IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) WP(C) 2098 of 2013

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1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) WP(C) 2098 of Mustt. Khatoon Nessa, W/o. Md. Samsul Hoque, D/o. Lt. Uttam Ali. 2. Md. Samsul Hoque, S/o. Late Dula Miah. 3. Md. Jainul Hoque S/o. Md. Samsul Hoque. 4. Md. Inul Hoque, S/o. Md. Samsul Hoque. 5. Md. Jiyarul Md. Jairul Hoque, S/o. Md. Samsul Hoque. 6. Mustt. Hasena Hasen Banu, D/o. Md. Samsul Hoque. 7. Mustt. Saiful Nessa, D/o. Md. Samsul Hoque. All are resident of Vill- Paschim Barkhal, PS- Jagiroad, District- Morigaon, Assam. -Vs- Petitioners. 1. The Union of India, represented by the Secretary to the Govt. of India, Ministry of Home Affairs, New Delhi The State of Assam, represented by the Commissioner and Secretary to the Govt. of Assam, Home Department, Dispur, Guwahati The Superintendent of Police(B), Morigaon, Assam. Respondents. WP(C) 2098/ CAV Page 1 of 8

2 BEFORE THE HON BLE MR. JUSTICE B.K. SHARMA For the petitioners : For the respondents : Mr. J. Ahmed, Adv. Mrs. H.M. Phukan, GA, Assam. Mr. M. Bhagabati, CGC. Date of hearing : 23/07/2013. Date of judgement : 30/08/2013. JUDGEMENT AND ORDER (CAV) This writ petition is directed against the judgement and order dated 25/01/2013 passed by the learned Member, Foreigners Tribunal (1 st ) Morigaon in FTC Case No. 105/2007 (Police reference No. IM(D)T Case No. 179/2002) (State of Assam Vs. Ms. Khatoon Nessa and others). 2. I have heard Mr. J. Ahmed, learned counsel for the petitioner. I have also heard Mrs. H.M. Phukan, learned State Counsel as well as Mr. M. Bhagabati, learned CGC. 3. On the basis of the reference made by the Superintendent Police (B), Morigaon, initially the IM(D)T case No. 179/2002 was registered against the petitioners and thereafter upon scrapping of the IM(D)T Act in Sarbananda Sonowal-I Vs. Union of India reported in AIR 2005 SC 2920, the reference was registered as FT(C) Case No. 105/2007 and the impugned declaration having been made vide the judgement and order dated 25/01/2013, the petitioners have filed the instant writ petition. 4. On receipt of the notice from the Tribunal, the petitioners contested the reference and by filing written statement contended that they are all citizens of India by birth. They also referred to the voter lists of 1975, 1965 and 1966, so WP(C) 2098/ CAV Page 2 of 8

3 as to contend that the father of the petitioner No.1 is Uttam Uttam Seikh S/o. Pahar. It was also contended that there is land document in the name of Pahar. In support of the same, a photocopy of the Jamabandi was produced. It was further stated that the name of Uttam appeared in the 1965 voter list of village Bongaon. Further statement made in the written statement was that the name of the petitioner No.2 appeared in the voter list of 1975, whose father s name is Dula Mia and that Dula Mia s name appeared in the voter list of 1966 of Village Balimukh. As regards the other petitioners, it was stated that they are being children of the petitioner No. 1 ad 2, born in India and thus are citizens of India, by birth. In the written statement filed by the petitioners No. 1 and 2, their respective was age not declared and the space for recording the age is found to be blank. 5. In support of the aforesaid contentions raised in the written statement, the petitioners exhibited photocopies of 1975 voter list, 1965 voter list, Jamabandi, certificate of Gaon Panchayat, Land Revenue paying receipt, birth certificate, school certificate and the certificate of Gaonbura. Total 11 documents (all photocopies) were produced. 6. The 1975 voter list contains the name of Samsul Haque and Muss. Khatoon Nessa as husband and wife with the respective age as 33 and 27 years. In the 1966 voter list, name of one Dula Mia appears whom the petitioner no.2 claims to be his father. The land revenue receipts are all of in the name of one Md. Samsul Haque. Two birth certificates are in the name of petitioner No. 6 and one Md. Saiful Haque, whom the certificate describes as female after scoring of the word male. Possibly the petitioners want to rely on the certificate to refer to the petitioner No. 7 who is a female with the name Muss. Saiful WP(C) 2098/ CAV Page 3 of 8

4 Nessa. The School Transfer Certificate pertains to one Md. Jiyarul Haque who has been referred to as the petitioner No. 5. The birth certificates and the school certificates are of 1989, 1994 and The Gaon Panchayat certificate is in the name of Jainul Haque (petitioner No.3) certifying him to be a resident of village Borkhal. The certificate is dated 09/03/ The voter list of 1965 contains the name of one Uttam Ali S/o. Pahar whom the petitioners claim to be the father of the petitioner No. 1. The photocopy of Jamabandi contains the name of one Uttam Seikh and the land refers to is of village Bongaon. The two certificates, one issued by the Gaonbura and the other by the Gaon Panchayat are dated 21/04/2007 and 15/03/2007. The Gaonbura s certificate is of village Bongaon, Mouza-Pub Borigaon, district Kamrup, Assasm, whereas the Gaon Panchayat Certificate is of Neli, Morigaon. By the said two certificates, the petitioner No. 1 has been certified to be a resident of Pub Birigaon but on the other hand the petitioner No.2 has been certified to be a resident of village- Borkhal under PS- Jagiroad. 8. Above are the documents, on the basis of which the petitioners want to prove their Indian citizenship, that too by birth. In the evidence adduced by the petitioner No.2, he has only referred to the said documents and nothing else. Likewise the OPW-2 has also referred to the said documents only. The question necessarily will arise that if the petitioners are Indian citizens by birth, why they could not produce any valid documents including the voter list, more particularly, when the petitioner No.2 was 67 years of age when the verification / enquiry was carried out in The enquiry report is dated 25/03/2003 in which the age of the petitioner No.2 is recorded as 67 years. Instead of placing reliance of only the 1975 voter list purportedly WP(C) 2098/ CAV Page 4 of 8

5 containing the names of the petitioner No. 1 and 2, they could have produced many more up to date voter lists. However, except the said voter list of 1975 and that too a photocopy, they could not produce many other documents. The certificates issued by the Gaon Panchayat and Gaonbura are of no consequence as the said certificates only certifying that the persons named therein are permanent residents of the particular village, discrepancy relating to which has also been noticed above. Similarly, the birth certificates and School transfer certificates are also of no consequence as the same are all post 25/3/1971 and the fact that the petitioners No. 1 and 2 are not Indian citizens. 9. In Sarbananda Sonowal-I Vs. Union of India reported in (2005) 5 SCC 665, the Apex Court while discussing the problem being faced by the State of Assam due to illegal migration and their continued presence in the State has been vividly discussed the alarming situation. While striking out the IM(D)T Act, 1983, the Apex Court also dealt with the modality of proving one s Indian citizenship. It has been emphasized that the burden of proof is always on the proceedee as per provisions of Section 9 of the Foreigners Act, In Sarbananda Sonowal-I, the Apex Court dealing with the burden of proof, made the following observation :- 26. There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country. In order to establish one s citizenship, normally he may be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship. Sometimes the place of birth of his grandparents may also be relevant like under Section 6-A(1)(d) of the Citizenship Act. All these facts would be necessarily be within the personal knowledge of the person concerned and hot of the authorities of the State. After he has given WP(C) 2098/ CAV Page 5 of 8

6 evidence on these points, the State authorities can verify the facts and can then lead evidence in rebuttal, if necessary. If the State authorities dispute the claim of citizenship by a person and assert that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the aforesaid points. This is in accordance with the underlying policy of Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. 10. Above apart, merely by producing some photocopies, one cannot establish his Indian citizenship. Even in case of production of certified copies of the documents, something more is required as per the Law of Evidence. As has been held by the Apex Court in (2010) 4 SCC 491 (LIC of India Vs. Ram Pal Singh Bisen), even admission of a document in evidence does not amount to its proof, in other words, mere making of exhibit of a document does not dispense with its proof, which is required to be done in accordance with law. It was the duty of the petitioners to have proved the documents in accordance with law. Under the Law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amounts to admission of contents but not its truth. Thus, the documents (Photocopies) having not been produced and marked as required under the Evidence Act, cannot be relied upon by the Court. Contents of the document cannot be proved by merely filing in a Court. 11. The learned Tribunal has discussed all the above aspects of the matter in its impugned judgement and order. It has rightly been observed that if the petitioner No.2 was 68 years on the date of deposition on 17/12/2012, his year of birth would be 1944 and he attained the age of voting in the year 1965 at the age of 21 years but he could not produce a single voter list prior to 1975 and even WP(C) 2098/ CAV Page 6 of 8

7 thereafter. Similarly, the petitioner No.1 also could not produce any voter list prior to 1971 and even of her purported father Uttam Ali. 12. Needless to say that the High Court exercising its power of judicial review under Article 226 of the Constitution of India cannot sit on appeal over the finding of facts recorded by the Court/Tribunal. It is only when the Court/ Tribunal exercise a jurisdiction without being empowered or in excess of it or fails to exercise the vested jurisdiction or acts illegally, the Writ Court exercising its jurisdiction can interfere with the same. The High Court can interfere with the order of the Tribunal exercising its writ jurisdiction only if it is proved that it is a case of no evidence at all or there is error apparent on the face of the record. The power of judicial review under Article 226 of the Constitution is limited only to correction of errors apparent on the face of the records and does not need long drawn out process of reasons on points whether there may be conceivably two views. In the instant case, I do not find any infirmity in the impugned judgement and order requiring any interference of this Court exercising its power of judicial review under Article 226 of the Constitution of India. 13. The writ petition is dismissed. There shall be no order as to costs. 14. Let copies of this judgement be sent to SP(B), Morigaon and the Deputy Commissioner, Morigaon for taking further course of action towards detention of the petitioners in the detention camp for their deportation to their country of origin and for deletion of their names from the voter list. Copies of this order shall also be sent to the Union Govt. in the Ministry of Home and so also to the State Government in the Home Department for their necessary follow up WP(C) 2098/ CAV Page 7 of 8

8 action in terms of this judgement and order. Another copy be furnished to Ms. H.M. Phukan, the learned State Counsel for her follow up action. 15. List after one month for furnishing report by the respondents, more particularly, the SP(B), Morigaon and Deputy Commissioner, Morigaon regarding action taken in favour of this judgement and order. 16. Let the LCR be sent down along with a copy of this judgement and order. JUDGE Sukhamay WP(C) 2098/ CAV Page 8 of 8