Alesha Khatun @ Alesha Begum vs Union Of India And 5 Ors

Pranjal Das, J

Heard Ms. M. Dev, learned counsel for the petitioner. Also heard Shri. G. Sarma, learned Standing Counsel, Home Deptt., and NRC for the respondent nos. 2, 4 & 6; Mr. N. Kalita, learned Standing Counsel, ECI for the respondent no. 5; Mr. A.K. Dutta, learned CGC for the respondent No.5 and Mr. P. Sarma, learned State counsel for the respondent No.3.

Invoking the provisions of Article 226 of the Constitution of India, the petitioner namely Alisa Khatun, alias Alisa Begum, is assailing the Judgment and Order dated 28.02.2019, passed by the learned Member, Foreigners' Tribunal No. 5, Darrang Mangaldoi, in FT(V) Case No. 1591/2016, (Ref. S.P Enquiry No. 95/2006 dated 28/12/2006), whereby answering the reference against the petitioner as proceedee before the Tribunal, it was held that she is a foreign national of the post 25/03/1971 stream.

The facts in brief is that one reference was received from the Superintendent of Police, (Border), Darrang Mangaldoi, against the petitioner vide SP Enquiry No. 95 of 2006, dated 28/12/2006, raising suspicions about the nationality of the petitioner and seeking an opinion regarding the same from the Foreigners' Tribunal. Accordingly, the aforementioned case in FT(V) Case No. 1591/2016 was registered and notice was issued to the petitioner as proceedee.

The petitioner as proceedee appeared before the Tribunal and filed a written statement along with documents. During further proceedings before the Tribunal, she also adduced evidence of herself and another person stated to be her uncle also adduced evidence in her favour. As part of the evidence of the petitioner's side before the Tribunal, she exhibited nine documents. As already mentioned, after perusing the materials on records and hearing the parties, the learned Tribunal answered the reference against the petitioner, thereby leading the petitioner to file the instant writ petition. During the proceeding, the petitioner exhibited as Exhibit 1 a voters list of 1966 of 73 Dalgaon LAC of Assam in which Akash Ali was mentioned. Further, voters list of 1993 of 68 Dalgaon LAC was exhibited as Exhibit 2 in which one Nur Islam, son of Akash and Jahura, wife of Nur Islam are mentioned and these two persons are stated to be the parents of the petitioner. However, the learned Tribunal held that these documents being Exhibit 1 and Exhibit 2 are not proved in accordance with law after referring to the case of L.I.C -versus- Ram Pal Singh Bisen, reported in (2010) 4 SSC 491.

The learned Tribunal rejecting this documentary evidence held that mere production and marking of these documents as exhibits cannot be taken as proof of its contents and that their execution have to be proved by admissible evidence, i.e., by the evidence of those persons who can vouch for the truth of the facts stated therein.

With regard to this aspect, the petitioner's side in the writ petition has contended that Exhibits 1 and 2 were certified copies of voters list which are public documents under Section 74 of the Evidence Act which were obtained by the petitioner as proceedee under Section 76 of the Evidence Act and therefore, the Tribunal ought to have taken presumption as to genuineness of these certified copies under Section 79 of the Evidence Act.

Thus, we find that during the proceeding, the petitioner as proceedee attempted to build a linkage with the said Nur Islam, her projected father, and the said Nur Islam in turn being the projected son of Akash Ali whose name appeared in the voters list of 1966 of 73 Dalgaon, LAC (Exhibit 1). In her evidence, DW 1, the petitioner stated her date of birth to be 30.02.1990 and the Tribunal rightly held that obviously the said date is erroneous as such a date does not exist in the English calendar.

Nevertheless, in her evidence on affidavit as well, the petitioner has stated her father's name to be said Nur Islam and her mother as Jahura Khatun and that she was married with Miya Hussain. She has stated her grandfather's name to be Akash Ali and her grandmother's name as Hajera Khatun. She has stated about her grandparents' figuring in the voters list of 1966 pertaining to Sl. No. 73 Dalgaon, LAC, at Sl. No. 429 and 430. She proved a certified copy of the said electoral roll. She also stated about her parents' featuring in the voters list of 1993 which she exhibited. She stated that her father had two daughters being herself and one Nuracha Begum. She stated that the forefather of the petitioner was Husen Ali who was a citizen of India with his name featuring in the NRC of 1951 itself of village Bagichakash under the jurisdiction of Dalgaon Police Station in the district of Darrang. She deposed that her grandfather Akash Ali was also born and brought up in the same village. She reiterated in her evidence on affidavit that she is an Indian citizen by birth, born and brought up in the village Bagichakash.

In paragraph-15 of her evidence on affidavit, she stated that her grandfather Akash Ali's name was written as Abu Bakkar Siddique in the voters list of 2010 where the name of her father Nur Islam also figures. Stating further that Akash Ali and the said Abu Bakkar Siddique one and the same person.

Harun Ali stated to be the uncle of the petitioner, adduced evidence in her favour as DW2. He also testified on similar lines about Nur Islam being the father of the petitioner and Akash Ali and the said Nur Islam being his brother and that their father's name is Akash Ali who is therefore, the grandfather of the petitioner.

DW2 also stated that his grandfather Hasen Ali was an Indian citizen whose name figured in the NRC of 1951 and his father Akash Ali also featured in the voters list of 1966. DW2 stated about the marriage of the petitioner to Miya Hussain in 2004. He also deposed about his father Akash Ali's name mentioned as Abu Bakkar Siddique in the voters list of 2010 along with Nur Islam and that Akash Ali and Abu Bakkar are one and the same person.

It is well settled that in a proceeding before the Foreigner Tribunal where the burden is on the proceeding to prove that the proceedee is an Indian citizen. One of the primary burdens that the proceedee has to discharge is to produce satisfactory evidence, including essentially documentary evidence, to link her identity with any of her immediate ancestors who was an Indian citizen prior to 25/03/1971.

In this context, it is well settled by several decisions of this Court that mere oral evidence would not suffice to discharge this burden and that reliable documentary evidence is essential to satisfactorily show this linkage. Reference is made in the cases of;

(i) Alam Ali -versus- Union of India & Others, reported in 2020(1) GLT 318.

(ii) Mojafar Ali @ Muzafar Ali -versus- Union of India & Others, reported in 2019(1) GLT 518

(iii) Bijoy Das -versus- Union of India & 5 Others reported in 2018 SCC OnLine Gau 1499: (2018) 4 Gau LR 599.

The relevant paragraph-17 of Bijoy Das (supra) is reproduced herein below:

It is trite that mere filing of written statement and oral testimony in a proceeding under the Foreigners Act, 1946 would not be enough. The fact-in-issue would have to be proved by the proceedee by adducing documentary evidence which are admissible and relevant. The two documents filed by the petitioner were not proved in any manner whatsoever and, therefore, the assertion of the petitioner that he being the son of Bipul Das, who was a citizen of India, was, therefore, a citizen of India was not proved.

Upon perusing Exhibit 1 from the case record, we find that it is the voters list of 1966 where the name of Akash Ali, son of Hasen figures against Sl. No. 429. Similarly, in Exhibit 2 which is a voters list of 1993, the name of Nur Islam figures at Sl. No. 333 and he is indicated as the son of Akash and Jahura is also indicated in relation to his name.

It may be mentioned here that the petitioner projects Jahura as her mother and wife of her father Nur Islam. It is also noticed that when the name of Nur Islam features in the voters list of 1993, his age is indicated as 30 years. Though, the featuring of Akash Ali in the voters list of 1966 prima facie indicates that he is an Indian citizen but the figuring of Nur Islam, the projected father of the petitioner in the voters list for the first time in 1993 at the age of 30 years does not automatically help create linkage with the petitioner in support of her contention of being a citizen of India.

As stated in the earlier part of the judgment, Exhibit 1 and Exhibit 2 were discarded by the learned Tribunal on the ground that these are not being proved as per procedure.

On the other hand, the petitioner contends in the writ petition that these ought not to have been done as these were public documents as certified copies of the electoral roll. For the moment, even if we overlook this aspect stated by the Tribunal, what is most important for the petitioner is whether she could build her linkage evidence with her projected ancestor Akash Ali, during the proceeding as the figuring of Nur Islam in the voters list of 1993 does not automatically help the petitioner's case.

To build this documentary link, the petitioner has exhibited a school certificate as Exhibit 3 which was issued by the Headmaster of No. 52 Bagichakash LP School. The certificate was dated 24/06/2015 which reveals that she left the school on 31/12/1998.

The learned Tribunal cast some doubts regarding the same as it was obtained many years after she left the school. The learned Tribunal also discarded this evidence as the author did not adduce evidence. The petitioner also exhibited as Exhibit 7 a Gaon Panchayat certificate from Bagichakash vide dated 04/10/2018 certifying that she is the daughter of Nur Islam.

Again, the Tribunal discarded this document as the author did not depose. A certificate dated 07/05/2015 issued by the Secretary Kopati Gaon Panchayat exhibited as Exhibit 8 also did not convince the Tribunal for the said reason. It is no doubt true that both the petitioner as DW-1 and her uncle as DW-2 in their evidence on affidavit stated about Nur Islam as her father and Akash Ali as her grandfather.

However, as well settled, mere oral evidence is not sufficient to build effective linkage evidence for such proceedings and documentary evidence is essential. Now, as far as documentary evidence is concerned, Exhibits 3, 7 and 8 could not persuade the Tribunal to rule in favor of the petitioner.

Upon perusing these documents and the reasoning of the Tribunal, we are unable to hold that the opinion of the Tribunal is perverse or constitutes complete misreading of evidence.

Admittedly, the author of the documents did not adduce evidence and in the absence thereof, the learned Tribunal did not commit any gross illegality in not accepting such documentary evidence.

Writ petition stands dismissed.

Return back the TCR forthwith.

Interim order passed earlier on 02.12.2019 shall stand vacated.