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2018 Supreme(Gau) 1047
IN THE HIGH COURT OF GAUHATI
A.K.GOSWAMI, M.R.PATHAK, JJ.
MUSSTT JAN NESSA @ MUSSTT JONO NESSA - Appellant
Versus
UNION OF INDIA AND 3 ORS REP BY SECRETARY TO GOVT OF INDIA - Respondent
Writ Petition (Civil) No. 6834 of 2017
Decided on : 11-10-2018
Advocate Appeared:
R. Dhar, Adv.
The burden of proving citizenship lies upon the individual, and documentary evidence must be substantiated and proved from contemporaneous records.
Headnote:
Foreigner - Challenge to Tribunal's Order - Foreigners Act, 1946 - Section 9, Illegal Migrants (Determination by Tribunals) Act, 1983
Fact of the Case:
The petitioner challenged the order of the Foreigners Tribunal, claiming to be an Indian citizen by birth and providing documentary evidence to support her claim.
Finding of the Court:
The court found that the petitioner failed to prove herself as an Indian national, as the documentary evidence provided was insufficient to establish her claim.
Issues: The main issue was whether the petitioner could prove her Indian citizenship and challenge the Tribunal's order declaring her as a foreigner.
Ratio Decidendi: The burden of proving one's citizenship lies upon the individual, and the documentary evidence must be substantiated and proved from contemporaneous records. The court also emphasized that the truthfulness of the contents of the document must be established.
Final Decision: The writ petition was dismissed, and the court upheld the Tribunal's order, stating that it did not warrant any interference.
M.R. PATHAK, J.
1. Heard Mr. H R A Choudhury, learned Senior counsel, assisted by Mr. N N Upadhyaya, learned counsel for the petitioner. Also heard Ms. G Sarma, learned CGC, appearing for the respondent No. 1 and Mr. U K Nair, learned Sr. Standing counsel, assisted by Mr. J Payeng, learned Foreigners Tribunal appearing for the respondent Nos. 2 to 4.
2. Challenge in this writ petition is to the order dated 26.07.2017 (29.07.2017), passed by the learned Member, Foreigners Tribunal No. 1, Kamrup (R), Ulubari, Assam in G.F.T.(R) Case No. 171/2017, whereby, the learned Tribunal opined that the petitioner is a Foreigner / Illegal Migrant of 25.03.1971 stream and is liable to be pushed back to the specific territory, as well as the order dated 13.10.2017 passed by the said Tribunal in Misc. Case No. 01/2017 in G.F.T.(R) Case No. 171/2017 rejecting the petition No. 422 of 2017 dated 22.08.2017 filed by the petitioner under Section 114 read with Order 47, Rules 1 and 2 of the Code of Civil Procedure, to review the said order dated 26.07.2017.
3. We have perused the records of the Foreigners Tribunal that was called for by the Court earlier on 13.11.2017.
4. From the records, we have seen that though the Tribunal fixed 26.07.2017 for judgment and the same was made ready, but as the counsel for the petitioner on 26.10.2017 filed an application seeking another date as the petitioner would not be able to appear on that date, as she was suffering from stomach upset, the Tribunal fixed 29.07.2017 for judgment and the impugned judgment was accordingly delivered by the said Tribunal on 29.07.2017.
5. On reference being submitted by the Superintendent of Police (Border), Kamrup, as to whether the petitioner is a foreigner under Foreigners Act, 1946, who had entered into Assam illegally after 25.03.1971 or not, initially B.F.T. Case No. 232/2016 against her was registered and proceeded before the Foreigners Tribunal No. 2, Kamrup, Boko since its inception on 30.06.2016 up to 21.04.2017. Later, as per Government Notification No. PLB-227/2017/3-A dated 19.05.2017, said B.F.T. Case No. 232/2016 was transferred to the Foreigners Tribunal No. 1, Kamrup (R), Ulubari, Guwahati, wherein it was re-registered and renumbered as G.F.T.(R) Case No. 171/2017 and the said matter proceeded in the transferred Tribunal w.e.f. 12.06.2017.
6. On receipt of notice, the petitioner appeared before the Foreigners Tribunal No. 2, Kamrup, Boko on 02.09.2016 and filed her written statement on 31.10.2016. She filed her Evidence-on Affidavit before the said Tribunal on 08.02.2017 as well as additional Evidence-on-Affidavit on 12.06.2017 and also filed Evidence-on-affidavit of the Government Gaon Burha of Village-Mahchara, District-Barpeta, Assam on 22.03.2017.
7. Petitioner examined herself as witness DW-1 and the Government Gaon Burha of Village - Mahchara as witness DW-2 on her behalf.
8. In her written statement, the petitioner stated that she is not a foreigner but, an Indian citizen by birth and that she is the daughter of Late Joynal Ali, son of Barkat Ali, name of her mother is Soleman Nessa, name of her grandmother was Moyna Nessa, name of her step mother is Jahura Khatun. She also stated that names of her grandfather and grandmother were enlisted in the Voter Lists of 1966, 1970 pertaining to No. 54 Chenga LAC, whereas name of her father Joynal Ali was enlisted in the Voter List of 1971 amended (Additional) Voter List of No. 54 Chenga LAC along with her paternal uncles. She also stated that names of her parents Joynal Ali and Soleman Nessa were enlisted in the Voter List of 1985 of No. 47 Chenga LAC. In 1997, her father shifted from VillageMahchara, P.S. Tarabari, District -Barpeta, Assam to Village-No. 2, Uttar Rangapani, P.S. Nagarbera, District -Kamrup as he had his own cultivable land in that place and his name appeared in the Voter Lists of No. 48 Boko (SC) LAC along with her stepmother Jahura Khatun for the years 1997, 2010, 2013, 2016. She further stated
