Saheda Khatun vs The Union of India and Others

Biplab Kumar Sharma, J.—1. We have heard Mr. Mr. J. Ahmed, learned counsel for the petitioners. Also heard Mr. M. Bhagabati, learned State Counsel and so also Ms. G. Sarma, learned counsel holding for Mr. S.C. Keyal, learned ASGI. We have also perused the entire materials on record along with the records received from the learned Tribunal.

This writ petition is directed against the order dated 02/05/2014 passed by the learned Member, Foreigners Tribunal (1st), Morigaon, Assam in FT (D) Case No. 1363/2007 [ERO''s reference No. M.Y.C. 29/97/Case 1653] [Police Reference D.N Case No. 1087/1997] (State of Assam v. Mustt. Sahida Khatoon @ Mahirun Nessa). By the said order, the petitioners have been declared to be foreigners of post 25/03/1971.

The proceeding against the petitioner got started with the suspicion that arose on the inclusion of her name in the draft voters'' list that was published pursuant to the intensive revision of the electoral roll as was ordered by the Election Commission of India. House to house enumeration was done during the period from January, 1997 to 15th April, 1997 and the name of the petitioner came to be included in the draft electoral roll, which was published on 24/07/1997. A doubt having arisen regarding her Indian citizenship, the Electoral Registration Officer referred the matter to the SP(B) Morigaon. In due course, enquiry was conducted and the petitioner having failed to establish that she is an Indian citizen by producing any valid documents, her case was referred to the Foreigners Tribunal, Morigaon.

In the written statement filed before the Tribunal, she took the plea that she is an Indian citizen, by birth and that the proceeding against her was not maintainable. She placed reliance on the voters'' list of 1966 projecting her father as Samir Uddin. She also stated that she got married with one Jamal son of Late Jamir, whose name appeared in the voters'' list of 1966. She also placed reliance on the voters'' list of 1971 purportedly containing her name along with her husband and father-in-law. She also placed reliance on the voters'' list of 1975, 1979, 1985 and 1989.

Ext. "Ka" is the voters list of 1971 containing the name of one Saheda Khatun, wife of Jamal aged 26 years. Ext. "Kha" is the copy of draft chita (1968-69) containing the name of one Samir Uddin. Ext. "Ga" is the copy of Jamabandi (1982) containing the name of one Samir Uddin. Ext. "Gha" Land Revenue Paying receipts. Ext. "Unga" voter list of 1966 containing the name of one Samir Uddin, son of Mamud Hussain, aged 48 years. Ext. "Cha" voter list containing the name of one Saheda Khatun wife of Jamal, aged 26 years. Ext. : "Jha" voter list of 1979 containing the name of one Saheda Khatun wife of Jalal Uddin, aged 30 years. Ext. "Jhha" voter list of 1985 containing the name of Saheda wife of Jamal aged 35 years. The other documents she had produced are certificates of Gaonbura and Panchayat certifying her to be a resident of the particular locality.

We have examined the above documents. The projected father of the petitioner is Samir Uddin son of Mamud Hussain (refer voters'' list of 1966 and 1970). In the proceeding before the Tribunal, the State examined the Enquiry Officer who proved the enquiry report (Ext. -1). He in his deposition stated that although the petitioner was married but she could not produce any document in support of her Indian citizenship. The petitioner examined herself as OPW-1 and also examined one Ruhit Das Sarkar as OPW-2.

Earlier the petitioner was declared to be a foreigner answering the reference in favour of the State but it appears that the petitioner had challenged the same by filing a writ petition being WP(C) No. 3670/2012. Setting aside the earlier judgement and order dated 02/01/2012 passed by the learned Tribunal, this Court remanded the matter back to the Tribunal for a fresh decision on the ground that there was serious lapse on the part of the prosecution in discharging their burden by adducing evidence. However, as per the decision of the Apex Court in Sarbananda Sonowal v. Union of India & Ors. reported in , AIR 2005 SC 2920 and also the Full Bench decision in State of Assam v. Moslem Mondal and others reported in , 2013 (1) GLT 809, burden of proof is always on the proceedee under Section 9 of the Foreigners Act, 1946. Even in case of an ex-parte proceeding the State is not obliged to adduce any evidence. Be that as it may, upon remand of the matter, the learned Tribunal once again proceeded de-novo and passed the impugned judgement declaring the petitioner to be a foreigner. Referring to the documents exhibited, about which mention has been made above, the Tribunal recorded the relevant finding in para 4 of the judgement, which are extracted below:--

"4. I have gone through the records and heard argument from both sides. (I) No doubt the O.P. was not responsible for any mistake committed by the competent authority in respect of voter list, 1971 (Ext. ''Ka'') omitting the name of the Legislative Assembly Constituency. As per Section 76 of Evidence Act, the certified copy of a public document must be a true copy of the original one with same contents, but in Ext. ''Ka'', there was no mention of the L.A.C., although it has been certified as a true copy and the certified copy (not exhibited) submitted subsequently at the De-novo trial bears new material from Ext. ''Ka'' where the name of the L.A.C. has been mentioned. The variations of the contents in the voter lists (both certified to be true copy) create a doubt which one is the actual certified copy of the original one. In this respect, the O.P. is required to prove the certified copies by producing original ones which is not done by the O.P. (II) place and date of birth of the O.P. and her father are not proved. Ext. s ''Niya'', ''Tah'' and "Thah'' do not show that the O.P., Saheda Khatoon w as born at village - Kuranibari, although she has been shown as resident of that village.... (III) as regards the question whether Mahiran and Saheda Khatoon is the same person or not raised by the learned counsel for the writ petitioner before the Hon''ble High Court, it is to be stated that there is no any authentic record to show that Mahiran and Saheda Khatoon is one and the same person. It transpires from the records that the O.P. received the notice by herself putting her signature as Mahiran Nessa in presence of witness, but she informed the Tribunal on 10.12.2009 vide petition No. 981 that her actual name was Saheda Khatoon which was however allowed by the Tribunal. Accordingly, she submitted the written statement putting her signature as Saheda Khatoon."

With the aforesaid findings, the Tribunal has recorded thus:--

"5. After a careful perusal of the entire case records and the documents proved and exhibited, what it appears to me is that there are certain major discrepancies in respect of name of the O.P. herself, the names of her father and grandfather in the documents which were elaborately discussed by the Tribunal in the order dtd. 02.01.2012. Hence, I feel no necessity of discussing the discrepancies found in the documents exhibited again. It is very much dangerous to confer Indian citizenship to a person with such discrepancies in the documents. It has been observed by the Hon''ble High Court in W.P.(C) No. 6053/2011 in F.T.(D) Case No. 592/2006 - State v. Hussein Ali that "It is always dangerous to place reliance on such names unless cogent and acceptable evidence are adduced to clinch the burden of proof of Indian citizenship as per Section 9 of the Foreigners'' Act, 1946. Citizenship being a serious issue cannot be viewed lightly so as to fall prey to the story made out by the person concerned." National cannot be determined through husband. It has to be determined through parents and grand parents only."

Independent of the above, we have very carefully gone through the entire evidence in reference to the findings arrived at by the Tribunal to find out as to whether there is any perversity in the findings and/or error of jurisdiction in appreciating the evidence. As noted above, the Ext. Ka voter list of 1971 contains the name of one Saheda Khatun wife of Jamal, aged 26 years and again in 1975 (Ext. Chha), same name appears with the same age but in the Ext. Jha voter list of 1979, Saheda Khatun is the wife of Jalal Uddin and not Jamal and aged 30 years. In Ext. Jhha, Saheda Wife of Jamal is aged 35 years. As regards the residential certificates etc, the petitioner did not prove the same by producing the authors of the said certificates.

It is in the above circumstances, the learned Tribunal rightly recorded that there was failure on the part of the petitioner to discharge the burden of proof as envisaged under Section 9 of the Foreigners Act 1946. Mere inclusion and projection of names appearing in the voters list is also not a conclusive evidence of citizenship. That apart, as has been held by the Apex Court in LIC of India v. Ram Pal Singh Bisen reported in , 2010 (4) SCC 491 mere production of some documents or exhibiting the same without proving the contents thereof is not enough. In this connection, para 25 and 31 of the judgement is quoted below:--

"25. We are of the firm opinion that mere admission of a document in evidence does not amount to its proof. In other words, mere marking of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law.

Under the Law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the Evidence Act cannot be relied upon by the Curt. Contents of the document cannot be proved by merely filing in a court."

The petitioner failed to establish any linkage with her projected father. While in the voters'' list on which the petitioner placed reliance, her projected father is Samir Uddin son of Mamud Hussain but in the Land Revenue Receipt (Ext. Gha) revenue was paid on behalf of Iman Ali, Sabed Ali etc.

With the above discrepancies, the petitioner wanted to project herself as an Indian citizen by birth. The Tribunal appreciating the entire evidence on record, rightly concluded that she failed to effectively discharge the burden of proof as envisaged under Section 9 of the Foreigners Act, 1946.

The scope, ambit and jurisdiction of the Writ Court in such matters have been well defined by the Full Bench of this Court in State of Assam v. Moslem Mondal and others reported in , 2013 (1) GLT 809. In this connection, para 112 and 113 of the said full Bench decision is reproduced below:--

"112. Article 226 of the Constitution confers on the High Court power to issue appropriate writ to any person or authority within its territorial jurisdiction. The Tribunal constituted under the 1946 Act read with the 1964 Order, as noticed above, is required to discharge the quasi-judicial function. The High Court, therefore, has the power under Article 226 of the Constitution to issue writ of certiorari quashing the decision of the Tribunal in an appropriate case. The scope of interference with the Tribunal''s order, in exercise of the jurisdiction under Article 226, however, is limited. The writ of certiorari can be issued for correcting errors of jurisdiction, as and w hen the inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it or if such Court or Tribunal acts illegally in exercise of its undoubted jurisdiction, or when it decides without giving an opportunity to the parties to be heard or violates the principles of natural justice. The certiorari jurisdiction of the writ Court being supervisory and not appellate jurisdiction, the Court cannot review the findings of facts reached by the inferior Court or Tribunal. There is, however, an exception to the said general proposition, in as much as, the writ of certiorari can be issued and the decision of a Tribunal on a finding of fact can be interfered with, if in recording such a finding the Tribunal has acted on evidence which is legally inadmissible or has refused to admit admissible evidence or if the finding is not supported by any evidence at all, because in such cases such error would amount to an error of law apparent on the face of the record. The other errors of fact, however grave it may be, cannot be corrected by a writ court. As noticed above, the judicial review of the order passed by the inferior Court or the Tribunal, in exercise of the jurisdiction under Article 226 of the Constitution, is limited to correction of errors apparent on the face of the record, which also takes within its fold a case where a statutory authority exercising its discretionary jurisdiction did not take into consideration a relevant fact or renders its decision on w holly irrelevant factors. Hence, the failure of taking into account the relevant facts or consideration of irrelevant factors, which has a bearing on the decision of the inferior court or the Tribunal, can be a ground for interference of the Court or Tribunal''s decision in exercise of the writ jurisdiction by the High Court.

The Apex Court in Sant Lal Gupta v. Modern Coop. Group Housing Society Ltd. reported in , (2010)13 SCC 336, reiterating the grounds on which a writ of certiorari can be issued, has opined that such a writ can be issued only when there is a failure of justice and cannot be issued merely because it may be legally permissible to do so. It is obligatory on the part of the petitioners to show that a jurisdictional error has been committed by the statutory authority. There must be an error apparent on the face of the record, as the High Court acts merely in a supervisory capacity and not as the appellate authority. An error apparent on the face of the records means an error which strikes one on mere looking and does not need long drawn out process of reasoning on points where there may conceivably be two opinions. Such error should not require any extraneous matters to show its incorrectness. Such error may include giving reasons that are bad in law or inconsistent, unintelligible or inadequate. It may also include the application of a wrong legal test to the facts found, taking irrelevant consideration into account and failing to take relevant consideration into account, and wrongful admission or exclusion of evidence as well as arriving at a conclusion without any supporting evidence. Such a writ can also be issued when there is an error in jurisdiction or authority w hose order is to be review ed has acted without jurisdiction or in excess of its jurisdiction or has failed to exercise the jurisdiction vested in him by law."

In view of the above, we do not find any merit in the writ petition and accordingly it is dismissed. Now, the Superintendent of Police (B), Morigaon shall ensure that the petitioner is arrested and detained in the detention camp till her deportation to their country of origin i.e. Bangladesh.

Let the matter be listed again after one month so as to submit report by the Superintendent of Police (B) Morigaon about the action taken in the terms of this order.

The Deputy Commissioner, Morigaon shall ensure deletion of the names of the petitioner from the voter list, if any. He will also ensure that the name of the petitioner should not enter into the ongoing NRC Register.

Registry shall send down the case records to the learned court below along with a copy of this judgement and order. A copy of the judgement and order may also be furnished to Mr. M. Bhagabati, learned State Counsel for his immediate necessary follow up action. Copies shall also be sent to the SP(B), Morigaon and Deputy Commissioner, Morigaon, for their immediate follow up action.