Ali, a resident of No. 2 Dangargaon, on 30.12.1975;

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(ix) Ext.-9 – A pass book of State Bank of India issued to Khudeja Begum, wife of Omar Ali on 14.09.2017.

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From Ext.-4, it could be seen that the proceedee’s name was, for the first time, enrolled as a voter in the year 1997 at the age of 50 years with her husband and son. If the proceedee was 50 years in the year 1997, then she must have been born in and around 1947 and must have attained the age of adult suffrage in and around the year 1968. But the proceedee had failed to produce any Electoral Roll for the period from 1968 to 1997 where her name was enrolled as a voter nor did she state about the reason for such non-enrollment of her name as a voter. For the purpose of establishing linkage to predecessors who are Indian citizens and relatable to a period prior to the cut-off date of 25.03.1971 the proceedee projected, as mentioned above, Akshad Ali as her father and Manikjan Nessa as her mother respectively, both names having appeared in the Electoral Rolls of 1966 (Ext.-1) and 1970 (Ext.-2). As the name of the proceedee did not appear with her projected parents in any of the Electoral Rolls as voters together, the proceedee sought to draw linkage with her projected parents by placing reliance in the certificate issued by the Gaonbura, Agmandia on 25.02.2018 (Ext.-3) and the certificate dated 16.07.2015 issued by the Secretary, 85 No. Agmandia, Jadavpur Gaon Panchayat (Ext.-8). For that purpose, the proceedee adduced the evidence of her witnesses, O.P.W.2 and O.P.W.4.

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O.P.W.4 who was the Secretary of 85 No. Agmandia, Jadavpur Gaon Panchayat and who issued Ext.-8, stated in his deposition that Ext.-8 was issued on the basis of Ext.-1 and Ext.-2 and there was no old records except the certificate issue register. The Tribunal had observed that O.P.W.-4, in his cross-examination, testified that he issued Ext.-8 on the basis of the certificate of the Gaonbura and version of the proceedee. It was further observed that Ext.-8 was issued on 16.07.2015 whereas the certificate of the Gaonbura (Ext.-3), on the basis of which Ext.-8 was stated to be issued carried the date of 25.02.2018 as the author of Ext.-3 i.e. O.P.W.2 nowhere mentioned about any other certificate issued by him. In view of the above situation, the Tribunal did not accept the testimony of O.P.W.4 and Ext.-3 and held that Ext.-3 could not be accepted for the purpose of linkage of the proceedee with her projected parents. On perusal of Ext.-4 and Ext.-8, another irreconcilable fact has emerged. In Ext.-4, name of Hanu Ali, aged 35 years, found to be enrolled as a voter who was shown

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to be the son of the proceedee and her husband. If the same is accepted, then the marriage of the proceedee must have to be solemnized prior to 1962. But in Ext.-8, O.P.W.4 had endorsed that the marriage of the proceedee was solemnized on 30.12.1975 about which the proceedee was found to be conspicuously silent in the entire proceeding. O.P.W.4 having not disclosed the source of his such information, put his testimony into suspicion, which destroyed its credibility. For the aforesaid reason apart from the reason assigned by the Tribunal, Ext.-8 cannot be accepted as a valid piece of evidence for the purpose of linkage.

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The person who issued Ext.-3 i.e. the Gaonbura, Agmandia was examined as O.P.W.2. He stated that he knew the proceedee and her father whose name was enlisted as a voter in 1965 and 1970. The proceedee was born at Village – Agmandia and had sisters viz. Jahira Khatun and Solemen Begum, who were also living in the said village. The father of the proceedee died in the year 1985 in an accident. In his cross-examination, O.P.W.2 stated that he had come to depose for the proceedee and he did not know whether the father of the proceedee came from Bangladesh. He testified that he issued Ext.-3 certificate on verbal request of the proceedee and he issued the same on the basis of Voter Lists but he did not have any record of villagers. The Ext.-3 only stated that the proceedee was the daughter of Akshad Ali and she got married to Omar Ali. If the version of O.P.W.2 is considered along with other materials on record, without considering their veracity for the moment, then it would emerge that the proceedee was living at Village – Agmandia from the year 1947 till her marriage on 30.12.1975, having attained the age of 21 years in 1968 and if that is so, it was incumbent on the part of the proceedee to have proved her enrollment as a voter together with her projected parents in the Electoral Roll of 1970 and the period subsequent thereto till 1975 and to show the linkage through other acceptable and reliable documents instead of Ext.-3 which was issued only on 25.02.2018. The veracity of the version of O.P.W.2 comes under a cloud when the same is read along with the testimony of O.P.W.3.

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In this connection, a reference may also be made to an order dated 27.03.2019 passed by a co-ordinate Bench of this Court in the writ petition, WP(C) No. 7919/2018 (Jalekha Khatun vs The Union of India and 6 Ors.), wherein it has been observed as under:

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“There is another aspect of the matter which assumes importance and forms part of the records. The certificates at Exhibits-D and E carries with it the

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State Emblem. In this respect we would observe that the Central Government has framed statutory rules called State Emblem of India (Regulation of Use) Rules, 2007 (in short the Rules) in exercise of powers conferred by section 11 of the State Emblem of India (Prohibition of Improper Use) Act, 2005 (in short the Act). Section 3 of the Act specifically prohibits improper use of the State Emblem. It says that notwithstanding anything contained in any other law for the time being in force, no person shall use the emblem or any colourable imitation thereof in any manner which tends to create an impression that it relates to the Government or that it is an official document of the Central Government or the State Government, without the previous permission or authorization. This section starts with a non-obstante clause, meaning thereby that it has overriding effect over all the laws for the time being in force. Rule 5 of the Rules provides that use of the official emblem is restricted to the authorities specified in Schedule-I. Rule 10 makes the restriction more specific. It says that no person, other than those authorized under the Rules, shall use the emblem in any manner. Sub-rule (2) of Rule 10 clearly provides that no Commission or Committee, Public Sector Undertaking, Bank, Municipal Council, Panchayati Raj Institution, NonGovernment Page No.# 4/4 Organization, University (other than those authorized under the Rules) shall use the emblem in any manner. Schedule–I to the Rules contains a list of constitutional and statutory authorities, Ministries and Departments of the Central Government, State Governments or Union Territory Administrations and other Government functionaries which may use the emblem. Therefore, the certificates issued by the respective Gaonburahs at Exhibits-D and E containing the State Emblem of India cannot be regarded as valid and acceptable documents. It stands that the State Emblem has been improperly used and the same being in clear violation of the aforesaid Act and Rules, have rendered the said certificates as inadmissible in evidence.”

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In view of the above observations, the certificate issued by the Gaonbura (O.P.W.-2) at

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Ext.-3 containing the State Emblem of India cannot be regarded as valid and acceptable document.

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O.P.W.3, Lal Bhanu (42 years), wife of Mahmud Ali, claimed to be the younger sister of the proceedee and deposed that she had five elder sisters. In her cross-examination, O.P.W.3 stated that as proof of link with the proceedee and the projected father, a land document was exhibited. She admitted that she did not submit any proof that she was the younger sister of the proceedee. As have been mentioned above, the proceedee did not mention anything about her siblings in her written statement as well as in her evidence filed on affidavit. It was only in the cross-examination the proceedee stated that she had sisters as siblings. O.P.W.2 mentioned about 2 (two) sisters of the proceedee and did not name O.P.W.3 as a sister of the proceedee. In none of the documents marked as exhibits before the Tribunal, the name of the purported siblings of the proceedee including O.P.W.3 appeared, not to speak of as a voter in any of the Electoral Rolls so exhibited. The oral evidence of a person adduced in support of the proceedee in a proceeding where the matter involved is the status of citizenship of the proceedee, to be acceptable, the status of citizenship or the person adducing oral testimony must not be in any doubt. It must be kept in mind that in a proceeding of such nature where the proceedee brings a witness to support his/her claim of citizenship as a close relative like sister it cannot be said that such a witness is an independent witness and, therefore, the Court or the Tribunal is to be cautious and circumspect in accepting the veracity of oral evidence so adduced unless it is corroborated by other reliable, acceptable and dependable material. The decision on conferment of citizenship on a proceedee cannot be decided in the affirmative unless the proceedee discharges the burden of proof that lies on him/her under the law. It is noticed that there is no evidence on record wherefrom the status of Indian citizenship of O.P.W.3 can be ascertained. No evidence including documentary evidence in the form of any Electoral Roll/Voter List was exhibited and proved before the Tribunal to establish the fact of presence of O.P.W.3 on Indian soil prior to 25.03.1971. Save and except the oral testimony of O.P.W.3 as a sister of the proceedee, no linkage between herself and the proceedee has been established from any other evidence. In such situation, the endeavour made by the proceedee, in the absence of cogent, reliable and acceptable documentary evidence, to traverse the distance of proving her status of citizenship

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by way of oral testimony of O.P.W.3, whose status as citizen of India itself and as a sister of the proceedee are not clear and in doubt, in the considered opinion of this Court, has fallen short of the requirement to be acceptable for the fact of presence of the proceedee on Indian soil prior to 25.03.1971.

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In so far as Elector Photo Identity Card (Ext.-5) is concerned, besides not being proved, it is a post 25.03.1971 document. It has been held by a co-ordinate bench of this Court in W.P.(C) No. 3547/2016 (Md. Babul Islam vs State of Assam) that merely producing such an Elector Photo Identity Card in the absence of supporting evidence, would not be a proof of citizenship. Similarly, the copy of the pass-book (Ext.-9) is not a proof of citizenship, in view of the decision rendered in W.P.(C) No. 583/2017 (Gulbhan Begum vs Union of India). The copy of the Jamabandi (Ext.-6), besides being not proved, does not establish any kind of linkage for the proceedee in view of stand-alone reflection of the name of Akshad Ali therein.

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A perusal of the order/opinion dated 28.02.2019 passed by the Tribunal shows that the Tribunal had appreciated the entire evidence led by the petitioner before it in the proper perspective and, thereafter, had rendered the finding that the petitioner had failed to establish her claim to be a citizen of India by reliable and cogent documentary evidence. Such a finding being a finding of fact, a writ Court exercising jurisdiction under Article 226 of the Constitution of India does not, ordinarily, interfere with such finding of fact unless there is perversity because the jurisdiction so exercised is supervisory and not appellate. In view of the point raised on behalf of the petitioner, the evidence led before the Tribunal by the petitioner is once again revisited only to reassure ourselves as to whether there was any perversity or error in appreciation in the order/opinion of the Tribunal. There being none, this writ petition is, resultantly, found to be bereft of merit and the same stands accordingly dismissed. There shall be no order as to costs.

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Concerned State authorities to take action accordingly.

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Office to send back the case records to the Tribunal forthwith.

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JUDGE

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Comparing Assistant

Khudeja Begum v. the Union of India and 5 Ors.

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Khudeja Begum v. the Union of India and 5 Ors.

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