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IN THE HIGH COURT OF GAUHATI
Ujjal Bhuyan, Nelson Sailo, JJ.
Basiron Nessa - Appellant
Vs.
Union of India and Ors. - Respondents
WP(C) No. 5493 of 2017
Decided On : 21-05-2018
Constitution of India,1950 - Article 226 - Citizenship Act, 1955 - Section-6-A - Foreigners Act, 1946 - Section 9 and 63 - Petitioner seeks quashing of order - Interim order to - Foreigners Tribunal in GFT (R) Case declaring petitioner to be a foreigner who had illegally entered into India Assam from Bangladesh and after aforesaid order was passed petitioner was taken into custody and this Court by order had issued notice while requisitioning case record and passed an interim order to effect that petitioner should not be deported from India until further order(s) and counsel for petitioner submits that fact that petitioner was daughter of Ali was proved by who had not only issued certificate to that effect but also proved same by deposing before Tribunal Just because did not bring original record official register, his evidence cannot be brushed aside - Held, from a careful analysis of testimony and it is evident that he had issued Exhibit-A certificate by just looking at voters list factum of issuance of such certificate was not entered in register mentioned in his office which he did not produce before Tribunal also admitted that he had been issuing such type of certificates to unknown persons and on basis - Such testimony it cannot be said that or its contents were proved and Senior Special Counsel is right in his submission that documentary evidence has to be proved from record and not solely by oral testimony and it is trite that not only document has to be proved but its contents would also have to be proved and that apart truthfulness of contents have to be proved too and Viewed in above context Exhibit-A was not proved and it does not have any probative value and net result of above discussion is that petitioner had failed to prove her linkage with Abdul whom she claimed to be her father relatable to a period prior to which is cut-off date for identification of foreigners in State of Assam as per Section-A of Citizenship Act as amended petitioner failed to discharge her burden under Section of Foreigners Act to prove that she was not a foreigner but a citizen of India and Resultantly, Court do not find any merit in and interim order passed earlier stands vacated and registry to send down LCR forthwith and inform concerned Foreigners Tribunal Superintendent of Police Border and Deputy Commissioner for taking necessary follow-up step - A copy of this order may also be furnished to learned Standing Counsel Election Commission of India and State Coordinator National Register of Citizens for doing needful - Writ petition dismissed
Ujjal Bhuyan, J.
1. This case was heard on 07.05.2018 and today is fixed for delivery of order(s). We have heard Mr. M.A. Sheikh, learned counsel for the petitioner and Mr. U.K. Nair, learned Senior Special Counsel, Foreigners' Tribunal (FT).
2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 13.07.2017, passed by the Foreigners' Tribunal No. 1, Kamrup (Rural), Ulubari, Guwahati, in GFT (R) Case No. 03/2017 (State Vs. Musstt Basiran Nessa), declaring the petitioner to be a foreigner, who had illegally entered into India (Assam) from Bangladesh after 25.03.1971.
3. After the aforesaid order was passed, petitioner was taken into custody.
4. This Court by order dated 06.09.2017, had issued notice while requisitioning the case record and passed an interim order to the effect that petitioner should not be deported from India until further order(s).
5. Mr. Sheikh, learned counsel for the petitioner submits that the fact that petitioner was the daughter of Late Barek Ali was proved by the Gaonburah (DW-2), who had not only issued certificate to that effect (Exhibit-A), but also proved the same by deposing before the Tribunal. Just because, DW-2 did not bring the original record or the official register, his evidence cannot be brushed aside.
6. On the other hand, learned Senior Special Counsel submits that petitioner had failed to establish her linkage with Barek Ali. That apart, even Barek Ali's presence in India prior to 25.03.1971 could not be proved. Therefore, view taken by the Tribunal rejecting the narrative of the petitioner does not suffer from any infirmity.
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. Before examining the record, we may advert to the impugned order passed by the Tribunal on 13.07.2017. We find that the reference was duly contested by the petitioner by filing written statement and by adducing evidence, including documentary evidence, which were marked as Exhibits-A to D. After considering the entire materials on record, Tribunal came to the conclusion that it was difficult to accept that petitioner was the daughter of Abdul Barek. Therefore, the reference was answered by the Tribunal in favour of the State in the above manner.
9. Ordinarily, a writ Court would not interfere with such a finding returned by a Tribunal. Such a finding based on appreciation of evidence on record is a finding of fact and ordinarily would not be interfered with by the writ Court, because the jurisdiction exercised is supervisory and not appellate.
10. Notwithstanding the same, to re-assure ourselves about the correctness or otherwise of the order dated 13.07.2017, passed by the Tribunal, we have once again looked into the materials on record.
11. In her written statement filed on 19.4.2017, petitioner identified herself as wife of Kamaruddin and daughter of Abdul Barek. She stated that she was born at village Bhokuwamari under Chaygaon Police Station in the district of Kamrup (Rural). Her father was a voter of Chaygaon Constituency in the year 1966 and again in the year 1970. Petitioner married Kamaruddin, whereafter, she cast her vote for the first time in the year 1985. Thereafter, she cast her vote in the year 1990, but in 1997, she was marked as a doubtful (D) voter. Interestingly, petitioner did not mention her date or year of birth. Consequently, her age on the date of filing the written statement was not disclosed. Even in the supporting affidavit, the portion relating to the age of the petitioner remained blank.
12. Be that as it may, from the written statement filed by the petitioner before the Tribunal, what is discernible is that according to the petitioner, Abdul Barek was her father and he was a citizen of India. Being the daughter of Abdul Barek, she was, therefore, a citizen of India.
13. Let us examine whether petitioner could prove
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