Allowed

Rabia Khatun @ Rabia Begum v. the Union of India and 5 Ors.

Gauhati HC13 Jun 2022WP(C)/4556/2019

Case brief

AI extract

What is this about?

The Court allowed a writ petition challenging a Foreigners Tribunal order declaring the petitioner a foreigner. The Court held that rejecting oral evidence merely due to lack of documentary documents was incorrect in law and remanded the matter for fresh appreciation of evidence.

What did the court decide?

Impugned order dated 13.12.2018 set aside. Tribunal directed to pass fresh opinion after appreciating oral evidence. Petitioner allowed bail on furnishing of Rs. 5,000 bond.

Rabia Khatun @ Rabia Begum Vs the… — Constitutional and Fundamental Rights | Gauhati HC (2022)

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GAHC010149182019

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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)/4556/2019

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RABIA KHATUN @ RABIA BEGUM W/O. IDRISH ALI, D/O. ABUL HUSSAIN, VILL. BOGRIGURI PATHER, P.S. SORBHOG, DIST. BARPETA, ASSAM.

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VERSUS

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THE UNION OF INDIA AND 5 ORS. REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, SHASTRI BHAWAN, NEW DELHI-01.

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2:THE STATE OF ASSAM

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REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GUWAHATI-06.

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3:THE DY. COMMISSIONER

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BARPETA P.O. AND DIST. BARPETA ASSAM PIN-781301.

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4:THE SUPDT. OF POLICE (B)

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BARPETA P.O. AND DIST. BARPETA ASSAM-781301.

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5:THE ELECTION COMMISSION OF INDIA

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NEW DELHI

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TO BE REP. BY CHIEF ELECTION COMMISSIONER OF INDIA NEW DELHI-01.

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6:THE STATE COORDINATOR OF NATIONAL REGISTRATION

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ASSAM BHANGAGARH LACHIT NAGAR GUWAHATI-05

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Advocate for the Petitioner : MR. N HAQUE

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Advocate for the Respondent : ASSTT.S.G.I.

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BEFORE

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HONOURABLE THE CHIEF JUSTICE (ACTING) HONOURABLE MR. JUSTICE NANI TAGIA

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ORDER

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Date : 13-06-2022

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[N. Kotiswar Singh, C.J. (Acting)]

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Heard Mr. N. Haque, learned counsel for the petitioner. Also heard Mr. G. Sarma, learned Standing Counsel, Foreigners Tribunal; Mr. K. K. Parasar, learned CGC and Standing counsel, NRC; Mr. N. K. Das, learned Government Advocate and Mr. A. Bhuyan, learned Standing counsel, Election Commission of India, appearing for the respondents.

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In this writ petition the petitioner has challenged the order dated 13.12.2018, passed by the Foreigners Tribunal (11^th ), Barpeta, in Case No. (Bpt/11^th ) F.T. 881/2016, whereby the petitioner has been declared to be a foreigner of post-1971 stream.

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The petitioner’s case is that after receiving summons the petitioner appeared before the Tribunal and filed written statement and also adduced evidence including by examining herself as DW-1, her father, Abul Hussain as DW-2, and two others, namely, Haranur Rashid, Lot Mandal of Bogoriguri Pathar under Khariza Bijni Mouza as DW-3 and Shahinur Parbin, younger sister of the petitioner as DW-4. During the proceedings of the aforesaid FT case,

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the petitioner also produced and proved certified copies of Voters List of 40 No. Sorbhog Legislative Assembly Constituency, NRC of 1951 and certain copies of documents relating to immovable properties, which were exhibited as Exhibit-1 to Exhibit-9.

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Learned counsel for the petitioner submits that even though the aforesaid witnesses had been examined and the documents been exhibited and proved before the Foreigners Tribunal, the Tribunal did not at all consider the evidence adduced by the petitioner and rejected the claim of the petitioner regarding her Indian citizenship on the ground that those evidence lacked documentary support. Accordingly, it has been submitted that since the Tribunal did not consider the very vital oral evidence of the witnesses, which would have proved the documentary evidence, the Tribunal has committed a manifest error and, as such, the impugned opinion is liable to be interfered with.

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We have considered the submissions of the learned counsel for the parties and also have gone through the impugned order dated 13.12.2018. We have also noted that the Tribunal did mention about recording of evidence of the petitioner (DW-1) and her father (DW-2) on 02.08.2018 and the evidence of Harunar Rashid (DW-3) and Shahinur Parbin (DW4) on 05.12.2018. However, in the analysis and assessment of the evidence of the said four witnesses, the Tribunal has recorded its finding in paragraph 12 of the Summary of the opinion as follows:

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“12. In the absence of documentary support, evidence of the DW-1, DW-2, DW-3 and DW-4 also stand rejected.”

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In paragraphs 1 to 4 of the opinion, the Tribunal has recorded certain reasons for not accepting the documents produced by the petitioner in support of her claim to be an Indian citizen, which are reproduced below:

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“Ext-1: It is a certified copy of citha in r/o 3 Bighas 3 Kathas 15 Lechas of land under Dag No. 156/139 covered by Annual Patta situated at village-Baguriguri Pathar under Kharija Bijni Mouja that was surveyed during the period 1958-59 wherein the name of Bhola Fakir, Kalu Fakir and Faita Fakir, all S/o Kabaz are recorded as Patta holders.

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Ext-2: It is an uncertified copy of Legacy Data in r/o village-Baguriguri Pathar, P.S.

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Sorbhog wherein the name of Kalu Fakir aged 27 years stands recorded vide LDC-1200009-6630 which not admissible in evidence it being entry of NRC 1951 that was prepared under Census Act 1948 having no evidentiary value u/s 15 of the Act and hence it has been rejected.

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Ext-3: It is an extract of Voters’ List of 1997 in r/o village Baguriguri Pathar under No. 40 Sorbhog LAC and its voters are as under:

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Sl.	House	Voter’s name	Father/Mother/	Sex	Age	Relationship
No.	No.		Husband			With OP
1053	439	Abul Hussain Fakir	S/o Kalu	M	34	Father
1054	439	Nurjahan Begum	W/o Abul	F	32	Mother

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Ext-4: It is an EPIC standing in the name of Nazrul Islam, S/o Abul Hussain which was issued by the ERO, No. 40 Sorbhog LAC, vide GML0012003, dated 26.11.2015.

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Without going into the correctness and otherwise of the reasons given by the Tribunal, what attracts our attention is that there is no discussion of the evidence of DW-1 to DW-4 and the evidence of the said witnesses were rejected merely on the ground of absence of documentary support. We are of the view that such an approach adopted by the Tribunal is not correct in law. It is for the concerned Tribunal to decide the correctness of the evidence adduced by the petitioner, yet the oral evidence cannot be brushed aside totally on the ground of their not being supported by documentary evidence. We have noticed that the petitioner had exhibited several documents as Exhibits 1 to 9. Obviously, the documents relied upon by the petitioner to establish her Indian citizenship have to be considered by the Tribunal and it will not be correct to say that the evidence of DW-1 to DW-4 can be rejected in the absence of documentary support.

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In view of the above, we are of the considered opinion that the impugned order passed by the Tribunal including the assessment of the evidence adduced by the petitioner need to be set aside. The Tribunal will be required to make a fresh assessment of the evidence adduced by the petitioner by taking into consideration the oral evidence of DW-1 to

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DW-4 as it would have material bearing on the proper analysis and assessment of the evidentiary value of the documents exhibited by the petitioner.

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Accordingly, the writ petition is allowed by setting aside the impugned order dated 13.12.2018, passed by the Foreigners Tribunal (11^th ), Barpeta, in Case No. (Bpt/11^th ) F.T. 881/2016. The Foreigners Tribunal (11^th ), Barpeta is directed to pass a fresh opinion by appreciating the evidence of DW-1 to DW-4 for which the petitioner will appear before the Tribunal on 20.07.2022. Since the citizenship of the petitioner is under cloud, she is directed to appear before the Superintendent of Police (Border), Barpeta, and furnish a bail bond of Rs. 5,000/- and, upon furnishing of such bail bond the petitioner will be allowed to remain on bail.

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Writ petition stands disposed of in terms of the above observations and directions.

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Let the records be remitted to the concerned Tribunal forthwith.

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JUDGE CHIEF JUSTICE (ACTING)

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Comparing Assistant

Rabia Khatun @ Rabia Begum v. the Union of India and 5 Ors.

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Rabia Khatun @ Rabia Begum v. the Union of India and 5 Ors.

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