MUSSTT. NURJAHAN BEGUM V. THE UNION OF INDIA AND 5 ORS.

WP(C)/3035/2018

AI Insights

Musstt. Nurjahan Begum challenged the order of the Foreigners' Tribunal-1, Nalbari, which declared her a foreigner. The Tribunal's decision was based on the inadequacy of the documents provided by the petitioner to establish her Indian nationality and lineage to Indian parents. The High Court examined various documents and testimonies presented by the petitioner but found them insufficient to prove her case. The court noted discrepancies and lack of credible evidence linking the petitioner to her claimed parents, leading to the dismissal of her writ petition.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 680245 (HC-ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH)
• Appeal Type: Others
• Pronouncement Date: 11-04-2019
• Assessment Year: misc
• Laws Referred To: Foreigners Act, 1946
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: ASSTT S G I
• Assessee Lawyers: B AHMED
• Keywords: Foreigner; Foreigners tribunal; Illegal entry; Inadmissible evidence; Probative value

Judgement Text

"Page No.# 1/6 GAHC010094612018 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C) 3035/2018 1:MUSSTT. NURJAHAN BEGUM W/O. LATE AKBAR ALI, RESIDENT OF VILLAGE- TIHU TOWN, WARD NO. 4, P.S. TIHU, DISTRICT- NALBARI, ASSAM. VERSUS 1:THE UNION OF INDIA AND 5 ORS. REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, SHASTRI BHAWAN, NEW DELHI. 2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-6. 3:THE DEPUTY COMMISSIONER NALBARI P.O. AND DISTRICT- NALBARI ASSAM. 4:THE SUPERINTENDENT OF POLICE (B) NALBARI P.O. AND DISTRICT- NALBARI ASSAM. 5:THE ELECTION COMMISSION OF INDIA NEW DELHI TO BE REPRESENTED BY CHIEF ELECTION COMMISSIONER OF INDIA. Page No.# 2/6 6:THE STATE COORDINATOR OF NATIONAL REGISTRATION ASSAM BHANGAGARH LACHIT NAGAR GUWAHATI-5 Advocate for the Petitioner : DR. B AHMED Advocate for the Respondent : ASSTT.S.G.I. BEFORE HONOURABLE MR. JUSTICE MANOJIT BHUYAN HONOURABLE MR. JUSTICE NELSON SAILO O R D E R 11.04.2019 (Manojit Bhuyan, J) Heard Mr. D. Choudhury, learned counsel for the petitioner as well as Mr. J. Payeng, learned counsel for respondent nos. 2, 3 and 4. Mr. A.I. Ali, learned counsel represents respondent no.5 whereas Ms. U. Das, learned counsel appears for respondent no.6. None appears for respondent no.1. Petitioner assails order dated 23.02.2018 passed by the Foreigners’ Tribunal-1, Nalbari in F.T.(Nal) Case No.1/2012, declaring her to be a foreigner, who illegally entered into India after 25.03.1971. According to the petitioner, she was born on 10.02.1948 at village Ganga Sirsiya in the State of Bihar. She read upto Class-V and left school in the year 1959. She was given to marriage with one Akbar Ali of village Huchenikuthi, district-Matihari, Bihar in the year 1972 and thereafter both husband and wife shifted to Ward No.4, Tihu, in the district of Nalbari. She projected one Ali Hussain Mia as her father and Sarfun Khatun as her mother, whose names were recorded in the Voter List of 1971 of village Ganesh Sirsiya, district-East Champaran, Matihari, Bihar. She relied upon the following documents to draw lineage from said Ali Hussain Mia and Sarfun Khatun for establishing the fact that she is Page No.# 3/6 an Indian and born out of Indian parents : (i) Exhibit-1 – School Transfer Certificate dated 25.04.2014, issued by the Headmaster of Govt. M/S Shitalpur Kalyanpur-2 (East Champaran), Bihar. (ii) Exhibit-2 – Certificate issued by Jaha Village Headman of village-Ganga Sirsiya, district-East Champaran, Bihar. (iii) Exhibit-3 – Certified copy of extract of 1985 Electoral Roll relating to 42 Patacherkuchi LAC of village-Tihu Town, Ward No.4, in the name of Akbar Ali, son of Hanif, aged 30 years. (iv) Exhibit-4 – Certified copy of extract of 1970 Electoral Roll relating to 42 Patacherkuchi LAC of village-Tihu Town, Ward No.2, in the name of Hanif Miya (father- in-law of petitioner). (v) Exhibit-5 – Copy of the NRC Voter Details of 1970 of Hanif Miya of village -Tihu town. (vi) Exhibit-6 – Certified copy of extract of 2005 Electoral Roll relating to 42 Patacherkuchi LAC of village-Tihu Town, Ward No.4, in the name of the petitioner Nurjahan Begum, aged 42 years. (vii) Exhibits-7 and 8 – Certified copies of extract of 2010 Electoral Rolls relating to 42 Patacherkuchi LAC of village-Tihu Town, Ward No.4, in the name of the petitioner Nurjahar Begum, aged 47 and 52 respectively. (viii) Exhibit-9 – Original copy of PAN Card No. BRGPB276911 of the petitioner Nurjahan Begum with date of birth recorded as 10.02.1948. (ix) Exhibit-10 - Certified copy of extract of 1971 Electoral Roll relating to 18 Kesria LAC of village-Ganesh Sirsiya, in the name of Ali Hussain Miya son of Alijan Miya, aged 50 years; Sarfun Khatun wife of Ali Hassan Miya, aged 47 years, Jamila Khatun, wife of Kamaruddin Miya, aged 65 years. (x) Exhibit-11–Translated copy of Exhibit-10. (xi) Exhibit-12–Affidavit sworn by the petitioner Nurjahan Begum on 05.07.2017. (xii) Exhibit-13–Income Tax Certificate dated 15.06.2017 of Sarfun Begum, wife of Ali Husssain Mia of village – Ganga Sirsiya. Page No.# 4/6 (xiii) Exhibit-14–Original copy of Elector Photo Identity Card No. CGJ7238768 of the petitioner Nurjahan Begum, showing relation with Akbar Ali, aged 50 years as on 01.10.2013. (xiv) Exhibit-15–Original copy of Ration Card No.0060710 of petitioner Nurjahan Begum. (xv) Exhibit-16–Residence Certificate No.4739 dated 13.06.2017 issued by the Chairperson, Tihu Town Committee. (xvi) Exhibit-17–Demand Notice issued on 12.08.1996 by the Executive Officer, Tihu Town Committee to petitioner Nurjahan Begum. (xvii) Exhibit-18–Copy of details of building dated 07.01.1994, signed by petitioner Nurjahan Begum. (xviii) Exhibit-19–Original copy of Aadhar Card No.674780075895 of petitioner Nurjahan Begum. From a perusal of the documents so exhibited, it is seen that Exhibit-1 and Exhibit- 2 were employed for the purpose of establishing linkage between the petitioner and her projected father Ali Hussain Mia. Both the documents have been issued by the authorities residing in the State of Bihar. However, the said documents did not stand proved and lost any of its probative value as the authors of the said documents/certificates were not examined. In other words, the said certificates rendered itself inadmissible in evidence and did not stand proved through the legal testimony of the issuing authority. In none of the other documents i.e. from Exhibit-3 to Exhibit-19 any relation is established between the petitioner and her projected parents. Whereas the name of her husband Akbar Ali finds recorded for the first time in the Exhibit-3 Electoral Roll of 1985 of village-Tihu, the name of the petitioner finds recorded for the very first time from the same village in the Exhibit-6 Electoral Roll of 2005 as wife of Akbar. Exhibit-10 is the only document, being the certified extract copy of the Electoral Roll of 1971 of village-Ganesh Sirsiya, recording the names of her projected parents Ali Hussain Mia and Sarfun Khatun. As stated, the petitioner being born on 10.02.1948, her name ought to have appeared as an elector Page No.# 5/6 alongside her projected parents in the said Exhibit-10 Electoral Roll of 1971. The only evidence brought on record to connect herself with her projected parents is the deposition of Sarfun Khatun, her projected mother, who deposed as DW-2. On a perusal of the statement of DW-2 in her evidence-in-affidavit, a clear discrepancy in the age of the petitioner is seen, in that, whereas at Exhibit-10 the age of the petitioner is shown as 47 years, but going by the statement made by DW-2 that the petitioner was born on 10.02.1948, her age in the year 2010 becomes 62 years. Clearly, a big discrepancy in the age of the petitioner is demonstrated. Further, whereas in the evidence-in-affidavit the said DW-2 have stated that the petitioner was born at village- Ganga Sirsiya, Puran Chapra Bazar under Chakia Police Station, Bihar, an altogether different statement is made in the cross-examination that the petitioner Nurjahan was born at Kolkata. Again, the names of the siblings, as stated by the petitioner herself in her cross-examination, are different from the names of the siblings of the petitioner, as narrated by DW-2. One Late Maharam Ali becomes Late Maharam Mia; Late Aslam Ali becomes Aslam Hussain and Md. Amir Ali becomes Amir Hussain. These discrepancies found in the evidence and deposition of DW-2 goes to the root of the matter and makes the testimony of DW-2 as wholly unreliable and untrustworthy. Over and above, the deposition of DW-2 cannot come to the aid of the petitioner to establish linkage to Ali Hussain Mia or Sarfun Khatun herself, inasmuch as, the oral testimony of Sarfun Khatun as DW-2 alone cannot be regarded as sufficient proof in a proceeding under the Foreigners Act, 1946. There has to be proof by documentary evidence which, in the instant case, there is none. A perusal of the records also goes to show that the opinion/order had been rendered by the Tribunal on due appreciation of the entire facts, evidence and documents brought on record. We do not find any infirmity in the findings and opinion of the Tribunal. 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 by the petitioner that interference is warranted on ground that the Tribunal acted on evidence which is legally impermissible and/or that it refused to Page No.# 6/6 admit admissible evidence and/or that the Tribunal gave findings not supported by any evidence at all. The petitioner has not been able to make out any case demonstrating any error apparent on the face of the records. For all the discussions and findings above, we find no merit in the writ petition. Accordingly, the same stands dismissed, however, without any order as to cost. On dismissal of the writ petition, the interim order passed on 18.05.2018 stands recalled. The directions of the Tribunal shall now be given effect to. Office to send back the case records to the Tribunal forthwith. JUDGE JUDGE Comparing Assistant "