Dismissed

Monowara Khatun v. the Union of India and 3 Ors.

Gauhati HC14 Nov 2019WP(C)/492/2017

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a writ petition challenging an order by Bongaigaon Foreigners Tribunal declaring the petitioner a foreigner. The court held that the petitioner failed to discharge her statutory burden under Section 9 of the Foreigners Act, 1946 to prove her Indian citizenship through cogent and reliable evidence. The court found the Tribunal's findings sound and lacked merit for i

What did the court decide?

Writ petition dismissed; interim bail recalled; case records remanded to the Tribunal.

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

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Page No.# 1/5

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GAHC010011322017

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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) 492/2017

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1:MONOWARA KHATUN

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D/O LT. ASARUDDIN @ ASIRUDDIN W/O NASIRUDDIN R/O KUSHBARI PART-III, P.S. MERERCHAR DIST. BONGAIGAON, ASSAM PIN - 783384.

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VERSUS

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1:THE UNION OF INDIA and 3 ORS.

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REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, SHASTRI BHAWNA, TILOK MARG, NEW DELHI.-1.

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2:THE STATE OF ASSAM

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REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI -06.

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3:THE SUPERINTENDENT OF POLICE B BONGAIGAON P.O. and DIST. BONGAIGAON ASSAM PIN - 783380.

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4:THE DEPUTY COMMISSIONER BONGAIGAON P.O. and DIST. BONGAIGAON ASSAM PIN - 78338

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Advocate for the Petitioner : MR.A R SIKDAR

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Advocate for the Respondent : GA, ASSAMR2-4

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

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O R D E R

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14.11.2019

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( Manojit Bhuyan, J )

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Heard Mr. A.R. Sikdar, 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.2, 3 and 4. Ms. A. Verma, learned counsel appears for the NRC.

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Petitioner assails order/opinion dated 18.11.2016 passed by the Foreigners’ Tribunal, Bongaigaon No.2, Abhayapuri in BNGN/FT/Case No.3124/2009, declaring her to be a foreigner, having illegally entered into India from Bangladesh after 25.03.1971. Petitioner also assails the order dated 22.12.2016 dismissing the review petition filed for setting aside/vacating/modifying the order dated 18.11.2016.

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For the purpose of discharging burden as required under section 9 of the Foreigners Act, 1946 to prove that the petitioner is not a foreigner, as many as 9 (nine) documents were exhibited particulars of which may be noticed as under :

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(i) Exhibit-I – Certified copy of Voter List of 1966 in the name of one Asruddin, projected as the father of the petitioner and one Hazera Khatun, projected as the mother of the petitioner of village Manikpur, P.S. Baghbor, Part No.121, District- Kamrup under 51 No. Jania LAC.

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(ii) Exhibit-II – Certified copy of Voter List of 1970 in the name of one Asruddin, projected as the father of the petitioner and one Hazera Khatun, projected as the mother of the petitioner of village Manikpur, P.S. Baghbor, Part No.122, District- Kamrup under 51 No. Jania LAC.

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(iii) Exhibit-III – Certified copy of Voter List of 1985 in the name of Hazera Khatun, wife of Asir Uddin; Asir Uddin, projected as the father of the petitioner along with others of village 202 Dubachuri Pt.II, P.S. Abhayapuri, District- Goalpara under 35 Abhayapuri South (SC) LAC.

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(iv) Exhibit-IV – School Certificate dated 26.12.2014 issued by Headmaster, 574 No. Momaipara L.P. School certifying that Monowara Khatun, daughter of Asruddin of village Dubachuri Pt.II, P.S. Mererchar, read upto Class-IV and her date of birth is 29.11.1985.

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(v) Exhibit-V – Kabin-Nama dated 05.01.1997 in the name of the petitioner and one Nasir Uddin.

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(vi) Exhibit-VI – Certificate issued by the Secretary, Mererchar Gaon Panchayat in the name of the petitioner Monowara Khatun, daughter of Asar Uddin is a resident of village Dubachuri Pt.II and got married to Nasir Uddin Kush bari Pt.-II.

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(vii) Exhibit-VII – Certified copy of Voter List of 2010 in the name of petitioner Monowara Khatun,

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one Nasir Uddin, projected as husband of the petitioner along with others of village 204 Kushbari Pt.III, P.S. Abhayapuri, District- Bongaigaon under 35 Abhayapuri South (SC) LAC.

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(viii) Exhibit-VIII – Affidavit executed by the petitioner in respect of discrepancies of the name of her projected father.

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(ix) Exhibit-VIII (repeated) – Jamabandi of Patta No.11 of village Dubachuri Pt.II wherein in the remark column name of the petitioner Monowara Khatun, daughter of Asruddin Fakir is reflected as a co-pattadar of the land in question.

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Petitioner examined herself as DW-1 and one Md. Fazar Ali deposed as DW-2 for the purpose of proving the School Certificate.

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As indicated above, the petitioner projected one Asruddin as her father, and one Hazera Khatun as her mother, whose names appeared in the Exhibit-I and II Voter Lists of 1966 and 1970 of village Manikpur, P.S. Baghbor, district-Kamrup under 51 No. Jania LAC and also in the Exhibit-III Voter List of 1985, pertaining to a different village called 202-Dubachari Pt. II, under P.S. Abhayapuri, district Goalpara. The petitioner have vouched that the actual and correct name of her father is Asruddin and not Asruddin Fakir as in the Notice issued from the Tribunal. The said fact is also stated by the petitioner in her Affidavit dated 05.02.2016 and also reflected and confirmed on reinvestigation made by Mererchar Police vide Report dated 03.10.2015 submitted before the Tribunal. Thus, the petitioner’s father is Asruddin and not Asir Uddin or Asruddin Fakir. To establish linkage to said Asruddin, the petitioner produced, exhibited and relied upon the Exhibit-IV School Certificate as well as on the Exhibit-VIII (repeated) Jamabandi. For the purpose of proving the school Certificate one Md. Fazar Ali, Headmaster of the concerned school deposed as DW-2, who stated that he joined the school in the year 2006 and had issued the Certificate dated 26.12.2014, though the petitioner was not a student during his period of service. Further, that the petitioner left the school in the year 1995. DW-2 also stated that the petitioner did not come to the school to obtain the certificate and he mentioned the name of the petitioner’s father as Asruddin, though in the Admission Register the name recorded is Asir Uddin. Also, that he is not sure whether the petitioner and the student in question, namely Monowara, are the same person or not. He clearly stated that he knows the father of the petitioner from the year 2006 and is unaware since when the father was residing in the village. Also, that he had issued the certificate as per request made by the father. Thus, from the very nature of the evidence tendered by DW-2, it falls short of being considered as cogent, reliable and admissible evidence, so much so, to establish linkage of the petitioner to the projected father. Not only the entries in the Admission Register were not proved, there is marked deviation of the father’s name in the certificate vis-à-vis the Admission Register. Petitioner had also produced Exhibit-V Kabin-Nama and

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Exhibit-VI Certificate, issued by the Secretary of Mererchar Gaon Panchayat to show linkage to her projected father Asruddin. The said certificates, however, rendered itself as inadmissible in evidence, inasmuch as, the authors of the said certificate were not examined to prove the contents thereof. The voter list with the name of the petitioner in the Exhibits-VII Voter List of 2010 bore no relevance as her relation is shown with her projected husband and not with the father. In so far as Exhibit-VII Affidavit is concerned, the same remained a redundant document as it is well too settled that such self-serving affidavit cannot be taken into consideration, the same not coming within the definition of ‘evidence’ under the Indian Evidence Act, 1872. The Jamabandi at Exhibit-VIII (repeated) is a document which records the names of legal heirs of one Asruddin Fakir and not Asruddin as pattadars. To go back to the clear stand of the petitioner, which found substantiated in the Report of Mererchar Police, her steadfast statement is that Asruddin and not Asruddin Fakir is her father. On this count alone, the Jamabandi, recording the legal heirs of Asruddin Fakir and not Asruddin, is of no significance to the claim of citizenship of the petitioner.

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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 for the reasons recorded 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 of the Exhibit-I and II Voter Lists of 1966 and 1970 through any cogent, reliable and admissible document/evidence.

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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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Interim bail granted by this Court on 02.02.2017 stands recalled.

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

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A copy of this order be made part of the case records of the Tribunal for future reference.

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JUDGE JUDGE

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Comparing Assistant

Monowara Khatun v. the Union of India and 3 Ors.

Case brief

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Monowara Khatun v. the Union of India and 3 Ors.

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