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2018 Supreme(Gau) 1620
IN THE HIGH COURT OF GAUHATI
MANOJIT BHUYAN, NANI TAGIA, JJ.
Mojafor Ali - Appellant
Versus
Union of India and Ors - Respondent
W.P.(C) No. 7575 of 2018
Decided On : 30-11-2018
For the Appellant :M.J. Quadir, Advocate
For the Respondent:G. Sarmah, J. Payeng, N. Upadhyay and U. Das, Advocates
Headnote:
India (Prohibition of Improper Use) Act, 2005 – Section 11 – Issue on Certificates –By this petition, the petitioner has challenged the legality and validity of the order passed by the learned Member, whereby the petitioner/opposite party has been held to be a foreigner having entered into India Learned counsel for the petitioner has also referred to the depositions –DW. 2, who is stated to be the paternal uncle of the writ petitioner/opposite parry, who deposed that he knew the writ petitioner/opposite party and the proceedee is his nephew and his elder brother, is also known as Malek –Held, Court find that so far as the Exhibit- B (Birth Certificate) and Exhibit-C (School Certificate) are concerned, the issuing authority of said certificates has never been examined nor correctness of the contents of the said certificates was proved by producing the originals thereof before the learned Tribunal – In view of the ratio laid down by this Court in Bijoya Das (Supra), Court is not inclined to accept the oral testimony made by the DW. 2 in absence of any documentary evidence which are admissible and relevant – For the aforesaid discussions and findings, court find no infirmity in the impugned order passed by the learned Member, Foreigners Tribunal –Writ petition dismissed
ORDER :
NANI TAGIA, J.
1. Heard Mr. MJ Quadir, learned counsel for the petitioner as well as Ms. G. Sarmah, learned counsel for respondent No. 1; Mr. J. Payeng, learned counsel for respondent Nos. 2, 3, 5 & 7; Ms. N. Upadhyay, learned counsel for respondent No. 4 and Ms. U. Das, learned counsel for respondent No. 6.
2. By this petition, under Article 226 of Constitution of India, the petitioner has challenged the legality and validity of the order dated 29.06.2018 passed by the learned Member, Foreigners' Tribunal No. 3rd, Morigaon, in F.T. Case No. 27/2015 whereby the petitioner/opposite party has been held to be a foreigner having entered into India after 25.03.1971.
3. The aforesaid case was registered upon a reference made by the Supdt. of Police (B), Nagaon with the allegation that petitioner was a foreigner who had illegally entered into India (Assam) from the specified territory after 25.03.1971.
4. Notice issued by the Tribunal was served upon the petitioner whereafter he had entered appearance and filed his written statement. In his written statement, it has been averred that the actual name of the writ petitioner/proceedee is Md. Mojafor Ali but his name is wrongly written as Mussahbar Ali. Similarly his father's actual name is Md. Ali Hussain, who is also known as Abdul Malek for which reason his father's name is written as Abdul Malek in the voter list. It is further stated that the petitioner was born and brought up at Baligaon under Mikirbheta Police Station and have studied upto Class-V. It is further stated that his father Ali Hussain castled his vote from 80 No. Morigaon LAC in 1966 from Parashutangani village vide Sl. No. 252, House No. 58. It is further stated that the petitioner had landed property in his own name under Saraibahi Mouza vide Patta No. 365 and Dag No. 620.
5. In support of his case, the petitioner/opposite party had exhibited the following documents:
Ext. A-Gaonburah Certificate in the name of the OP.
Ext. B -Birth Certificate in the name of the OP.
Ext. C -School Certificate.
Ext. D -1966 voter list of OP's father
Ext. D1 is the name of the father of OP.
Ext. E -1970 voter list of OP's father.
Ext. F-2008 voter list of OP's.
Ext. G -Jamabandi copy in the name of the OP.
Ext. H -Draft Citha in the name of the OP.
6. Although the petitioner has exhibited the Exhibits-A to H mentioned above, learned counsel for the petitioner submits that the primary link documents of the petitioner with his father Ali Hussain are the Exhibit No. "A" (Gaonburah Certificate), Exhibit-"B" (Birth Certificate), Exhibit-"C" (School Certificate) & Exhibit-"G" (Jamabandi).
7. We have perused the aforesaid four exhibits. Exhibit-A is the certificate dated 7.11.2015 issued by Gaonburah, Parashutangoni Kisam Circle & Mouza, Mikirbheta, Dist. Morigaon, whereby the petitioner has been certified to be the son of Late Ali Hussain (Malek). Exhibit-B is the birth certificate issued by the Registrar, Birth and Death, Mikirbheta State Dispensary, Morigaon, certifying that the date of birth of the petitioner/proceedee to be 31.07.1976. Exhibit-C is the School Certificate dated 17.11.2015 issued by the Headmaster/Secretary of Abhayapur ME School, Morigaon, certifying that Md. Muzafar Ali is the son of Md. Ali Hussain. The last exhibit which is relied upon by the petitioner is Exhibit-D, Jamabandi issued on 09.09.2014 by the Circle Officer, Mikirbheta, Dist. Morigaon, wherein the name of the pattadar is shown as Md. Majafor Ali i.e. the petitioner against Patta No. 365 and Dag No. 620.
8. On perusal of the records and the Exhibits- A, B, C & G, we find that Exhibit-A has not been proved by examining the author of the certificate i.e. Gaonburah, which make Exhibit-A inadmissible piece of evidence and hence unreliable. The said certificate cannot be accepted for yet another reason that the said certificate is embossed with State Emblem on the top of the said certificate. With regard to improper use of State Emblem in certificate, this Court in the ord
