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2023 Supreme(Gau) 1069
IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
LANUSUNGKUM JAMIR, MITALI THAKURIA, JJ.
Zelekha Khatun @ Julekha Khatun W/o Md. Mannaf Ali – Appellant
Versus
The Union Of India And 4 Ors. – Respondents
WP(C) 3291 of 2017
Decided on : 21-09-2023
Advocate Appeared:
For the Appellant :MS.C R RABHA Advocate
Headnote:
Constitution of India, 1950 - Article 226 - Foreigners Act, 1946 - Section 9 - Indian Citizen - Declared petitioner as a foreigner - Application for issuance of a writ in nature of mandamus and/or certiorari and/or any other appropriate order or orders in like nature – Held, Neither petitioner could produce any document in support of her case that person are one and same person nor she could produce any documents to prove herself to be daughter - Though she produced only link document which is exhibited as Ext.-C - It is a fact that her name appeared in Voters List of 1997 along with her husband and thereafter also, in subsequent Voters List, her name appeared along with her husband, but she could not establish herself to be daughter, though she claim that said Maleuddin @ Malekuddin is her father - D.W.-2 and D.W.-3 also could not substantiate plea of petitioner that Maleuddin of Voters List is her father nor she could file any other link document to establish herself to be daughter of said Maleuddin, i.e. person who casted vote in year 1966 & 1970 - Petitioner failed to discharge her burden under Section 9 of Foreigners Act to prove herself to be Indian citizen – Court find no good reason to interfere with impugned order passed - Writ petition dismissed.
JUDGMENT :
M. Thakuria, J
Heard Mr. J. Ahmed, learned counsel for the petitioner. Also heard Ms. L. Devi, learned Central Government Counsel, appearing on behalf of respondent No. 1; Mr. G. Sarma, learned Standing Counsel, Foreigners’ Tribunal, appears for respondent Nos. 2, 4 & 5 as well as Mr. P. Sarma, learned Government Advocate appearing on behalf of respondent No. 3.
2. This is an application under Article 226 of the Constitution of India for issuance of a writ in the nature of mandamus and/or certiorari and/or any other appropriate order or orders in the like nature.
3. The brief facts of this case is that the Superintendent of Police (Border), Goalpara, made a reference to the Foreigners’ Tribunal, Goalpara, to know as to whether the petitioner is a foreigner or not and accordingly, a reference case, being F.T. Case No. 4386/G/2011, has been registered, before the Foreigners’ Tribunal No. 1, Goalpara, Assam. It is stated that the actual name of the petitioner is Julekha Khatun, w/o Mannaf Ali, but in the notice dated 29.12.2016, her name has been written as Jelekha Khatun, w/o Md. Mannaf Ali, and accordingly, she refused to receive the notice as her name is written wrongly in the notice. However, the process server served the notice on the petitioner saying that she is the same person and she accordingly received the notice. After receiving the notice, she appeared before the Tribunal and contested the case by filing her Written Statement. The petitioner also adduced 3 (three) witnesses in support of her case. But she could not obtain the certified copy of the evidence of the witnesses as the Tribunal refused to supply the certified copies to the petitioner.
4. After hearing the arguments put forwarded by both the parties, the learned Member, Foreigners’ Tribunal No. 1, Goalpara, vide impugned judgment and order dated 17.04.2017, in F. T. Case No. 4386/G/2011, has declared the petitioner as a foreigner.
5. In her written statement, she categorically stated that her actual name is Julekha Khatun and not Jelekha Khatun and further she stated in her written statement that the name of her projected father is Malekuddin, but he is also known as Maleuddin. And Malekuddin and Maleuddin is one and the same person. But the learned Member, Foreigners’ Tribunal No. 1, Goalpara, came to a wrong conclusion and presumption that in the Voters List of 1966 (Ext.-A), her father’s name has been written as Maleuddin and in Ext.-C, her father’s name is reflected as Malekuddin and considering such contradiction in the name of her father, the evidence and exhibits were discarded, and it is held that the petitioner could not establish her relationship with her projected father and accordingly, learned Member, Foreigners’ Tribunal No. 1, Goalpara, declared the petitioner/proceedee as a foreigner vide judgment and order dated 17.04.2017, which is bad in law and liable to be set aside and quashed.
6. The petitioner has established her case beyond all reasonable doubt and produced all the documents to prove herself to be the Indian Citizen and the evidences of D.Ws. were also not been challenged by the prosecution and thus, the burden of proof has already been shifted to the State. But the State has not produced any evidence except the enquiry report and hence, the judgment passed by the learned Member, Foreigners’ Tribunal is bad in law, perverse and liable to be set aside and quashed. It is further pleaded that the name of her projected father-Malekuddin and mother-Showagi Nessa appeared in the Voters List of 1966 from village Aolatoli, P.S. Lakhipur under LA-44 Goalpara West, LAC, and the name of her parents are also appeared in the Voters List of 1970 from the same village. Further, the name of the petitioner appeared in the Voters List of 1997 from Village Saktola, P.S. Lakhipur, along with her husband, namely, Mannaf Ali. In the subsequent Voters List of 2008 also, the name of the petitioner appeared from the same village along with her husband.
