High Court set aside Foreigners Tribunal order declaring petitioner a foreigner, finding Tribunal erred in disbelieving Gaonburah certificate without reasoning. Petition remanded for fresh disposal.
Impugned order of Foreigners Tribunal quashed and set aside. Case remanded for fresh disposal after proper opportunity.
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GAHC010025322018
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 830/2018
1:JAHURA KHATUN
W/O. SOKEMAN ALI, VILL. TITAPANI, P.S. KALGACHIA, DIST. BARPETA, ASSAM
VERSUS
1:THE UNION OF INDIA AND 5 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, SHASTRI BHAWAN, NEW DELHI.
2:THE STATE OF ASSAM REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY.
3:THE DY. COMMISSIONER BARPETA P.O. AND DIST. BARPETA ASSAM
4:THE SUPDT. OF POLICE (B) BARPETA P.O. AND DIST. BARPETA ASSAM.
5:THE ELECTION COMMISSION OF INDIA NEW DELHI
TO BE REP. BY CHIEF ELECTION COMMISSIONER OF INDIA.
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6:THE STATE COORDINATOR OF NATIONAL REGISTRATION ASSAM BHANGAGARH LACHIT NAGAR GUWAHAT
Advocate for the Petitioner : DR. B AHMED
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
ORDER
Date : 03-12-2019
(Parthivjyoti Saikia, J.)
1. Heard Mr. L. Haque, learned counsel for the petitioner. Also heard Mr. A. Kalita, learned standing counsel for the Foreigners Tribunal; Ms. A. Verma, learned standing counsel for the NRC; Ms. G. Hazarika, learned CGC appearing for the Union of India and Mr. B. Das, learned standing counsel for Election Commission.
2. The petitioner has challenged the order dated 20.01.2018 passed by the learned Foreigners’ Tribunal No. 5, Barpeta, Assam in FT Case No. 301/2016 declaring her to be the foreigner of post 25.03.1971 stream.
3. On a reference arising out of the IM(D)T Ref. Case No. 6647/A/98, the present petitioner namely, Jahura Khatun had entered appearance before the learned Tribunal and filed her written statement. She had produced 7 (seven) numbers of documents in support of her claim that she is not a foreigner within the meaning of Section 2 (a) of the Foreigner Act, 1946. Those documents are;
iv) Voter list of 1985, exhibit ‘D’
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v) Gaonburah Certificate of village Titapani, exhibit ‘E’
vi) Gaonburah Certificate of Village Chenimari, exhibit ‘F’
vii) Gaonburah Certificate of village Titapani, Exhibit ‘G’.
4. In the written statement, the petitioner has claimed that her father is Late Johar Ali and her mother’s name was Rukia Khatun. She has further claimed that her husband’s name is Soleman Ali. She has stated in the written statement that the name of her father Late Johar Ali appeared in the voter list of 1966 and 1970 and her brother’s name appeared in the voter list of 1997. The petitioner has stated that in the year 1972 she got married to Soleman Ali of Titapani Village. Thereafter, her name has also appeared in the voter list of 1985, 1997, 2008 and of the year 2010.
5. The village Gaonburah of Titapani had issued a certificate which was produced as exhibit ‘E’. The petitioner has examined the Gaonburah of Titapani village as DW-2 to prove exhibit ‘E’. He also proved exhibit ‘F’. DW-2 had also proved exhibit ‘F’. Exhibit ‘F’ was a certificate issued by the Gaonburah stating that the petitioner Jahura Khatun is an inhabitant of the village Titapani.
6. The petitioner had examined another Gaonburah namely, Harunar Rashid and he has stated in the evidence that the DW-2, Gulam Singh was his predecessor Gaonburah of Titapani village. He has stated that he had never given any certificate to Jahura Khatun.
7. Upon the aforesaid facts, the observation of the learned Tribunal is as under;
8. The learned counsel for the petitioner submits that the aforesaid observation of the learned Tribunal is not sustainable in law as the learned Tribunal has not given any reasons as to why the evidence adduced by the petitioner was disbelieved or held to be unreliable. Referring to the observation of the learned Tribunal that the petitioner has failed to show her link with her father, the learned counsel for the petitioner submits that the Certificate issued by the Gaonburah
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is sufficient evidence to establish the petitioners’ link with her father.
9. In Rupjan Begum –vs- Union of India, reported in (2018) 1 SCC 579, the Hon’ble Supreme Court has clarified that certificates issued by the Gram Panchayat Secretary is meant for married women and can be used as a link document of such married women. The Hon’ble Supreme Court has also clarified that such certificate has to be verified in two counts, firstly, the genuineness of the documents and secondly, the contents, thereof.
10. In the present case, the village Gaonburah has been examined and he has proved the certificate Ext-‘E’. In our opinion, Ext-‘E’ was a relevant piece of evidence but the same has not been appreciated by the learned Tribunal in a correct manner. We are therefore, of the view that the learned Tribunal has erred in holding that the documents exhibited by the proceedee are doubtful without assigning any cogent reason for recording such a conclusion. Therefore, the impugned order dated 20.01.2018 is held to be un-sustainable in law.
12. For the reasons stated above, the impugned order dated 20.01.2018, passed in FT Case No. 301/2016, by the learned Foreigners’ Tribunal No. 5, Barpeta, Assam is hereby set aside and quashed. The case is remanded to the learned Tribunal for fresh disposal of the reference after giving proper opportunity to the proceedee to place her case on merit.
13. We make it clear that the proceedee shall not have the liberty to file further evidence or pleadings. The petitioner is directed to appear before the learned Tribunal on 08.12.2019, with a certified copy of this order. We also make it clear that if the petitioner fails to appear before the learned Tribunal, on or before 08.12.2019, this order shall stand discharged without any further reference to this Court..
Send back the LCR.
The writ petition stands disposed of.
JUDGE JUDGE
Comparing Assistant
2 issues framed by the court
Whether the Foreigners Tribunal erred in holding evidence doubtful without assigning cogent reasons.
Whether the Gaonburah certificate is sufficient evidence to establish the petitioner's link with her father.
Colour shows how this judgement treated each authority
Rupjan Begum vs Union of IndiaRelied on¶43
Rupjan Begum –vs- Union of India, (2018) 1 SCC 579 · Who else cites this
1 provisions across 1 enactments
JAHURA KHATUN
THE UNION OF INDIA
THE STATE OF ASSAM
THE DY. COMMISSIONER BARPETA
THE SUPDT. OF POLICE BARPETA
THE ELECTION COMMISSION OF INDIA
PARTHIVJYOTI SAIKIA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
