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2018 Supreme(Gau) 1351
IN THE HIGH COURT OF GAUHATI
Ujjal Bhuyan, Nelson Sailo, JJ.
Jamiran Bibi – Appellant
Vs.
Union of India – Respondent
WP(C) No. 6202 of 2016
Decided On : 26-04-2018
For the Appellant :Mr. H.R.A Choudhury, Senior Advocate, Mr. A.T. Sarkar, Advocate
For the Respondent: Mr. A. Kalita, Special Counsel
Headnote:
Constitution of India,1950 - Article 226 - Citizenship Act, 1955 - Section 6 A - Foreigners Act, 1946 - Section 9 - Indian Evidence Act, 1872 –Section 3 – Anticipatory bail - Seeks quashing of order - Petition under Article of Constitution of India petitioner seeks quashing of order passed by Foreigners Tribunal in FT Case declaring petitioner to be a foreigner who had illegally entered into India Assam from Bangladesh and counsel for petitioner has referred to local verification report in which date of birth of petitioner was mentioned as he contends that - If petitioner was born on there is no question of her migrating to India after and he has also referred to notice issued by Tribunal to petitioner on to contend that allegation against petitioner was of being a foreigner from specified territory belonging to stream and tribunal could not have declared her to be a foreigner of post stream - Held, Last document is marked as which is a photocopy of voters list extract of Constituency of year and Here voter and he is wife of is aged years and this document does not indicate any linkage of wife with either and can be no assistance to petitioner and Besides as per this document - Petitioner was born in which is contradictory to her years of birth as noticed above and Sum total of above discussion is that petitioner had failed to prove by adducing any admissible evidence that she was daughter of whom she claimed to be her father and a citizen of India - Petitioner failed to establish any linkage with an Indian parent relatable to a period prior to which is cutoff date for identification of foreigners in State of Assam as per of Citizenship Act as amended and Resultantly Court are of view that petitioner had failed to discharge her burden under of Foreigners Act to prove that she was not a foreigner but a citizen of India and in such circumstances Court do not find any merit in writ petition statement to warrant interference with order - Writ petition is dismissed
Key Points: - The petition seeks quashing of the Foreigners Tribunal order declaring the petitioner a foreigner who entered India after 25.03.1971 (!) . - The court notes the cutoff date for identifying foreigners under the Citizenship Act, 1955 as 25.03.1971 and requires linkage to an Indian parent prior to that date [14000269220026]. - The court rejects reliance on a local verification birth date as conclusive proof of birth before the cutoff, holding that such entries are not proof of linkage under section 3 of the Evidence Act and must be proved by cogent evidence [14000269220009]. - The tribunal’s order indicates suspicion of being a post-25.03.1971 foreigner based on the IMDT Act framework (Section 8(1)) and that the petitioner failed to prove citizenship or linkage to an Indian parent prior to the cutoff [14000269220010][1400026926920016]. - The evidence presented (Ext. 1–Ext. 5) was found inadequate and unreliable to establish the petitioner’s identity or citizenship; several documents lacked proper provenance or corroboration, and some entries contradicted each other (e.g., Ext. 2, Ext. 3, Ext. 4, Ext. 5) [1400026926920019][1400026926920020][1400026926920021][1400026926920022][1400026926920023][1400026926920024][1400026926920025]. - The petitioner failed to discharge the burden under section 9 of the Foreigners Act to prove she was not a foreigner but a citizen of India; consequently, the writ petition was dismissed [1400026926920027]. - Interim bail conditions and procedural history are noted, but the final order is to dismiss the writ petition with no interference in the Tribunal’s order [1400026926920028]. - The court directs necessary follow-up actions and dissemination of the order to relevant authorities [1400026926920029][1400026926920030].
What is the basis for determining whether the petitioner is a foreigner under the Citizenship Act, 1955, and whether she had linkage to an Indian parent prior to the cutoff date of 25.03.1971?
What is the sufficiency of evidence required to prove citizenship or the lack thereof under the Foreigners Act, 1946 and IMDT Act, and how does the tribunal evaluate documents like local verification reports and voter lists?
What are the tribunal's findings on the credibility and probative value of Ext. 1 to Ext. 5 and their impact on the petitioner’s citizenship claim?
Ujjal Bhuyan, J.
Heard Mr. HRA Choudhury, learned Sr. Counsel assisted by Mr. A.T. Sarkar, learned counsel for the petitioner and Mr. A. Kalita, learned Special Counsel, Foreigners Tribunal (FT).
2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 08.08.2016 passed by the Foreigners Tribunal (8th), Dhubri in FT Case No. 8/130/GKJ/2015 (State v. Jamiran Bibi) declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from Bangladesh after 25.03.1971.
3. This Court by order dated 05.10.2016 had issued notice while requisitioning the case record and passed an interim order to the effect that petitioner should be allowed to remain on bail subject to her appearance before the Superintendent of Police (Border), Dhubri and furnishing of adequate surety.
4. Thereafter petitioner has filed an additional affidavit enclosing therewith a copy of the notice issued by the Tribunal to the petitioner as well as a copy of the written statement filed by the petitioner before the Tribunal.
5. Learned counsel for the petitioner has referred to the local verification report in which date of birth of the petitioner was mentioned as 01.01.1971. He, therefore, contends that if petitioner was born on 01.01.1971, there is no question of her migrating to India after 25.03.1971. He has also referred to the notice issued by the Tribunal to the petitioner on 17.09.2015 to contend that allegation against the petitioner was of being a foreigner from the specified territory belonging to the 01.01.1966 to 25.03.1971 stream. Therefore, Tribunal could not have declared her to be a foreigner of post 25.03.1971 stream.
6. On the other hand, learned Special Counsel supports the order passed by the Tribunal and contends that documents relied upon by the petitioner are contradictory besides there being no linkage between the petitioner and her projected father. Contention made on behalf of the petitioner are untenable in law, he submits.
7. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record, including the record requisitioned from the Tribunal.
8. Record discloses that Election Commission of India had ordered intensive revision of electoral rolls for the Gauripur Assembly Constituency in the State of Assam with reference to 01.01.1997 as the qualifying date. In this connection, a house to house enumeration was carried out during the period from 16.01.1997 to 15.04.1997. Though the name of the petitioner was included in the draft electoral roll of the said Constituency published on 24.07.1997, Electoral Registration Officer of the said Constituency expressed doubts about the citizenship status of the petitioner and got the matter verified by an on the spot local verification. On consideration of the report of such verification, Electoral Registration Officer recorded reasonable doubt that the petitioner was not a citizen of India. Thereafter, matter was forwarded to the Superintendent of Police (Border), Dhubri on 16.10.1997 and after completion of necessary formalities, reference was made to the Illegal Migrants (Determination) Tribunal, Dhubri under Section 8 (1) of the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) suspecting the petitioner to be an illegal migrant as defined under the IMDT Act.
9. Pausing here for a moment, we may advert to one of the submissions made by learned counsel for the petitioner that since in the local verification report date of birth of the petitioner was mentioned as 01.01.1971 that was indicative of the petitioner's presence in India prior to 25.03.1971.
10. We can afraid, we can accept such contention of the petitioner. This Court has already held that marking of a proceedee in the notice or in the enquiry report as the son or daughter of some other person whom the proceedee claims to be his/her father is neither proof nor evidence of such linkage in term
