RAHIMA KHATUN V. THE UNION OF INDIA AND 6 ORS.

WP(C)/4892/2019

AI Insights

The case involves Rahima Khatun, who challenged the opinion of the Foreigners Tribunal, Baksa at Tamulpur, declaring her a foreigner. The Tribunal's decision was based on insufficient evidence to prove her Indian lineage. The petitioner argued that her father and brother were listed in the electoral rolls of 1965 and 1970, and she had been voting since 1995. However, the court found discrepancies and lack of conclusive evidence linking her to her claimed lineage. The court emphasized that the burden of proof lies with the petitioner under the Foreigners Act, 1946.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 721996 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 11-09-2019
• Assessment Year: misc
• Other Referred Cases: Md. Babul Islam-vs-Union of India [WP(C) 3547/2016]
• Laws Referred To: Article 226 of the Constitution of India, Foreigners Act, 1946, Foreigners (Tribunals) Order, 1964, Evidence Act, 1872, Assam Land and Revenue Regulation, 1886
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: G HAZARIKA; A BORGOHAIN; A KALITA; U DAS
• Assessee Lawyers: K LAHKAR
• Keywords: Burden of Proof; Citizenship; Foreigner; Foreigners tribunal; Lineage proof
• Section: 9; 226

Judgement Text

"Page No.# 1/6 GAHC010155972019 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C) 4892/2019 1:RAHIMA KHATUN W/O. MD. JAYNAL ALI, D/O. LATE MIRMAJ FAKIR AND LATE ASIYA KHATUN, R/O. VILLAGE- DWARKUCHI, P.O. DWARKUCHI, P.S. TAMULPUR, PIN- 781367, DIST.- BAKSA (BTAD), ASSAM. VERSUS 1:THE UNION OF INDIA AND 6 ORS. REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI. 2:THE CHIEF ELECTION COMMISSIONER ELECTION COMMISSION OF INDIA ASHOKA ROAD NEW DELHI- 110001. 3:THE STATE OF ASSAM REP. BY ITS SECRETARY GOVT. OF ASSAM HOME DEPTT. DISPUR GHY.-6. 4:THE DIRECTOR GENERAL OF POLICE ASSAM ULUBARI GHY.- 781007. 5:THE STATE COORDINATOR O/O. THE STATE COORDINATOR OF NATIONAL REGISTER OF CITIZENS (NRC) Page No.# 2/6 ASSAM 1ST FLOOR ACHYUT PLAZA GS ROAD BHANGAGARH GHY.- 781005. 6:THE DEPUTY COMMISSIONER BAKSA (BTAD) DIST.- BAKSA (BTAD) ASSAM. 7:THE SUPERINTENDENT OF POLICE (BORDER) BAKSA DIST.- BAKSA (BTAD) ASSAM Advocate for the Petitioner : MR. K LAHKAR Advocate for the Respondent : ASSTT.S.G.I. BEFORE HONOURABLE MR. JUSTICE MANOJIT BHUYAN HONOURABLE MR. JUSTICE KALYAN RAI SURANA ORDER 11.09.2019 (K.R. Surana, J) Heard Mr. I. Ahmed, the learned counsel for the petitioner as well as Ms. G. Hazarika, learned CGC for respondent No.1, Ms. A. Borgohain, learned Standing counsel for respondent No.2, Mr. A. Kalita, learned Standing counsel for the respondent Nos. 3, 4, 6 and 7 and Ms. U. Das, learned Standing counsel for respondent No.5. 2) By this writ petition filed under Article 226 of the Constitution of India, the petitioner has challenged the opinion dated 31.05.2019 passed by the learned Member, Foreigners Tribunal, Baksa at Tamulpur in F.T. Case No. 2229/Baksa/2016 arising out of Page No.# 3/6 reference made by the Superintendent of Police (B), Baksa bearing F.T. Case No.583/2010. By the said opinion, the petitioner was declared as a foreigner who had entered India after 25.03.1971. 3) The learned counsel for the petitioner has referred to the written statement and evidence- on- affidavit filed by the petitioner. It is submitted that the petitioner was born and brought up in Village- Rajakhat, P.S. Barpeta, Dist. Barpeta, Assam. The petitioner has projected that Mirmaj Fakir @ Mirmaj Ali Fakir and Asiya Khatun are her parents and that her father’s name appeared in the Voters list of 1965 and 1970 under 48 No. Bhawanipur L.A.C. The petitioner has further projected that the name of Iman Ali, her elder brother appears in the voters list of 1970 of Village- Rajakhat. It is submitted that as per the written statement, the marriage of the petitioner was solemnized in the year 1990 with Md. Jainal Ali, son of Abdul Aziz, resident of Village- Dwarkuchi and that she has been casting her vote as a resident of husband’s residence till now. In the evidence- on- affidavit, the petitioner has explained that the petitioner had casted her vote in respect of 57 No. Rangia L.A.C of from the year 1995. Hence, it is submitted that by not considering the evidence available on record, the petitioner has been declared as a foreigner, as such, it is prayed that the impugned opinion is liable to be set aside and quashed and that the petitioner is liable to be declared as an Indian citizen. 4) We have considered the submissions of the learned counsel for the appearing parties and perused the documents annexed to the writ petition. It is seen that in support of her case, the petitioner has examined three witnesses, including herself (OPW-1), Sri Gauranga Gop, who is the Gaonbura of Rajakhat and Tangla, Mouza- Bhawanipur, Dist. Barpeta (OPW-2), and Iman Ali, the petitioner’s projected brother (OPW-3). From the evidence- on- affidavit filed by the petitioner, it appears that the petitioner has exhibited the following documents, viz., (i) NRC details (Ext.1), (ii) electoral roll of 1965 containing the name of Mirmaj Fakir of Village- Rajakhat (Ext.2), (iii) electoral roll of 1970 containing the name of Mirmaj Fakir and Iman Ali of Village- Rajakhat (Ext.3), (iv) Annual Khiraj Patta No.31 in the name of Mirmaj Fakir of Village- Rajakhat (Ext-4) (document not annexed to the writ petition), (v) certificate dated 22.10.2018 issued by the Gaonbura of Village- Rajakhat Page No.# 4/6 (Ext.5), PAN Card of the petitioner (Ext.6), (vii) electoral roll of 1997 containing the name of the petitioner of Village- Dwarkuchi (Ext.7), (viii) electoral roll of 2017 containing the name of the petitioner of Village- Dwarkuchi (Ext.8), and (ix) Elector Photo Identity Card of the petitioner (Ext.9). There is no reference to Ext.10 in the evidence- on- affidavit filed by the three DWs or in their cross-examination. However, the DW-3 has marked his own Elector Voter Identity Card as Ext.11. 5) It is seen that the name of projected father of the petitioner appears in the voters list of 1965 (Ext.2) and in voters list of 1970 (Ext.3). In the evidence on affidavit filed by the petitioner (DW-1), she has mentioned that the voters list of 1970 contains the name of Iman Ali, her elder brother. However, in the written statement, the petitioner has not make any statement that she had any brother by name of Iman Ali. Surprisingly, in the cross- examination, the petitioner has stated that she does not know the name of her grandmother or about the brothers and sisters of her father. The said statement gives an impression that the petitioner is a tutored witness, who is unable to disclose names which do not appear in the exhibited documents. Although, in her cross-examination, the petitioner has mentioned that she had two brothers and a sister, their existence is not disclosed in the written statement filed by the petitioner. The National Registrar of Citizens (NRC for short) details is marked as Ext.1. The said document contains the name of Mirmaj Ali Fakir. In the written statement, the petitioner has projected Mirmaj Fakir as her father but there is no statement to the effect that Mirmaj Ali Fakir is also a name by which her father was also known. The petitioner has exhibited annual patta (Ext.4) standing in the name of her projected father. As per the statement made by DW-3 in his cross-examination, his father had expired about 30- 35 years ago, but the petitioner as well as DW-3 has not made any attempt to explain, why no steps was taken to mutate the names of legal heirs of the projected father of the petitioner and the petitioner has not given any explanation, why no land revenue paid receipt was not exhibited and proved the petitioner or DW-3. Thus, the said Ext.4 cannot be accepted as a valid proof to link the petitioner with her projected father. The Gaonbura of village- Rajakhat, who had issued a certificate dated 22.10.2019 (Ext.5) was examined as DW-2. The said witness had admitted issuing the said certificate. However, in his cross- examination, DW-2 had admitted that he had not consulted with any record and that he does Page No.# 5/6 not know whether they (meaning the petitioner and her projected father) had come from Bangladesh. Therefore, the Gaonbura certificate was not issued on the basis of any record, but was issued on the basis of personal knowledge alone. Moreover, no provisions in the Executive Instructions contained in the Assam Land and Revenue Regulation, 1886 has been brought to the notice of this Court that it is a part of duty assigned to a Gaonbura to maintain a register of residents of villages under his Lot containing description of married persons, as such, the entries contained in the said Gaonbura’s certificate (Ext.5) cannot be accepted as a link between the petitioner and her projected father. It has been held by this Court in the case of Md. Babul Islam-vs-Union of India [WP(C) 3547/2016] that Income Tax PAN Card (Ext.6) is not a conclusive proof of lineage. Moreover, the petitioner has not exhibited any document to show that is an income tax assessee having taxable income or is otherwise entitled to Income Tax refund. Hence, the Income Tax PAN Card cannot be accepted as a valid link between the petitioner and her projected father. This Court has also held in Md. Babul Islam (supra) that Elector Voter Identity Card does not constitute proof of lineage, as such, Ext.9 also does not help the petitioner in any manner to prove her lineage. The voters list of 1997 (Ext.7) is and the voters list of 2017 (Ext.8) also do not establish any linkage between the petitioner and her projected father. Thus, although the petitioner had exhibited nine documents, but none of the documents establish a valid link between the petitioner and her projected father. Moreover, none of the documents exhibited by the petitioner has linked the petitioner with Iman Ali (DW-3) as there is not a single document containing the names of the petitioner as well as the said DW-3 together. As there is no document containing the names of the petitioner and her projected father together, the existence of relationship between the petitioner and her projected father cannot be said to be established by a mere statement made by the DWs in their evidence- on- affidavit. Accordingly, we find no good grounds to sustain the challenge against the impugned opinion rendered by the learned Tribunal. 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 Page No.# 6/6 citizenship absolutely rests upon the proceedee as per the provisions of Section 9 of the Foreigners Act, 1946. 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 its finding is dehors the evidence on record. 8) Hence, this writ petition fails and the same is dismissed, leaving the parties to bear their own cost. 9) The Registry may communicate a copy of this order to the Foreigners Tribunal, Baksa at Tamulpur may be made a part of the records of the learned Tribunal in respect of F.T. Case No. 2229/Baksa/2016, disposed of by opinion dated 31.05.2019 for future reference. JUDGE JUDGE Comparing Assistant "