Dismissed

Najrul Islam v. the Union of India and 5 Ors.

Gauhati HC4 Nov 2019WP(C)/4775/2019

Case brief

AI extract

What is this about?

Petitioner challenged Foreigners Tribunal's order declaring him a foreigner via writ petition. Court found petitioner failed to prove parentage due to voter list discrepancies and rejected Gaonburah certificate as inadmissible due to unauthorized State Emblem usage.

What did the court decide?

Writ petition dismissed without order as to cost; Lower Court Record sent back.

Najrul Islam Vs the Union of India and… — Constitutional and Fundamental Rights | Gauhati HC (2019)

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Page No.# 1/8

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GAHC010151092019

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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) 4775/2019

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1:NAJRUL ISLAM

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S/O. LT. JABBAR ALI MIYA, PERMANENT R/O. VILL. HARIPUR, MOUZACHENGA, P.S. TARABARI, DIST. BARPETA, ASSAM, PIN-781302.

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VERSUS

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1:THE UNION OF INDIA AND 5 ORS.

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

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2:THE ELECTION COMMISSION OF INDIA REP. BY THE CHIEF ELECTION COMMISSIONER NEW DELHI-110001.

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3:THE STATE OF ASSAM

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REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GUWAHATI-781006.

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4:THE DY. COMMISSIONER BARPETA 781301.

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5:THE SUPDT. OF POLICE (B) BARPETA 781301 ASSAM.

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6:COORDINATOR

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NATIONAL REGISTER OF CITIZENS BHANGAGHAR GUWAHATI-04

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Advocate for the Petitioner : SYED BURHANUR RAHMAN

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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 AJIT BORTHAKUR

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ORDER

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Date : 04-11-2019 (Ajit Borthakur, J)

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Heard Mr. S.B. Rahman, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing the respondent No. 1 whereas Ms. B. Das, learned counsel appears for the respondent No. 2. Mr. J. Payeng, learned counsel appears for respondent Nos. 3 to 5. Ms. A. Verma, learned counsel appears for the respondent No. 6.

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By this petition under Article 226 read with Article 227 of the Constitution of India, the petitioner assails the order, dated 01.06.2018, passed by the Foreigners’ Tribunal No. 7, Barpeta in F.T. Case No. 234/2017 declaring the petitioner to be a foreigner who had entered into India (Assam) on or after 25.03.1971.

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Be it mentioned here that based on a reference made by the Superintendent of Police (Border), Barpeta vide Reference No. IM(D)T No. 7047/98, expressing doubt about the nationality of the petitioner, initially R/IM(D)T Case No. 7047/98 was registered. However, as the Hon’ble Supreme Court, by its Judgment and Order rendered in Sarbananda Sonowal Vs. Union of India, reported in (2005) 5 SCC 665 declared the IM(D)T Act, 1983 and the rules made thereunder, as ultra-vires the constitution of India and accordingly, struck down the instant reference stood transferred to the Foreigners’ Tribunal, whereupon registered as F.T. Case No. 234/17 in the Foreigners’ Tribunal at Barpeta, which was subsequently transferred to the Foreigners’ Tribunal No. 7 at Barpeta for opinion.

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On receipt of notice, the petitioner appeared before the Tribunal and contested the

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proceeding by filing a written statement denying that he is a foreigner, but a citizen of India by birth.

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In the written statement, the petitioner took the stand that the name of his father was Jabbar Ali Miya, s/o- Naser and the name of his mother was Saiman Nessa and their names appeared in the Voter Lists of 1966 and 1970, vide Sl. Nos. 555, 556 and 696 against House No. 159, Part No. 81 of village- Haripur, Mouza- Chenga, P.S.- Tarabari, Dist.- Kamrup, Assam under No. 54 Chenga L.A.C. The petitioner stated that his father owned a plot of land in village Haripur in the year 1958-65. The petitioner also stated that the names of his parents appeared in the Voter List of 1989 with particulars that appeared in the Voter Lists of 1966 and 1970. The petitioner stated that his name along with the name of his mother appeared in the Voter List of 1997 vide Sl. No. 164 and 165 against house No. 41 of village- Haripur, Mouza- Chenga, P.S.- Tarabari, Dist.- Barpeta, Assam in part No. 47 under No. 47 Chenga L.A.C. The petitioner further stated that his name appeared in the subsequent Voter List of 2010 vide Sl. No.211 against house No. 35(Ka), Part No.- 69 of village- Haripur, MouzaChenga, P.S.- Tarabari, Dist.- Barpeta, Assam under No. 47 Chenga L.A.C. An Elector Photo Identity Card has been issued in the name of the petitioner and there is also a permanent residential certificate issued by the local Gaonburah of village Haripur certifying his link to his father Jabbar Ali Miya. The petitioner was living with his family temporarily in his father-inlaw’s house at village- Goma, Mouza- Chenga under P.S.- Tarabari, Dist.- Barpeta, Assam. According to the petitioner, in the Voter List of 1997 till date, his name is marked as ‘D’ voter along with the name of his wife namely, Bimala Begum. The petitioner stated that the actual and correct name of his father was Jabbar Ali Miya, but in the Voter List of 1970, his name was recorded as Jabbar Miya and in the Land Record also his name was recorded as Jabbar. Moreover, in the Voter List of 1989, his name was recorded as Abdul Jabbar instead of Jabbar Ali Miya. Therefore, the petitioner took the stand that the names of his father Jabbar Ali Miya, Jabbar Miya, Jabbar and Abdul Jabbar are of him only. It is also stated that the petitioner’s actual name is Najrul Islam and the same is recorded in the Voter List of 1989. In the Voter List of 1997, his name is recorded as Nazrul Hoque instead of Najrul Islam and in the Voter List of 2010 and Elector Photo Identity Card, his name is recorded as Md. Nurul Islam instead of Najrul Islam although, the aforesaid names are of the same person, i.e. the petitioner.

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In order to establish his claim, the petitioner examined witnesses as D.W.s including himself and 8(eight) number of documents.

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For better appreciation of the impugned order/opinion rendered by the Tribunal, the relevant paragraphs thereof containing appreciation of the exhibited documents are extracted hereinbelow:

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“10. Proceeding to Ext-D and Ext- E the voter lists of 1989 and 1997 against Sl. No. 112 and 165 Nazrul Islam and Nazrul Hoque relation name Jubbar age 25 and 53 appears now if, Nazrul Islam is 25 years in the year 1989 then his age in the year 1997 would be 33 years but the voter list of 1997 shows the age of one Nazrul Hoque as 53 years. This discrepancies of age have not been explained by O.P. There is also discrepancy and contradiction of name in the voter lists of 1989 and 1997. The voter list of 1989 shows Nazrul Islam relation name Jubbar and the voter list of 1997 shows the name of Nazrul Hoque relation name Jabbar. This anomalies of name makes the voter lists of 1989 and 1997 doubtful. Case record shows that the L.V.O. during enquiry recorded O.P.’s name as Nazrul Islam S/O: Jubbar resident of Goma but the voter lists of 1989 and 1997 shows that Nazrul Islam and Nazrul Hoque were resident of Haripur under 47 No. Chenga L.A.C. The L.V.O. also recorded the age of O.P. as 34 years if, he was 34 years in 1997 then his age in the year 2017 would be 57 years but O.P. in his evidence he had stated that his age is 54 years. Due to the anomalies regarding the age and name of the voter lists of 1989 and 1997 it cannot be relied upon as trustworthy.

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O.P. had produced one Gaonburah certificate Ext-H and one Elector Photo Identity Card (EPIC) Ext-G . The Elector Photo Identity Card (EPIC) have not been proved and hence, it is not reliable. On examination of the Gaonburah certificate it is found that at the top of the certificate the State Emblem is embossed. This unauthorized use of State Emblem in the certificate renders it inadmissible in evidence.

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Thus, it is evident that O.P. had failed to establish relationship with his parents Jabbar ali Mia and Saiman Nessa by cogent and reliable evidence and hence, the relevant entries of the voter lists of 1966 Ext-A and 1970 Ext-B in the name of his projected parents is not reliable and as such, O.P. had failed to discharge to his burden of proof that he is born through genuine Indian parents.

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Apart from the above conclusion, on examination of the voter lists of 1966 and 1970 it is seen that the name of Jabbar Ali Mia and Saiman Nessa age 40, 21 and 44, 33

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appears at village Haripur under 54 No. Chenga L.A.C. On perusal of the voter list of 1989 Nazrul Islam relation name Jubbar appears along with Abdul Jubbar and Jayman Begum. By this voter list of 1989 O.P. had match the similarity of name Jubbar and procured the voter list of Jabbar Ali Mia and Siman Nessa resembling the similarity of the names appearing in the voter list of 1989. The name Abdul Jabbar and Jubbar Ali Mia are two different contradictory names. It is also seen that Abdul Jubbar wife is Jayman Begum and the voter lists of 1966 and 1970 Jabbar Ali Mia wife is Saiman Nessa. These two names Saimon Nessa and Jayman Begum were totally two contradictory names. This fact has not been explained by O.P. which makes the relevant entries doubtful. To prove the fact that Jabbar Ali Mia and Abdul Jabbar are one and same identical person O.P. filed one self sworn affidavit. The self sworn affidavit is not included in the definition of evidence as per section 3 of the Evidence Act. “Fact” have to be proved either by oral or documentary evidence. In the absence, no reliance can be placed and the Tribunal is entitled to its own finding and as such, the preference of Jabbar Ali Mia which is suitable for his purpose as it matches with the similarity of the entry in the voter lists of 1966 and 1970 is not acceptable.

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Moreover, there is no evidence on record to show that Jabbar Ali Mia and Saiman Nessa are death or alive. This unexplained position of fact by the O.P. makes the relevant entries of 1966 and 1970 doubtful. The voter lists of 1966 and 1970 Ext-A and Ext-B have not been proved by comparing with the primary evidence and in the absence of the testimony of the lawful custodian of the primary evidence the voter lists of 1966 and 1970 cannot said to have been proved. Thus, O.P. had failed to prove the relevant entries and contents of the voter lists of 1966 and 1970 Ext- A and Ext- B of village Haripur under 47 No. Chenga L.A.C.

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Ext-C is the copy of the Jamabandi. On perusal of the Jamabandi it is seen that Sl. No. 5 one Jabbar S/O: Naser appears. There is no explanation provided by O.P. in his evidence that when the name of Jabbar got mutated in the Jamabandi copy and in which year his name got mutated along with other entries moreover, the contents of the Jamabandi have no been proved in accordance with law and there is also no upto date land revenue receipt submitted by O.P. for which this document is not reliable.”

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Now, let us appreciate the evidence along with the documents exhibited in the proceeding.

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A perusal of Ext. ‘A’, the certified copy of the electoral roll of 1966 reveals that the names of the petitioner’s projected parents Jabbar Ali Miya, age 40 years and Saiman Nessa,

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age 21 years, father and mother respectively of village Haripur, House No. 159, MouzaChenga, District- Barpeta (Assam) under No. 54, Chenga L.A.C. appeared. The aforementioned same particulars of the petitioner’s projected parents are also found in the electoral roll of 1970 except missing of title ‘Ali’ of Jabbar Ali Miya of 1966 electoral roll and raising the age of the petitioner’s projected mother Saiman Nessa by 8 years from 21 years in 1966 to 33 years instead of 25 years in 1970. However, considering the aforesaid variations in the name of the father and age of mother being minimal, and in view of the other particulars having remained intact, we tend to rely on the said two electoral rolls.

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Proceeding to Ext. ‘C’, the certified copy of the Jamabandi of the period 1958 to 1965, pertaining to a plot of land located in village Haripur under Chenga Mouza, we find the same standing in the name of ‘Jabbar’ and his three brothers, sons of Naser. Despite missing of the titles of the said pattadars, we place reliance on this document in the light of presence of the name of one ‘Jabbar Ali Miya’ and ‘Jabbar Miya’ in the electoral rolls of 1966 and 1970 pertaining to village Haripur under Chenga L.A.C. However, as a link document of the petitioner, it cannot be accepted as the petitioner, in her cross-examination (D.W. 1) stated that she has no knowledge about the contents of the documents filed before the Tribunal and that his name is not mutated in the land records pertaining to the land that stood in the name of his projected father Jabbar Ali Miya by right of inheritance.

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Turning to Ext. ‘D’, the electoral roll of 1989, we find mention of the names of Abdul Jubbar, age 60 years, son of Nasir; Jayman Begun, wife of Jubbar, age 55 years and Najrul Islam, son of Jubbar, age 25 years, residents of village Haripur, Mouza- Chenga, House No. 33, under 47 Chenga L.A.C., District- Barpeta. It may pertinently be mentioned that in the proceeding before the Tribunal, the petitioner mentioned his address as ‘Nazrul Islam’ son of Jubbar, village- Goma, under Tarabari P.S., District- Barpeta(Assam) and in the instant writ petition, he has changed the entire address describing himself as ‘Najrul Islam’, aged about 56 years, son of Late Jabbar Ali Miya, resident of village- Haripur, Mouza- Chenga, Police Station- Tarabari, District- Barpeta (Assam). Again, the name of wife of Abdul Jubbar is mentioned as Jayman Begum instead of Saiman Nessa, which is nowhere found in the earlier electoral rolls of 1966 and 1970. The wide variations in the names of the projected father and mother of the petitioner aforementioned in the electoral rolls and in the petitioner’s own

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name and father’s name in the Jamabandi of 1956-1965, on the aforementioned documents do not instill confidence in our conscience to believe that the petitioner Najrul Islam is also known as Najrul Islam, who is the son of Jabbar Ali Miya and Saiman Nessa of the electoral roll of 1966 and they also carried the names of Abdul Jubbar and Jayman Begum, as appeared in the electoral roll of 1989.

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So far the electoral roll of 1997 is concerned, it is seen that although the address of the previous electoral rolls is retained, the names of Sahiman Nessa, wife of Jabbar, age 59 years along with Nazrul Hoque, age 53 years, Badiud Zaman, age 24 years, Bimala Begum, age 24 years and Rajeda Begum, age 22 years, appeared. On scrutiny of those names, we find it difficult to accept that Saiman Nessa of the electoral rolls of 1966 and 1970, Jayman Begum of the electoral roll of 1989 of village Haripur, Mouza- Chenga of No. 47 L.A.C. and Sahiman Nessa of the electoral roll of 1997 of the aforementioned place are one and the same person. So also the petitioner Najrul Islam of the electoral roll of 1989 became Nazrul Hoque, age 53 years in the electoral roll of 1997 with variation in the name of his father. In Ext. F, the purported name of the petitioner Najrul Islam has been shown as M. Narul Islam, son of Jabbar, age 50 years of the same village Haripur, which particulars contradicted the earlier particulars of the electoral rolls.

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Ext. H is a certificate, dated 07.07.2017, issued by Md. Ashak Khan, Government Gaonburah, of village Haripur, who is examined as D.W. 2. By the said certificate, it is certified that Nazrul Hoque of 1997 electoral roll and Najrul Islam are one and the same person to the best of his knowledge and he is the resident of village Haripur. The said certificate bears the embossment at the top, making the said certificate as inadmissible in evidence on the ground of unauthorized use of the State emblem. In this respect, we would like to 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

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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, Non-Government 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 certificate issued by the Gaonburah at Ext. 1 containing the State Emblem of India cannot be regarded as valid and acceptable document. 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 certificate as inadmissible in evidence. Further, D.W. 2, the Gaonburah in his evidence stated that the petitioner’s marriage ceremony was solemnized at village Goma and he resided in the said village temporarily during the period 1996-97. In this regard, it may be noted that the petitioner has not examined the Gaonburah of village Goma and as such, this statement of the Gaonburah (D.W. 2) has remained unexplained to link up with the petitioner’s claim of being resident of Haripur, Mouza- Chenga under Tarabari P.S., District- Barpeta. Therefore, on facts and law, the instant document is not sustainable.

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Therefore, we find the instant writ petition is devoid of merit and accordingly, dismissed without, however, any order as to cost.

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Send back the LCR.

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JUDGE JUDGE

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Comparing Assistant

Najrul Islam v. the Union of India and 5 Ors.

Case brief

What is this about?

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Najrul Islam v. the Union of India and 5 Ors.

Case brief

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