Dismissed

Hanufa Bibi @ Hunupa Bibi v. the Union of India and 3 Ors.

Gauhati HC5 Nov 2019WP(C)/7268/2017

Case brief

AI extract

What is this about?

The Guwahati High Court dismissed a writ petition challenging an order by Foreigners Tribunal-10, Dhubri, which declared the petitioner a foreigner. The court held that the petitioner failed to discharge her burden of proving citizenship and establishing a link to projected parents or grandparents, thereby upholding the Tribunal's finding.

What did the court decide?

Writ petition dismissed with no order as to cost; interim bail order dated 29.11.2017 recalled and case records returned to Tribunal.

Hanufa Bibi @ Hunupa Bibi Vs the Union… — Constitutional and Fundamental Rights | Gauhati HC (2019)

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Page No.# 1/6

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GAHC010149862017

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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) 7268/2017

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1:HANUFA BIBI @ HUNUPA BIBI D/O. LT. GUJER KHA @ GUNZER KHA, W/O. EMAN ALI, VILL. PASCHIM MAISA PT.II, P.O. AGOMANI, P.S. GOLOKGANJ, DIST. DHUBRI, ASSAM, PIN783324.

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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, MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, NEW DELHI-1.

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2:THE COMM. and SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GUWAHATI-6. 3:THE DY. COMMISSIONER DHUBRI DIST. DHUBRI ASSAM PIN-783301. 4:THE SUPERINTENDENT OF POLICE B DHUBRI DIST. DHUBRI ASSAM PIN-783301

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Advocate for the Petitioner : MR.H R AHMED

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Advocate for the Respondent : GA, ASSAMR. 2 to 4.

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B:: BEFORE :: HON’BLE MR. JUSTICE MANOJIT BHUYAN HON’BLE MR. JUSTICE AJIT BORTHAKUR

O R D E R

05.11.2019

(Manojit Bhuyan, J)

Heard Mr. H.R. 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, 3 and 4.

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Petitioner assails order/opinion dated 31.07.2017 passed by the Foreigners’ Tribunal - 10^th Dhubri, Assam in Case No.- FT(10)/AGM/384/2017, declaring her to be a foreigner, having illegally migrated from Bangladesh into Assam on or after 25.03.1971.

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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 Naba Kha, as her grandfather; one Kariman Bewa, as the grandmother; one Gunjer Kha as the father and one Sakina Bibi, as her mother. 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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(a) Exhibit-I – Certified copy of Land Revenue Paying Receipt dated 16.05.1993 in the name of Gujer Kha, son of Naba Kha, projected as the father of the petitioner and one Kariman Bewa, wife of Naba Kha, projected as the grandmother of the petitioner, of village Charaikhola, P.S. Golokganj under Dhubri Sub-Division.

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(b) Exhibit-II – Certified copy of Electoral Roll of 1970 in the name of one Gonjher Kha, son of Naba Kha and one Sakina Bibi, wife of Gonjher and one Kariman Bewa, wife of Naba Kha, projected as the father, mother and grandmother of the petitioner, of village 104 Boro Charaikhola under 35 Golokganj LAC.

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(c) Exhibit-III – Certified copy of Electoral Roll of 1979 in the name of one Gunzer Kha, son of Noba Kha and one Sokina Bibi, wife of Gunzer, projected as the father and mother of the petitioner, of village 104 Boro Charaikhola under 35 Golokganj LAC.

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(d) Exhibit-IV – Gaon Panchayat Certificate dated 08.02.2017, issued by the Secretary, Harirhat Gaon Panchayat certifying that the petitioner Hanufa Begum, daughter of late Ganjer Kha, of village Boro Charaikhola got married with one Eman Ali, son of late Soleman of village Paschim Maisa Part-II, P.O. Agomani, P.S. Golokganj.

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(e) Exhibit-V – Certified copy of Electoral Roll of 1977 in the name of the petitioner Hanafa Bibi, wife of Eman along with other voter, of village 102 Pachim Maichachar Pt II under 25 Golokganj LAC.

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(f) Exhibit-VI – Certified copy of Voter List of 1990 in the name of the petitioner Hanupa Bibi, wife of Eman, of village 102 Pachim Maichachar Pt II under 25 Golokganj LAC.

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(g) Exhibit-VII – Certified copy of Final Khatian in the name of Md. Karam Ali Kha, son of Naba Kha, projected as the uncle of the petitioner, of village Pub Moichachar, P.S. Golokganj.

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Besides the documents above, the petitioner examined herself as DW-1 and also presented for examination one Naushad Ali Khan, projected as the younger brother of the petitioner, as DW-2.

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As indicated above, the petitioner projected one Gunjer Kha as her father, one Sakina Bibi as the mother and one Kariman Bewa as her grandmother and stated that their names appeared in the Voter Lists of 1970 and 1979 at Exhibits-II and III of village 104 Boro Charaikhola under 35 Golokganj LAC. However, no voter lists were produced and exhibited reflecting the name of the petitioner by showing relationship with her projected parents or grandparents. Similarly, the petitioner’s name along with her projected husband appeared in the Voter Lists of 1977 and 1990 at Exhibits-V and VI, of village 102 Pachim Maichachar Pt II under 25 Golokganj LAC which, however, bore no relevance as her relation is shown with her projected husband and not with the projected parents or grandparents. Copy of land revenue paying receipt at Exhibit-I rendered itself as inadmissible in evidence without the original land records being produced to show that

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the revenue so paid was in respect of land belonging to the projected father Gunjer Kha or projected grandmother Kariman Bewa. The Final Khatian at Exhibit-VII only included the name of one Md. Karam Ali Kha as son of Naba Kha, which did not come by right of inheritance and failed to serve as a link document to the projected parents or grandparents of the petitioner. Though the petitioner produced and exhibited the Gaon Panchayat Certificate at Exhibit-IV 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.

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The statement of DW-2 i.e. Naushad Ali Kha, aged 51 years, who claimed to be the younger brother of the petitioner, cannot be relied upon in the absence of any documents showing his relationship to the projected parents or grandparents of the petitioner or to the petitioner herself. Moreover, no voter lists were produced and exhibited showing linkage of her projected brother with the projected father. The oral testimony of DW-1 and DW-2 cannot be taken into consideration as cogent, reliable and admissible evidence without any supporting evidence/documents.

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In the written statement it is stated that the petitioner was born and brought up at village Boro Charaikhola under Harirhat Gaon Panchayat and in the Voter List of 1970 her father Gunjer Kha, mother Sakina Bibi and grandmother Kariman Bewa are reflected as voters of village 104 Boro Charaikhola under 35 Golokganj LAC. In the Voter Lists of 1977 and 1979 petitioner’s projected father and mother are enlisted as voters, of village 104 Boro Charaikhola under 25 Golokganj LAC. In the Voter Lists of 1977 and 1990 the petitioner is reflected as Hanufa Bibi with one Eman Ali as her husband of village 102 Paschim Maichachar Pt-II under 25 Golokganj LAC. In the cross-examination the petitioner stated that her father expired 20 years ago and her mother died 30 years ago.

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To substantiate her aforesaid statement the petitioner exhibited some documents and also produced for examination, as aforestated, one defence witness as DW-2, who stated on oath that he is the younger brother of the petitioner. In his deposition DW-2 could not say where the petitioner’s father was born though he stated that his father died 22 years ago and his mother expired before 2 to 3 years before his father’s demise. On

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the contrary, the petitioner stated that her father expired 20 years ago and her mother died 30 years ago. In that case father of DW-2 died in the year 1995 and his mother died in the year 1992 or 1993. In the year 2017 DW-2 attained 51 years. So, it can be presumed that in the year 1995 he was aged about 29 years. It is apparent that before 1995 DW-2 was eligible to be a voter and as such the name of DW-2 should have been reflected as a voter prior to 1995. He also stated that originally his father was a resident of village Moisha, Golokganj. But in the affidavit the petitioner did not mention about her siblings or that she has any brother and that her father was a resident of Moisha. In the additional written statement it is stated that the petitioner has 5 brothers and 2 sisters but in that respect she did not file any evidence-in-chief. Thus the statement of the petitioner as DW-1 and that of the projected brother Naushad Ali Kha as DW-2 contradicts itself.

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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

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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 vide our order dated 29.11.2017 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

Hanufa Bibi @ Hunupa Bibi v. the Union of India and 3 Ors.

Case brief

What is this about?

What did the court decide?

Hanufa Bibi @ Hunupa Bibi v. the Union of India and 3 Ors.

Case brief

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