Dismissed

Anowara Khatun v. the Union of India and 7 Ors.

Gauhati HC17 May 2019WP(C)/3038/2019

Case brief

AI extract

What is this about?

This writ petition challenged a Foreigners Tribunal order declaring the petitioner an illegal immigrant. The Court examined evidence of a Gaon Panchayat certificate, finding it based on hearsay. Upholding the Tribunal's factual finding of no proven citizenship linkage, the petition was dismissed for lack of merit under Article 226.

What did the court decide?

The writ petition is found to be bereft of merit and is dismissed accordingly.

Anowara Khatun Vs the Union of India and 7… — Pension and Retirement Benefits | Gauhati HC (2019)

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GAHC010087722019

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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) 3038/2019

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1:ANOWARA KHATUN

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D/O. TANU MIYA, W/O. FAZAL HAQUE, VILL. BHERAGAON, P.S. BARPETA, DIST. BARPETA, ASSAM-781314.

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VERSUS

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1:THE UNION OF INDIA AND 7 ORS.

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REP. BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, SHASTRI BHAWAN, NEW DELHI-110001.

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2:THE STATE OF ASSAM REP. BY THE SECRETARY TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GUWAHATI-781006.

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3:THE ELECTION COMMISSION OF INDIA REP. BY THE CHIEF ELECTION COMMISSION NIRVACHAN SADAN ASHOKA ROAD NEW DELHI-110001.

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4:THE STATE COORDINATOR NATIONAL REGISTRATION OF CITIZENS ASSAM 1ST FLOOR ACHYUT PLAZA G.S. ROAD BHANGAGARH GUWAHATI ASSAM-781005.

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5:THE FOREIGNERS TRIBUNAL NO. 1ST BARPETA ASSAM DIST. BARPETA ASSAM PIN-781301.

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6:THE DY. COMMISSIONER BARPETA P.O. AND P.S. BARPETA DIST. BARPETA ASSAM PIN-781301.

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7:THE SUPDT. OF POLICE (B) BARPETA P.O. AND P.S. BARPETA DIST. BARPETA ASSAM-781301.

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8:THE OFFICER IN CHARGE BARPETA POLICE STATION P.O. BARPETA DIST. BARPETA ASSAM-781301

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Advocate for the Petitioner : MR. M AHMED

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

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BEFORE

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

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ORDER

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Date : 17-05-2019 (Manish Choudhury, J)

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Heard Ms. D. Ghosh, learned counsel for the petitioner as well as Mr. A. Kalita, learned counsel representing the respondent nos. 2 and 5 to 8. Also heard Ms. B. Das, learned counsel representing respondent no.3. None appears for respondent no. 1 and Ms. U. Das,

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learned counsel representing respondent no.4.

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The petitioner assails the order/opinion dated 18.03.2019 (incorrectly typed as 18.03.2018) passed by the Foreigners Tribunal No. 1^st , Barpeta, Assam in F.T. Case No. 266/2016, whereby, the Tribunal held that the petitioner, Anowara Khatun, w/o Fazal Haque, Village – Bheragaon, Police Station – Bapeta, District – Barpeta, 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, having illegally entered into the territory of India from the specified territory on or after 25.03.1971 without any valid document.

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The primary issue for determination is as to whether the petitioner, Anowara Khatun succeeded to establish her linkage with her projected father, Tanu Miya, whom the proceedee claimed to be an Indian citizen by virtue of his enrolment as a voter in the Electoral Rolls of 1966 (Ext.A) and of 1970 (Ext.B) and her projected mother, Hajeran Nessa, whom the proceedee claimed to be an Indian citizen by virtue of her enrolment as a voter in the Electoral Roll of 1970 (Ext.B).

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On a reference made by the Superintendent of Police (Border), Barpeta, expressing doubt about the nationality of the proceedee, initially IM(DT) Case No. 1909/C/98 was registered before the Illegal Migrants (Determination) Tribunal, Barpeta under the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act). After the IMDT Act was declared unconstitutional by the Supreme Court in Sarbananda Sonowal vs. Union of India, (2005) 5 SCC 665, the reference was transferred to the Foreigners Tribunal No. 1^st , Barpeta where it was registered as F.T. Case No. 266/2016 for its opinion under the Foreigners Act, 1946 read with the Foreigners (Tribunals) Order 1964.

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On receipt of the reference, the Tribunal issued notice to the proceedee and on receipt of the notice, the proceedee appeared and contested the case by filing her written statement denying the allegation and stating that she is an Indian citizen by birth. In course of proceeding before the Tribunal, the proceedee adduced evidence of 4 (four) witnesses including herself and exhibited 10 (ten) number of documents marked as Ext.A to Ext.J. The four witnesses so examined by the proceedee were :- (i) D.W.1 – the proceedee; (ii) D.W.2 –

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Maynal Haque, as a brother of the proceedee; (iii) D.W.3 – the Gaonbura of Village – Gajia; and (iv) D.W.4 – the Secretary of 77 No. Gajia Medhirtary Gaon Panchayat, District – Barpeta. One of the documents exhibited by the proceedee was a certificate dated 28.06.2015 issued by D.W.4 i.e. the Secretary, 77 No. Gajia Medhirtary Gaon Panchayat, District – Barpeta which was marked as Ext.G. After consideration of the evidence led before the Tribunal by the proceedee, the Tribunal rendered its order/opinion on 17.09.2018 initially by holding that the proceedee had failed to discharge her statutory burden under Section 9 of the Foreigners Act 1946 and, accordingly, opined that the proceedee was a Foreigner of post-24.03.1971 stream. 6. Assailing the said order/opinion dated 17.09.2018 rendered by the Tribunal, the proceedee as the petitioner preferred a writ petition, W.P.(C) No. 7933/2018, before this Court contending, inter-alia, that the Tribunal did not appreciate the evidence of D.W.4 – the Secretary, 77 No. Gajia Medhirtary Gaon Panchayat, District – Barpeta read with Ext.G – the certificate dated 28.06.2015 issued by D.W.4. The issue raised in the writ petition was that the evidence adduced by the Secretary did not disclose the source of the information from where he had stated that the father of the proceedee was Tanu Miya of Village – Bheragaon. A reference was made by the learned counsels for the parties to the decision of the Supreme Court in the case of Rupajan Begum vs. Union of India and others, (2018) 1 SCC 579, wherein, in paragraph 16, it has been observed as under :-

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“16. The certificate issued by the G.P. Secretary, by no means, is proof of citizenship. Such proof will come only if the link between the claimant and the legacy person (who has to be a citizen) is established. The certificate has to be verified at two stages. The first is the authenticity of the certificate itself; and the second is the authenticity of the contents thereof. The latter process of verification is bound to be an exhaustive process in the course of which the source of information of the facts and all other details recorded in the certificate will be ascertained after giving an opportunity to the holder of the certificate. If the document and its contents are to be subjected to a thorough search and probe we do not see why the said certificate should have been interdicted by the

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High Court, particularly, in the context of the facts surrounding the enumeration and inclusion of the documents mentioned in the illustrative list of documents, as noticed above. In fact, the said list of illustrative documents was also laid before this Court in the course of the proceedings held from time to time and this Court was aware of the nature and effect of each of the documents mentioned in the list.”

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Taking into consideration the evidence led in respect of Ext.G and the observation made in Rupajan Begum (supra), this Court had observed that interest of justice would be met if the matter was remanded back to the Tribunal for examination of the Secretary of the Gaon Panchayat. Accordingly, the matter was remanded back to the Tribunal for a limited consideration as to whether the Secretary of the Gaon Panchayat (D.W.4) had discharged the burden as regards the source of the information of the facts and other details recorded in Ext.G. It was further clarified that the matter was not sent back for a re-adjudication, but was sent only for a limited purpose for determining as to whether the Secretary of the Gaon Panchayat made a thorough search and probe for determining the source of information and other details contained in Ext.G for which the Secretary of the Gaon Panchayat may be subjected to further cross-examination. With the aforesaid directions, the writ petition was disposed of by an order dated 21.01.2019.

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On being so remitted for the limited purpose by the order dated 21.01.2019, further examination of D.W.4 i.e. the Secretary, 77 No. Gajia Medhirtary Gaon Panchayat was made on 06.03.2019. The Tribunal, on assessment of further testimony of D.W.4, did not find any new material in the case of the proceedee so as to alter its earlier findings and consequently, the Tribunal gave its order/opinion on 18.03.2019 (incorrectly typed as 18.03.2018) holding that the proceedee was a Foreigner of post-24.03.1971 stream, thereby, reaffirming its earlier order/opinion dated 17.09.2018.

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It is this order/opinion dated 18.03.2019 (incorrectly typed as 18.03.2018) the proceedee has assailed in the present writ petition. Referring to the deposition of D.W.4 so recorded on 06.03.2019 and Ext.G, annexed to the writ petition as Annexure-VII, it is submitted by the learned counsel for the petitioner that material evidence, adduced by D.W.4

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in the context of Ext.G, has not been properly appreciated and the same has been wrongly discarded by the Tribunal.

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Before proceeding further, it is, thus, apposite to refer to the contents of Ext.G as well as the deposition of D.W.4. In Ext.G, it was stated that the proceedee was a daughter of Lt. Tanu Miya of Village – Bheragaon and she got married on 11.10.1985 to Fazal Haque, son of Lt. Darog Ali of Village – Bheragaon. It was also mentioned in Ext.G that the same was issued based on the evidence placed before D.W.4. It transpired that in his previous testimony, D.W.4 stated that he was the Secretary of 77 No. Gajia Medhirtary Gaon Panchayat for the past 4 years and he issued the certificate (Ext.G) for to the petitioner for the purpose of linkage. He further stated that in the certificate (Ext.G), it was mentioned that the father of the petitioner was Tanu Miya and the husband of the petitioner was Fazal Haque. When D.W.4 was examined again on 06.03.2019, he stated that he wrote the contents of Ext.G on the basis of the application submitted by the proceedee with which the copies of Electoral Rolls of 1966, 1970, 1993 and 1997 were annexed and he found the names of the father and the husband of the proceedee in those Electoral Rolls. When he was cross-examined, D.W.4 stated that he issued Ext.G certificate for the purpose of NRC linkage. He did not know the proceedee and when the proceedee came to him (D.W.4) for the certificate then the brother of the proceedee introduced her to him (D.W.4) as his sister. D.W.4 further stated that when the husband of the proceedee came to him (D.W.4) for the certificate then only he (D.W.4) came to know that he was (Fazal Haque) the husband of the proceedee. D.W.4 stated to have issued the certificate only after the Gaonbura and President of the Gaon Panchayat vouched about the correctness of the proceedee’s application. He further stated that in the application so submitted by the proceedee, the proceedee mentioned that need for a certificate had arisen for the purpose of linkage in respect of NRC and therefore, a certificate be issued and it was on that basis, D.W.4 stated to have issued the certificate. For the limited purpose, the contents of Ext.G and testimony of D.W.4, which are available with the writ petition, are perused.

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It transpires that D.W.4 was Secretary of 77 No. Gajia Medhirtary Gaon Panchayat for 4 years when he deposed. Ext.4 mentioned that the certificate was issued on the basis of the evidence placed before him. It transpires from the testimony of D.W.4 that prior to the

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issuance of Ext.G, he neither knew the proceedee nor her husband. He only came to know the proceedee when she was introduced by her brother. D.W.4 identified the proceedee as Anowara Khatun solely basing on the purported brother of the proceedee who introduced her as his sister, and on the purported assertion of the Gaonbura and the President of Gaon Panchayat. D.W.4 did not speak of any enquiry made by him as regards the veracity of those assertions. The Secretary of 77 No. Gajia Medhirtary Gaon Panchayat wrote the contents of Ext.G resting reliance on the veracity of identification given by the purported brother of the proceedee and, thus, declared the proceedee as the daughter of Lt. Tanu Miya on information given by someone else. A declaration on information reflected on the Electoral Rolls placed before him by someone else recognizing one as the daughter of a deceased person recorded as a voter therein and not drawing its value from his own credit falls in the realm of hearsay as D.W.4 had issued Ext.4 on the basis of purported assertion made before him by some other person. D.W.4 did not elaborate as to how the Gaonbura or the President of Gaon Panchayat vouched for the veracity about the relationship of the proceedee with her projected father. It is, thus, apparent that D.W.4 had derived his knowledge from others and had issued Ext.G placing reliance on hearsay evidence. Therefore, what was recorded in the certificate (Ext.G) could not have been regarded as anything except hearsay making the same unreliable, and inadmissible.

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A perusal of the order/opinion dated 18.03.2019 (incorrectly typed as 18.03.2018) 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 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. In our considered opinion, the proceedee despite leading oral evidence as well as documentary evidence in order to discharge the burden of proof, had failed to establish any linkage with

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her projected father, Lt. Tanu Miya whom she stated to be an Indian national. We see no reason to depart from the assessment of evidence by the Tribunal nor are we impressed by the learned counsel’s submission that material and important evidence was wrongly discarded. A certificate issued by the Secretary, Gaon Panchayat based on hearsay evidence could not come in support of the proceedee in her claim for citizenship. As the petitioner has not been able to make out any case demonstrating any error apparent on the face of the record and there being no perversity, 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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JUDGE JUDGE

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Comparing Assistant

Anowara Khatun v. the Union of India and 7 Ors.

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Anowara Khatun v. the Union of India and 7 Ors.

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