Dismissed

Moriom Nessa @ Moriom Khatun v. the Union of India and 5 Ors.

Gauhati HC4 Nov 2019WP(C)/4090/2019

Case brief

AI extract

What is this about?

This order dismisses a writ petition challenging a Foreigners Tribunal declaration. The High Court held the petitioner failed to discharge her burden under Section 9 of the Foreigners Act, 1946 to prove citizenship or establish a link to projected parents, dismissing the writ as it found no merit to interfere with the Tribunal's findings.

What did the court decide?

The writ petition stands dismissed without any order as to cost.

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

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GAHC010134172019

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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) 4090/2019

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1:MORIOM NESSA @ MORIOM KHATUN

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D/O LATE MONER ALI @ MONEB ALI, W/O. MD. NAHAJ ALI, VILLAGEBELTOLA (DAHIKATA), P.S. MORNAI, DISTRICT- GOALPARA, ASSAM. PIN783101.

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VERSUS

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1:THE UNION OF INDIA AND 5 ORS.

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REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI- 110001.

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2:THE STATE OF ASSAM

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REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GHY-6.

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3:THE ELECTION COMMISSION OF INDIA NEW DELHI- 110001.

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4:THE DEPUTY COMMISSIONER DIST. GOALPARA PIN- 783121.

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5:THE STATE COORDINATOR NATIONAL REGISTER OF CITIZENS ASSAM GUWAHATI- 781005.

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6:THE SUPERINTENDENT OF POLICE (B) GOALPARA DISTRICT- GOALPARA PIN- 783121

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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 ::

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HON’BLE MR. JUSTICE MANOJIT BHUYAN HON’BLE MR. JUSTICE AJIT BORTHAKUR

O R D E R

04.11.2019

(Manojit Bhuyan, J)

Heard Mrs. H. Ahmed, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing respondent no.1. Mr. J. Payeng, learned counsel appears for respondent nos.2, 4 and 6 whereas Ms. B. Das, learned counsel appears for respondent no.3. Ms. A. Verma, learned counsel appears for respondent no.5.

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Petitioner assails order/opinion dated 22.02.2019 passed by the Foreigners’ Tribunal No.5^th at Goalpara in F.T. Case No- F.T/5/371/MO/16, declaring her to be a foreigner.

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For the purpose of discharging burden as required under section 9 of the Foreigners Act, 1946 to prove that she is not a foreigner, the petitioner projected one Moner Ali, as her father. In support of her case, as many as 7 (seven) documents were exhibited, particulars of which may be noticed as under:

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(i) Exhibit-A – Certified copy of Voter List of 1966 in the name of one Moner Ali, son of Masa Talukdar, projected as the father of the petitioner, of village (188) Monakosha under 45 Goalpara West LAC.

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(ii) Exhibit-B – Certified copy of Voter List of 1970 in the name of one Moner Ali, son of Masa Talukdar, projected as the father of the petitioner along with other family members, of village (188) Monakosha under 45 Goalpara West LAC.

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(iii) Exhibit-C – Certified copy of Electoral Roll of 1989 in the name of the petitioner Moriom Nessa, wife of Nohej, of village Monakocha under 37 Goalpara East LAC.

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(iv) Exhibit-D – Certified copy of Electoral Roll of 1997 in the name of the petitioner Moriom Nessa, wife of Nohej Ali, of village Monakocha, under 37 Goalpara East LAC.

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(v) Exhibit-F – Certified copy of Electoral Roll of 1979 in the name of one Golemon Bewa, wife of Macha Talukdar; one Moneb Ali, son of Macha Talukdar and one Sukotjan, wife of Monem, projected as the grandmother, father and mother of the petitioner, of village Monakocha, under 37 Goalpara East LAC.

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(vi) Exhibit-G – Gaon Panchayat Certificate dated 12.06.2015, issued by the Secretary, Mornoi Gaon Panchayat, district Goalpara, Assam certifying that Smt. Moriam Khatun, daughter of Lt. Moneb Ali and Suratan Bewa, aged about 42 years got married to one Nojej Ali, son of Lt. Basiruddin Sk. on 02.04.2019 is a resident of village Monkocha under Matia Revenue Circle in the district of Goalpara.

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(vii) Exhibit-H – Certified copy of Chitha dated 04.07.2018 for surveyed village i.e. village Monokocha, Circle Matia showing the name of the petitioner Moriam Khatun, wife of Nahej Ali.

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Besides the documents above, the petitioner examined herself as DW-1 and also presented for examination one Hanif Ali, as DW-2 and one Ajimuddin Sk., projected as the brother of the petitioner, as DW-3.

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As indicated above, the petitioner projected one Moner Ali as her father whose name appeared in the Voter Lists of 1966 and 1970 at Exhibits-A and B and her mother and grandparents stating their names appeared in the Voter List of 1979 at Exhibit-F, of village Monakocha/Monakosha. Similarly, her name along with her

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projected husband appeared in the Voter Lists of 1989 and 1997 at Exhibits-C and D, of village Monakocha. However, no voter lists were produced and exhibited reflecting the name of the petitioner by showing relationship with her projected parents or grandparents. The Voter Lists of 1989 and 1997 at Exhibits-C and D bore no relevance as her relation is shown with her projected husband and not with the projected father or grandfather. One Chitha copy, exhibited as Exhibit-H, only included the name of the petitioner Moriam Khatun as wife of Nahej Ali, which did not come by right of inheritance and failed to serve as a link document to the projected father or grandparents.

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The only document brought on record for the purpose of establishing linkage to her projected father Moner Ali is the Exhibit-G Gaon Panchayat Certificate. However, the said Certificate rendered itself inadmissible in evidence, inasmuch as, the author/issuing authority was not examined to prove the certificate and the contents thereof. The statement of DW-2 i.e. Hanif Ali, who claims that the petitioner is his uncle’s daughter, cannot be relied upon in the absence of any documents showing his relationship to the projected father of the petitioner or to the petitioner herself. Now coming to the deposition of DW-3, who claims to be the son of the petitioner, only reiterated on the exhibited documents without in any way furthering the case of the petitioner towards proving citizenship.

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As the primary issue in a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 relates to determination as to whether the proceedee is a foreigner or not, the relevant facts being especially within the knowledge of the proceedee, therefore, the burden of proving citizenship absolutely rests upon the proceedee, notwithstanding anything contained in the Evidence Act, 1872. This is mandated under section 9 of the aforesaid Act, 1946. In the instant case and as observed above, the petitioner not only failed to discharge the burden but also utterly failed to make proof of the most crucial aspect, that is, in establishing linkage to her projected father and grandparents.

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On the available materials, we find that the Tribunal rendered opinion/order upon due appreciation of the entire facts, evidence and documents brought on record. We find no infirmity in the findings and opinion recorded by the Tribunal. We would observe that the certiorari jurisdiction of the writ court being supervisory and not appellate jurisdiction, this Court would refrain from reviewing the findings of facts reached by the Tribunal. No case is made out that the impugned opinion/order was rendered without affording opportunity of hearing or in violation of the principles of natural justice and/or that it suffers from illegality on any ground of having been passed by placing reliance on evidence which is legally impermissible in law and/or that the Tribunal refused to admit admissible evidence and/or that the findings finds no support by any evidence at all. In other words, the petitioner has not been able to make out any case demonstrating any errors apparent on the face of the record to warrant interference of the impugned opinion.

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On the discussions and findings above, we find no merit in the writ petition. Accordingly, the same stands dismissed, however, without any order as to cost.

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JUDGE JUDGE

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Comparing Assistant

Moriom Nessa @ Moriom Khatun v. the Union of India and 5 Ors.

Case brief

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Moriom Nessa @ Moriom Khatun v. the Union of India and 5 Ors.

Case brief

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