Monuwara Begum Vs the Union of India and 7 Ors.

learned CGC appearing for respondent no.1; Mr. A. Kuli, learned counsel, appearing on behalf of Mr. A.I. Ali, learned standing counsel for respondent no.2; Mr. G. Sarma, learned standing counsel for respondent nos.3, 4 and 6 to 8; and Mr. H.K. Hazarika, learned Govt. Advocate for respondent no.5.

¶34

By filing this writ petition under Article 226 of the Constitution of India, the petitioner, namely, Musstt. Monuwara Begum, daughter of Late Abdul Noor, wife of Md. Moin Uddin, resident of village- Paschim Jamunagaon, under Murajhar P.S., Dist. Hojai, Assam, has challenged the opinion dated 20.05.2019, passed by the learned Member, Foreigners Tribunal, Nagaon No.7^th , at Lanka, Hojai, in F.T./L/Case No. 1031/2016, declaring him to be a foreigner entering into Assam from the specified territory after 25.03.1971, without any valid documents.

¶35

The petitioner has projected in her written statement that Abdul Noor is her father and Fulema Begum is her mother; Late Aklu Mia is her grandfather and Aklima Bibi is her grandmother. It is projected that the names of her father, Abdul Noor and step-mother, Aftarun Nessa appeared in the voters list of 1966 and 1970 of Village-Saharan under the No. 93 Hojai LAC. It has also been projected that the name of the father and step-mother of the petitioner appeared in voters list of 1989, but their age was incorrectly mentioned as 40 and 37 years instead of 54 and 47 respectively and her mother’s name wrongly appeared as Kulema Begum instead of Fulema Begum. She had cast her vote in her parental home in the year 1989. In the year 1992, she was married with Moin Uddin, son of Junab Ali of Village- Paschim Jamunagaon and after marriage, she had started to reside at her matrimonial home. The name of her father appeared in the voter list of 1997, and her mother’s name appeared as Fulema Dey instead of Fulema Begum and her age was also wrongly recorded.

¶36

Page No.# 4/12

¶37

Her father had landed property in village Saharan and he had expired in the year 2002 in village- Saharan.

¶38

In support of her defence, the petitioner had examined two witnesses, including herself as (DW-1) and one Amir Uddin Choudhury was examined as DW-2. In her evidence-on-affidavit, the petitioner (DW-1) had reiterated the statements made in her written statement. Further she had stated her father had a brother, Abdul Latif. She had exhibited the following documents, viz., voter list of 1966, containing the names of Abdul Noor, her projected father and Aftarun Nessa, her projected stepmother (Ext.1); voter list of 1970, containing the names of Abdul Noor, her projected father and Aftarun Nessa, her projected grandmother (Ext.2); although the petitioner had stated that the voter list of 1989 contained her name along with her projected father and projected mother and reiterated that the age of her projected father and mother was wrongly mentioned, but her evidence-on-affidavit does not contain marking of the said document as an exhibit. However, during her examination by the learned Tribunal, the petitioner had referred to the said voter list as (Ext.3). The petitioner had also exhibited the following documents, viz., voter list of 1997, containing the name of her projected father and mother (Ext.4); jamabandi copy of her father’s land (Ext.5); certificate issued by Secretary, Joynagar Gaon Panchayat (Ext.6); certificate issued by Gaonburah of villageSaharan (Ext.7). She had also stated that at the time of transferring her name in the voter list at her matrimonial home, her name was marked with letter ‘D’ and therefore, she could not cast her vote. She claimed that her parents and grandparents were citizens of India had has no connection with Bangladesh.

¶39

In her cross-examination, the petitioner had stated that her parents were born at village- Saharan and Udmari, under Murajhar P.S.

¶40

Page No.# 5/12

¶41

respectively, stated that her age was 6/7 years when her grandmother had died and she was 16 years when her grandmother died. Her grandfather had no brothers or sisters. Her father had a brother, late Abdul Latif, who had died two years back and a sister, Moriom Nessa. Fulema Begum was her mother, late Aftarun Nessa was her step-mother. She has two brothers and four sisters, namely, Bilal Uddin, her own brother, and Khalida Begum and Marjana and she has one step-brother and two step-sisters, namely, Hafsa Begum, Aftar Uddin, and Joytun Begum. She had also stated that her brothers were residing at Village- Saharan in separate household and her sister being appointed, is residing at Charing. She had read upto Class-III in Saharan Muktab School. In the year 1992, her marriage was solemnized with Moin Uddin, son of late Junab Ali and Gulesa Begum. She has three children, Razia Begum (23), Rahul Alom (22) and Sabana Begum (18).

¶42

The learned Tribunal, upon examining the entries contained in the exhibited documents, held that the discrepancies in the age or projected parents and variations in the name of the projected mother of the petitioner, when the name of the projected mother appears for the first time in the voter list at the age of 37 years in 1989 as Kulekha Begum and under a totally different name of Phulema Dey in the voter list of 1997, to make her evidence not reliable. The petitioner had examined Amir Uddin Choudhury, who had stated that his father was the cousin brother of the petitioner’s grandfather. The learned Tribunal had disbelieved his evidence in the absence of pleading or evidence by the petitioner (DW-1) that DW-2 was related to her. The post 1971 documents were discarded, having no relevancy to decide the case. Accordingly, relying on the case of Bhanwaroo Khan v. Union of India, (2002) 4 SCC 346, the learned Tribunal had held that enlistment of the names in the voter list and long

¶43

Page No.# 6/12

¶44

stay in the Country does not confer citizenship. Resultantly, not finding any merit in the defence, the learned Tribunal held the petitioner to be a foreigner of post 25.03.1971 stream.

¶45

The learned counsel for the petitioner had submitted that the learned Tribunal had disregarded admissible evidence and disbelieved the evidence of DW-1 and DW-2 only because of a few discrepancies in the name and age of the persons related to the petitioner. It has been submitted that the petitioner was not the author of the voter list or any of the exhibited documents and therefore, the petitioner cannot be deprived of her Indian citizenship merely because of mistake on part of the concerned officials. Accordingly, it was submitted that the impugned opinion was not sustainable on facts and in law.

¶46

Per contra, the learned standing counsel for the FT and Border matters, has made his submissions in support of the impugned opinion.

¶47

Before examining the pleadings and evidence available on record, it must be remembered that the jurisdiction of this Court in exercising certiorari jurisdiction is very limited. While exercising certiorari jurisdiction under Article 226 of the Constitution of India the High Court ought not to substitute its view over opinion of the learned Foreigners Tribunal, which is not found to be vitiated for any error whatsoever. In the case of Central Council for Research in Auyrvedic Sciences v. Bikartan Das, 2023 INSC 733: (2023) 0 Supreme(SC) 763, the scope of interference has been reiterated. Paragraph 77 thereof is quoted below:-

¶48

The purpose of certiorari, as we understand, is only to confine the inferior tribunals within their jurisdiction, so as to avoid the irregular exercise, or the non-exercise or the illegal assumption of it and not to correct errors of finding of fact or interpretation of law committed by them in the exercise of powers vested in them under the statute. The accepted rule is that where a Court has jurisdiction it has a right to decide every question which crops up in the case and whether its decision is correct or otherwise, it is bound to stand until reversed by a

¶49

Page No.# 7/12

¶50

competent Court. This Court in G. Veerappa Pillai v. Messrs Raman and Raman Ltd. Kumbakonam, Tanjore District and Others, (1952) 1 SCC 334 observed:

¶51

“26. Such writs as are referred to in Article 226are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made.”

¶52

On the point of when certiorari jurisdiction ought to be invoked, it would also be relevant to refer to paragraph nos. 20 to 23 of the case of Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233: (1954) 0 Supreme(SC) 175, which is quoted below:-

¶53

20. In this connection, reference must be made to the decision in R. v. Governor of Wormwood Scrubs Prison, ex p Boydell [R. v. Governor of Wormwood Scrubs Prison, ex p Boydell, (1948) 2 KB 193 (DC)] . There, the applicant was condemned by a court martial sitting in Germany, and in execution of its sentence, he was imprisoned in England. He applied for a writ of habeas corpus, and contended that the military court had no jurisdiction over him. The Court agreed with this contention, and held that the conviction was without jurisdiction and accordingly issued a writ of habeas corpus. But as he was in the custody of the Governor of the Prison under a warrant of conviction, unless the conviction itself was quashed no writ of habeas corpus could issue. In these circumstances, the Court issued a writ of certiorari quashing the conviction by the court martial. It is to be noted that the military court was an ad hoc body, and was not in existence at the time of the writ, and the respondents to the application were the Governor and the Secretary for War. The fact that the court martial was dissolved was not considered a bar to the grant of certiorari.

¶54

21. Our attention has also been invited to a decision of this Court in Lloyds Bank Ltd. v. Indian Staff Assn. [Lloyds Bank Ltd. v. Indian Staff Assn., (1953) 1 SCC 770 : AIR 1956 SC 746] In that case, following the decision in Clifford & O'Sullivan, In re [Clifford & O'Sullivan, In re, (1921) 2 AC 570 (HL)] the Calcutta High Court had

¶55

Page No.# 8/12

¶56

refused applications for the issue of writs of certiorari and prohibition against the decision of the All India Industrial Tribunal (Bank Disputes) on the ground, amongst others, that the Tribunal had ceased to exist. In appeal to this Court against this judgment, it was contended for the appellant that on a proper construction of Section 7 of the Industrial Disputes Act, the Tribunal must be deemed to be not an ad hoc body established for adjudication of a particular dispute but a permanent tribunal continuing “in a sort of suspended animation” and “functioning intermittently”. This Court agreeing with the High Court rejected this contention. But the point was not argued that certiorari could issue even if the Tribunal had become functus officio, and no decision was given on the question which is now under consideration.

¶57

22. Looking at the substance of the matter, when once it is held that the intention of the Constitution was to vest in the High Court a power to supervise decisions of tribunals by the issue of appropriate writs and directions, the exercise of that power cannot be defeated by technical considerations of form and procedure. In T.C. Basappa v. T. Nagappa [T.C. Basappa v. T. Nagappa, (1954) 1 SCC 905 : AIR 1954 SC 440] , this Court observed : (SCC p. 913, para 6)

¶58

“6. … In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of “certiorari” in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law.”

¶59

It will be in consonance with these principles to hold that the High Courts have power under Article 226 to issue writs of certiorari for quashing the decisions of Election Tribunals, notwithstanding that they become functus officio after pronouncing the decisions.

¶60

23. We are also of opinion that the Election Tribunals are subject to the superintendence of the High Courts under Article 227 of the Constitution, and that superintendence is both judicial and administrative. That was held by this Court in Waryam Singh v. Amarnath [Waryam Singh v. Amarnath, (1954) 1 SCC 51 : 1954 SCR 565] , where it was observed that in this respect Article 227 went further than Section 224 of the Government of India Act, 1935, under which the superintendence was purely administrative, and that it restored the position under Section 107 of the Government of India Act, 1915. It may also be noted that while in a certiorari under Article 226 the High Court can only annul the decision of the Tribunal, it can, under Article 227, do that, and also issue further directions in the matter. We must accordingly hold that the application of the appellant for a writ of certiorari and for

¶61

Page No.# 9/12

¶62

other reliefs was maintainable under Articles 226 and 227 of the Constitution.”

¶63

On a perusal of the written statement filed by the petitioner before the Foreigners Tribunal, it is seen that the petitioner has not pleaded her date or year of birth. She has divulged the name of Late Aklu Mia as her projected grandfather and Aklima Bibi as her projected grandmother. She has stated that Abdul Noor is her projected father and Aftarun Nessa, is projected as the first wife of her projected father and her stepmother. She has stated that Fulema Begum, second wife of her projected father as her projected mother. She has claimed to be born and brought up at village- Saharan under Murajhar P.S. She has also stated that her name appeared as voter along with her projected parents in the voter list of 1989 of village- Saharan and regarding the incorrect description of her mother’s name in the voter list of 1989 as well as regarding wrong description of age of her projected parents. Thus, the petitioner has not disclosed regarding any other member of the family of her grandparents and parents, including her siblings.

¶64

In the case of Rashminara Begum v. Union of India & Ors., 2017 (4) GLT 346, this Court has held that material facts pleaded would have to be proved by adducing cogent and admissible evidence. In the case of Saru Sheikh v. Union of India & Ors., (2017) 4 GLR 295, this Court had held that material facts pleaded would have to be proved by adducing cogent and admissible evidence.

¶65

Thus, it is now to be seen as to whether the petitioner has been able to show her link with Abdul Noor and Fulema Begum of Village- Saharan, which is projected through the voter list of 1989 (Ext.3). The persons whose names appear in the voter list of 1966 and 1970 are Abdul Noor and Aftarun

¶66

Page No.# 10/12

¶67

Nessa. The petitioner has not stated what happened to Aftarun Nessa after 1970. If the petitioner was aged 18 years in 1989, she was born in the year 1971, but there is no explanation as to why the name of her projected mother does not appear in the voter list of 1970 (Ext.2). The petitioner has annexed a photocopy of the certified copy of the voter list of 1985 (Annexure-3) of villageSaharan, which was not exhibited before the learned Tribunal. It contains the following names, viz., (Sl. 521) Noor, son of Abdul (age 35); (Sl. 522 Salema Begum, wife of Noor (age 27); and (Sl. 523) Aklima Begum, wife of Aklu (age 60). Thus, the name of the projected step-mother, whose existence was shown in the voter list of 1966 and 1970 is not there in 1985 and instead the name of one Salema Begum appears as wife of Noor. The petitioner has exhibited land revenue record, being certified copy of jamabandi (Ext.5), but the learned counsel for the petitioner has not been able to show that the name of the petitioner was mutated vide mutation order dated 09.04.1985, where the names of Abdul Noor, Abdul Latif, Musstt. Moimun Nessa and Musstt. Akila Bibi has been substituted in lieu of Aklu Mia, the pattadar. Though the petitioner had exhibited a certificate issued by Secretary, Joynagar Gaon Panchayat (Ext.6) and certificate issued by Gaonburah of village- Saharan (Ext.7), but the authors of the said two documents were not examined along with official records.

¶68

One Amiruddin Choudhury was examined as DW-2, but his name has not been disclosed in the written statement of the petitioner. The said witness has not exhibited any document which shows that his father was the brother of the grandfather of the petitioner. Therefore, the sudden appearance of the said witness does not give credence to the claim of the petitioner, moreso, when she has disclosed about the existence of several members of her projected father’s family in her cross-examination. In her cross-examination, the

¶69

Page No.# 11/12

¶70

petitioner has claimed to have studied upto Class-III at Saharan L.P. School, but no document was produced to disclose her age and name of her projected father. Moreover, by not exhibiting any other document between 1970 and 1989, the petitioner has also failed to establish that her parents had ordinarily resided in the State of Assam between the said period, as continuous stay in the Country is an essential requirement under Section 6-A(2) and 6-A(3) of the Citizenship Act, 1955, applicable for the State of Assam.

¶71

The learned counsel for the petitioner had cited the case of Md. Jaffar Ali @ Jafar Ali v. The Union of India & Ors., W.P.(C) 1003/2020, decided on 27.04.2023, wherein this Court, on observing that as grandfather, father and son are in the same village in three voter list, the matter was remanded back to the learned Tribunal to determine whether the Jaffar Ali of Village- N.K. Darranga and Jafar Ali of village- Chiknibari are one and same person. In this case, the said ratio would not apply because of the fact that all common names do not appear in all the exhibited voters lists. Therefore, it was the burden of the petitioner to prove that she is a citizen of India. The petitioner, in this case, did not apply before the learned Foreigners Tribunal to file additional written statement or to lead further evidence. Therefore, the matter is remanded by directing the authorities to make a fresh enquiry, then it would amount to allow the petitioner to fill-up the lacuna in her defence, which is beyond the powers permissible to be exercised under certiorari jurisdiction, for which the case of Bikartan Das (supra) and Hari Vishnu Kamath (supra) have been referred to.

¶72

Therefore, in light of the discussions above, the Court does not find any fault with the finding recorded by the learned Tribunal that the petitioner has failed to discharge her burden as per the mandate of Section 9 of the Foreigners Act, 1946.

¶73

Page No.# 12/12

¶74

Consequently, the Court does not find that the impugned opinion rendered by the learned Tribunal is vitiated by any jurisdictional error or that there was any failure of giving opportunity of hearing to the petitioner. It could not be shown that the learned Tribunal had failed to appreciate any pleadings or evidence or took into consideration irrelevant materials as to reject the evidence of the petitioner. Therefore, as the Court is exercising certiorari jurisdiction and not appellate jurisdiction, no case is made out for substituting the opinion rendered by the learned Tribunal with the view of the Court. This is not a case where the learned Tribunal had refused to admit admissible evidence or that its finding is dehors the evidence on record.

¶75

Hence, this writ petition fails and the same is dismissed, leaving the parties to bear their own cost. The consequences of the impugned opinion dated 20.05.2019, passed by the learned Member, Foreigners Tribunal, Nagaon No.7^th at Lanka, Hojai, in F.T./L/Case No. 1031/2016, declaring him to be a foreigner entering into Assam from the specified territory after 25.03.1971, without any valid documents, would follow.

¶76

The Registry shall send back the Tribunal’s record along with a copy of this order, to be made a part of the record by the learned Tribunal for future reference.

¶77

JUDGE JUDGE

¶78

Comparing Assistant

Monuwara Begum v. the Union of India and 7 Ors.

Case brief

What is this about?

What did the court decide?

Monuwara Begum v. the Union of India and 7 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Md. Mazibur Rahman Vs the Union of India and 6 Ors.

Mohibul Islam Vs the Union of India and 6 Ors.

Jaan Ali Vs the Union of India and 6 Ors.

MD Harjat Ali @ Hazrat Ali @ MD Hajarat Ali Vs the Union of India and 7 Ors.

Alimuddin Ali Vs the Union of India and 5 Ors.

Entajul Ali Vs the State of Assam and 4 Ors.