Dismissed

Anowara Bewa v. Union of India and 5 Ors.

Gauhati HC17 May 2019WP(C)/905/2019

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 establish a reliable linkage with her projected father, an Indian national, lacking perversity.

What did the court decide?

Writ petition dismissed with a direction to concerned state authorities to take action accordingly; no order as to costs.

Anowara Bewa Vs Union of India and 5 Ors. — Pension and Retirement Benefits | Gauhati HC (2019)

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GAHC010026202019

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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) 905/2019

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1:ANOWARA BEWA W/O LATE ABDUL MAJID R/O VILL- KAYASTHAGAON KHARIJABIJNI MOUZA, P.S. SORBHOG, DIST. BARPETA, ASSAM.

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VERSUS

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1:UNION OF INDIA AND 5 ORS.

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REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, SHASTRI BHAWAN, NEW DELH-1.

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2:THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR

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GUWAHATI -6.

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3:THE DEPUTY COMMISSIONER BARPETA P.O. AND DIST. BARPETA ASSAM.

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4:THE SUPERINTENDENT OF POLICE (B) BARPETA P.O. AND DIST. BARPETA ASSAM- 788010.

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5:THE ELECTION COMMISSION OF INDIA

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NEW DELHI-110001.

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6:THE STATE COORDINATOR NATIONAL REGISTRAR OF CITIZENS (NRC) ASSAM- 781006

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Advocate for the Petitioner : MR F Z MAZUMDER

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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 MANISH CHOUDHURY

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ORDER

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Date : 17-05-2019 (Manish Choudhury, J)

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Heard Mr. F.Z. Mazumder, learned counsel for the petitioner as well as Mr. A. Kalita, learned counsel representing the respondent nos. 2 to 4. Also heard Ms. A. Verma, learned counsel representing respondent no. 6. None appears for respondent nos. 1 and 5.

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The petitioner assails the order/opinion dated 28.12.2018 passed by the Foreigners Tribunal 8^th , Barpeta in F.T. Case No. 242/2016, whereby, the Tribunal held that the petitioner, Anowara Bewa, w/o Abdul Md., Village – Kayasthagaon, Police Station – Sorbhog, District – Barpeta, Assam as the proceedee, failed to discharge her burden of proof as mandated under Section 9 of the Foreigners Act, 1946 and accordingly, she was declared to be a foreigner, having illegally entered into the territory of India from the specified territory on or after 25.03.1971 without any valid document.

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The primary issue for determination is as to whether the petitioner, Anowara Bewa succeeded to establish her linkage with a person who is an Indian national. On a reference made by the Superintendent of Police (Border), Barpeta, the Tribunal issued notice to the proceedee and on receipt of the notice, the proceedee appeared and contested the case by filing her written statement denying the allegation and stating that she is an Indian citizen by birth. In her written statement, the proceedee inter-alia, stated that she was born and

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brought up at Village – Sahpur, Mouza – Damka Chaka Baushi, Police Station – Sorbhog, District – Barpeta and after marriage, she had been residing at her matrimonial home at Village – Kayasthagaon, Mouza – Kharija Bijni, District – Barpeta along with her children. The proceedee projected one Lt. Kazimuddin Mia, son of Lt. Sadek Ali as her father who prior to his death, used to reside at Village – Sahpur, Mouza – Damka Chaka Baushi. The proceedee claimed that name of her projected father was enrolled in the Electoral Rolls of 1965 and 1970 as a voter from the said village under 47 No. Sorbhog LAC. The proceedee projected one Jariman Nessa as her mother. The marriage of the proceedee was stated to have been solemnised with one Abdul Majid, son of Lt. Ahezuddin of Village – Kayasthagaon, Mouza - Kharija Bijni, District – Barpeta on 04.05.1986. The name of the proceedee was enrolled along with her husband as voters in the Electoral Roll of 1989 from Village – Kayasthagaon. Her name was also enrolled in the Electoral Rolls of 1997 and 2016. After the death of her husband in the year 1994, she was known as Anowara Bewa and she had four children – there sons and one daughter. Her sons were residing with her.

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For the purpose of establishing linkage to a predecessor who is an Indian citizen and relatable to a period prior to the cut-off date of 25.03.1971, the petitioner projected Kazimuddin Mia, son of Sadek Ali as her father, whose name appeared in the Electoral Roll of 1965 (Ext.A) and 1970 (Ext.B) from Village – Sahpur, Mouza – Damka Chaka Baushi, Police Station – Sorbhog under 47 No. Sorbhog LAC. In Ext.A and Ext.B, the lone name of Kazimuddin Mia, son of Sadek Ali was found to be recorded as voter. The Tribunal had also found, after calling for and receipt of a report from the custodian, that Ext.B was not a genuine document. As in Ext.D i.e. certified copy of extract of Electoral Roll of 1989, names of the proceedee as Anowar Begum (24 years), wife of Majid along with her husband, Abdul Majid (30 years), son of Ahaj were recorded as voters from Village – Kayasthagaon, Mouza – Kharija Bijni under 40 No. Sorbhog LAC along with two other names, the same did not establish any linkage between the proceedee and her projected father. The proceedee exhibited 2 (two) certificates, Ext.F and Ext.G, issued by the Gaonbura, Sahpur Village and the Gaonbura, Jamadarbari, Kayasthagaon & Jamadarpari Pahar respectively but the author of Ext.F was not examined and, therefore, the Tribunal held Ext.F to be not proved and, accordingly, did not place any reliance on the same. The Gaonbura of Jamadarbari,

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Kayasthagaon & Jamadarpari Pahar was examined as D.W.3 in respect of Ext.G. D.W.3 was, however, from the village where the proceedee had been residing with her husband after her marriage. As such, D.W.3 cannot be held to have knowledge about the antecedents of the proceedee prior to her marriage. D.W.3 also issued a certificate (Ext.O) in respect of D.W.2 viz. Abdur Rahman Ahmed whom the proceedee claimed to be her elder brother. The Tribunal considered Ext.O to examine as to whether the same established the claim of D.W.2 to be a son of Kajimuddin Mia. D.W.3, in Ext.O, mentioned that D.W.2’s name appeared in the Voter List of 1997, a photocopy of which was produced as Annexure-VI. The Tribunal had observed that in Annexure-VI, instead of Abdur Rahman Ahmed (D.W.2), name of one Mahammad Ali appeared which showed that D.W.3 issued a certificate (Ext.O) to D.W.2 without verifying the document. For the said reason, it was observed by the Tribunal that Ext.G and Ext.O were issued by D.W.3 only from his personal knowledge. The testimony of D.W.3, available on record, is perused. The witness did not make any disclosure about the source of his information, which has to be reliable and unimpeachable, on the basis of which he issued the Ext.G certificate.

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A marriage certificate dated 05.06.2014 as Ext.C was also exhibited by the proceedee to show that her marriage was solemnized on 04.05.1986 and it was said that the Muslim Marriage Registrar & Kazi, Sorbhog registered the same. The Tribunal had observed that no reliance could be placed on Ext.C, for a number of reasons, firstly, the marriage certificate was issued after 28 years of marriage of the proceedee; secondly, the same being a private document, was not proved by the issuing authority and thirdly, the Muslim Marriage Registrar & Kazi is statutorily required to deliver an attested copy of the relevant entry of the register immediately on completion of the registration of the marriage to the applicant concerned free of charge. But the proceedee instead of exhibiting such entry given at the time of her marriage, had submitted Ext.C Certificate only after obtaining it after 28 years of marriage. The approach of the Tribunal in holding Ext.C as not proved, does appear to be justified.

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D.W.2, Abdur Rahman Ahmed adduced his evidence before the Tribunal whom the proceedee claimed as her elder brother. No documentary evidence was exhibited and proved before the Tribunal wherefrom a linkage between the projected father and D.W.2 could be inferred. D.W.2 exhibited his appointment letter (Ext.L) where D.W.2’s name was written as

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Abdul Rahman and “Ahmed” was written therein by hand without any initial signature. The Tribunal had observed that D.W.2 did not produce his official identity card to prove that his name was Abdur Rahman Ahmed though in the appointment letter, “Ahmed” was written by hand against Abdur Rahman. Though D.W.2 made a mention that his name was Abdur Rahman Ahmed and he was known as Abdur Rahman amongst the villagers, the Tribunal in absence of any supporting document to that effect and in view of his failure to clear the doubt as regards Ext.L, did not find any convincing reason to accept that Abdur Rahman and Abdur Rahman Ahmed were one and the same person.

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Ext.H, Ext.I and Ext.J were Elector Voter Identity Cards (EPIC) issued to the sons of the proceedee which did not serve the cause of establishing the linkage between the proceedee and her projected father. The proceedee through D.W.2 exhibited Ext.M, a land document claiming that Kazimuddin had land and property at Sahpur and he sold the plot of land to another person. As the execution of Ext.M was not proved in accordance with law, the same was found to be inadmissible. The Tribunal had also found that Ext.M did not establish any linkage between D.W.2 and Kazimuddin as well as between the proceedee and Kazimuddin. The Family Identity Card, exhibited as Ext.N by D.W.2, could not be considered for the purpose of citizenship.

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A perusal of the order/opinion dated 28.12.2018 passed by the Tribunal shows that the Tribunal had appreciated the entire evidence led by the petitioner before it in the proper perspective and, thereafter, had rendered the finding that the petitioner had failed to establish her claim to be a citizen of India by reliable and cogent oral and documentary evidence. Such a finding being a finding of fact, a writ Court exercising jurisdiction under Article 226 of the Constitution of India does not, ordinarily, interfere with such finding of fact unless there is perversity because the jurisdiction so exercised is supervisory and not appellate. In view of the point raised on behalf of the petitioner, the evidence led before the Tribunal by the petitioner is once again revisited only to reassure ourselves as to whether there was any perversity or error in appreciation in the order/opinion of the Tribunal. We see no reason to depart from the assessment of evidence by the Tribunal nor are we impressed by the learned counsel’s submission that material evidence was wrongly discarded. In our considered opinion, the proceedee despite leading oral evidence as well as documentary

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evidence in order to discharge the burden of proof, had failed to establish any linkage with her projected father, Lt. Kazimuddin whom she stated to be an Indian national. As the petitioner has not been able to make out any case demonstrating any error apparent on the face of the record and there being no perversity, this writ petition is, resultantly, found to be bereft of merit and the same stands accordingly dismissed. There shall be no order as to costs.

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Concerned State authorities to take action accordingly.

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JUDGE JUDGE

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Comparing Assistant

Anowara Bewa v. Union of India and 5 Ors.

Case brief

What is this about?

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Anowara Bewa v. Union of India and 5 Ors.

Case brief

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