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Page No.# 1/7 GAHC010192682017
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C) 583/2017 1:GULBHAN BEGUM @ GUL BHAN BIBI @ GUL BON BIBI @ GULFAN NESSA D/O. KASHIM SHEIKH @ KASHEM SK., R/O. VILL.- TENTONPUR, P.S. ABHAYAPURI, DIST. BONGAIGAON, ASSAM. VERSUS 1:THE UNION OF INDIA and 3 ORS. REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, SHASTRI BHAWAN, NEW DELHI. 2:THE STATE OF ASSAM TO BE REPRESENTED BY THE COMMISSIONER and SECRETARY TO THE GOVT. OF ASSAM HOME DEPTT DISPUR GUWAHATI- 06. 3:THE DEPUTY COMMISSIONER BONGAIGAON P.O. and DIST. BONGAIGAON ASSAM. 4:THE SUPERINTENDENT OF POLICE B BONGAIGAON P.O. and DIST. BONGAIGAON ASSAM Advocate for the Petitioner : DR.B Ahmed. S.R. Barbhuiya, N. Haque, M. Hussain. Advocate for the Respondent : U.K. Nair, Sr. Advocate, A. Kalita. Date of hearing:- 27.02.2018 Date of Judgment:- 27.02.2018
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BEFORE HONBLE MR. JUSTICE UJJAL BHUYAN HON BLE MR. JUSTICE NELSON SAILO JUDGMENT & Order (Oral)
(Ujjal Bhuyan,J)
Heard Mr. M. Hussain, learned counsel for the petitioner and Mr. U.K. Nair, learned Senior Special counsel, FT. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 23.09.2016 passed by the Foreigners Tribunal, Bongaigaon No. 2 at Abhayapuri in BNGN/FT/Case No. 1158/2007 (State –vs- Gul Bhan Bibi) declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from Bangladesh after 25.3.1971. 3. This Court by order dated 07.02.2017 had issued notice while requisitioning the case record and passed an interim order to the effect that petitioner should be allowed to remain on bail subject to his appearance before the Superintendant of Police (B), Bongaigaon and furnishing of adequate surety. 4. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record including the record requisitioned from the Tribunal. 5. Before examining the materials on record, it would be apposite to advert to the impugned order of the Tribunal dated 23.09.2016, relevant portion of which is extracted hereunder:- “ To come to a just conclusion, let me appreciate the evidence on record along
with
the
aforementioned
eleven
exhibits
(Exhibit- I,II,III,IV,V,VI,VII,VIII,IX,X & XI) to determine the nationality of O.P. Gul Bhan Bibi. From the record it appears that O.P. has projected Kashim Sheikh, S/o. Asmati Ali as her father and Sakina Khatun, W/o Kashim as her mother whose name appeared at voter list of 1966 (Exhibit-I) and Voter list 1970 (Exhibit-II).
Page No.# 3/7 OP has also projected Akbar Ali as her elder brother whose name appeared in Exhibit-III. In Exhibit-IV, OP’s projected mother and brother’s name appeared at village Bashbari Part-II, PS- Manikpur in the district of Bongaigaon. Exhibit-V is the voter list wherein OP’s brother’s name appeared with his family. OP has submitted her PAN Card as a link document with her projected father, wherein she has been shown as the daughter of Kashem Shiekh. But by the said document (PAN Card) it cannot be ascertained that this Kashem Sheikh whose name appeared in the PAN Card is the same Kashem Sheikh who was a voter of 1966 and 1970. OP has failed to furnish any other supporting documents to establish her linkage with her projected father. A PAN Card cannot be treated as a sufficient link document to determine the nationality of a person. Therefore the link between the OP and her projected father is not conclusively established. Though OP has submitted Exhibit-VII as a link certificate with her projected father issued by Secretary, Bashbari Salabila GP, she has not proved the said document by examining the issuing authority before this Tribunal, hence, the said document cannot be treated as genuine and trustworthy. In Exhibit-VIII and Exhibit-IX, OP’s name appeared with her husband. Exhibit-X is the voter ID of OP. Exhibit-XI is the affidavit sworn by OP to clarify the discrepancies of the name of her parents in different documents. Under the facts and circumstances and discussions above, the evidence and documents submitted by OP in support of her version are found to be not sufficient and trustworthy to prove that she is an Indian by birth. Considering the entire material on record and discussion above, I am of the considered opinion that the evidence of the Opposite Party is not trustworthy at all and Opposite party has miserably failed to discharge her burden to prove that she was born through genuine Indian parents as such acquired citizenship by birth rather it appears that Opposite Party namely, Gul Bhan Bibi, W/o Md. Amar Ali Kari, Village-Tentanpur, P.S.-Abhayapuri, District- Bongaigaon, Assam has entered into India from Bangladesh illegally subsequent to 25.03.1971 and hence Opposite Party is termed to be foreigner/illegal
Page No.# 4/7 migrant of post 25.03.1971. This case is decided accordingly. ” 6. A perusal of the aforesaid order would go to show that Tribunal had appreciated the evidence tendered on behalf of the petitioner and thereafter arrived at the finding that petitioner was a foreigner of post 25.3.1971 stream. Such a finding which is based on appreciation of evidence is a finding of fact and would not ordinarily be interfered with by the writ Court exercising jurisdiction under Article 226 of the Constitution of India because the jurisdiction so exercised is supervisory and not appellate. Present is not a case of violation of the principles of natural justice or non-adherence to the procedure laid down under the Foreigners (Tribunals) Order 1964; neither is it a case of no-evidence nor misreading of the evidence in which event it would be a case of perversity. In such a situation there is hardly any scope for interference by the writ court. 7. Notwithstanding the same, to reassure ourselves about the correctness or otherwise of the finding arrived at by the Tribunal, we have once again looked into the materials on record. 8. Petitioner in her written statement stated that her father was Kashem Sheikh whose name could be traced to the 1970 voter list. Petitioner’s name appeared in the voters list of 2011. 9. A written statement is required to be contain material facts which are essential to establish the identity of the proceedee as a citizen of India, such as, name of parents, name of grandparents, place of birth, date of birth etc., This Court has held in more than one occasion that failure to disclose material facts in the written statement by itself would lead to drawal of adverse presumption against the procedee. 10. Be that as it may, what was therefore required of the petitioner to prove was that she was the daughter of Kashem Sheikh and that Kashem Sheikh was a citizen of India. 11. In her evidence-in-chief filed by way of affidavit, petitioner expanded her version in the written statement by referring to many exhibits. 12. Out of the 11(eleven) exhibits filed by the petitioner, there are only 2
Page No.# 5/7 (two) exhibits which indicates linkage of the petitioner with Kashem Sheikh. Let us examine these 2(two) exhibits. 13. Exhibit-6 is stated to be a Pan Card issued by the Income Tax Department in the name of the petitioner where another name was mentioned as Kashem Sheikh. A date i.e. 01.10.1970 was mentioned in the said Card bearing Permanent Account No. CIVPB8591E. Petitioner is not an income tax payee. At least there is nothing on record to show filing of income tax return by the petitioner at any point of time. That apart, petitioner and her husband Amir Khari appear to be agriculturist. Under the Income Tax Act, 1961, agriculture is exempt from income tax. Therefore, when such a proceedee suddenly places on record a Pan Card stated to have been issued by the Income Tax Department and relies upon the same as proof of citizenship, it has to be examined with great deal of care, caution and circumspection. The authority which allegedly issued the Income Tax Pan Card in favour of the petitioner was not brought to the Tribunal to prove the fact that the petitioner had applied for the Income Tax Pan Card and that Income Tax Department had as a matter of fact issued the Pan Card to the petitioner. In the absence thereof, no reliance can be placed on exhibit-VI as a valid piece of evidence. 14. The next exhibit is exhibit-VII. Proceeding to exhibit-VII, we find that it is a certificate dated 20.11.2013 issued by the Secretary, Basbari-Salabila Gaon Panchayat, district Bongaigaon certifying that Gul Bhan Bibi was the daughter of Kashem Sheikh. This document also would have to be taken with a pinch of salt. Oridinarily, Government certificates or documents are printed in the Government Press under the authority of the Directorate of Printing and Stationary. But in this certificate which has the State official emblem embossed at the top with “Government of Assam” printed below it, at the bottom “ Sonali Offset, Kalgachia” is printed which means that this document was printed at Sonali Offset, Kalgachia. Therefore, such a document would naturally raise legitimate concerns about its bonafides. That apart, author of the certificate did not appear before the Tribunal to prove that he had issued the certificate and also that the contents of the certificate were true and correct. In Rupjan
Page No.# 6/7 Begum –Vs- Union of India, (2018) 1 SCC 579, Supreme Court was considering admissibility of such certificate for inclusion of the name of the certificate holder in the updated National Register of Citizens (NRC). Supreme Court has held that a certificate issued by a Gaon Panchayat Secretary merely acknowledges shifting of residence of a married woman from one village to another village. The said certificate by itself and by no means establishes any claim of citizenship of the holder of the certificate. Such a certificate has to be verified at 2(two) stages. The first is authenticity of the certificate itself and second is authenticity of the contents. The later stage of verification is bound to be an exhaustive process. Therefore, in the absence of such verification, exhibit- VII cannot be treated as admissible and valid piece of evidence. 15. If these 2(two) exhibits are excluded, petitioner is left stranded, unable to establish her linkage with Kashem Sheikh whom she claimed to be her father and a citizen of India. Since petitioner failed to establish this crucial linkage, it would not be necessary to examine as to whether Kashem Shikh was a citizen of India or not. 16. Net result of the above discussion is that petitioner had miserably failed to establish her linkage with Kashem Sheikh whom she claimed to be her a father and a citizen of India. Therefore, it cannot be said that petitioner had discharged her burden under Section 9 of the Foreigners Act, 1946 to prove that she was not a foreigner but a citizen of India. 17. Resultantly, we do not find any error and infirmity in the view taken by the Tribunal. No interference is called for. 18. Writ petition is accordingly dismissed. Interim order passed earlier stands vacated. 19. Registry to send down the LCR forthwith and inform the concerned Foreigners Tribunal, Deputy Commissioner and Superintendent of Police (Border) for doing the needful. 20. A copy of this order may be furnished to learned Standing Counsel, Election Commission of India and the State Coordinator, NRC.
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JUDGE JUDGE
Comparing Assistant