Firoja Khatun Vs the Union of India and 5 Ors.

Advocate for the Petitioner : MR H R A CHOUDHURY, MD. A KUDDUS,MR. J M SULAIMAN Advocate for the Respondent : ASSTT.S.G.I., MR J PAYENG,MR. D BARUAH,MS. A VERMA

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BEFORE

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HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE MALASRI NANDI

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JUDGMENT & ORDER (CAV)

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Date : 10-03-2025

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( M. Nandi, J )

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Heard Md. A. Kuddus, learned counsel for the petitioner. Also heard Ms. K. Phukan, learned CGC; Mr. G. Sharma, learned Standing Counsel, FT Matters; Mr. M. Islam appearing on behalf of Mr. A.I. Ali, learned counsel for ECI and Mr. H.K. Hazarika, learned Government Advocate.

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The petitioner has preferred this application under Article 226 of the Constitution of India challenging the opinion of the learned Member, Foreigners’ Tribunal No.2, Dhubri, Assam in F.T. Case No.1903/F/2017, arising out of Police Reference Case No.1154/98, wherein the petitioner was declared as a foreigner.

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On receipt of the notice, the petitioner appeared before the Tribunal and filed her written statement wherein she stated that she was born at Village - Airanjongla Part III under Dhubri Revenue Circle where her father Sultan Ali @ Sultan Sk. @ Sultan Ahmed is a permanent resident. She got married to Md.

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Ajibar Rahman of Village – Bhagnir Kanda under Dhubri district.

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The petitioner also stated in her written statement that she studied in the Char Airanjongla Abad Ali Mollah M.E Madrassa up to class VII in the year 1966 and as per admission register, her date of birth is 06.10.1982. It is also stated that the father of the petitioner was included in the NRC of 1951 along with her grandfather Md. Male Ahmed and grandmother Sowa Khatun and uncles and aunts under House No.1 at village Darogar Alga. The further case of the petitioner is that the name of her father appeared as voter in the Electoral Roll of 1966, 1970, 1989 and 1997 along with her uncles and aunts under the same 33 Dhubri LAC in the village Airanjongla. The name of her mother Rabiya Bibi was included in the year 2017.

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The written statement of the petitioner also discloses that the father of the petitioner possessed landed property at Airanjongla Village and one periodic Khiraj Lease was issued in favour of her father. However, during verification of Electoral Roll in the Village - Bhagnir Kanda under Dhubri district, the present petitioner has been identified as doubtful voter.

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During trial before the Tribunal, the petitioner examined three witnesses including herself. The Tribunal after hearing the parties and on the basis of the documents submitted by the petitioner has held that the petitioner is unable to establish her linkage with an Indian parent relatable to a period prior to 25.03.1971. Thus, the OP has failed to discharge her burden u/s 9 of the Foreigner’s Act, 1946 to prove that she was not a foreigner but a citizen of India. Hence, this writ petition for reviewing the order of the Tribunal.

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The learned counsel for the petitioner has argued that the petitioner has studied in a school namely Char Airanjongla Abad Ali Mollah M.E Madrassa till class VII and the headmaster of the said school issued a certificate to that effect vide Ext. 3 which reflects that the petitioner was born on 06.10.1982.

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It is further submitted that the petitioner got married to one Md. Ajibar Rahman of Village – Bhagnir Kanda in the year 1966 and since then, she has been living along with her husband in the said locality. To prove the marriage, the petitioner has submitted a Kabinnama vide Ext.1 & 2 .

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According to the learned counsel for the petitioner, to prove her citizenship, the petitioner has also produced the linkage certificate i.e. the voter lists of her parents on different years vide Ext. 5 & 6 - voter lists of 1966 and 1970, Ext. 7 - voter list of 1989, Ext. 8 - voter list of 1997, Ext. 9 - voter list of 2017. In spite of such relevant documents, the petitioner was declared as foreigner of post 25.03.1971 which is palpably perverse and liable to be set aside.

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Another point raised by learned counsel for the petitioner is that as per order of the Tribunal, further enquiry was made by the O/C Fakirganj Police Station on the issue of citizenship of the petitioner. It was reported by the Officer-in-Charge that after proper verification and the documents submitted by the petitioner, he came to the conclusion that the petitioner Firoja Khatun, wife of Ajibar Rahman of village Bhagnir Kanda, under Dhubri district and Firoja Khatun, wife of Ajibar Rahman of village - Barkalia Shershow of the same district is one and the same person and she is an Indian citizen as per documents. Situated thus, the learned counsel for the petitioner prays to set

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aside the order of the Tribunal.

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In response, learned Standing Counsel, FT matters, by referring the judgment of Hamida Begum Vs. Union of India vide WP(C) 2294/2016, has submitted that the date of birth recorded in school certificate or school register would have no evidentially value unless the person who made the entry or who gave the information relating to the date of birth is examined. In the said case, this Court has also referred the judgment of Hon’ble Supreme Court vide Birad Mal Singhvi Vs. Anand Purohit, reported in 1988 (Supp.) SCC 604 . Hence, the learned Standing Counsel, FT matters has prayed that the school certificate submitted by the petitioner has no value in the eye of law.

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It is further submitted that the voter lists submitted by the petitioner did not prove the linkage between the petitioner with her projected mother Rabiya Bibi and father Sultan Ali. Further the opposite party and her father (DW-2) did not disclose their age either in the written statement or in their evidence which create some doubt regarding citizenship of the petitioner. Accordingly, the learned counsel for the respondents prayed for dismissal of the writ petition.

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We have considered the submissions of the learned counsels for the parties and we have also perused the records including the documents available thereon.

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Proceeding to the marriage certificate first vide Ext. 1 & 2 , it reveals that Ext. 1 is the document issued by the Secretary, Bhasanichar Gaon Panchayat; which bears counter signature of the B.D.O, Gauripur Developmemt Block on 21.07.2015, certifying that the petitioner got married to one Ajibar Rahman of

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Bhagnir Kanda Village but the date of marriage and age of the petitioner has not been mentioned in Ext. 1.

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From Ext. 2 , which is the Kabinnama i.e. marriage certificate between the petitioner and her husband Ajibar Rahman, wherein it is reflected that the petitioner was a minor on the date of her marriage i.e. on 16.08.1996. There is no reflection in Ext. 2 that consent of the petitioner was taken when marriage was solemnized. The column for taking the signatures of the guardians of the bride and groom shows blank in Ext. 2 . As it appears that the petitioner was minor at the time of her marriage and no valid consent was taken from her for performing the said marriage, the documents vide Ext. 1 & 2 have no value in the eye of law.

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To prove her age, the petitioner has produced one transfer certificate vide Ext. 3 which reveals that the petitioner was a student of Char Airanjongla Abad Ali Mollah M.E Madrassa of Dhubri and her date of birth is 06.10.1982. She studied in the said school up to class VII. But the person who issued Ext. 3 was not examined by the petitioner to prove the contents of the said document. As per judgment of the Birad Mal Singhvi (Supra) , the Hon’ble Supreme Court has held that in absence of evidence of such person, entries contained in school register or certificate would have no probative value. It has also been held that it is necessary for examination of the parents or the person on whose information the entry might have been made and in the absence of the connecting evidence, documents produced to prove the age of the certificate holder or other entries would have no evidentiary value. In the instant case, neither the Head Master of the Madrassa deposed before the Tribunal to prove Ext. 3 nor the school admission register was produced before

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the Tribunal to prove the contents of Ext. 3 . Hence, Ext. 3 is not considered to be a valid document to prove the age of the petitioner.

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Regarding voter lists of 1966, 1970, 1989, 1997 and 2017 vide Ext. 5 to 9, it reveals that in Ext. 5 , the name of Sultan Sk, son of Male Ahammad appeared, projected father of the petitioner. Vide Ext. 6 - 1970 voter list, the name of Sultan Sk, son of Malya Ahammed appeared. In Ext.7 - 1989 voter list, the name of one Sultan Ali, son of Malya Munshi appeared. In 1997 voter list vide Ext. 8, name of Sultan Ali, son of Male Ahammad Munshi appeared. In 2017 voter list vide Ext. 9, name of Sultan Ali, son of Maleh Ahammad Munshi and projected mother of the petitioner Rabiya Bibi, wife of Sultan Ali appeared when she was 61 years of age. It is interesting to note that though as per written statement of the petitioner, her parents regularly casted vote, however for the first time, the name of projected mother of the petitioner appeared in the voter list of 2017 at the age of 61 years. There is no explanation from the side of the petitioner why she was unable to produce any earlier voter list of her mother along with her father Sultan Ali. However, on perusal of such documents vide Ext. 5 to 9 , it is difficult to hold that the petitioner is the daughter of Sultan Ali and Rabiya Bibi.

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Except the petitioner, two other witnesses were also examined before the Tribunal vide DW-2, Sultan Ali, projected father of the petitioner and DW-3 (Ajibar Rahman), husband of the petitioner. To some extent, DW-2 and 3 have reiterated the same thing whatever stated by the petitioner in her evidence-onaffidavit. There is no effective cross-examination on the side of the State except the denial through suggestion.

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Section 9 of the Foreigners’ Act, 1946, regarding burden of proof is basically on the Principle underlying Section 106 of the Evidence Act. In the case of West Bengal Vs. Meer Mohd. Umar, reported in (2000) 8 SCC 382 , it was held that the legislature engrafted special rule in Section 106 of the Evidence Act to meet certain exceptional cases in which not only it would be impossible but disproportionately difficult for the prosecution to establish such facts which are specially and exceptionally within the exclusive knowledge of the accused and which he could prove without difficulty or inconvenience. This principle was reiterated in Sanjai @ Kaka Vs. State NCT of Delhi, reported in (2001) 3 SCC 190 and Ezhil Vs. State of Tamil Nadu, AIR 2002 SC 2017 .

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As has been held by the Apex Court in Sarbananda Sonowal Vs. Union of India, reported in AIR 2005 SC 2120 , “there is good and sound reason for placing the burden of proof upon the person concerned who asserts to be citizen of a particular country. In order to establish one’s citizenship, normally he may be required to give evidence of his date of birth, place of birth, name of his parents, their place of birth and citizenship. Sometimes the place of birth of his grandparents may also be relevant u/s 6 A (1) (d) of the Citizenship Act. All these facts would necessarily be within the personal knowledge of the person concerned and not of the authority of the State. As per provisions of Section 9 of the Foreigners’ Act, 1946, the burden of proof that he is an Indian citizen is on the proceedee.”

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Reverting to the case in hand, the learned Tribunal appreciating the evidence on record has held that the petitioner to be foreign national who illegally entered Assam after the cutoff date i.e. 25.03.1971. Such findings of fact cannot be interfered with exercising writ jurisdiction unless it is shown to be

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a perverse finding or the finding being not based on the evidence on record. The writ court exercising extra ordinary jurisdiction under Article 226 of the Constitution of India cannot sit on appeal over the findings of fact recorded by the Tribunal.

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Needless to say that this Court exercising its jurisdiction under Article 226 of the Constitution of India cannot re-appreciate the evidence produced before the Tribunal and on the basis of such re-appreciation of evidence arrived at a finding different from that recorded by such Tribunal. The settled and laid down principle is that a question of fact once decided by the Tribunal on the basis of evidence on record, it is not appropriate for the High Court under Article 226 to re-appreciate the evidence and come to a different conclusion.

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Keeping in mind the above principles, it is to be seen as to whether the findings arrived at by the Tribunal on the basis of evidence on record can be said to be perverse or devoid of appreciation of evidence on record or there is any error of law which has apparent on the face of the record. It is a well established principle that a finding of fact cannot be challenged under Article 226 on the ground that the evidence before the Tribunal was insufficient or inadequate to sustain the findings, as because the writ court is not a court of appeal. So also, errors in appreciation of documents or affidavits or error in drawing inferences or omission to draw inferences; in other words, a court of appeal only can examine and correct the errors, are not amenable to correction in a certiorari proceeding. But if it is shown that in recording the said findings, the Tribunal had erroneously refused to admit admissible and material evidence or had erroneously admitted inadmissible evidence which had influenced the impugned findings, the same can be assailed in a writ petition.

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Coming to the submission of learned counsel for the petitioner that on the direction of the Tribunal, the Officer-in-Charge of Fakirganj Police Station conducted enquiry and submitted his report stating that as per documents submitted by the petitioner, she is an Indian Citizen.

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We have perused the relevant order passed by the Tribunal dated 21.03.2018, from which it reveals that a competent E.O to be appointed by the Superintendent of Police (B), Dhubri to ascertain whether the petitioner i.e. Firoja Khatun, wife of Ajibar Rahman of village 181 Barkalia Shershow and Firoja Khatun, wife of Ajibar Rahman of village - Bhagnir Kanda is one and the same person.

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On the basis of the direction of the Tribunal, Officer-in-Charge, Fakirganj P.S submitted a report dated 16.04.2018 which is reproduced as follows –

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“ After completion of verification period, I have found as per documents that the OP Firoja Khatun, W/O Ajibar Rahman village – Bhagnir Kanda, P.S – Fakirganj, Dist.- Dhubri (Assam) and Firoja Khatun, W/O Ajibar Rahman village – Barkalia Shershow , P.S – Fakirganj, Dist.- Dhubri (Assam) is the same and one identical person and also I have found village – Bhagnir Kanda falls under Barkalia Shershow revenue village. She is an Indian citizen as per documents…”

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After going through the report of the O/C, Fakirganj Police Station, it discloses that he has exceeded his power to declare the petitioner as an Indian citizen. The Superintendent of Police (B), Dhubri was directed to appoint one competent Police Officer to ascertain the identity of the petitioner. The O/C,

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Fakirganj P.S declared the citizenship of the petitioner to place himself as the Member of the Foreigners’ Tribunal, which is not permissible in the eye of law.

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The records reveal that by filing petition no.2082 dated 21.03.2018, the petitioner had prayed for calling for a police report. Accordingly, by an order dated 21.03.2018, the prayer was allowed and direction was issued to the S.P (Border), Dhubri, to produce a police verification report as regards the name and identity and address and village/revenue village of the petitioner and her husband. Thereupon, a police verification report dated 16.04.2018 was submitted. The said report was made a part of record vide order of the learned Tribunal dated 18.04.2018. However, for reasons best known to the petitioner, she has not taken any steps to prove the said police report dated 16.04.2018, or its contents. Therefore, the Court is constrained to hold that the said police report does not help the petitioner in any manner whatsoever.

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The records have revealed that the reference against the petitioner was on the basis of the Verification Report of E.R.O, South Salmara LAC. The learned Tribunal on the basis of the materials available on the record has held that -

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“ The petitioner was unable to establish her linkage with an Indian parent relatable to a period prior to 25.03.1971 which is the cut-off date for identification of foreigners in the State of Assam as per Section 6 (A) of the Citizenship Act, 1955, as amended. The narrative presented by the respondent (OP) suffers from multiple contradictions and omission rendering the same as highly suspected and wholly improbable. Thus, the OP has failed to discharge her burden u/s 9 of the Foreigners’ Act, 1946 to prove that she was not a foreigner but a citizen of India….”

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As has been discussed by the learned Tribunal in the impugned opinion, the case projected by the petitioner before the Tribunal is that she was born on 06.10.1982 and studied in the Char Airanjongla Abad Ali Mollah M.E Madrassa which she has failed to prove. The petitioner could not produce any voter list of her own showing her name along with her any relatives or husband and she was declared as “D Voter”. The learned Tribunal has also appreciated the oral testimony of the DW-1, 2 and 3. As to what evidence adduced by the DW-2 and 3 referred to above do not help the case of the petitioner to prove that she is an Indian citizen by birth.

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In the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal, reported in (2003) 8 SCC 745 , it was held as follows –

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“ The legal position is not in dispute that mere production and marking of a document as Exhibit by the Court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the evidence of those persons who can vouchsafe for the truth of the facts in issue.”

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Like any other document, mere production and marking of a document may only prove that a document which contains an order in writing and the signature has come into existence. Ordinarily execution of a document is established by proving the handwriting and signature in the document. It is primarily proved by examining the person who executed or created the document by writing and signing in the same. When such examination is not possible, execution can be proved by examining a person who saw the document being written and signed. In the case in hand, the petitioner though exhibited the documents but has failed to prove the contents of the same. Needless to say that the contents of the documents cannot be proved by merely

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filing in a Court.

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On perusal of the impugned opinion in reference to the evidence on record, it cannot be said to be a case of any wrong appreciation of evidence or record of perverse finding opposed to the evidence on record. Above being the position, this Court by exercising writ jurisdiction, cannot interfere with the same.

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Situated thus, we do not find any merit in the writ petition. Accordingly, the writ petition is dismissed. There shall be no order as to costs.

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With the above observation, the writ petition is disposed of.

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Transmit the case records to the Tribunal.

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JUDGE JUDGE

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Comparing Assistant

Firoja Khatun v. the Union of India and 5 Ors.

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Firoja Khatun v. the Union of India and 5 Ors.

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