Dismissed

Poharjan Nessa v. the Union of India and 6 Ors.

Gauhati HC11 Nov 2019WP(C)/5231/2019

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a writ petition challenging the Foreigners Tribunal's order declaring the petitioner a foreigner. The Court held the petitioner failed to prove the crucial linkage between herself and her projected father, thus failing to discharge the burden of citizenship under Section 9 of the Foreigners Act, 1946. Finding no legal infirmity, the Court refused to interfere with

What did the court decide?

Petitioner's writ petition dismissed with no order as to costs.

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

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Page No.# 1/5

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GAHC010163782019

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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) 5231/2019

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1:POHARJAN NESSA

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W/O- SOBER ALI, D/O- LATE SHIRAJUL HAQUE, VILL- BALARCHAR PT-II, P.S- MERERCHAR, DIST- BONGAIGAON, ASSAM

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VERSUS

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1:THE UNION OF INDIA AND 6 ORS

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REP. BY THE SECRETARY OF THE MIN OF HOME AFFAIRS, GOVT OF INDIA, NEW DELHI- 01

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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 DEPTT DISPUR GUWAHATI- 06

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3:THE ELECTION COMMISSION OF INDIA NEW DELHI- 01

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4:THE STATE COORDINATOR NRC ASSAM DISPUR GHY- 06

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5:THE DEPUTY COMMISSIONER BONGAIGAON DIST- BONGAIGAON ASSAM PIN- 783380

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6:THE SUPERINTENDENT OF POLICE BONGAIGAON DIST- BONGAIGAON ASSAM PIN- 783380

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7:THE OFFICER IN CHARGE MERERCHAR POLICE STATION DIST- BONGAIGAON ASSAM PIN- 78338

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Advocate for the Petitioner : MR. M I HUSSAIN 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

11.11.2019

(Manojit Bhuyan, J)

Heard Mr. M.I. Hussain, 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, 5, 6 and 7. Ms. B. Das, learned counsel represents respondent no.3 whereas Ms. U. Das, learned counsel represents respondent no.4.

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Petitioner assails opinion dated 04.12.2018 passed by the Foreigners’ Tribunal, Bongaigaon No.2, Abhayapuri in BNGN/FT/Case No.96/2013, declaring her to be a foreigner of post 25.03.1971 stream.

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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 Sirajul Hoque as her father. In support of her case, as many as 11 (eleven) documents were exhibited, the particulars of which may be noticed, as under:

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(i) Exhibit-1 – Voter List of 1966 in the name of one Shirajal Hoque, son of Gafuruddin, projected as the father of the petitioner, of village (356) – Balarchar Pt-1, P.S. North Salmara under Abhayapuri (SC) L.A. 42.

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(ii) Exhibit-2 – Voter List of 1989 in the name of the petitioner Poharjan Nessa, wife of Sober Ali, of village (140) – Balarchar Pt-II, P.S. Abhayapuri under 34 Abhayapuri North LAC.

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(iii) Exhibit-3 – Voter List of 1997 in the name of the petitioner Poharjan Nessa, wife of Sober Ali, of village 140 – Balarchar Pt-II, P.S. Abhayapuri under 34 Abhayapuri North LAC.

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(iv) Exhibit-4 – Voter List of 2006 in the name of the petitioner Paharjan Nessa, wife of Sober Ali, of village 140 – Balarchar Pt-II, P.S. Abhayapuri under 34 Abhayapuri North LAC.

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(v) Exhibit-5 – Voter List of 2010 in the name of the petitioner Paharjan Nessa, wife of Sorer Ali, of village 140 – Balarchar Pt-II, P.S. Abhayapuri under 34 Abhayapuri North LAC.

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(vi) Exhibit-6 – Voter List of 2015 in the name of the petitioner Paharjan Nessa, wife of Sober Ali, of village 140 – Balarchar Pt-II, P.S. Abhayapuri under 34 Abhayapuri North LAC.

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(vii) Exhibit-7 – Gaon Panchayat Certificatedated 24.03.2014, issued by the Secretary, Kirtanpara Gaon Panchayat certifying that Poharjan, daughter of Sirajul Hoque is an inhabitant of village Balarchar Pt-1 P.O. Kirtan Para.

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(ix) Exhibit-8 – Ration Card.

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(ix) Exhibit-9 – Special Family Identity Card issued in the name of the petitioner Puharjan Nessa.

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(x) Exhibit-10 – Certified copy of Voter List of 1970 in the name of one Sirajul Hoque, projected as the father of the petitioner.

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(xi) Exhibit-11 – Pan Card issued in the name of the petitioner.

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Besides the documents above, the petitioner examined herself as DW-1 and presented for examination one Nur Bakta as DW-2 and one Mofej Ali, as DW-3.

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As indicated above, the petitioner projected one Sirajul Hoque as her father, which name appeared in the Voter Lists of 1966 at Exhibit-1 and the Voter Lists of 1970 at Exhibit-10, of village (356) Balarchar Part-I, P.S. North Salmara. However, no voter lists were produced and exhibited reflecting the name of the petitioner by showing relationship with her projected father. Similarly, the petitioner’s name along with her projected husband appeared in the Voter Lists of 1989, 1997, 2006, 2010, and 2015 at Exhibits-2, 3, 4, 5 and 6, of village 140 – Balarchar Pt-II, Abhayapuri, which,

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however, bore no relevance as her relation is shown with her projected husband and not with the projected father. Though the petitioner produced and exhibited the Gaon Panchayat Certificate at Exhibit-7 to show linkage with her projected father, 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. Ration Card at Exhibit-8, Special Family Identity Card at Exhibit-9 and PAN Card at Exhibit-11 issued in the name of the petitioner are not relevant piece of documents to prove citizenship in law.

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The statements of DW-2 Nur Bakta and DW-3 Mofej Ali who, claimed that the petitioner as well as her father are known to them, cannot be relied upon in the absence of any documents showing their relationship to the petitioner or to her father. The oral testimony of DW-2 and DW-3, on their mere statements that petitioner is the daughter of Sirajul Hoque, cannot be taken into consideration as cogent, reliable and admissible evidence without any supporting evidence/documents. It is evident that said DW-2 and DW-3 are more interested witnesses than anything else.

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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.

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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

Poharjan Nessa v. the Union of India and 6 Ors.

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Poharjan Nessa v. the Union of India and 6 Ors.

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