MUSSTT. RABIYA KHATUN V. THE UNION OF INDIA and 3 ORS

WP(C)/4986/2016

AI Insights

Musstt. Rabiya Khatun filed a writ petition under Article 226 of the Constitution of India challenging the order of the Foreigners Tribunal, Bongaigaon No.2, which declared her an illegal foreigner who entered India (Assam) from Bangladesh after 25.3.1971. The case initially stemmed from a reference by the Superintendent of Police (Border), Bongaigaon under the Illegal Migrants (Determination by Tribunals) Act, 1983, which was later transferred to the Foreigners Tribunal following the Supreme Court's decision in Sarbananda Sonowal vs. Union of India. The Tribunal's decision was based on the evidence presented, which the court found insufficient to establish the petitioner's claim of Indian citizenship by birth.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 724328 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 09-02-2018
• Assessment Year: misc
• Other Referred Cases: Sarbananda Sonowal vs. Union of India
• Laws Referred To: Article 226 of the Constitution of India, Illegal Migrants (Determination by Tribunals) Act, 1983, Foreigners Act, 1946, Foreigners (Tribunals) Order, 1964
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: S G I R 1
• Assessee Lawyers: M H TALUKDAR
• Keywords: Bangladesh; Evidence; Foreigner; Foreigners tribunal; Illegal migrant; India; Natural Justice; Procedure; Unconstitutional
• Section: 9; 3(1)(c)

Judgement Text

"Page No.# 1/8 GAHC010023302016 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C) 4986/2016 1:MUSSTT. RABIYA KHATUN W/O NABAR ALI D/O KORDUSH ALI R/O VILL- TOPGAON P.S. ABHAYAPURI DIST. BONGAIGAON, ASSAM. VERSUS 1:THE UNION OF INDIA and 3 ORS REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, SHASTRI BHAWAN, TILOK MARG, NEW DELHI-1. 2:THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPARTMENT DISPUR GUWAHATI-06. 3:THE SUPERINTENDENT OF POLICE B BONGAIGOAN P.O. and DIST. BONGAIGAON ASSAM. 4:THE DEPUTY COMMISSIONER BONGAIGAON P.O. and DIST. BONGAIGAON ASSAM Advocate for the Petitioner : MR.M H TALUKDAR Advocate for the Respondent : ASSTT.S.G.I.R1 BEFORE Page No.# 2/8 HONBLE MR. JUSTICE UJJAL BHUYAN HON BLE MR. JUSTICE NELSON SAILO JUDGMENT Date : 09-02-2018 (Ujjal Bhuyan, J) Heard Mr. AR Sikdar, learned counsel for the petitioner and Mr. G Pegu, learned Government Advocate, Assam. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 19.7.2016 passed by the Foreigners Tribunal, Bongaigaon No.2 at Abhayapuri in BNGN/FT/ Case 1538 of 2007 ( State of Assam –vs- Musstt. Rabiya Khatun) declaring the petitioner to be foreigner who had illegally entered into India (Assam) from Bangladesh after 25.3.1971. 3. This Court by order dated 9.9.2016 had issued notice while requisitioning the case record and passed an interim order to the effect that petitioner should be allowed to remain on bail subject to her appearance before the Superintendent of Police (Border), Bongaigaon and furnishing of adequate surety. 4. It is seen that initially reference was made by the Superintendent of Police (Border), Bongaigaon under the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) with the allegation that petitioner was an illegal migrant as defined under the said Act. Be it stated that under Section-3 (1) (C) of the IMDT Act, an illegal migrant was defined as a Page No.# 3/8 foreigner who had unauthorizedly entered into India after 25.3.1971. 5. IMDT Act was declared unconstitutional by the Supreme Court in the case of Sarbananda Sonowal –vs- Union of India ,(2005) 5 SCC 665, with the further direction that all the references which were pending before the Tribunals constituted under the IMDT Act should be transferred to the Tribunals constituted under the Foreigners Act, 1946 read with the Foreigners (Tribunals) Order, 1964. Accordingly, the related reference was transferred to the Foreigners’ Tribunal and after creation of additional Tribunals, was assigned to the Foreigners Tribunal, Bongaigaon No-2 at Abyayapuri ( Tribunal) where it was re-registered as BNGN/FT/ Case 1538 of 2007. 6. Notice issued by the Tribunal was duly served upon the petitioner whereafter petitioner had appeared before the Tribunal and filed written statement denying the allegation made that she was a foreigner by claiming to be a citizen of India by birth. She also adduced evidence. After hearing the matter, Tribunal passed the order dated 19.7.2016 answering the reference in favour of the State in the above manner. 7. A perusal of the order passed by the Tribunal dated 19.7.2016 would go to show that Tribunal had carefully appreciated whatever evidence were tendered by the petitioner and, thereafter, had rendered the finding that petitioner was an illegal foreigner from Bangladesh belonging to the post 25.03.1971 stream. Such a finding is a finding of fact. Ordinarily, a writ Court exercising jurisdiction under Article 226 of the Constitution of India would not interfere Page No.# 4/8 with such a finding of fact because the jurisdiction so exercised is supervisory and not appellate. However, a writ Court certainly would interfere if it is a case of violation of the principles of natural justice or non-conformity with the procedure laid down i.e. the procedure prescribed under the Foreigners (Tribunals) Order, 1964 or if it is a case of perversity. But the same is not the case here. 8. Notwithstanding the same, to reassure ourselves about the correctness or otherwise of the finding arrived at by the Tribunal, we have once again looked into the materials on record. 9. Record discloses that enquiry officer in his report dated 7.1.2005 reported that petitioner was a resident of village Moista under Bajitpur Police Station in the district of Maimensingh, Bangladesh. She had unauthorisedly entered into India after 25.3.1971 due to domestic problem and economic hardship. This report of the enquiry officer was accepted by higher authorities and after it was cleared by the Screening Committee, reference was made by the Superintendent of Police (Border). 10. In her written statement, petitioner stated that she was a citizen of India by birth and was a permanent resident of village-Mulbari under Abhayapuri Police Station in the district of Bongaigaon. Her name appeared in the Voters list of 2013 in respect of Abhayapuri North constituency. Prior to that, her name appeared in the Voters list of 1997. Father’s name was Kurdus Ali and he was a voter of 1966 and 1970 in respect of the then Abhayapuri Page No.# 5/8 constituency. 11. This was all that the petitioner stated in her written statement which by any account was wholly inadequate to establish her identity as a citizen of India having regard to the mandate of Section 9 of the Foreigners Act, 1946 as explained by the Supreme Court in paragraph-26 of Sarbananda Sonowal (supra). All that can be discernible from the written statement is that her father was Kurdus Ali and he was voter of 1966 and 1970. Being the daughter of Kurdus Ali, petitioner claimed to be a citizen of India. 12. Moot point is whether the petitioner could prove the aforesaid assertion made in the written statement. 13. In her evidence-in-chief filed by way of affidavit on 1.3.2016, petitioner disclosed her age for the first time as 41 years. In addition to what she stated in her written statement, petitioner stated that after her marriage to Nabar Ali, she had migrated to village Topgaon under Abhayapuri P. S. 14. Proceeding to the exhibits, we find that Exhibit-1 is an extract of the Voters list of 1966 in respect of Abhayapuri constituency . Here one of the voters was Kurdus, son of Rustom, aged 28 years. In Exhibit-2 Voters list of 1970, Kurdus Ali was shown as son of Rustom Ali, aged 32 years. Page No.# 6/8 15. The next exhibit is Exhibit-3 which is an extract of the Voters list of 1997 where two of the voters were Nabar Ali, son of Taj Uddin, aged 28 years; and Rabiya Khatun, wife of Nabar Ali, aged 24 years. Similar is the position in respect of Exhibit-4 which is an extract of the voters list of 2013. 16. Till this point of time, there is no document on record to show that Rabiya Khatun is the daughter of Kurdus or Kurdus Ali of Exhibit 1 and Exhibit-2. 17. Petitioner introduced Exhibit-5, a PAN card of the Income Tax Department wherein Rabiya Khatun was shown as related to Kurdus Ali and her date of birth was mentioned as 10.9.1974. 17 A. Tribunal took the view that this PAN card could not be treated as trustworthy document. We concur with the view of the Tribunal for more than one reason. Firstly, petitioner is not an income tax payee. There is no record of filing of return of income tax by the petitioner at any point of time. That apart, petitioner appears to be from agricultural background. Agricultural income is exempt from the purview of the Income Tax Act, 1961. Therefore, obtaining of PAN card by the petitioner appears to be quite unusual. 17 B. Secondly, this PAN card was not proved by tendering of evidence by the Income tax Page No.# 7/8 authority. Had a responsible officer of the income tax department deposed before the Tribunal , it would have been clear as to whether petitioner had indeed made any application for obtaining the PAN card and the particulars of such application. In the absence thereof, no credence can be given to such a PAN card. 17 C. Thirdly, this PAN card categorically mentioned the date 10.9.1974, which may be presumed to be the date of birth of the card holder. If the date of birth was known to the petitioner, certainly the same should have been mentioned in the written statement as well as in the evidence-in-chief filed by way of affidavit. But that was not done. 18. Therefore, this Exhibit-5 cannot be said to be a valid piece of evidence to establish that Kurdus Ali was a citizen of India and that Rabiya Khatun was the daughter of Kurdus Ali and thereby she was a citizen of India. 19. Net result of the above discussion is that petitioner had miserably failed to discharge her burden under Section 9 of the Foreigners Act, 1946 to prove that she was not a foreigner but a citizen of India. The narrative presented by the petitioner besides suffering from material contradictions and omissions is also highly suspect and improbable. Under such circumstances, we do not find any error or infirmity in the view taken by Tribunal and find no ground to interfere with the same. 20. Resultantly, writ petition is found to be devoid of merit and is accordingly dismissed. Page No.# 8/8 Interim order passed earlier stands vacated. 21. Registry to send down the LCR forthwith and inform the concerned Foreigners Tribunal, Deputy Commissioner and Superintendent of Police (Border) for doing the needful. 22. A copy of this order may be furnished to learned Standing Counsel, Election Commission of India and the State Coordinator, NRC. JUDGE JUDGE Comparing Assistant "