Madhu Mala Bibi Vs the Union of India and 5 Ors.

Heard Mr. P. A. Ahmed, learned counsel for the petitioner. Also heard Mr. A. K. Dutta, learned CGC, Mr. J. Payeng, learned Standing Counsel for FT and Border matters, Mr. M. Kalita, learned counsel appearing on behalf of Ms. P. Baura learned Standing Counsel for the ECI and Mr. P. Sarmah, learned Additional Senior Govt. advocate for the State.

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By filing this writ petition under Article 226 of the Constitution of India, the petitioner, namely, Madhu Mala Bibi has assailed the opinion dated 18.03.2017, passed by the learned Member, Foreigners Tribunal No. 8^th , Dhubri (Assam), in F.T. Case No. 8/145/GKJ/2016 and F.T. Case No. 2587/GKJ/2011, arising out of Ref. IMDT Case No. 4470/1998, thereby, declaring her to be a foreigner of post 25.03.1971 stream who has entered into India (Assam) without authority and valid documents.

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The learned counsel for the petitioner has submitted that apart from the documents, that were exhibited in his case, the petitioner had also handed over a copy of the “Draft Chitha” of a plot of land covered by Dag No. 180/60 and Dag No. 168/75/253 which is more fully described in Annexure-11 appended to an additional affidavit filed by the petitioner before this Court on 06.05.2019 but the said document was not produced before the learned Tribunal.

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In brief, the case of the petitioner is that on receipt of notice of the proceedings, the petitioner had appeared before the learned Tribunal and filed her written statement and examined herself as DW-1 and had exhibited the following documents :-

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a) Voter’s list of 1966 (Ext-1) of village 207 Nalia Part-II

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b) Voter’s list of 1970 (Ext-2) of village 207 Nalia Part-II

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c) Panchayat certificate dated 09.07.2015 (Ext-3)

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d) Voter’s list of 1994 (Ext-4)

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e) Ration Card No. 1839905 (Ext-5)

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f) Printed voter list of 2016 (Ext-6)

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g) Copy of Elector Photo Identity card of her son, namely, Matalep Sk (Ext-7)

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h) Photo Identity card of her son, namely, Sobhan Sk(Ext-8)

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i) Elector Photo Identity card of her son, namely, Ouarachand Ali (Ext-9)

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Moreover, the petitioner has also examined her projected brother, namely, Safar Ali as DW-2, who did not exhibit any documents. It was submitted that the learned Tribunal had discarded the documents exhibited by the petitioner on the ground that there is no documents for linkage of the petitioner with Ahammad Ali, her projected father and the learned Tribunal had opined that the exhibiting of the voters list without proving the contents thereof with the linkage

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to the petitioner cannot be accepted for proving the claim regarding citizenship of India and accordingly, by holding that as no supporting documents were found and the other documents pertained to beyond cut-off date of 25.03.1971, the said documents were not found sufficient to prove the petitioner to be a citizen of India and accordingly, she was declared to be a foreigner of post 25.03.1971 stream.

¶42

The learned counsel for the petitioner has asserted that the name of the petitioners father is Ahammad Ali and her mother’s name is Surmajan Bibi and their names appeared in the voters list of 1966 (Ext-1) and voters list of 1970 (Ext-2) both of village 207 Nalia Part-II under 35 Golakganj LAC. By referreing to this writ petition, it is submitted that the petitioner, due to poverty did not go to school and was married to one Ashiruddin Sk of the same village and thereafter, her name was recorded in the voters list of 1994 (Ext-4). In that regard, reliance has been placed on the Gaon Panchayat Certificate issued by the Secretary, Nalia Gaon Panchayat, counter signed by the Block Development Officer, Rupshi (Ext-3). It is also submitted that the testimony of the petitioner regarding the name of the parents and the grandfather of the petitioner was not challenged by the State by way of cross-examination and therefore, the unrebutted statement of the petitioner that she was the daughter of Ahammad Ali and Surmajan Bibi @ Surmadan Bewa and that her grandfather's name is Peeru Sk, established that the petitioner is a citizen of India and was born before 1966. It is stated that in the written statement, the petitioner has referred to the disclosure of six siblings, including herself, (1) Kanchan Bewa, (2) Joynal Abedin, (3) Mayan Ali, (4) Phulmala (deceased) and (5) Safar Ali.

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In support of the case, in the writ petition, the petitioner has referred to the Full Bench decision of this Court in the case of The State of Assam Vs.

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Moslem Mondal & Ors, 2013 (1) GLT 809, (Para-122.1/122.2) as well as the case of Sarbananda Sonowal Vs. The Union of India & Ors, 2007 (1) SCC 174, (para-55). Moreover, it is also pleaded that the Supreme Court of India in the case of Rofik & Anr Vs. Munshilal & Anr, 1981 (2) SCC 788, has held that the litigant should not suffer due to the fault of the engaged counsel to project that the petitioner is a victim partly because of the act of her engaged learned counsel. No other submissions were made by the learned counsel for the petitioner.

¶46

Per contra, the learned standing counsel for the FT and Border matters has supported the impugned opinion.

¶47

At the outset, we make a mention that the learned counsel for the petitioner, while making his submissions before this Court, has made a false statement, knowing it to be false by asserting that the copy of the “Draft Chitha” that is annexed to the additional-affidavit filed on 06.05.2019, was handed over to the learned counsel for the petitioner before the learned Foreigner's Tribunal. The Court had asked the learned counsel for the petitioner three times in course of hearing to state whether he stands by the submissions made at the Bar. Instead of withdrawing the said statement, the said false statement was further explained and re-asserted. Therefore, the Court is inclined to put on record that the certified copy of the “Draft Chitha” was applied for on 10.08.2017, and the certified copy was made over to the applicant on 03.10.2017. These dates are relevant because of the fact that the opinion by the learned Tribunal was rendered on 18.03.2017, and this writ petition was filed on 26.05.2017. Therefore, the said document was applied for and made over to the applicant on 03.10.2017, and thereafter it was filed along with the petitioner’s additional-affidavit that was filed on 06.05.2019. Therefore,

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the Court was inclined to put the learned counsel for the petitioner to notice as to why for making a false statement at the Bar and before the Court, knowing it to be false, why his matter should not be referred to the Bar Council of Assam, Nagaland etc. The reply having not been found satisfactory, the Court is inclined to direct the Registry to register as interlocutory application for the said issue, to be dealt with separately.

¶50

In the present case in hand, it is noticed that as per the Voters List of 1994, (Ext-4), the age of the petitioner is found to be 33 years which makes her date of birth sometime in the year 1961, and therefore the age of adult franchise at the relevant point of time was 21 years. However, there is no explanation as to why the name of the petitioner did not appear in any Voters List immediately after 1982, and her name had first appeared in the Voters List of 1994. The age of adult franchise was lowered to 18 years pursuant to the Constitution (Sixty First Amendment) Act, 1988. The certificate issued by the Secretary, Nalia Gaon Panchayat (Ext-3) was not proved by examining the author of the said document and therefore, Exhibit-3 cannot be said to have been duly proved in accordance with law. The DW-2 in his cross-examination has stated as follows :-

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"OP is my elder sister, regarding ascertain my sister I have not produce any documents with my evidence today."

¶52

As per the deposition of the DW-2 namely, Safar Ali, his age was 41 years as on 06.01.2017, and therefore, his year of birth will be in the year 1976, and therefore, the age of adult franchise being reduced to 18 years in 1988, yet the name of DW-2 appeared in the Voters List after 1997. However, no document has been proved by the petitioner to show that DW-2 is her brother. Therefore the link document (Ext-3) which is the certificate issued by the Gaon

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Panchayat, having not been proved in accordance with law, looses it's efficacy as a reliable, cogent and admissible evidence to prove the link of the petitioner with her projected father or projected brother (DW-2).

¶55

The stand of the learned counsel for the petitioner that the non-rebuttal of the evidence of the petitioner that she was the daughter of Ahammad Ali, son of Peeru Sk, having not been questioned in the cross-examination is a due evidence. In this regard, the Court would like to refer to the case of Bijoy Das Vs. The Union of India & Ors, 2018 (3) GLT 118. With regard to the case in Moslem Mondal & Ors Vs. The State of Assam, the petitioner has placed reliance on para-122.1 and 122.2. The said paragraphs are quoted below:-

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“122.1. The appellant in order to prove that she is an Indian citizen and not a foreigner examined two witnesses, namely, the appellant herself as well as the village Headman of village Kapoha. The appellant also proved 10 (ten) documents, which are marked as Exts. A to J. The appellant by proving the electoral rolls (Exts. B. C and D) could prove the names of her father and mother appeared in such rolls of 1966 and 1970 in respect of Jania LAC and thereafter her name appeared in the electoral roll of 1989 in respect of Baghbar LAC. The appellant also could prove the certificate issued by the village Headman (Ext. F) certifying that the appellant is the daughter of Saheb Ali. The appellant therefore proved that her father's name is Saheb Ali, whose name appeared in the electoral rolls of 1966 and 1970, which are relevant for the purpose of answering the reference made under the provisions of 1946 Act and the 1964 Order. Though the State has cross-examined the witnesses, there was absolutely no cross-examination relating to the claim of the appellant that Saheb Ali is her father whose name appeared in the electoral rolls of 1966 and 1950 in respect of Jania LAC. In the evidence adduced by the State the deposition of the S.I. of Police Enquiry Officers apart from examining the Ext. 1 report no rebuttal evidence also could be led by the State to demonstrate that Saheb Ali is not the father of the appellant, whose name appeared in the

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aforesaid electoral rolls.

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122.2 That being the position, the Tribunal has rightly passed the order dated 7.2.2009 opining the appellant not to be a foreigner within the meaning of 1946 Act. The said order passed by the Tribunal has to be accepted in view of the opportunity already granted by the writ appellate court by the aforesaid order to adduce evidence with a further direction to the Tribunal to pass necessary order, based on the evidence adduced by the parties. The writ appeal is therefore allowed. “

¶60

In the present case in hand, the petitioner has not been able to prove her linkage to her projected father, and there is also no pleading as to what happened to her projected parents after the name appeared in the Voter’s List of 1970 (Ext-2). There is no total absence of any pleading as to whether they arrived or not on the date on which they had expired. Therefore, the name of the petitioner having appeared in the voter’s list of 1994 falls under this prospect, cannot be accepted to be a due proof for the petitioner being able to establish her linkage with her projected parents and grandfather. According to the ratio laid down in the case of Moslem Mondal (supra), does not appear to help the petitioner in any manner. For the same reason, para-55 of the case of Sarbananda Sonowal (supra) also does not help the petitioner in any way. The petitioner places reliance on the decision laid down in the case of Rofik & Anr (Supra). In this case, neither the petitioner nor her learned counsel has not been able to satisfy the Court that the petitioner has suffered any wrongdoing on part of her engaged counsel.

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14. Therefore, the Court is unable to accept that the petitioner had been made a victim by any act on part of her engaged counsel. Apparently, the petitioner has not moved the appropriate authority having power to decide regarding, malpractice, if any, done by her engaged counsel. This Court is not

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an authority to decide as to whether her engaged counsel before the Foreigner’s Tribunal had done any act which has caused any prejudice to the petitioner. Therefore, the said case of Rofik & Anr. (supra) also does not help to espouse the cause of petitioner in any way. Accordingly, the Court is unable to find any prima facie fault in the opinion impugned in the present writ petition, which would vitiate the said opinion.

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15. This Court is conscious of the fact that in entertaining the challenge to the impugned opinion dated 18.03.2017, the Court is exercising certiorari jurisdiction and therefore, unless gross illegality can be demonstrated on the face of the record, and the Court is prohibited from substituting its wisdom upon the opinion rendered by the learned Tribunal. Accordingly, this writ petition fails and the same is dismissed.

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There shall be no order as to costs.

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17. Registry shall register an interlocutory application in terms of the directions contained in this order and list the same after the same is registered in connection with this disposed of writ petition.

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18. The records of the Tribunal be returned along with the copy of the order and to be made a part of the record.

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19. The consequences of the opinion would follow .

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Comparing Assistant

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JUDGE JUDGE

Madhu Mala Bibi v. the Union of India and 5 Ors.

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Madhu Mala Bibi v. the Union of India and 5 Ors.

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