GULAGJAN BIBI @ GULABJAN BIBI V. THE UNION OF INDIA and 3 ORS.

WP(C)/300/2017

AI Insights

Gulabjan Nessa filed a writ petition under Article 226 of the Constitution of India challenging the order of the Foreigners Tribunal, Bongaigaon, which declared her a foreigner. The Tribunal's decision was based on the appreciation of various documents and testimonies, which the court found to be inconsistent and unreliable. The petitioner argued that the Tribunal misappreciated the evidence, but the court upheld the Tribunal's decision, stating that the evidence presented by the petitioner was insufficient to prove her Indian citizenship. The court also noted discrepancies in the petitioner's documents and testimonies, which further undermined her claims.

• Counselvise Citation: [2017] 140 COUNSELVISE.COM (IT) 686220 (HC-ASSAM)
• Appeal Type: Others
• Pronouncement Date: 19-01-2017
• Assessment Year: misc
• Other Referred Cases: Sarbananda Sonowal Vs. Union of India, State Vs. Moslem Mondal, Manowara Bewa Vs. Union of India
• Laws Referred To: Article 226 of the Constitution of India, Foreigners Act, 1946, Foreigners (Tribunals) Order, 1964, Citizenship Act, 1955
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: N GOSWAMI
• Assessee Lawyers: A R SIKDAR
• Keywords: Assam; Bangladesh; Foreigner; Foreigners tribunal; Illegal entry; Judicial review
• Section: 9; 6A

Judgement Text

"WP(C) 300/2017 BEFORE HON’BLE MR. JUSTICE UJJAL BHUYAN HON’BLE MR. JUSTICE PARAN KUMAR PHUKAN (Ujjal Bhuyan, J) Heard Mr. A. R. Sikdar, learned counsel for the petitioner and Mr. N. Go swami, learned Govt. Advocate, Assam. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 06.09.2016 passed by the Foreigners Tri bunal, Bongaigaon No.2 at Abhayapuri in BNGN/FT/Case No.2747/2007 (State Vs. Guj abjan Nessa) declaring the petitioner to be a foreigner who had illegally entere d into India (Assam) from Bangladesh after 25.03.1971. 3. From the materials on record, it is seen that reference was made by the Superintendent of Police (Border), Bongaigaon with the allegation that petitione r was a foreigner, who had illegally entered into India (Assam) from Bangladesh after 25.03.1971. The reference was registered as BNGN/FT/Case No.2747/2007 and was assigned to the Foreigners Tribunal, Bongaigaon No.2 at Abhayapuri (Tribunal ) for opinion. 4. Notice issued by the Tribunal was served upon the petitioner whereafter he had entered appearance before the Tribunal and filed written statement denyin g the allegation made by claiming to be a citizen of India by birth. Petitioner also adduced evidence, oral as well as documentary. 5. After hearing the matter, Tribunal passed the order dated 06.09.2016 ans wering the reference in favour of the State in the above manner. 6. Aggrieved, present writ petition has been filed. 7. When the writ petition was moved before this Court, it was submitted tha t following the above order passed by the Tribunal, petitioner was taken into cu stody. This Court by order dated 19.01.2017 had issued notice while requisitioni ng the case record. An interim order was passed to the effect that petitioner sh ould not be taken into custody and deported from India until further orders. 8. Learned counsel for the petitioner vehemently argued that Tribunal had m isdirected itself by misappreciating the evidence on record and thereafter had r eturned an erroneous finding causing prejudice to the petitioner. Petitioner had adduced sufficient evidence and thereby she had discharged her burden under Sec tion 9 of the Foreigners Act, 1946. In the absence of rebuttal evidence by the S tate, Tribunal was not justified in rejecting the version of the petitioner. The refore, impugned order may be set aside. 9. On the other hand, learned Govt. Advocate has supported the impugned ord er passed by the Tribunal. He submits that Tribunal had appreciated whatever evi dence was adduced by the petitioner and thereafter had returned a finding of fac t that petitioner was a foreigner of post 25.03.1971 stream. Such a finding of f act may not be interfered with by the writ Court while exercising power of judic ial review. Therefore, writ petition should be dismissed. 10. Submissions made by learned counsel for the parties have been considered . Also perused the materials on record. 11. Since the order passed by the Tribunal dated 06.09.2016 has been impugne d, it would be apposite to advert to the same at the outset, relevant portion of which is extracted hereunder:- From record it appears that OP has projected Gias Uddin, s/o Ishad Ali as her f ather whose name appeared in Exhibit-1 and Exhibit-3 (Giasudin). OP has also pro jected Ishad Ali, s/o. Bahar Sheikh as her grandfather whose name appeared in Ex hibit-1, Exhibit-2 and Exhibit-3. In Ext.3, OP’s grandfather’s name was written as Imad Ali, son of Bahar Sheikh. During the entire proceeding OP has not clarif ied this fact. In Ext.1, Nurjahan Bibi is shown as wife of Ishad Ali. In Ext.2 a nd 3, Neggoshee Nessa is shown as wife of Ishad Ali. The DW2, during enquiry rep lied that in Ext.1, his mother’s (wife of Bahar Sheikh) is recorded as Ashivan . In Ext.1 OP is shown as 5 years old and at that time they were resided at vill age Kanaimara under South Salmara PS in Dhubri Sub-Division. But in evidence on affidavit dated 14.03.2016, DW2 stated that he was born at his parental house i. e. at village Balarpet under Abhayapuri PS in the year of 1950. In the WS which was filed on 09.06.2014 and evidence on affidavit by OP which wa s filed on 19.02.2016, OP was shown as d/o late Giasuddin but subsequently by am ending the WS and evidence on affidavit on 18.07.2016 it was rectified and Giasu ddin is shown as alive. However, in the investigation report by police and in the reference made by SP(B ), Bongaigaon, OP is shown as d/o late Guasuddin Ali. It is pertinent to mention herein that the OP has amended her WS and evidence on affidavit on 18.07.2016 a t this stage when the case was fixed for passing order and already the argument was also heard on 17.05.2016. Again in the WS, OP has stated that her name finally appeared in the voter list of 2011 but in the evidence on affidavit she stated that she has cast her vote f or the first time in the year of 2013. But OP has not filed any voter list in th is case. Under the aforesaid facts and circumstances, it cannot be ascertained that Gias Alam, s/o Ishad Ali whose name appeared in Exhibit-1 is the same person whose na me appeared in Ext.3 at village Balarpet under Abhayapuri PS. Though OP has submitted Ext.4, the link certificate, she has not examined the is suing authority before this Tribunal and this document cannot be treated trustwo rthy and genuine in the eye of law. Ext.6 and 7 cannot be treated to be conclusive piece of documents to determine t he nationality of a person. Further the evidence of DW2 cannot be taken as reliable witness since the affida vit submitted by him (DW2) and his oral statement does not corroborate each othe r. Moreover it cannot be ascertained that the DW2 (who has adduced evidence on a ffidavit before this Hon’ble Tribunal) is the person appeared in the voter list for the first time. Further, he (DW2) even does not know when he was born. Under the above facts and circumstances and considering the entire materials on record and the discussion above, I am of the considered opinion that the evidenc e of OP is not trustworthy and that the OP has miserably failed to discharge her burden to prove that she is not a foreigner. Rather it appears that OP namely G ulabjan Nessa, w/o Md. Innus Ali, d/o late Giasuddin Ali, village Tentonpur, PS. Abhayapuri, district - Bongaigaon, Assam entered into India from Bangladesh ill egally subsequent to 25.03.1971 and hence she is termed to be a foreigner of pos t 25.03.1971. The case is decided accordingly. 12. From a careful analysis of the order passed by the Tribunal, it is seen that Tribunal had appreciated the evidence on record and thereafter had returned a finding that petitioner was a foreigner of post 25.03.1971 stream. This is a finding of fact based on appreciation of evidence. Ordinarily, a writ Court woul d not interfere with such a finding of fact except in a case where there is viol ation of the principles of natural justice or procedure prescribed under the For eigners (Tribunals) Order, 1964 has not been followed. It is not the case of the petitioner that admissible evidence tendered by her were not considered by the Tribunal or that inadmissible evidence were taken into consideration by the Trib unal. It is also not the case of the petitioner that impugned order is based on no evidence in which event it would be a case of error apparent on the face of t he record which would justify interference by the writ Court. The other errors o f fact would not be corrected by the writ Court. This position has been succinct ly explained by a Full Bench of this Court in State Vs. Moslem Mondal, 2013 (1) GLT 809 in which case, amongst other issues, Full Bench also considered the scop e of interference by the High Court exercising jurisdiction under Article 226 of the Constitution of India in respect of an opinion rendered by a Foreigners Tri bunal. Notwithstanding the same, we have once again looked into the materials on record to satisfy ourselves about the correctness or otherwise of the order pas sed by the Tribunal. 13. In the course of the enquiry preceding the reference, Enquiry Officer fo und that petitioner was originally a resident of village Pulia under Kalihati Po lice Station in the district of Tangail, Bangladesh. She had entered into India (Assam) without valid documents after 25.03.1971 in search of better livelihood. Accordingly, he submitted his report on 25.05.2007 which was accepted by the Su perintendent of Police (Border), Bongaigaon whereafter he made the reference on 18.06.2007. 14. In her written statement filed on 09.06.2014, petitioner stated that she was daughter of late Gias Uddin, son of late Ishad Ali of village No.2 Bashbari under Manikpur Police Station in the district of Bongaigaon. She married one Yu nus Ali, son of Dulal Bepari of village Tentonpur under Abhayapuri Police Statio n in the district of Bongaigaon about 20 years ago. Her name appeared in the vot ers list of 2011 in respect of Abhayapuri (South) constituency. Grandfather Isha d Ali’s name appeared in the National Register of Citizens, 1951 (NRC). Father’s name was wrongly entered into the NRC, 1951 as Gias Alam instead of Gias Uddin. Father was a voter of Abhayapuri constituency in 1970 and also had landed prope rty. 15. This is all that the petitioner stated in her written statement which by any account was wholly inadequate to establish her identity as a citizen of Ind ia having regard to the mandate of Section 9 of the Foreigners Act, 1946 as expl ained by the Supreme Court in paragraph-26 of Sarbananda Sonowal Vs. Union of In dia, (2005) 5 SCC 665. From this written statement, age of the petitioner or her date of birth is not discernible. All that is discernible is that she had marri ed one Yunus Ali around 1994 whereafter her name appeared in the voters list of 2011. Though she stated that her grandfather’s name appeared in the NRC of 1951 and her father’s name appeared in the voters list of 1970, there was no mention about her mother and grandmother, not to speak about her brothers and sisters. S he was also silent about his educational status and occupation. 16. In her evidence-in-chief filed by way of affidavit on 19.02.2016, petiti oner stated more or less the same thing as stated in the written statement. Thou gh she did not fill up her age in the identification paragraph of the affidavit, but in paragraph-2, she stated that she was born about 29 years ago. This would mean that petitioner was born sometime in the year 1987. If the evidence-in-chi ef is read together with the written statement, it would mean that petitioner wa s born in 1987 and she got married in 1994 when she was 7 years old. 17. Proceeding to the exhibits, we notice that Ext. 1 is an extract of the N RC entry of 1951. Here, names of Ishad Ali and 6 of his children are mentioned a s residents of village Kanaimara under South Salmara Police Station. One of the sons name is Gias Alam, aged 15 years. Petitioner claims that the name Gias Uddi n (her father) was wrongly entered as Gias Alam in Ext.1. 18. Ext. 2 is an extract of the voters list of 1966 in respect of Abhayapuri constituency. Here, names of Ishad Ali, son of Bahar Sheikh, aged 42 years and Neggoshee Nessa, wife of Ishad Ali, aged 35 years, appear. Both of them were sho wn as residents of village Balarpet. 19. If both Exhibits 1 and 2 are compared, we find that the name Neggoshee N essa, wife of Ishad Ali, did not appear in Ext.1 though names of their children appeared. Ishad Ali was 42 years in Ext.1 (1951) and he continued to maintain th e same age, i.e., 42 years in 1966 (Ext.2). Additionally, in Ext.1, Ishad Ali wa s a resident of Kanaimara village under South Salmara Police Station whereas in Ext.2, Ishad Ali was a resident of Balarpet village, a different address altoget her. The above change of residence has not been explained. 20. In Ext. C, which is an extract of the voters list of 1970 in respect of Abhayapuri constituency, three names appear, Imad Ali, son of Bahar Shekih, aged 49 years; Neggoshee Nessa, wife of Ishad Ali, aged 39 years and Giyas Uddin, s on of Ishad Ali, aged 21 years. Here also, Imad, Neggoshee and Giasuddin were sh own as residents of No.396 Balarpet village under Abhayapuri Police Station. 21. Even if we ignore the discrepancy in the age of Imad (if he is the same person as Ishad Ali) and Gias Uddin, discrepancy in the residence remained unexp lained. That apart, till this stage, there is no document to establish linkage o f the petitioner with Gias Uddin whom she claims to be her father. At this stage , petitioner introduced Ext.4 which is a certificate issued by the Secretary, Ba shbari Salabila Gaon Panchayat dated 18.06.2015 certifying that petitioner is th e daughter of Gias Uddin and Amiran Nessa of No.2 Bashbari village. She got marr ied to Yunus Ali on 01.01.2000. The certificate of the Secretary, Bashbari Salab ila Gaon Panchayat was counter-signed by Block Development Officer, Abdul Mannan Khan on 22.06.2015. This certificate cannot be accepted for more than one reaso n. Firstly, we have already seen that the reference was made in the year 2007. T he reference was preceded by an enquiry. 8 years after the reference was made, E xt.4 certificate was procured in the year 2015. Such belated certificate certain ly raises grave doubts about its bonafides. Secondly, from this belated certific ate, for the first time, name of Amiran Nessa appears as mother of the petitione r. Prior to this, there is neither any plea nor any document to show that petiti oner had a mother by the name of Amiran Nessa. Thirdly, as per this certificate, petitioner had married Yunus Ali on 01.01.2000. From her written statement, wha t transpires is that petitioner had married Yunus Ali in 1994. Therefore, this c ertificate contradicts petitioner’s own statement made in the written statement regarding her marriage. Fourthly, neither the Secretary of the Gaon Panchayat no r the Block Development Officer deposed before the Tribunal to vouchsafe the tru thfulness of the contents of the said certificate. In the absence thereof, such certificate has got no or little evidentiary value. Finally, in Manowara Bewa Vs . Union of India, reported in (2017) 2 GLR 632, this Court has held that such a certificate has got no statutory sanctity. At the most, it is a private document and being so, author of the certificate would have to depose before the Tribuna l and prove the contents thereof as well as truthfulness of the same. 22. Ext.5 is a copy of Elector Photo Identity Card where name of the petitio ner appears as Gulagjan Bibi and not as Gulabjan Bibi which was the name mention ed by the petitioner herself in her written statement. This certificate was issu ed on 01.10.2013 where her age was mentioned as 27 years. In any event, this exh ibit only shows that her relation’s name is Yunus Ali and in no way, establishes linkage with Gias Uddin. 23. After all this was over, petitioner submitted additional evidence on 20. 04.2016. Ext.6 is stated to be a PAN card issued by the Income Tax Department wh ere her name along with Giyas Uddin appear. This PAN card lays bare the falsity of the claim of the petitioner. On the face of this document, it is seen that it was issued on 01.10.1986. We have already discussed above that from the evidenc e of the petitioner herself, petitioner was born sometime in the year 1987 and E xt.5 (Elector Photo Identity Card) issued on 01.10.2013 discloses the age of the petitioner as 27 years meaning thereby that she was born in the year 1986. Eith er way, petitioner was born in 1986 or in 1987. If that be so, the PAN card was issued in the name of the petitioner by the Income Tax Department before she was born or in the year when she was born. On the face of it, Ext.6 does not appear to be a genuine document and on the basis of such a document, it cannot be said that petitioner had proved her linkage with Gias Uddin. 24. Similarly, Ext.7 is stated to be a bank statement of Savings Bank Accoun t No. 1227/2015 of State Bank of India, Bishnupur (Bijni) Branch showing account holder’s name as Gulagjan Bibi and father’s name as Giyas Uddin. The Branch Man ager did not depose before the Tribunal to prove the truthfulness of the said ce rtificate. Interestingly, there is not a single entry, deposit or debit, in the bank statement. 25. In the meanwhile, Gias Uddin appeared before the Tribunal and submitted evidence-in-chief by way of affidavit. His evidence further discredited the alre ady discredited version of the petitioner. He stated that he was born in the yea r 1950 in his parental home at village Balarpet. Now, if this statement is cross -checked with Ext.1 (NRC, 1951), name of the village is Kanaimara under South Sa lmara Police Station and not Balarpet. Secondly, as already pointed out earlier, in Ext.1 it is Gias Uddin, aged 5 years. According to the petitioner, the name Gias Alam was wrongly entered; it should have been Gias Uddin. But if we go by t he statement of Gias Uddin himself, if he was born in 1950, therefore, in 1951, he should have been one year old and not 5 years old. 26. In paragraph-2, he says that his daughter was born 29 years ago. This af fidavit was filed on 14.03.2016. That means his daughter was born sometime in th e year 1987. If that be so, then Ext.6, PAN card, could not have been issued in the name of the petitioner in 1986 when she was not yet born, which aspect has a lready been discussed above. 27. After everything was over, petitioner filed an amended written statement on 18.07.2016 trying to explain the discrepancies which have been noted above. This was accompanied by another evidence-in-chief by way of affidavit by the pet itioner filed on 18.07.2016. But neither the additional written statement nor th e additional evidence-in-chief could explain the gross material discrepancies as noticed above. 28. Net result of the above discussion is that there is no admissible eviden ce on record to establish that petitioner is the daughter of Gias Uddin whose ex istence as a citizen of India could be traced to a period prior to 25.03.1971, w hich is the cut-off date for identification of foreigners in the State of Assam as per Section 6A of the Citizenship Act, 1955, as amended. It is not the quanti ty of evidence but the quality of evidence which is relevant. From what we have discussed above, petitioner had made desperate attempts by producing some docume nts whose genuineness are highly suspect. In such circumstances, it cannot be sa id that petitioner had discharged her burden under Section 9 of the Foreigners A ct, 1946. Consequently, we do not find any merit in the writ petition to warrant interference. 29. Writ petition is dismissed. 30. Interim order, passed earlier, stands vacated. 31. Registry to send down the LCR forthwith and also inform the concerned Fo reigners Tribunal, Superintendent of Police (B) and Deputy Commissioner for taki ng immediate follow-up steps. "