SOMALA KHATOON V. THE UNION OF INDIA AND 5 ORS.

WP(C)/4411/2019

AI Insights

Somala Khatoon challenged the opinion of the Foreigners Tribunal, Tezpur, which declared her a foreigner based on the evidence and documents presented, including electoral rolls and a school admission register. The Tribunal found discrepancies in the documents, such as the impossibility of certain dates and the lack of proper maintenance of records, leading to the rejection of key pieces of evidence. The High Court reviewed the Tribunal's decision, focusing on the legal standards of evidence and the burden of proof under the Foreigners Act, 1946, and concluded that the Tribunal's findings were justified and supported by the evidence.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 678818 (HC-ASSAM NAGALAND MIZORAM AND ARUNACHAL PRADESH)
• Appeal Type: Others
• Pronouncement Date: 26-08-2019
• Assessment Year: misc
• Laws Referred To: Article 226 of the Constitution of India, Evidence Act, 1872, Foreigners Act, 1946
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: ASSTT S G I
• Assessee Lawyers: L R MAZUMDER
• Keywords: Bangladesh; Electoral roll; Evidence; Foreigner; Foreigners tribunal; Illegal entry; School certificate
• Section: 34

Judgement Text

"Page No.# 1/6 GAHC010139632019 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C) 4411/2019 1:SOMALA KHATOON D/O. ABDUL BAREK, W/O. GULZAR HUSSAIN, VILL. BIHIAGAON, P.S. TEZPUR, DIST. SONITPUR, ASSAM-784001. VERSUS 1:THE UNION OF INDIA AND 5 ORS. THROUGH- THE MINISTRY OF HOME AFFAIRS, GRIHA MANTRALAYA, NEW DELHI. 2:THE STATE OF ASSAM THROUGH- THE SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GUWAHATI-06. 3:THE ELECTION COMMISSION OF INDIA NIRVACHAN SADAN ASOKA ROAD NEW DELHI-110001. 4:THE STATE CO-ORDINATOR NATIONAL REGISTRATION OF CITIZEN ASSAM BHANGAGARH GUWAHATI-781005. 5:THE DY. COMMISSIONER SONITPUR P.O. TEZPUR DIST. SONITPUR ASSAM-784001. Page No.# 2/6 6:THE SUPDT. OF POLICE (B) SONITPUR P.O. TEZPUR DIST. SONITPUR ASSAM PIN-784001 Advocate for the Petitioner : MR. L R MAZUMDER Advocate for the Respondent : ASSTT.S.G.I. BEFORE HONOURABLE MR. JUSTICE MANOJIT BHUYAN HONOURABLE MR. JUSTICE KALYAN RAI SURANA ORDER Date : 26.08.2019 (K.R. Surana, J) Heard Md. I. Hussain, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing respondent no. 1. Also heard Mr. J. Payeng, learned SC, Foreigners’ Tribunal representing respondent nos. 2, 5 and 6, Mr. A.I. Ali, learned SC, Election Commission, representing respondent no. 3 and Ms. A. Verma, learned counsel representing for respondent no. 4. 2) By this writ petition filed under Article 226 of the Constitution of India, the petitioner has challenged the opinion dated 25.07.2018, passed by the learned Foreigners Tribunal, Tezpur 1st, Assam in F.T. Case No. 292/2016, corresponding to Police Enquiry No. 486/2016, thereby opining that the petitioner, namely, Musstt. Somala Khatoon, is a foreigner, having entered India illegally from the specified territory of Bangladesh after 25.03.1971. 3) The learned counsel for the petitioner has referred to the documents annexed to the writ petitioner and has submitted that the case of the petitioner, in brief, is Page No.# 3/6 that she was born on 15.08.1991 at Village- Karioni Nepali, P.S. Tezpur in the District of Sonitpur. She has projected that Late Hussain Ali was her grand-father and his name appeared in the electoral roll of 1965 and 1971. The name of her projected father is Abdul Barek, whose name is entered in the electoral roll of 1993. The petitioner has married Md. Gulzar Hussain on 20.08.2014, and since then she is residing at Village- Bihiyagaon, P.S. Tezpur, Dist. Sonitpur, Assam. In support of her defence, the petitioner has examined three witnesses, including herself (DW-1), Md. Usman Goni, her younger brother (DW-2), and the Headmaster of Koroiani Nepali Primary School (DW-3). The petitioner has exhibited the following documents, viz., School Leaving Certificate dated 18.01.2018, issued by DW-3 (Ext.A); Digitally certified copy of electoral roll of 1965 (Ext.B); Digitally certified copy of electoral roll of 1971 (Ext.C); Digitally certified copy of electoral roll of 1993 (Ext.D); Admission register of Koroiani Nepali Primary School as produced by DW-3 (Ext.1). 4) The learned counsel for the petitioner has submitted that while rendering the opinion, the learned Tribunal has not discussed the evidence of the DW-2, which has caused prejudice to the petitioner and at the same time, the opinion has also got vitiated. It is also submitted that the learned Tribunal has not properly appreciated the evidence on record and arrived at a wrong conclusion. It is also submitted that although the State had not cross examined the DW-2 and DW-3, the learned Tribunal had discarded both their evidence including Ext.1. 5) Perused the writ petition and documents annexed thereto. On appreciating the opinion, it is seen that the finding of fact recorded by the learned Tribunal on Ext.1 i.e. school admission register is that the name of the petitioner is entered in the said admission register on 30.01.2001 at Sl. No.31, and the said entry is at page marked as Ext.1(1) and the particular entry of her name is marked as Ext.1(2). Upon appreciating the said exhibit, the learned Tribunal has found that the student at Sl. No. 22 was entered in the said admission register on 27.02.2001; Sl. No. 23 was entered on 28.02.2001; Sl. No. 24 to 30 was entered on 29.02.2001. However, the entry of name of the petitioner at Sl. No. 31 was made on the date of 30.01.2001, as such, the entry No.31 is pre-dated the entries made in Sl. No. 22 to Page No.# 4/6 30. Hence, noticing the said discrepancy, the entries made in Ext.1 was discarded along with the evidence tendered by the DW-3. It is seen that in this writ petition, the petitioner has not disputed the correctness of the hereinbefore referred dates in respect of date of admission of students at Sl. No.22 to 31 of Ext.1 as reflected in the opinion. If the entry of students at Sl. No. 24 to 30 was entered on 29.02.2001, the same would render the admission register (Ext.1) to be a register which is not maintained in regular course of ordinary business, as envisaged under Section 34 of the Evidence Act, 1872 because the month of February, 2001 being not a leap year, would never have the date of 29th February in the English calendar year of 2001. Moreover, in an admission register, it is expected that name of students would be entered serially, as such, when the student whose name appears at Sl. No. 22 is entered on 27.02.2001, students at Sl. No. 23 is entered on 28.02.2001, students at Sl. No. 24 to 30 are entered on 29.02.2001, it is not possible to make entry of the name of the petitioner at Sl. No.31 on 30.01.2001. Therefore, the evidence of DW-3 including the Ext.A and 1, Ext.1(1) and Ext.1(2) is found to be rightly discarded by the learned Tribunal. 6) As regards the evidence tendered by DW-2 is concerned, it is seen that the petitioner has not stated in her written statement that she has a younger brother named Md. Usman Goni. The learned Tribunal in paragraph 9 of its opinion has mentioned that the proceedee (i.e. the petitioner) has mentioned nothing regarding the brother and sister of her projected father Abdul Barek and that she has also not shown any reason for non-enlisting of the name of any family member along with her projected father. As per the evidence of DW- 2, he was 25 years old on 05.04.2018, as such, he would have attained voting age of 18 years in or about the year 2011, but the DW-2 has not disclosed when he had casted his vote. The DW-2 had re-marked the documents exhibited by the petitioner as Ext.Ka. He has exhibited Ext.B as Ext.Kha, but the signatories to the said document has not been examined as witnesses. Moreover, for reasons best known to the petitioner, the complete deposition of DW-2 has not been translated into English for the perusal of the Court yet we have perused the vernacular copy of his deposition. Moreover, the copy of Ext.Kha, Ext.Ga and Ext.Cha exhibited by DW-2 has not been annexed in this writ petition. Thus, not only the DW-2 has introduced a new story, that had hitherto not pleaded by the petitioner in her written Page No.# 5/6 statement, but the DW-2 has also introduced new set of documents, for which no leave appears to have been taken and in respect of which no additional written statement by the petitioner has been brought on record in this writ petition. Hence, the evidence tendered by the said DW-2 is beyond pleadings. Moreover, it is well settled that PAN Card is not a proof of relationship and in the absence of proof entered to show that the DW-2 had taxable income and was an income tax payee, the PAN card would neither be sufficient to establish the link between the petitioner and her projected father nor the said document would be sufficient to establish a link between the DW-2 and the petitioner or link between the DW-2 and his projected father. Thus, it is seen that the non- discussion of the evidence of DW-2 has neither caused any prejudice to the petitioner, nor the non-discussion of evidence of DW-2 in the opinion has vitiated the said opinion. The proceedings before the learned Tribunal, being essentially quasi- judicial, and in light of the prescription of law as envisaged under Section 9 of the Foreigners Act, 1946 that the burden of proof is on the proceedee, it was required that the petitioner should lay the foundation of her defence in the written statement and then lead evidence thereon. It is also too well settled principle of law that without the foundation of pleadings, no amount of evidence can be looked into by the Courts and Tribunals. The learned Tribunal has rightly observed that the petitioner has failed to produce any electoral roll having the names of either her parents or the family members since the year 1971 to 1993 (23 year period). 7) Thus, the only document, which can link the petitioner with her projected father is the School Certificate (Ext.A) and Admission Register (Ext.1). The said two exhibits are rightly found to be discarded by the learned Tribunal as not admissible, as such, the link between the petitioner and her projected father and grand- father has failed. Thus, the other exhibited documents, i.e. Ext.B, Ext.C, Ext.D cannot establish any link between the petitioner and her projected father or grand- father. The additional documents exhibited by DW-2 (i.e. except documents exhibited by DW-1/ petitioner) are all beyond pleadings and rightly discarded by the learned Tribunal. Thus, there is no material before this Court to interfere with the opinion rendered by the learned Tribunal. Page No.# 6/6 8) 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. 9) Hence, this writ petition fails and the same is dismissed, leaving the parties to bear their own cost. JUDGE JUDGE Comparing Assistant "