SONSENI BEGUM @ SUNCHANI @ KHONSANI BEGUM V. THE UNION OF INDIA AND 5 ORS.

WP(C)/5439/2019

AI Insights

Sonseni Begum filed a writ petition under Article 226 of the Constitution of India challenging the opinion of the Foreigners Tribunal which declared her a foreigner of post-1971 stream. The Tribunal's decision was based on insufficient documentary evidence to prove her or her parents' residency in India before the cutoff date of March 25, 1971. The High Court examined various documents and testimonies presented by the petitioner but found them inadequate to overturn the Tribunal's decision. Key documents included voter lists, land revenue receipts, and a residency certificate, none of which convincingly established the petitioner's claim of Indian nationality. The court also highlighted inconsistencies in the petitioner's identity across different legal documents.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 745803 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 25-10-2019
• Assessment Year: misc
• Other Referred Cases: Mustt. Rabiya Khatun \/-vs- Union of India (WP(C) No. 4986/2016), Mustt. Amina Khatun \/-vs- Union of India in WP(C) No. 7339/2015
• Laws Referred To: Article 226 of the Constitution of India, Citizenship Act, 1955 (as amended)
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: G HAZARIKA; J PAYENG; B DAS; A VERMA
• Assessee Lawyers: G DEKA
• Keywords: Foreigners tribunal; Foreigner of post 1971 stream; Nationality doubt; Illegal migration; Citizenship proof
• Section: 3(1); 6(A)

Judgement Text

"Page No.# 1/5 GAHC010176432019 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C) 5439/2019 1:SONSENI BEGUM @ SUNCHANI @ KHONSANI BEGUM D/O- HANIF ALI, W/O- MAKBUL ALI, VILL- GOG, P.S. BAIHATA CHARIALI, DIST- KAMRUP, ASSAM VERSUS 1:THE UNION OF INDIA AND 5 ORS. THROUGH THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, GRIHA MANTRALAYA, SHASTRI BHAWAN, NEW DELHI- 110001 2:THE STATE OF ASSAM THROUGH THE SECY. TO THE GOVT. OF ASSAM DEPTT. OF HOME DISPUR GHY-6 3:THE ELECTION COMMISSION OF INDIA NIRVACHAN SADAN ASOKA ROAD NEW DELHI- 110001 4:THE STATE CO-ORDINATOR NATIONAL REGISTRATION OF CITIZEN ASSAM BHANGAGARH GHY-5 5:THE DY. COMMISSIONER DIST- KAMRUP AMINGAON Page No.# 2/5 PIN- 781031 6:THE SUPERINTENDENT OF POLICE (B) DIST- KAMRUP AMINGAON PIN- 78103 Advocate for the Petitioner : MS G DEKA Advocate for the Respondent : ASSTT.S.G.I. BEFORE HON’BLE MR. JUSTICE MANOJIT BHUYAN HON’BLE MR. JUSTICE AJIT BORTHAKUR O R D E R 25.10.2019 (A. Borthakur, J) Heard Ms. G Deka, learned counsel for the petitioner as well as Ms. G. Hazarika, learned Counsel representing respondent No. 1. Mr. J. Payeng, learned counsel appears for respondent nos. 2, 5 & 6 whereas Ms. B. Das, learned counsel appears for the respondent no. 3 and Ms. A Verma, learned counsel for the respondent No. 4. 2. By this petition under Article 226 of the Constitution of India, the petitioner assails the final opinion, dated 15.03.2019, rendered by the learned Member, Foreigners Tribunal No. 5, Kamrup at Rangia in RFT Case No. 523(i)B/2016 declaring her to be a foreigner of post 1971 stream. 3. The Superintendent of Police (Border), Kamrup at Amingaon made a reference being Reference Police Case No. 860/02, expressing doubt about the nationality of the proceedee/petitioner herein and accordingly, to ascertain and give opinion whether she illegally migrated to India from the specified territory after 25.03.1971. Subsequently, the said reference was registered as RFT Case No. 523(i)B/2016 in the Tribunal of learned Member, F.T. No. 5, Kamrup, Assam. Page No.# 3/5 4. On receipt of notice, the petitioner contested the reference by filing a written statement claiming to be an Indian national. In the said proceeding, the petitioner examined herself as D.W. 1, D.W.2 Makbul Ali @ Makbul Hussain, her husband and D.W. 3 Kubat Ali and further, exhibited the documents viz. Ext. 1, the certified copy of Sadar Jamabandi of Kheraj Myadi land at Village- Gog, under Barbangshar Mouza, District- Kamrup, dated 16.02.2010; Ext. 2, the land revenue paying receipt pertaining to the said plot of land, dated 09.03.2010; Ext. 3, the certified copy of the Voter list of 1966; Exts. 4, 5 & 6, the certified copies of the Voter lists of 2005, 2010 and 2016 respectively; Ext. 7, the copy of the Electoral Survey, conducted on 24.02.1997; Ext. 8, the petitioner’s Elector Photo Identity Card; Ext. 9, Pan Card; Ext. 10, the certified copy of opinion rendered by the learned Member (i/c), F.T. No. 5, Kamrup at Rangia in RFT(R) Case No. 114/2016, declaring the petitioner’s son Rahman Ali as an Indian national; Ext. 11, the first page of the petitioner’s savings A/C passbook in the State Bank of India, Baihata Chariali and Ext. 12, the residency certificate, dated 27.05.2019, issued by the Gaonburha of Village- Gog. 5. For better appreciation of the impugned opinion of the learned Tribnal, we feel it apposite to reproduce the relevant paragraphs thereof: “9. Be that, as it may, not a single document in respect of proceedee herself or her parents were furnished in this case which is prior to 25.03.1971; whence it is transpired to be a clear cut case of foreigner of post 25th March, 1971 stream by virtue of S. 6-A of the Citizenship Act, 1955 (as amended). In Ext- 1 the certified copy of Sadar Jamabandi, wherein the name of her projected father Hanif Seikh was enlisted, but in this document contents (entries) are reflected since only 1972-73 and Ext-1(1) is the said relevant entry. 10. Further, Ext-3 (voter list of 1966) wherein the name of Sakibhan Nessa and Makbul Hussain, claimed to be her mother-in-law and husband respectively were enrolled pertaining to 72 Mangaldai LAC at village Bihdiya (Assam), is also not relevant for deriving Indian Citizenship status of proceedee. Oral evidence of D.W.-2 & 3 are also not relevant vis-à-vis citizenship status of O.P and furthermore, in absence of any documentary evidence, it is not save to rely upon solely oral evidence. Other exhibits were for the purpose of linkage of proceedee only. 11. However, the proceedee could not establish her linkage with her parents at all. Ext-9 (Pan Card of O.P) speaks only that she is the daughter of one Hanif Ali; but, in a Pan Card we do not have any address and as such, the same does not suggest that said Hanif Ali was the resident of village Gog under Baihata Chariali P.S. in the district of Kamrup, Assam, as claimed to be O.P.’s father. It is also a fact that in her Pan Card (Ext-9) and Savings A/C passbook (Ext-11), her name was recorded as Khonsani Begum instead of Sonseni Begum and also her father’s name was written as Hanif Ali instead of Hanif Seikh as found in Ext.-1. Moreover, the O.P. submitted her Pan Card; but, she neither submitted any income tax return nor describe any reason for which she procured the Pan Card. Furthermore, Agricultural income is exempted from the purview of Income Tax Act, 1961,; as such, it Page No.# 4/5 gives the smell of oblique interest. The Hon’ble Gauhati High Court in Mustt. Rabiya Khatun –vs- Union of India (WP(C) No. 4986/2016) categorically made observation in this regard. 12. Ext-12 ie, her residency certificate issued by Govt. Gaonburah of village Gog was also not proved by its author gracing the witness box with relevant record. 13. Ext-10 ie, the certified copy of opinion/order passed by the then Member (i/c). F.T. -5, Kamrup(R), Rangia through which her son Rahman Ali was declared as Indian national, has no relevancy vis-à-vis citizenship proof of present proceedee. Even, Principle of Res judicata embodied in Sec. 11 of CPC would not be attracted to a proceeding under Foreigners Act, 1946 read with Foreigners (Tribunal) Order, 1964 as opined by Hon’ble Gauhati High Court in Mustt. Amina Khatun –vs- Union of India in WP(C) No. 7339/2015. 14. Further, no credible proof was there as to when or where O.P. was born to attract S.3(1) of the Citizenship Act, 1955, for the proof of citizenship of India by birth. In fact, the proceedee herself divulged that she could not say her date of birth, even the year of birth. After all, every where some big lacunas as well as insufficiency of documents were there; but the O.P. could fill up the holes at all. In Result 15. In view of the above, it is observed that the proceedee has miserably failed to prove her case; neither her own nor her parent’s residential status prior to 25th March, 1971 in Assam has been proved. Therefore, my opinion is that the O.P. in the present case, namely, Mustt. Sonseni (@Sunchani) Begum is a foreigner of post 1971 stream. Hence, the issue of the reference is decided in affirmative on contest.” 6. We have gone through the documents produced by the petitioner/proceedee including the above impugned opinion rendered by the learned Tribunal. 7. It is noticed that in addition to the documents exhibited in the proceeding before the learned Tribunal cited above, the petitioner has produced before us the Voter list of 1965, wherein the names of the projected father Hanif Ali, age 45 years, son of Ismail and mother Momsani Bibi, age 35 years, respectively, appear in Sl. Nos. 435 and 436 against the house No. 124 of Village- Gog, under Barbangshar Mouza, Police Station Kamalpur and so also in the Legacy Data of 1966. These two documents were, however, not produced and exhibited in the proceeding before the learned Tribunal for consideration. 8. Further, we have perused the copy of the draft NRC of the year 2018 of village ‘Gaog’, where we find the name of one family member of Hanif Ali, namely Asraf Ali as son and Hanif Ali’s wife Samseni Bibi instead of Mamsani Bibi as it appears in the Voter list of 1965. In this document, the name of the petitioner does not appear. It is seen that the petitioner has applied for entry of her name as daughter of Hanif Ali against the legacy data code 15040545553 and accordingly, a notice, dated 07.06.2019, was issued for hearing on 10.06.2019, from the office of the NRC, Kamalpur 11 (1190), but no document showing the Page No.# 5/5 outcome of the said hearing is produced before us. There is no explanation as to how the petitioner’s name remained out of the Voter lists and the draft NRC, despite the plea that although she had got married to one Makbul Hussain @ Ali of Village- Bihdia, P.S.- Dalgaon, Mauza- Sialmari, District- Darrang, Assam and six children were born out of their wedlock and she returned to her parental Village- Gog some 35 years ago and further, as per her claim, she has been casting vote in Village- Gog of 51 No. Jalukbari LAC vide the Voter list of 2005 and Elector Photo Identity Card, dated 01.10.2013. In the said Elector Photo Identity Card, the petitioner’s age as on 01.10.2013 is shown to be 68 years, indicating thereby that she was born sometime in the year 1945, but there is no Voter list with her either of the parents to establish her linkage to her projected father Hanif Ali and that she ever casted her vote in any year of elections. Surprisingly, the PAN Card No. CWDPB4678Q is standing in the name of Khonsani Begum, daughter of Hanif Ali with her date of birth 15.09.1954 instead of sometime of the year 1945 and without any reference to her address. Therefore, this document has no significance to establish the identity of the petitioner as a citizen of India. 9. We have also noticed that one Abdul Majid, Govt. Gaonbura of Village- Gog issued a certificate, dated 27.05.2019, that is, after the impugned opinion was rendered by the Tribunal, on 15.03.2019, certifying the petitioner to be the daughter of late Hanif Ali of Village Gog and she had got married to one Mokbul Ali of Village- Bihdia, Darrang District and further, she has been living at village Gog for about 35/36 years, after she returned from the said Village- Bihdia, which was her matrimonial village. This document was not produced before the learned Tribunal and proved in accordance with law. 10. Thus, on scrutiny of the above documents along with the reasons recorded in the impugned opinion rendered by the Tribunal with reference to the petitioner’s exhibited documents, we find no merit in the writ petition. Accordingly, the same is dismissed, however, without any order as to cost. JUDGE JUDGE Comparing Assistant "