WP(C) 2634/2016. Gauhati High Court

Case NumberWP(C) 2634/2016
Judgement DateFebruary 28, 2021
CourtGauhati High Court

IN THE GAUHATI HIGH COURT

( HI GH COURT OF ASSAM, NAGALAND, MI ZORAM AND ARUNACHAL PRADESH

WP(C) No. 2634 of 2016

Manowara Bew a alias Manora Bew a ,

D/ o. Late Kashem Ali Shaikh,

Permanent resident of Vill. Sukhatikhata,

P.S. Gauripur,

Dist. Dhubri, Assam. - Petitioner

- Versus -

1. Union of I ndia,

Represented by the Secretary to the Govt. of I ndia, Ministry of Home Affairs, New Delhi.

2. State of Assam ,

Represented by the Commissioner & Secretary to the Govt. of Assam, Home Department, Dispur, Guwahati-6.

3. Deputy Commissioner, Dhubri.

4. Superintendent of Police ( B) , Dhubri , Assam.

- Respondents

BEFORE

HON’BLE MR JUSTICE UJJAL BHUYAN

HON’BLE MRS. JUSTICE RUMI KUMARI PHUKAN

Advocate(s) for petitioner ::

Mr. S.B. Rahman, Advocate.

Advocate(s) for respondents ::

Mr. C. Choudhury, Advocate General, Assam,

Mr. S.C. Keyal, ASGI ,

Ms. G. Sharma, CGC,

Mr. R. Dhar, Govt. Advocate, Assam.

Dates of hearing : 18.01.2017 & 25.01.2017 Date of judgment : 28.02.2017

WP(C) 2634 of 2016

JUDGMENT & ORDER

( Ujjal Bhuyan, J )

Heard Mr. S. B. Rahman, learned counsel for the petitioner, Mr. C. Choudhury, learned Advocate General, Assam assisted by Mr. R. Dhar, learned Govt. Advocate, Assam and Mr. S.C. Keyal, learned Assistant Solicitor General of I ndia assisted by Ms. G. Sharma, learned Central Government counsel.

2. By filing this petition under Article 226 of the Constitution of I ndia,

petitioner seeks quashing of order dated 17.03.2016 passed by the Foreigners Tribunal No.5, Dhubri in FT Case No.FT-5/ G/ 58/ 2015 declaring the petitioner to be a foreigner who had illegally entered into I ndia (Assam) after 25.03.1971.

3. I n the course of hearing, an issue of considerable public interest surfaced,

namely, legality of the certificate issued by the Gaon Panchayat Secretary and counter-signed by Revenue Officer of the State certifying residentship of the certificate holder (petitioner) in an area within his jurisdiction, as a supporting document for inclusion in updated National Register of Citizens (NRC) which the petitioner relied upon in support of her contention of being a citizen of I ndia and not a foreigner. We will discuss this issue in the second part of the judgment under the heading “Lar ger I ssu e” .

4. First we will attend to the challenge made in the writ petition, namely,

declaration of the petitioner by the Foreigners Tribunal No.5, Dhubri as a foreigner of post 1971 stream.

WP(C) NO.2364/2016

5. A perusal of the order dated 17.03.2016 would go to show that initially a

reference was made by the State under the Illegal Migrants (Determination by Tribunals) Act, 1983 with the allegation that petitioner was a foreigner who had

illegally entered into I ndia (Assam) after 25.03.1971. After the said Act was declared unconstitutional by the Supreme Court in Sarbananda Sonow al Vs. Union of I ndia , ( 2005) 5 SCC 665 , the reference was re-registered under the

Foreigners Act, 1946 and Foreigners (Tribunals) Order, 1964. Ultimately, after

creation of additional Tribunals, the reference was assigned to the Foreigners Tribunal No.5, Dhubri (Tribunal) as FT Case No.FT-5/ G/ 58/ 2015.

6. Notice issued by the Tribunal was served upon the petitioner whereafter

she had entered appearance and submitted her written statement. She also examined herself as her witness and exhibited five documents.

WP(C) 2634 of 2016

7. After due consideration, Tribunal took the view that petitioner had failed

to discharge her burden under Section 9 of the Foreigners Act, 1946 to prove that she was not a foreigner but an I ndian citizen and accordingly vide order dated 17.03.2016, declared the petitioner as a foreigner who had illegally entered into I ndia (Assam) on or after 25.03.1971.

8. Learned counsel for the petitioner vehemently argued that petitioner had

adduced sufficient evidence, both oral and documentary, to establish that she was not a foreigner but a citizen of I ndia by birth. Thus, she had discharged her burden under Section 9. However, Tribunal taking a very technical and narrow approach, disbelieved the version of the petitioner and came to an erroneous conclusion by declaring the petitioner to be an illegal foreigner thereby visiting the petitioner with far reaching consequences. Referring to the documents placed on record including those annexed to the writ petition, he submits that view taken by the Tribunal is incorrect and requires interference by the Court in exercise of its writ jurisdiction under Article 226 of the Constitution of I ndia. I n support of his submissions, learned counsel for the petitioner placed reliance on the following decisions:- ( 1999) 6 SCC 110 = Rajendra Prasad Vs. Narcotic Cell

( 2009) 12 SCC 454 = Shyam Lal Vs. Sanjeev Kumar

9. On the other hand, learned counsel for the respondents support the order

of the Tribunal and contend that being a finding of fact based on appreciation of evidence, the writ Court may not interfere with such finding of fact which is otherwise also fully justified in the facts and circumstances of the case.

10. Submissions made by learned counsel for the parties have been

considered.

11. At the outset, order of the Tribunal may be adverted to, relevant portion

of which is extracted hereunder:-

“7. On perusal of the case record including the W/ S, the affidavit filed by the O.P. and as well as the documents relied upon by her it is found that during the course of evidence O.P. had produced two documents Ex t - 5 and Ex t - 1 to establish linkage with her parents and husband. Ex t 5 is the certificate issued by the Sahebganj Gaon Panchayat (G.P. for short) dated 04-08-2013 to Monowara Bewa, W/ o Sopiyal Hoque inhabitant of village Khagrabari Pt. II. On perusal of the case records it is found that O.P. Monowara Bibi is the W/ o Sapiyar Rahman and the

WP(C) 2634 of 2016

certificate of Sahabganj G.P. Ex t -5 have been issued to one Monowara Bibi W/ o Sopiyal Hoque inhabitant of village Khagrabari Pt-II. Thus, Sapiyar Rahman and Sopiyal Hoque are two different person and hence, due to contradiction and discrepancies of name, this documents Ex t -5 issued to one Monowara Bibi W/ o Sopiyal Hoque cannot be relied upon. Moreover Ex t -5 is a private document issued by the President of Sahebganj G.P. and the authority who have issued the certificate have not been examined to prove the contents of the documents thereof. In the absence of examination of the authority issuing the certificate, the document Ex t -5 is inadmissible in evidence and cannot be relied upon.

Ex t - 1 is the school certificate issued by the Headmaster of 1236 No. Khagrabari LP School dated 29-10-2010. On perusal of the W/ S it is found that there is no specific pleading in the W/ S that the O.P. had done her schooling from 1236 No. Khagrabari LP School and subsequently during the course of evidence, made statement in her Affidavit that she read upto Class-IV in the year of 1984 in 1236 Khagrabari LP School and produced one school certificate marked as Ex t -1 issued by the Headmaster of 1236 No. Khagrabari LP School dated 29-10-2010. On perusal of the document Ex t -1 it reveals that the school certificate was issued on 29-10-2010 and the OP had filed the W/ S on 24-12-2015 and there is no mentioned of this school certificate in her W/ S as such, the school certificate Ex t -1 is not in conformity with her pleadings in the W/ S. Thus, the OP had waived her right by not pleading in the W/ S that she did her schooling from 1236 Khagrabari LP School accordingly, she is not entitled as of right to rely on any ground of defence which she has not taken specifically in her W/ S. Further, on close scrutiny and examination of the school certificate it is further found that the school certificate Ex t -1 issued by the Headmaster of 1236 No. Khagrabari LP School, duplicate is written in the said certificate and there is no clarification of explanation by the OP that under what circumstances the duplicate copy of the school certificate have been issued and moreover, the Headmaster who have issued the school certificate have not been examined to prove the contents of the documents thereof. Hence, mere filing or accepting of a document without proving its contents is inadmissible in evidence and as such, the said certificate marked as Ex t 1 cannot be relied upon under the law of evidence.

Thus, in the absence of any documentary and oral evidence that Kashem Ali Sk is the father of OP, the document produced by the OP in the name of one Kashem Ali Sk (projected father of OP) cannot be relied upon as the OP had failed to establish linkage with her parents and husband.

8. Now, lets analyze and examined the document produced by the OP in the name of her projected father Kashem Ali Sk, and on scrutiny and examination of the documents the following discrepancies and contradictions were found. Ex t -2 is the copy of NRC 1951 issued in the name of one Kashem Ali Sk and Diljan Bibi at Sl.No. 5 and 6, House No.2 (Gha), House Hold No.6 of village Khagrabari, union No. 4 issued by the Officer-in-Charge, Golakganj PS, District- Dhubri, Assam marked as Ex t -

WP(C) 2634 of 2016

2 . On close scrutiny and examination of the copy of NRC 1951 it is found that at Sl. No.5 Kashem Ali Sk age has been tempered which is clearly distinguishable that age 10 has been overwritten as 16 and at Sl. No.6 Diljan Bibi relation name has been tempered and overwritten “Sha” i.e. husband in place of “Pee” i.e. father and as such, the purported tempered document of the copy of the NRC 1951 Ex t -2 cannot be the basis to claim citizenship and hence, is not trustworthy and cannot be relied upon. Moreover, on going through the W/ S and the affidavit the OP nowhere disclosed her mother’s name. The omission of the mothers name of the OP has been done intentionally by overwriting “Sha” in place of “Pee”. Hence, the OP with malafide intention taking recourse to falsehood and tempering of document which itself establish that OP is not a citizen of...

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