JONAKI @ SANUARA BEGUM V. THE UNION OF INDIA AND 6 ORS

WP(C)/5257/2019

AI Insights

The case involves Jonaki @ Sanuara Begum, who challenged the opinion of the Foreigners Tribunal No.5, Tezpur at Biswanath Chariali, which declared her a foreigner post 25.03.1971. The petitioner argued that she is the daughter of Farid Ali and granddaughter of Umar Ali, both residents of India, and provided various documents and witness testimonies to support her claim. However, the Tribunal and subsequently the High Court found discrepancies in the evidence provided, such as inconsistencies in marriage and birth dates, and the lack of proper legal proof for some documents. The court emphasized that the burden of proof for citizenship lies with the petitioner under Section 9 of the Foreigners Act, 1946 read with Section 106 of the Evidence Act, 1872, which she failed to meet.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 743939 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 01-10-2019
• Assessment Year: misc
• Laws Referred To: Article 226 of the Constitution of India, Foreigners Act, 1946, Foreigners (Tribunals) Order, 1964, Census Act, 1948, Evidence Act, 1872
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: ASSTT S G I SC F T SC ELECTION COMMISSION SC NRC; B DAS; U DAS
• Assessee Lawyers: A ROSHID; M DEVI
• Keywords: Burden of Proof; Citizenship; Foreigner; Foreigners tribunal; NRC details; Voter list; Marriage certificate; Birth certificate
• Section: 15; 9; 106

Judgement Text

"Page No.# 1/7 GAHC010172342019 2019:GAU-AS:16116-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5257/2019 JONAKI @ SANUARA BEGUM W/O- ROFIK ALI, D/O- FARID ALI, VILL NO.2 DIRING PATHAR, P.O AND P.S- BISWANATH CHARIALI, DIST- SONITPUR( NOW BISWANATH CHARIALI), PIN- 784176 VERSUS THE UNION OF INDIA AND 6 ORS REP. BY THE SECRETARY TO THE GOVT OF INDIA, DEPTT OF HOME, NEW DELHI- 01 2:THE STATE OF ASSAM REP. BY THE SECRETARY TO THE GOVT OF ASSAM DEPTT OF HOME DISPUR GHY- 06 3:THE DEPUTY COMMISSIONER SONITPUR PIN- 782124 4:THE SUPERINTENDENT OF POLICE (B) SONITPUR PIN- 782124 5:THE ELECTION COMMISSION GOVT OF INDIA NEW DELHI- 01 6:THE STATE COORDINATOR NRC Page No.# 2/7 ASSAM GUWAHATI- 32 7:THE FOREIGNERS TRIBUNAL NO.5 TEZPUR AT BISWANATH CHARIALI REP. BY THE SC TRIBUNAL PIN- 78212 Advocate for the Petitioner : MR. A ROSHID, MS. M R DEVI Advocate for the Respondent : ASSTT.S.G.I., SC, F.T,SC, ELECTION COMMISSION.,SC, NRC BEFORE HONOURABLE MR. JUSTICE MANOJIT BHUYAN HONOURABLE MR. JUSTICE KALYAN RAI SURANA ORDER Date : 01.10.2019 (K.R. Surana, J) Heard Mr. A. Roshid, learned counsel for the petitioner. Also heard Ms. G. Hazarika, learned CGC for respondent No.1, Mr. A. Kalita, learned standing counsel for the respondents No.2, 3, 4 and 7, Ms. B. Das, learned standing counsel for respondent No.5 and Ms. U. Das, learned standing counsel for respondent No.6. 2. By this writ petition filed under Article 226 of the Constitution of India, the petitioner has assailed the impugned opinion dated 19.12.2018 passed by the learned Member, Foreigners Tribunal No.5, Tezpur at Biswanath Chariali in F.T. Case No. BNC/D/90/2015, holding the petitioner to be a foreigner of post 25.03.1971. 3. The learned counsel for the petitioner has referred to the written statement filed by the petitioner and has submitted that the petitioner had Page No.# 3/7 projected that she is the daughter of Farid Ali and grand-daughter of Umar Ali, resident of village Burhakhat under Sarabari Gaon Panchayat under Patharighat Revenue Circle, District Darrang and that on 15.03.1993, she was married to Md. Rofik Ali, resident under Dhullie Gaon Panchayat under Biswanath Revenue Circle in the district of Sonitpur. It is submitted that in support of her defence, the petitioner had examined 4 (four) witnesses including herself as PW-1, Farid Ali, her projected father as PW-2, Rajen Kalita, Gaonbura of Burhakhat and Ganga Pukhuri as PW-3 and Ramesh Saharia, Secretary Sarabari Gaon Panchayat as PW-4 and she has exhibited 3 (three) documents viz., (i) certificate by Secretary, Sarabari Gaon Panchayat dated 08.07.2015, containing that the petitioner, daughter of Farid Ali and Sairun Begum of village Burhakhat, aged 40 years was married on 15.03.1993 to Md. Rafik Ali of Diring Pathar No.2 village under Dhullie Gaon Panchayat (Ext.1), (ii) voter details of the year 1966 containing the name of Umar Ali, son of Leteria of village- Burhakhat (Ext.2), and (iii) affidavit to explain that “Jonaki” and “Sanuara Begum” are her names. The learned counsel for the petitioner has submitted that in her evidence- on- affidavit, the petitioner had annexed the Elector Photo Identity Card of Umar Ali, her projected grand-father. The learned counsel for the petitioner has submitted that the said documents clearly established that the father and the grand- father of the petitioner were citizens of India and, as such, the learned Tribunal had erred in holding that the petitioner is a foreigner. It is also submitted that apart from the exhibited documents, the petitioner had relied upon 7 to 8 additional documents before the learned Tribunal to establish that the petitioner is a bona fide citizen of the Country. It is also submitted that the learned Tribunal did not consider all the materials available on record and arrived at a wrong conclusion, which had vitiated the impugned opinion, for which the said opinion was liable Page No.# 4/7 to be set aside and quashed. 4. Perused the documents annexed to this writ petition. As indicated herein before, the petitioner had exhibited only three documents as indicated above i.e., (I) certificate by Sarabari Goan Panchayat, (II) NRC details, and (III) an affidavit. It is seen that the PW-2, namely, Md. Farid Ali was examined on two occasions, firstly on 10.05.2016 and then on 14.02.2017, pursuant to order dated 26.07.2016. It appears that there is some discrepancy as regards the date and year of marriage because as per Ext.I, the petitioner was married on 15.03.1993, in his cross-examination on10.05.2016, the PW-2 had stated that the petitioner was married about 18 to 20 years ago, which does not tally with the year of marriage mentioned in Ext.1. It appears from the impugned opinion that without adducing further evidence, the petitioner had submitted her birth certificate bearing date of registration as 17.01.2017 i.e., after 33 years, where the date of birth of the petitioner is mentioned as 01.11.1984. Therefore, if the contents of the said birth certificate is believed, then petitioner was married at the age of 9 years as on 15.03.1993, the date mentioned in the Gaon Panchayat Certificate (Ext.1). But, as per the contents of Ext.1, the petitioner was 40 years on 08.07.2015, as such, in the year 1993, i.e. her year of marriage, the petitioner would be about 22 years old. Moreover, it is seen that in Ext.1, it is specifically mentioned that the said certificate was issued on the basis of evidence placed before the PW.4, the signatory of the said certificate, as such, it appears that although the petitioner could produce evidence before PW-4, such evidence regarding the date of marriage and age of the petitioner had not been produced before the learned Tribunal, as such, the contents of Ext.1 cannot be reconciled with the other evidence available on record. Moreover, the said birth Page No.# 5/7 certificate (Annexure 11 herein) was not proved in accordance with law by examining its author. It is also seen that the petitioner had exhibited the voter detail of year 1966, and he had filed certified copy of voters list of 1965 containing the name of Umar Ali, son of Leteria of village- Burhakhat, without exhibiting the same. It is too well settled that NRC details is not a proof of citizenship because it was prepared under the Census Act, 1948 and the provisions of Section 15 thereof provides that records of census are not open to inspection nor admissible in evidence. Moreover, the PW-2 had categorically stated that his grand father was “Haveria”, but the NRC details of the year 1965 (Ext.2) and the voters list of 1965 reflects that the father of Umar Ali was “Leteria”, but there is no explanation by the petitioner (PW-1) or by PW-2 as to who “Leteria” was. Thus, the voters list of 1965 has failed to establish a valid link between the petitioner and her projected grand- father. 5. It also appears that without tendering any evidence, i.e. without marking the documents as exhibits, the petitioner had also submitted (i) voters list of 1989, (ii) ration card of the mother of the petitioner, and (iii) PAN Card. Even if the voters list of 1989 containing the name of the projected father of the petitioner is considered, it is still a post 25.03.1971 document. The ration card is not an admissible proof of inter-se relationship between the persons who are named therein and similarly, the PAN card also does not prove citizenship. Moreover, the petitioner has not been able to show that the person whose name appears in the PAN Card was an Income Tax payer or assessee. Accordingly, none of the documents which are annexed to this writ petition, but not proved by the petitioner by marking them as exhibits, establishes any link between the petitioner with her (i) projected father, (ii) projected mother, or (iii) the Page No.# 6/7 projected grand-father. Thus, the learned Tribunal had rightly rejected the documents which were “not proved”. Accordingly, this Court is unable to find any fault in the impugned opinion wherein it has been held that the petitioner has been able to establish the relationship or linkage with her father Farid Ali, but the presence of Umar Ali purported grandfather of the petitioner on Indian soil as citizen of India relatable to prior the period of 25.03.1971 had come under cloud. Accordingly, it appears that the petitioner has failed to prove that she had acquired citizenship of India by birth through genuine Indian parents. 6. The primary issue in a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 relates to determination as to whether the proceedee is a foreigner or not. Therefore, as the relevant facts are within the knowledge of the proceedee, notwithstanding anything contained in the Evidence Act, 1872, the burden of proving citizenship absolutely rests upon the proceedee as per the provisions of Section 9 of the Foreigners Act, 1946 read with Section 106 of the Evidence Act, 1872. In the present case in hand, the petitioner has failed to discharge the burden and to prove that she is an offspring of parents of Indian origin. 7. In light of discussions above, this 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. Therefore, as the Court is exercising supervisory 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 the finding recorded by the learned is dehors the evidence on record. Page No.# 7/7 8. Hence, this writ petition fails and the same is dismissed, leaving the parties to bear their own cost. 9. The Registry shall communicate a copy of this order to the learned Foreigners Tribunal No.5, Tezpur at Biswanath Chariali to be made a part of record of F.T. Case No. BNC/D/90/2015 for future reference. JUDGE JUDGE Comparing Assistant "