Dismissed

Banesha Khatun @ Balsha Khatun v. the Union of India and 6 Ors.

Gauhati HC14 Nov 2019WP(C)/3730/2019

Case brief

AI extract

What is this about?

The petitioner challenged an order of the Foreigners Tribunal declaring her a foreigner. The High Court held that the petitioner failed to prove her Indian citizenship by birth due to unreliable witness testimony, lack of official marriage records, inadmissible translated electoral rolls, and a certificate improperly embossed with the State Emblem.

What did the court decide?

The writ petition was dismissed without order as to costs and the LCR was returned.

Banesha Khatun @ Balsha Khatun Vs the… — Constitutional and Fundamental Rights | Gauhati HC (2019)

¶1

Page No.# 1/10

¶2

GAHC010148962019

¶3

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

¶4

WP(C) 3730/2019

¶5

1:BANESHA KHATUN @ BALSHA KHATUN D/O. LT. RAMJAN MIYA @ RAMJAN MONDAL W/O. AZMAL HOQUE R/O. VILL. NO.1 BHAKHURADIA P.S. NAGARBERA DIST. KAMRUP (R) ASSAM PIN-781127.

¶6

VERSUS

¶7

1:THE UNION OF INDIA AND 6 ORS. REP. BY THE SECRETARY TO THE GOVT. OF INDIA MINISTRY OF HOME AFFAIRS NEW DELHI-01.

¶8

2:THE ELECTION COMMISSIONER OF INDIA NEW DELHI-01.

¶9

3:THE STATE OF ASSAM REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GUWAHATI-06.

¶10

4:THE STATE CO-ORDINATOR OF NRC BHANGAGARH ASSAM GHY.-05.

¶11

5:THE DY. COMMISSIONER KAMRUP (R)

¶12

Page No.# 2/10

¶13

DIST. KAMRUP (R) ASSAM PIN-781001. 6:THE SUPDT. OF POLICE (B) KAMRUP (R) DIST. KAMRUP (R) ASSAM PIN-781001. 7:THE OFFICER IN CHARGE NAGARBERA POLICE STATION DIST. KAMRUP (R) ASSAM PIN-781127. Advocate for the Petitioner : MR. M U MAHMUD Advocate for the Respondent : ASSTT.S.G.I.

¶14

BEFORE

¶15

HONOURABLE MR. JUSTICE MANOJIT BHUYAN HONOURABLE MR. JUSTICE AJIT BORTHAKUR

¶16

ORDER

¶17

Date : 14-11-2019

¶18

(Ajit Borthakur, J)

¶19

Heard Mr. MU Mahmud, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing respondent No. 1. Mr. J. Payeng, learned counsel represents respondent Nos. 3, 5, 6 and 7. Ms. B. Das learned counsel represents respondent No. 2 whereas Ms. A Verma, learned counsel represents respondent No. 4.

¶20

By this petition under Article 226 of the Constitution of India, the petitioner assails the impugned order, dated 18.04.2019, passed by the Foreigners’ Tribunal No.1, Kamrup ( R ), Assam in GFT Case No.173/2017 declaring the petitioner to be a foreigner, who had entered into India (Assam) on or after 25.03.1971.

¶21

Be it mentioned here that based on a reference made by the Superintendent of Police

¶22

Page No.# 3/10

¶23

(Border), Kamrup (R), expressing doubt regarding the nationality of the petitioner, GFT (R) Case No. 173/2017 was registered before the aforesaid Tribunal.

¶24

By an order passed on 09.10.2017, by the Foreigners’ Tribunal No.1, Kamrup (R), Assam declaring the petitioner a foreigner, the petitioner preferred a writ petition being WP © No. 221 of 2018 and this Court by an order, dated 12.02.2019, after hearing the parties set aside the aforementioned order of the Tribunal, dated 09.10.2017 directing the petitioner to appear before the Tribunal and also directing the Tribunal to give its own conclusion within a period of 30 days thereafter. Accordingly, the present impugned order came to be passed.

¶25

The petitioner contested the proceeding by filing a written statement claiming to be an Indian citizen by birth. In support of her claim of Indian citizenship, she examined herself as DW-1 and the Sarkari Gaonburah of village Kholabandha as DW-2 and also one Dilbar Hussain, the Sarkari Gaonburah of village Bhakhuradia as DW-3 as well as exhibited the following documents:

¶26

Exhibit ‘I’ is the Gaonburah’s Certificate, dated 21.01.2017, issued to the petitioner;

¶27

Exhibit- ‘II’ is the Marriage Certificate of the petitioner;

¶28

Exhibit-‘II’ is the certified copy of voter list of 1993;

¶29

Exhibit-‘IV’ is the certified copy of voter list of 1997;

¶30

Exhibit-‘V’ is the certified copy of voter list of 2005;

¶31

Exhibit-‘VI’ is the certified copy of voter list of 2010;

¶32

Exhibit-‘VII’ is the certified copy of voter list of 2013;

¶33

Exhibit-‘IX’ is the certified copy of voter list of 2016;

¶34

Exhibit-‘X’ is the certified copy of voter list of 2017;

¶35

Exhibit-‘XI’ is the Elector Photo Identity Card issued to the petitioner;

¶36

Exhibit-‘XIII’ is the photocopy of Legacy Data Code of Ramjan Miya;

¶37

Page No.# 4/10

¶38

Exhibit-‘XIV’ is the voter list of 1966 of the petitioner’s father;

¶39

Exhibit- ‘XV’- is the voter list of 1970 of the petitioner’s father and mother; and

¶40

Exhibit-‘ XVI’- is an affidavit sworn by the petitioner.

¶41

The Tribunal, by the impugned order/ opinion recorded the reasons extracted hereinbelow:-

¶42

“ From the records, it appears that Opposite Party has projected Ramjan Miya as her father and Kamalajan Nessa as her mother whose name appeared in the Voter Lists of 1966 (Exhibit-XIV) and 1970 (XV) of village Kholabandha NC under 54 No. Chenga LAC. It has been found that Ext-XIV and XV are the English Translation of the original Assamese version of the certified Electoral Roll of 1966 and 1970 and accordingly not acceptable and admissible in the eye of law. It would be pertinent to point out here that the Hon’ble Gauhati High Court vide order dated 10.04.2018 passed in WP ( C) No. 2460/2016 (Isiran Nessa –vsUnion of India) had decided that a translated copy of Electoral Roll cannot be construed as a certified copy and therefore, not admissible as secondary evidence. Ext-I is the certificate issued by the Gaonburah of Kholabandha NC, Charge No.3. In course of cross examination Abdul Hamid i.e., DW-2 stated that he is the Sarkari Gaonburha of Khulabandha and Chengbandha NC village and appointed as Gaonburha in the year 2003. Though DW-2 has projected himself as Sarkari Gaonburha he has not been able to submit any authenticated document such as an Appointment Letter or any other valid Identity Card in support of his true and actual identity. Under such conditions, whatever evidence he had adduced in favour of Opposite Party and also the certificate issued by him to Opposite Party cannot be relied upon to determine the nationality of Opposite Party. During cross-examination DW2 stated that when the certificate was issued to Opposite Party, at that time she was 45 years old and he has come to know about the said facts from Banesha Khatun. DW 2 stated that he does not know the name of mother of Banesha Khatun but the name of father of Opposite Party is Ramjan Mandal who expired before 35/36 years. DW2 stated that he does not know when Banesha Khatun has got married and at the time of marriage how old she was. DW2 stated

¶43

Page No.# 5/10

¶44

that the statement made in paragraph 3 and 4 of his evidence on affidavit are not true. DW2 further stated that though he has made a statement in paragraph 5 his evidence on affidavit that Ramjan Mandal @ Ramjan Miya and Kamalajan Nessa and Kamala Khatun were citizen of India by birth, he has not seen any document in this regard DW2 stated that he has issued the certificate relying on the Voter List of 1966 which was furnished by Banesha Khatun, but today he has not brought the said document to this Tribunal. DW2 stated that in the Voter List of 1966, the name of father of Opposite Party is appeared as Ramjan Mandal, but he does not know how the name of mother of Opposite Party appeared in the said Voter List. DW 2 stated that he does not know the birth place of father of Banesha Khatun, it may be Sanyasipara in the district Moimansingh of Bangladesh also. DW 2 further stated that he was born in the year 1968 and he remembered that he had seen father of Opposite Party in the village when he was 13/14 years old. DW 2 stated that he does not know from when the grandfather and grandmother of Opposite Party had resided in Khulabandha village. DW2 stated that in the office of Gaonburha of Khulabandha village, they have not kept any Register to maintain the number of population for the year 1966, 1970 and 1971. DW2 stated that the statement made in paragraph 8 of his evidence on affidavit does not corroborate the evidence adduced by him before this Tribunal today. DW2 stated that he has not seen any documents wherein Banesha Khatun’s name has appeared with Ramjan Miya and wherein Banesha Khatun is shown as daughter of Ramjan Miya. DW 2 stated that as he personally knows Banesha Khatun, he has issued the certificate (Ext-I) to Banesha Khatun. DW2 further stated that he has not brought the Issuance Register before this Tribunal in connection with the certificate issued to Opposite Party. DW 2 stated that he does not know anything prior to the period, he has appointed as Gaonburha. DW2 stated that as he knows Opposite Party personally, therefore, he has issued the certificate (Ext-I) to her. Thus from the above circumstances it has been found that evidence of DW-2 is not reliable to determine the nationality of Opposite Party because whatever evidence he has adduced based on his personal knowledge only as the office of the Gaonburha of Kholabandha has not maintained any official record.

¶45

Ext.II is the certificate issued on 05-01-16 from the office of the Muslim Marriage and Divorces Register & Kazi, Mahtoli ( Sontoli) certifying that Ajmal Haque got married with

¶46

Page No.# 6/10

¶47

Banesha Khatun, daughter of Ramjan Miya of Kholabandha village (Nanke) on 01-01-1991. As DW 4 Majibar Rahman was cross examined wherein he stated that he was appointed as Kazi on 12^th January, 2000. He admitted that he has issued Ext-II to Banesha Khatun, but in Ext-II his full name has not written. DW4 stated that his appointment letter was issued by Commissioner of Registrar Department, of Secretariat, but he has not brought the said appointment letter today before this Tribunal. DW4 stated that he has issued Ext-II on 05-0116 and before one week Banesha Khatun had applied for the said certificate. DW4 stated that he has not maintained any official record before Issuing the certificate. DW4 stated that though in the notice which was send from this Tribunal it was directed him to bring the official Record of marriage of Opposite Party on 01-01-1991 in Kazi office. DW4 admitted that he has issued Ext-II to Opposite Party on 05-01-16 inspite of having no official Record regarding the marriage of Opposite Party. DW4 stated that he has prepared the certificate on the basis of the form fill up for NRC verification. DW 4 stated that he came to know from some other person that Banesha Khatun got married with Ajmal Haque. DW 4 stated that the marriage of Banesha Khatun was solemnised in Barpeta District and he is a Kazi of Kamrup District. DW 4 stated that although he has not authorised to issue certificate of marriage solemnised in other district, inspite of that he has issued Ext-II to Banesha Khatun. DW4 stated that he has no personal knowledge regarding the marriage of Opposite Party. Thus, from the evidence of DW4 it has been found that the evidence of DW4 is not reliable to determine the nationality of Opposite Party because the evidence of DW4 is neither based on any Official Record nor from his personal knowledge. Ext-III is the Voter Lists of 1993 of village Bhakhuradia wherein the name of Ajmal Haque is appeared alongwith Balsha Khatun who was shown as 20 years old. In Ext-IV, V, VI, VIII, IX, X and XI Opposite Party is shown as wife of Ajmal Haque and her name appeared in the voter lists along with Ajmal Haque. Ext-XIII is a photocopy of Legacy data code of Ramjan Miya for the voter year 1996. But a Photostat copy of any document is not admissible and acceptable in the eye of law. Ext-XVI is an affidavit sworn by Opposite Party on 02-08-17 declaring the discrepancies arises in her name, her father’s and mother’s name in different documents. But an affidavit being only a self declaration, it has no evidentiary value. It would be pertinent to mention here that the Hon’ble Gauhati High Court in a number of decisions has held that suo-moto affidavit filed by

¶48

Page No.# 7/10

¶49

a proceedee is neither proof nor evidence.

¶50

In course of cross examination Opposite Party stated that she was born in the year 1973 at Kholabandha village. Opposite Party stated that the name of her father is Ramjan Miya and the name of her mother is Kamalajan Nessa. Opposite Party further stated that her father had three brothers including himself and they are Ramjan, Dinuddin and Kinuddin. But, Opposite Party has not been able to submit any Voter Lists wherein her projected father’s name appeared along with her projected uncles. Opposite Party stated that she got married with Ajmal Haque in 1991 and the said marriage was solemnized at her residence. But in her evidence on affidavit Opposite Party stated that her marriage was a Kazi Register Marriage vide Regd. No. A/L.02/2016 which was solemnised at Kazi Office, Mahtoli (Sontoli).

¶51

Though Opposite Party stated that the name of her father is Ramjan Miya, DW2, Gaonburah of Khalabandha village had stated that Opposite Party is daughter of Raman Mandal. DW2 further stated that father of Opposite Party expired before 35/36 years, but Opposite Party has not been able to submit any Voter List published after 1970 wherein her projected father’s name had appeared along with other family members in the Voter Lists of Kholabandha.

¶52

Thus by the submitted documents and the evidence of DW2 (Gaonburha of Kholabandha ) and DW4 (Kazi of Mahtoli) Opposite Party has not been able to establish any linkage with her projected father and mother whose name appeared in the Voters List of 1966 and 1970 at village Khalabandha NC under 54 No., Chenga LAC.”

¶53

On scrutiny of the evidence of DW-1, Banesha Khatun, the petitioner, we find that she was born in 1973 to Ramjan Miya @ Mandal, the projected father, who was a resident of village Kholabandha, Mowza- Baguribari, P.S.- Kachumara, Dist-Barpeta, Assam and in this connection, the Gaonburah of the said village issued a Certificate, dated 21.01.2017, in her favour. DW-2, Abdul Hamid, aged about 40 years, who is the Gaonburah of the said village Kholabandha since 2003 corroborated the testimony of the petitioner (DW-1) and deposed to have issued a Certificate as proof of her identity. A perusal of the aforesaid certificate, dated 16.06.2015, reveals that the petitioner is the daughter of Ramjan Mondal, a resident of

¶54

Page No.# 8/10

¶55

village Kholabandha, P.S. Kashamara, Dist-Barpeta (Assam) and she was given marriage to one Azmal Hoque, son of Rehan Ali of village Bhakhurdia and further, that her father’s legacy data code is 120-0038-2307. In cross-examination, he (DW-2), interalia, stated to have issued the aforesaid certificate based on the voter list of 1966, but he has not seen any document showing that Ramjan Miya and Ramjan Mondal are one and the same person as stated in paragraph No.5 of his evidence-in-chief on affidavit. Surprisingly, DW-2 in his crossexamination also stated that his statements in paragraph Nos. 3 and 4 in evidence in-chief on affidavit to the effect that the petitioner was born in 1973 at Kholabandha village, Mowza – Baguribari, P.S.-Kachumara, Dist. Barpeta (Assam) and after marriage she has been residing in village Bhakhuradia, P.S. Nagarbera, Dist. Kamrup (Assam) along with her husband and further, that her name appeared along with her husband in the voter lists of 1993, 1997, 2005, 2010, 2012, 2013, 2015, 2016 and 2017 respectively of the aforesaid village are not true. Thus, DW-2 has contradicted the most vital facts, which he disclosed in his examinationin-chief on affidavit. We have, thus, noticed the falsity of his (DW-2) evidence tendered on oath affecting the most material factual and documentary aspects of the petitioner’s whole case of claim of Indian citizenship. We have also noticed that the certificate issued in favour of the petitioner, which was exhibited as Ext.1 in the proceeding before the Tribunal contains embossment of the State Emblem, which is prohibited under Section 11 of the State Emblem of India ( Prohibition of Improper Use) Act, 2005 and Sub- rule (2) of Rule 10 clearly provides the Rules made thereunder

¶56

rendering it wholly inadmissible in evidence and consequently, the contents thereof cannot be considered as an evidence of link of the petitioner to his projected father at all.

¶57

We have also taken note of the voter lists of 1966, 1970 and voter legacy data of 1966 produced by the petitioner, where we consistently find the name of the petitioner’s projected father Ramjan Miya, son of Nalu, resident of village Kholabandha under Tarabari P.S., Dist. Barpeta of No.54 Chenga LAC (Assam).

¶58

However, after 1970 voter list, we find the name of the petitioner along with the name of her husband Azmal Hoque only in the voter lists of 1993, 1997, 2005, 2010, 2013, 2016 and 2017 showing them as resident of village Bhakhuradia, P.S. Nagarbera, Mowza-

¶59

Page No.# 9/10

¶60

Nagarbera, Dist. Kamrup (Assam) under No. 48 Boko LAC. Explaining the reason of shifting from village Kholabandha Nanke under Kachumara PS, Dist.-Barpeta to village Bhakhuradia, PS-Nagarbera, Dist. Kamrup, DW-1, the petitioner stated in her evidence-in-chief on affidavit that in the year 1991, she was married to Azmal Hoque, son of Rehan Ali of the said village Bhakhuradia and started living there. According to her (DW-1), their marriage was registered in the office of the Muslim Marriage & Divorce Registrar and Kazi, Mahatali (Sontoli), DistKamrup, Assam vide Regd. No. A/L 02/2016. This marriage certificate (Ext.II) is dated 05.01.2016, instead of the year 1991. DW-2, Abdul Hamid, the Gaonburah of village Kholabandha corroborated her (DW-1) testimony in material particulars. The totality of evidence led by the petitioner in the proceeding before the Tribunal shows that the affidavit sworn by the petitioner, on 02.08.2017 vide Ext-XVI highlighting the various discrepancies in the names of her and parents in the documents being a self serving document cannot be acted upon to decide her lineage. Also the documents vide Exts. XI and XIII, mentioned above, do not serve any purpose in favour of the petitioner.

¶61

In connection with her marriage, the petitioner examined the concerned Kazi of Sontoli, DW-3 Dilbar Hussain. A perusal of his (DW-3) evidence, it is revealed that there is no record in his office regarding registration of the said marriage on 01.01.1991 as the same was done in Barpeta district and that the said certificate was issued on request of relative of the petitioner and the petitioner, whom he did not know before. It is, therefore, noticed that this marriage certificate, Ext.II was issued on request and not based on any official record maintained in the Kazi office of DW-3 and as such, issued apparently beyond his jurisdiction and resultantly, the same cannot be relied on. As the petitioner has also not examined the concerned Muslim Marriage Officer and Kazi of Barpeta district, the petitioner’s marriage with Azmal Hoque of village Bhakhuradia, who is even not examined in the proceeding, the petitioner’s marriage with him has remained not proved and consequently, the petitioner’s shifting in 1991 by reason of her marriage from village Kholabandha, where she stated to be born to Ramjan Miya, son of Nalu linking between her and the said projected father also remained not proved.

¶62