JAHURA KHATUN V. THE UNION OF INDIA AND 5 ORS.

WP(C)/2852/2019

AI Insights

Jahura Khatun filed a writ petition challenging the order of the Foreigners' Tribunal (5th) Darrang, which declared her a foreigner. The Tribunal's decision was based on the inadequacy of the evidence provided to establish her lineage to her father, Siddik Ali. The petitioner presented various documents and testimonies, but the court found these insufficient and inadmissible to prove her case. The court emphasized the supervisory nature of its jurisdiction under certiorari, which does not allow for a review of factual findings unless there is a clear legal error or violation of natural justice, neither of which was found in this case.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 745108 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 10-05-2019
• Assessment Year: misc
• Laws Referred To: Foreigners Act, 1946, Foreigners (Tribunals) Order, 1964
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: ASSTT S G I ADVOCATE
• Assessee Lawyers: H R A CHOUDHURY
• Keywords: Burden of Proof; Certiorari jurisdiction; Foreigner; Inadmissible evidence; Linkage; Supervisory jurisdiction; Legal testimony
• Section: 143(3)

Judgement Text

"Page No.# 1/5 GAHC010093632019 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C) 2852/2019 1:JAHURA KHATUN D/O LT. SIDDIQUE ALI, W/O LT. NUR ISLAM, VILL.- BAGICHAKASH, P.S.- DALGAON, DIST.-DARANG, ASSAM, PIN-784116 VERSUS 1:THE UNION OF INDIA AND 5 ORS. REP. BY THE MINISTRY OF HOME AFFAIRS, NEW DELHI-110001 2:THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GUWAHATI-781006 3:THE DEPUTY COMMISSIONER DARRANG DIST. DARRANG ASSAM -784125 4:THE SUPERINTENDENT OF POLICE (B) DARRANG ASSAM PIN-784125 5:THE ELECTION COMMISSION OF INDIA PIN-110001 6:THE STATE CO-ORDINATOR NATIONAL REGISTER OF CITIZENS (NRC) Page No.# 2/5 ASSAM ASSAM PIN-78103 Advocate for the Petitioner : MR H R A CHOUDHURY Advocate for the Respondent : ASSTT.S.G.I. :: BEFORE :: HON’BLE MR. JUSTICE MANOJIT BHUYAN HON’BLE MR. JUSTICE MANISH CHOUDHURY :: O R D E R :: 10.05.2019 (Manojit Bhuyan, J) Heard Ms. H. Ahmed, learned counsel for the petitioner as well as Mr. A. Kalita, learned counsel representing respondent nos.2, 3 and 4. Ms. B. Das, learned counsel represents respondent no.5 whereas Ms. U. Das, learned counsel appears for respondent no.6. There is none to represent respondent no.1. Petitioner assails order/opinion dated 28.11.2018 passed by the Foreigners’ Tribunal (5th) Darrang, Mangaldai in Case No. FT (V) 2534/2016, declaring her to be a foreigner of the post 25.03.1971 stream. For the purpose of discharging the burden as not being a foreigner, the petitioner sought to link herself by projecting one Lt. Siddik Ali as her father, Lt. Manikjan as her mother and Lt. Karim as her grandfather, residents of village Ghiladhari. To establish the link, the following documents were produced and exhibited: (i) Exhibit-1 – Voter list of 1966 under 72 Mangaldai LAC, reflecting the names of her projected parents; (ii) Exhibit-2 – NRC details of 1966 with Legacy Data Code in the name of her Page No.# 3/5 projected father Siddik Ali; (iii) Exhibit-3 – Voter ID Card in the name of the petitioner; (iv) Exhibit-4 – PAN Card issued by the Income Tax Department in favour of the petitioner on 14.10.2014; (v) Exhibits-5 & 6 – Certificates issued by the Gaonburah of village Bagichakash; (vi) Exhibit-7 – Link Certificate issued by the Secretary of Koupati Gaon Panchayat; (vii) Exhibit-8 – Legacy Data Code pertaining to the year 1966 in the name of her projected father Siddik Ali; (viii) Exhibit-9 – Affidavit to clarify the name of her husband Nur Islam; and (ix) Exhibit-10 – the Voter ID Card of her projected sister. Besides, one Musstt. Hujura Khatun also deposed as the elder sister supporting the case of the petitioner. From the documents above, only the Exhibits-6 and 7 stood as link documents certifying the petitioner to be the daughter of Siddik Ali. The Certificate of the Gaonburah at Exhibit-5 certified her relation to her husband Nur Islam only and, therefore, is of no relevance. Even the Exhibits-6 and 7 rendered itself as inadmissible in evidence as the said certificates of the Gaonburah and the Secretary of the Koupati Gaon Panchayat respectively nor the contents thereof stood proved through the legal testimony of the issuing authority. On this ground alone it can be safely concluded that the petitioner utterly failed to establish her linkage to her projected father through the documents at Exhibits- 6 and 7. Turning to the deposition of DW-2 Musstt. Hujura Khatun, she stated that the petitioner is her younger sister and, along with another sister Amena, are staying together after the death of their respective husbands. Her father is Siddik Ali, mother is Manikjan and grandfather is Karim. Further, that when she was 6 years old her father expired and her mother died about 10 years back. In her cross-examination Page No.# 4/5 (page 76 of the writ petition), she again stated that her father expired when she was 6 years old and the petitioner was not yet born and was in her mother’s womb. Testing the truthfulness of the deposition of DW-2 vis-à-vis the testimony of the petitioner herself, who deposed as DW-1 (page 73 of the writ petition), it is seen that contradictory statement was made when she deposed that her father expired when was she was an infant. Over and above, no documents were brought on record showing the names of the petitioner and Musstt. Hujura Khatun together. More importantly, no reference of any Musstt. Hujura Khatun is seen in the written statement of the petitioner. It is well settled that in a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964, the proceedee is required to plead material facts in the written statement and thereafter prove the same by adducing cogent, reliable and admissible evidence. Failure to disclose facts would lead to adverse presumption. In the instant case, the petitioner failed to plead materials facts in her written statement, more particularly with regard to the existence of a sister by the name of Musstt. Hujura Khatun. As observed above, there are also conspicuous contradictions between the testimonies of the petitioner and that of Musstt. Hujura Khatun. The evidence tendered by Musstt. Hujura Khatun cannot be taken at its face value, thus, making the same as unreliable and untrustworthy evidence. On a perusal of the materials available, we find that the Tribunal rendered opinion/order upon due appreciation of the entire facts, evidence and documents brought on record. We find no infirmity in the findings and opinion recorded by the Tribunal. We would observe that the certiorari jurisdiction of the writ court being supervisory and not appellate jurisdiction, this Court would refrain from reviewing the findings of facts reached by the Tribunal. No case is made out that the impugned opinion/order was rendered without affording opportunity of hearing or in violation of the principles of natural justice and/or that it suffers from illegality on any ground of having been passed by placing reliance on evidence which is legally impermissible in Page No.# 5/5 law and/or that the Tribunal refused to admit admissible evidence and/or that the findings finds no support by any evidence at all. In other words, the petitioner has not been able to make out any case demonstrating any errors apparent on the face of the record to warrant interference of the impugned opinion. We, therefore, find no merit in the writ petition. Accordingly, the same stands dismissed, however, without any order as to cost. The directions of the Tribunal made to the authorities concerned shall now be complied with. JUDGE JUDGE Comparing Assistant "