Dismissed

Musstt. Akiran Nessa v. the Union of India and 4 Ors.

Gauhati HC7 Nov 2019WP(C)/7461/2017

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a writ petition challenging a Foreigners Tribunal order declaring the petitioner a foreigner. The Court held the petitioner failed to prove Indian citizenship or link to parents, rendering her evidence inadmissible or insufficient under the Foreigners Act and Evidence Act.

What did the court decide?

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

Musstt. Akiran Nessa Vs the Union of… — Constitutional and Fundamental Rights | Gauhati HC (2019)

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GAHC010150962017

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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) 7461/2017

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1:MUSSTT. AKIRAN NESSA W/O. MD. SAYED ALI D/O LT. MIR BOXO SHEIKH, R/O. VILL. BALARPET, P.S. ABHAYAPURI, DIST. BONGAIGAON, ASSAM.

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VERSUS

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1:THE UNION OF INDIA and 4 ORS.

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REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, DEPTT. OF HOME AFFAIRS, NEW DELHI.

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2:STATE OF ASSAM REPRESENTED BY SECRETARY TO THE GOVT. OF ASSAM DEPTT. OF HOME AFFAIRS DISPUR GUWAHATI-6.

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3:THE MEMBER FOREIGNERS' TRIBUNAL BONGAIGAON NO. 2 ABHAYAPURI DIST. BONGAIGAON ASSAM PIN-783384.

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4:THE SUPERINTENDENT OF POLICE BORDER BONGAIGAON P.O. and P.S. BONGAIGAON ASSAM PIN-783380. 5:THE DEPUTY COMMISSIONER BONGAIGAON ASSAM P.O. and DIST. BONGAIGAON ASSAM

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PIN-783380

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Advocate for the Petitioner : MR.B J MUKHERJEE

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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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O R D E R

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07.11.2019

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( Manojit Bhuyan, J )

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Heard B.J. Mukherjee, 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, 4 and 5. Ms. A. Verma, learned counsel appears for the NRC.

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Petitioner assails opinion dated 25.07.2017 passed by the Foreigners’ Tribunal, Bongaigaon No.2, Abhayapuri in BNGN/FT/Case No.2009/2007, declaring her to be a foreigner/illegal migrant, having illegally entered into India from Bangladesh of post 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 petitioner is not a foreigner, as many as 10 (ten) documents were exhibited by her, the particulars of which may be noticed, as under :

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(i) Exhibit-I –Copy of Voter List of 1966, in the name of one Mir Box Sheikh, projected father of the petitioner, one Kachiran Bibi, projected mother of the petitioner and one Nurhussain Sheikh of village 186 Boushkata Part-6, P.S. – Rabhatari, district- Goalpara, under 32 No. South Salmara LAC.

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(ii) Exhibit-II – Copy of Voter List of 1970, in the name of one Kachiran Bewa, projected mother of the petitioner and one Nurhussain Sheikh of village 186 Boushkata Part-6,

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P.S. – Rabhatari, district- Goalpara, under 32 No. South Salmara LAC.

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(iii) Exhibit-III – Acknowledgement Receipt of PAN Application (change request) in the name of the petitioner.

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(iv) Exhibit-IV – Certificate dated 06.07.2011 issued by the Secretary of village Boushkata, certifying that the petitioner is the daughter of Mir Box Sheikh and got marriage with Sayed Ali, resident of 65 Balarpet, district Bongaigaon.

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(v) Exhibit-V – Certified copy of Voter List of 1985, in the name of one Sayed Ali, projected husband of the petitioner and petitioner herself of village 66 Balarpet under 34 No. Abhayapuri North LAC.

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(vi) Exhibit-VI – Certified copy of Voter List of 2016, in the name of one Sayed Ali, projected husband of the petitioner and petitioner herself along with others of village 65 Balarpet, P.S.-Abhayapuri, Sub-Division-North Salmara, District-Bongaigaon under 34 No. Abhayapuri North LAC.

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(vii) Exhibit-VII – Elector Photo Identity Card in the name of the petitioner.

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(viii) Exhibit-VIII – Pass Book in the name of the petitioner.

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(ix) Exhibit-IX – Affidavit with regard to correction of names of projected father, mother and brother of the petitioner.

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(x) Exhibit-X – Original PAN cad of the petitioner.

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Petitioner examined himself as DW-1 but did not present for examination any independent witnesses in support of her case.

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As indicated above, the petitioner projected one Mir Box Sheikh as his father, which name appeared in the Voter List of 1966 at Exhibit-I; one Kachiran Bibi as her mother and one Nurhussain as her brother, which names appeared in the Exhibits-I and II Voter Lists of 1966 and 1970 of village 186 Boushkata Part-6, district-Goalpara. However no voter lists were produced and exhibited reflecting the name of the petitioner by showing relationship with her projected parents. The only document brought on record for the purpose of establishing linkage to said Mir Box Sheikh was the Certificate issued by the Secretary of Boushkata Gaon Panchayat at Exhibit-IV. The Certificate rendered itself as

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inadmissible in evidence, inasmuch as, the author of the said Certificate was not examined to prove the same and the contents thereof. The voter lists with the name of the petitioner are the Exhibits-V and VI Voter Lists of 1985 and 2016 which, however, bore no relevance as her relation is shown with her projected husband and not with the projected parents. Acknowledgement receipt of PAN Card, Elector Photo Identity Card, Pass Book and PAN card at Exhibits-III, VII, VIII and X, in the name of the petitioner remained as documents inadmissible in evidence as it is too well settled that such documents are no proof of citizenship. In so far as the Exhibit-IX affidavit is concerned, the same remained as a redundant document as it is well too settled that such affidavit cannot be taken into consideration, being a self-serving affidavit and not coming within the definition of evidence under the Indian Evidence Act, 1872.

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On perusal of the materials and evidence on record, there can be no second opinion that the petitioner utterly failed to establish linkage to Indian parents, who illegally entered into India after 25.03.1971.

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It is argued by Mr. Mukherjee that the very initiation of proceeding was bad, inasmuch as, the petitioner is not the daughter of Sukur Ali, as described in Form- I and II at Sl. No.2 of the Interrogation Report. It is argued that the proceedee is a different entity altogether and not connected with the present petitioner.

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On the argument above, we find from the case records that the petitioner had duly received the Notice from the Tribunal and also contested the proceedings by producing and exhibiting documents etc. In the written statement, no statement whatsoever was made as to the identity/description of her father – as to whether it is Sukur Ali or Mir Box Sheikh. Also, we find no mention of the name of the father in the recorded statement made by the petitioner and other individuals before the Investigating Officer. Perhaps, the name Sukur Ali surfaced on mention being made by the petitioner herself. Without any dispute the Report of the Investigating Officer was prepared on the basis of documents submitted by the proceedee and on statement made by individuals concerned. Be that as it may, even going by the admission of the petitioner that her father is Mir Box Sheikh, there is nothing on evidence to link herself with the said projected father. To reiterate, the

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only link document at Exhibit-IV, being the Certificate issued by the Gaon Panchayat, did not stand proved through the legal testimony of the issuing authority.

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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 parents.

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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 04.12.2017 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

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reference.

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JUDGE JUDGE

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Comparing Assistant

Musstt. Akiran Nessa v. the Union of India and 4 Ors.

Case brief

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What did the court decide?

Musstt. Akiran Nessa v. the Union of India and 4 Ors.

Case brief

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