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Judgment
M.R.Pathak, J
1) Heard Mr. H R A Choudhury, learned Senior counsel, assisted by Mr. N N Upadhyaya, learned counsel for the petitioner. Also heard Ms. G
Sarma, learned CGC, appearing for the respondent No. 1 and Mr. U K Nair, learned Sr. Standing counsel, assisted by Mr. J Payeng, learned
Foreigners Tribunal appearing for the respondent Nos. 2 to 4.
2) Challenge in this writ petition is to the order dated 26.07.2017 (29.07.2017), passed by the learned Member, Foreigners Tribunal No. 1, Kamrup (R),
Ulubari, Assam in G.F.T.(R) Case No. 171/2017, whereby, the learned Tribunal opined that the petitioner is a Foreigner / Illegal Migrant of 25.03.1971
stream and is liable to be pushed back to the specific territory, as well as the order dated
13.10.2017 passed by the said Tribunal in Misc. Case No. 01/2017 in G.F.T.(R) Case No. 171/2017 rejecting the petition No. 422 of 2017 dated
22.08.2017 filed by the petitioner under Section 114 read with Order 47, Rules 1 and 2 of the Code of Civil Procedure, to review the said order dated
26.07.2017.
3) We have perused the records of the Foreigners Tribunal that was called for by the Court earlier on 13.11.2017.
4) From the records, we have seen that though the Tribunal fixed 26.07.2017 for judgment and the same was made ready, but as the counsel for the
petitioner on 26.10.2017 filed an application seeking another date as the petitioner would not be able to appear on that date, as she was suffering from
stomach upset, the Tribunal fixed 29.07.2017 for judgment and the impugned judgment was accordingly delivered by the said Tribunal on 29.07.2017.
5) On reference being submitted by the Superintendent of Police (Border), Kamrup, as to whether the petitioner is a foreigner under Foreigners Act,
1946, who had entered into Assam illegally after 25.03.1971 or not, initially B.F.T. Case No. 232/2016 against her was registered and proceeded
before the Foreigners Tribunal No. 2, Kamrup, Boko since its inception on 30.06.2016 up to 21.04.2017. Later, as per Government Notification No.
PLB-227/2017/3-A dated 19.05.2017, said B.F.T. Case No. 232/2016 was transferred to the Foreigners Tribunal No. 1, Kamrup (R), Ulubari,
Guwahati, wherein it was re-registered and renumbered as G.F.T.(R) Case No. 171/2017 and the said matter proceeded in the transferred Tribunal
w.e.f. 12.06.2017.
6) On receipt of notice, the petitioner appeared before the Foreigners Tribunal No. 2, Kamrup, Boko on 02.09.2016 and filed her written statement on
31.10.2016. She filed her Evidence-on-Affidavit before the said Tribunal on 08.02.2017 as well as additional Evidence-on-Affidavit on 12.06.2017 and
also filed Evidence-on-affidavit of the Government Gaon Burha of Village-Mahchara, District-Barpeta, Assam on 22.03.2017.
7) Petitioner examined herself as witness DW-1 and the Government Gaon Burha of Village - Mahchara as witness DW-2 on her behalf.
8) In her written statement, the petitioner stated that she is not a foreigner but, an Indian citizen by birth and that she is the daughter of Late Joynal
Ali, son of Barkat Ali, name of her mother is Soleman Nessa, name of her grandmother was Moyna Nessa, name of her step mother is Jahura
Khatun. She also stated that names of her grandfather and grandmother were enlisted in the Voter Lists of 1966, 1970 pertaining to No. 54 Chenga
LAC, whereas name of her father Joynal Ali was enlisted in the Voter List of 1971 amended (Additional) Voter List of No. 54 Chenga LAC along
with her paternal uncles. She also stated that names of her parents Joynal Ali and Soleman Nessa were enlisted in the Voter List of 1985 of No. 47
Chenga LAC. In 1997, her father shifted from Village-Mahchara, P.S. Tarabari, District -Barpeta, Assam to Village-No. 2, Uttar Rangapani, P.S.
Nagarbera, District -Kamrup as he had his own cultivable land in that place and his name appeared in the Voter Lists of No. 48 Boko (SC) LAC
along with her stepmother Jahura Khatun for the years 1997, 2010, 2013, 2016. She further stated that in the year 1984, she got married to Nurul
Haque, son of Jangher Ali, resident of Village-Saralpara, Mouja-East Chamaria, P.S. Chaygaon, Sub-Division-Guwahati, District-Kamrup and she
voted for the first time in the year 1985 when her name was enlisted in the 1985 Voter List of No. 49 Chhaygaon LAC along with her husband and
that her name reflected in the voter list of said constituency for the subsequent years of 1993 and 1997. She also stated that her name along with her
husband Nurul Haque was enlisted in the 2005, 2008, 2010 and 2016 voter lists of No. 48 Boko (SC) LAC at Village No. 1 Palahartari, P.S.
Nagarbera, Sub-Division-Kamrup, District-Kamrup and she has been provided with Elector Photo Identity Card in December 2015 for the said
constituency. She also stated that the village Headmen of Village-Mahchara as well as Village- Palahartari had issued certificate towards her identity
and linkage that she is the daughter of Joynal Ali.
9) In support of her claim, the petitioner exhibited the following documents:
i) Ext. A - NRC Entry Record in the name of Kharu Mandal, son of Garibosk and 13 others issued by Barpeta District Congress Committee.
ii) Ext. B - Certified copy of Voter List of 1966 of No. 54 Chenga LAC reflecting the name of Barkat Ali and Moyna Nessa, wife of Barkat Ali.
iii) Ext. C - Certified copy of Voter List of 1970 of No. 54 Chenga LAC reflecting the name of Barkat Ali and Moyna Nessa, wife of Barkat Ali.
iv) Ext. D - Certified copy of 1971 Voter List that corrected and additional of No. 54 Chenga LAC reflecting the name of Joynal Ali, Son of Barkat
Ali.
v) Ext. E - Certified copy of 1985 Voter List of No. 47 Chenga LAC reflecting the name of Joynal Ali and Soleman Nessa, wife of Joynal Ali.
vi) Ext. F - Certified copy of 1997 Voter List of No. 48 Boko (SC) LAC reflecting the name of Joynal Uddin and his wife Jahura Khatun.
vii) Ext. G - Certified copy of 2010 Voter List of No. 48 Boko (SC) LAC reflecting the name of Joynal Uddin and his wife Jahura Khatun.
Viii) Ext. H - Certified copy of 2013 Voter List of No. 48 Boko (SC) LAC reflecting the name of Joynal Uddin and his wife Jahura Khatun.
ix) Ext. I -Certified copy of 2016 Voter List of No. 48 Boko (SC) LAC reflecting the name of Joynal Uddin and his wife Jahura Khatun.
x) Ext. J -Certified copy of 1985 Voter List of No. 49 Chayygaon LAC reflecting the name of the petitioner Jono Nessa with her husband Nurul
Haque.
xi) Ext. K -Certified copy of 1993 Voter List of No. 49 Chayygaon LAC reflecting the name of the petitioner Jono Nessa with her husband Nurul
Haque.
xii) Ext. L -Certified copy of 1997 Voter List of No. 49 Chayygaon LAC reflecting the name of the petitioner Jono Nessa with her husband Nurul
Haque.
xiii) Ext. M - Certified copy of 2005 Voter List of No. 48 Boko (SC) LAC reflecting the name of the petitioner Jono Nessa with her husband Nurul
Haque.
xiv) Ext. N - Certified copy of 2010 Voter List of No. 48 Boko (SC) LAC reflecting the name of the petitioner Jono Nessa with her husband Nurul
Haque.
xv) Ext. O - Certified copy of 2010 Voter List of No. 48 Boko (SC) LAC reflecting the name of the petitioner Jono Nessa with her husband Nurul
Haque.
xvi) Ext. P - Certified copy of 2016 Voter List of No. 48 Boko (SC) LAC reflecting the name of the petitioner Jono Nessa with her husband Nurul
Haque.
xvi) Ext. Q -
xvii) Ext. R -
xviii) Ext. S
xix) Ext. T -
xx) Ext. U -
xxi) Ext. V - Electoral Photo Identity Card of the petitioner.
Certificate of Gaon Burha of Mahacnara RNC Charge No. 8 dated 02.09.2016. - Certificate of Gaon Burha of Palahartari, Nagarbera, Kamrup dated
04.09.2016. Affidavit sworn by the petitioner on 08.02.2018. Marriage Certificate of the petitioner dated 05.02.2016 issued by the Muslim Marriage
and Divorce Registrar and Kazi Mahtoli (Sontoli), Kamrup, Assam. Certified copy of Chitha of Dag No. 190 of Village- Mahsora (K) under Mouza-
Boguribari.
10) During her cross-examination, the petitioner on 07.07.2017 before the Tribunal stated that name of her father is Joynal Ali, she is residing at
Village-Palarhartari, P.S. Nagarbera, name of her mother is Soleman Nessa and stepmother is Johura Khatun, name of her grandfather is Barkat Ali
and grandmother is Moyna Nessa and that her father cast his vote at Mohchara Village and had 9 brothers and 4 sisters among themselves.
11) In her said cross-examination, she also stated that she has 7 (seven) brothers, namely, i) Sarafat Ali, ii) Sona Ullah, iii) Jahuruddin, iv) Maharuddin,
v) Joul Haque, vi) Jul Haque and vii) Dilbar and Jarful Nessa is her sister and that her father expired 4 (four) years back. She stated that for the first
time, she had cast her vote from Village-Saralpara under P.S.- Chaygaon in the year 1985. She stated that she got married to Nurul Haque of Village-
Saralpara, P.S.-Chaygaon and name of her father-in-law is Jangsher Ali and that she had adduced certificates of village Headman.
12) The entire claim of the petitioner is that she is the daughter of Joynal Ali, who was the son of Barkat Ali, whose names are also included in the
NRC record and voter lists.
13) Exhibit-A is NRC Entry Record issued by the President/Secretary of Barpeta District Congress Committee, Barpeta without any number,
signature and date consisting the name of one Kharu Mandal and 13 others, which has not been proved by the issuing authority.
14) Exhibit-B, is the certified copy of 1966 Voter List of No. 44 Chenga LAC of Village-Mahchara K, Part-125, Mouza-Boguribari, Sub-Division
Barpeta under P.S. Tarabari, District-Kamrup, Assam reflecting the name of one Barkatali and Moyna Nessa, wife of Barkatali.
15) Similarly, Exhibit-C, is the certified copy of 1970 Voter List of No. 54 Chenga LAC of Village- Mahchara K, Part-124, Mouza-Boguribari, Sub-
Division Barpeta under P.S. Tarabari, Dist-Kamrup, Assam reflecting the name of one Barkatali and Moyna Nessa, wife of Barkatali.
16) Exhibit-D is the certified copy of amended 1971 (additional) Voter List of No. 54 Chenga LAC of Village-Mahchara K, Part-124, Mouza-
Boguribari, Sub-Division Barpeta under P.S. Tarabari, Dist-Kamrup, Assam reflecting the name of one Joynal Ali, son of Barkat.
17) Exhibit-E is the e-Voter List of 1985 of No. 47 Chenga LAC of Part-73 of Village-(K) Pampara NC, (Kh) Mahchara of Mouza Boguribari Sub-
Division-Barpeta consisting names of one Joynal Ali, son of Barkat, aged about 38 years and Soleman Nessa wife of Joynal Ali, aged about 33 years.
18) Exhibits- F, G, H and I are the certified copies of 1997, 2010, 2013 and 2016 Voter Lists of No. 48 Boko (SC) LAC of Village - Uttar Rangapani
(Nos. 1, 2 and 3) Mouza and P.S. Nagarbera, Sub-Division-Guwahati, District-Kamrup, reflecting the names of Joynal Uddin, son of Barkat Mandal
and Johura Khatun, wife of Joynal Uddin. Exhibits - G and H also reflect name of one Swarpad Ali, son of Joynal Uddin, along with Joynal Uddin and
Johura Khatun.
19) Exhibits - J, K and L are the certified copies of 1985, 1993 and 1997 Voter Lists of No. 49 Chaygaon LAC of Village-Saralpara, Mouza-Pub
Chamaria, Sub-Division Guwahati, P.S. Chaygaon, District-Kamrup, reflecting the name of the petitioner and her husband Nurul Haque, son of
Jangsher.
20) Exhibits - M, N, O and P are the certified copies of Voter Lists of No. 48 Boko (SC) LAC of the years 2005, 2008, 2010 and 2016 reflecting the
name of the petitioner and her husband Nurul Haque, son of Jangsher.
21) Exhibit-Q is the Electoral Photo Identity Card of the petitioner pertaining to No. 48 Boko (SC) LAC of Village Palahartari, P.S. Nagarbera, Sub-
Division-Kamrup, District-Kamrup issued in December 2015.
22) Exhibit-R is the Certificate dated 02.04.2016 issued by the concerned Village Headman (Gao Burha) of Mahchara Village that petitioner, Jana
Nessa, daughter of Jaynal Ali is a resident of Mahchara K and name of her father was in the amended 1971 Voter List (additional) of No. 54 Chenga
LAC at Srl. No. 303, House No. 10 (Ka) Part.124. Said Certificate also specified that she is presently residing at Village-Palahartari under No. 48
Boko LAC of Kamrup District and that she got married to Nurul Haque, son of Jangsher Ali of Palahartari Village and that said Jana Nessa is the
daughter of Jaynal Ali, son of late Barkat Ali. The petitioner adduced the evidence of the said Village Headman of Mahchara Village, Nurul Haque as
her witness DW-2.
23) In his evidence-in-chief said DW-2 Nurul Haque stated that he is the Government village Headman of Villages Mahchara and Mahchara NC and
he had come to depose on behalf of the petitioner, Jana Nessa and that he knows the petitioner along with her parents and grandparents, whose
names appeared in the Voter Lists of No. 54 Chenga LAC in the Village Mahchara ‘K’, P.S. Tarabari in the year 1966 and 1971 and that her
name appeared in the Voter List of 1985 of No. 49 Chaygaon LAC. He admitted that he issued a Certificate, Exhibit-R in favour of the petitioner who
is the daughter and granddaughter of Late Borkat Ali and Late Jaynal Ali respectively of Village-Mahchara, P.S. Kachumara, under Mouza-
Boguribari, District - Assam.
24) In his cross examination, said DW-2 stated that name of petitioner Jono Nessa’s father is Jaynal Ali and she is presently residing at Village-
Palahartari, which is under Nagarberra Police Station in Kamrup district and name of her grandfather is Barkat Ali. He also stated that name of
petitioner’s mother is Sona Banu and he does not know the name of her stepmother. From perusing the voter lists, he stated that her father and
grandfather cast vote and he stated that Jono Nessa had cast her vote at Village-Palahartari, but he does not know, since when she had cast her vote.
He admitted of issuing certificate, Exhibit-R, wherein R1 is his signature. He also stated that Mahchara village have around 2000 people and that he
did not bring the diary containing people’s register to the Court which contains the name of the father of the petitioner. He also stated that
whenever he issues a certificate, he maintains it in a register, which he did not bring to the Court. He also stated that he did not register about the
certificate which he had issued to the petitioner, but later he submitted that he had made an entry in the said register.
25) Exhibit-S is another Certificate dated 04.09.2016 issued by the Gaon Burha of Palahartari, Village of Mouza Nagarbera, Kamrup but the said
certificate has not been proved by its executed.
26) Exhibit-T is an affidavit sworn by the petitioner before Notary at Guwahati on 08.02.2017 stating that Borkat Ali, Barkatali, Barkat, Barkat
Mandal are the same and one person. Similarly, Joynal Ali, Joynal Uddin and Goynal are the same and one person.
27) It is already settled by the Hon’ble Apex Court in the case of Smti. Sudha Devi Vs. M.P. Narayanan, reported in (1988) 3 SCC 366 that
affidavit filed by a party sou-moto and not under direction of the Court cannot be termed as evidence. Affidavit is not included as evidence unless law
specifically permits. Affidavit are not included in the definition of ‘evidence’ in Section 3 of the Evidence Act and can be used as evidence only
if for sufficient reason Court passes an order under Order 19, Rule 1 or 2 of the Code of Civil Procedure. In view of the above, Exhibit-T affidavit
placed by the petitioner cannot be considered as an evidence.
28) Though, petitioner exhibited her registered Marriage Certificate Exhibit-U dated 05.02.2016 issued by the Muslim Marriages & Divorce Register
& Kazi, Mahtoli (Sontuli) of Kamrup District that she, Jano Nessa, daughter of Jaynal Ali of Village-Mahachara, Kachumara, PS.Tarabari, District-
Barpeta got married to Md. Nurul Haque, son of Jangser Ali of Village-Saralpara, P.S.-Chaygaon, District-Kamrup on 15.03.1984 to establish her
marriage. But the said Marriage Certificate was not proved by the petitioner by adducing evidence of the person who issued the same or witnessed to
it. Moreover, the petitioner in her cross examination on 07.07.2017 stated that she got married in the year 1984 in the Office of the Kazi, when she
was around 18 years old.
29) Exhibit-V is the certified copy of Chitha of Dag No. 190 of Village- Mahchara (K) under Mouza-Boguribari by which the petitioner tried to
establish that Joynal Ali was son of Barkat Ali.
30) But none of these exhibits adduced by the petitioner could establish that the petitioner is the daughter of Joynal Ali.
31) In the cases of Md. Abdul Kuddus Vs. Union of India and Ors. WP(C) No. 1073/2016 decided on 07.05.2018, Romila Khatun Vs. Union of India
and Ors. WP(C) No. 3807/2016 decided on 08.06.2018 and Jalaluddin Vs. Union of India and Ors. WP(C) No.7677/2016 and Lailiya Khatun Vs.
Union of India and Ors. WP(C) No. 7698/2016 both decided by a common judgment dated 11.06.2018, this Court had observed that documentary
evidence would have to be proved on the basis of the record and the contemporaneous record must substantiate and prove the contents of the
document. Proof of document is one thing and proof of content is another. Not only the document would have to be proved but its contents would
have also to be proved. That apart, the truthfulness of the contents of the document would also have to be established from the record. A document or
the contents of the document cannot be proved on the basis of personal knowledge. Contents of a certificate needs to be proved from the records,
though the author of the certificate may prove the document through oral evidence, but oral evidence dehors record cannot prove contents.
32) In the said judgments, the Division Bench have also held that under the State Emblem of India (Regulation of use) Rules, 2007, Gaon Burha is not
authorized to use the State Emblem in any manner. Finding that the Gaon Burha unauthorisedly used the State Emblem of India while issuing
certificate exhibited in that case, the Court rendered the said certificate inadmissible in evidence in the case. In the present case, both Annexures-S
and T certificates issued by the Gaon Burha of Village-Mahchara and Palahartari contain the State Emblem which make both the certificates
inadmissible in evidence.
33) In the present case, though DW-2 Nurul Haque, Govt. village headman of Mahchara village issued the certificate to the petitioner Ext. S on
04.09.2016, he is silent since when he knew either Joynal Ali or Barkat Ali. Though, he might have owned up the Ext. S Certificate that would not if
so facto mean that the contents of the certificate were proved as it is required to be proved on the basis of contemporaneous record. The said DW-2
also stated that he issued certificate by maintaining a register which he did not produce before the Tribunal and the contents of the certificate is
required to be proved from the register but the same was not done and therefore, Exhibit-S cannot be said to have been proved by DW-2 in favour of
the petitioner.
34) Petitioner herself stated that she got married to Nurul Haque, son of Jangsher Ali of Village-Saralpara under Chaygaon Police Station of Kamrup
District. But the DW-2 in his certificate Exhibit-S stated that petitioner got married to Nurul Haque, son of Jangsher Ali of Village-Palahartari, which
itself nullifies the evidentiary value of the said exhibit. Moreover, the DW-2 Govt. Gaon Burha made his statement without producing the record
before the Tribunal which is also not acceptable.
35) Petitioner is totally silent about her mother Soleman Nessa as well as of her stepmother Johura Khatun. Moreover, from Exhibit-E Voter List of
1985 of No. 47 Chenga LAC containing the name of Joynal Ali son of Barkat alleged father of the petitioner and Soleman Nessa, wife of Joynal
alleged mother of the petitioner, it can be seen that in the year 1985 her alleged mother Soleman Nessa was 33 years old. Again from Exhibit-J, 1985
Voter List of No. 49 Chaygaon LAC containing the name of the petitioner reflects that she was 25 years old and if such exhibits are to be accepted in
evidence to consider that the petitioner is the daughter of Joynal Ali and Soleman Nessa of Village-Mahchara, then the age difference between her
mother Soleman Nessa and herself reflects to be of only 8 (eight) years.
36) Though, the petitioner stated that she had uncles, mother, stepmother, brothers and sister, but she did not adduce evidence of anyone of her family
to establish that she is the daughter of Joynal Ali.
37) The Hon’ble Supreme Court in the case of Union of India and Others -Vs- Ghaus Mohammad reported in AIR 1961 SC 1526, while
considering the provisions of Section-9 of the Foreigners Act, 1946 have held that When a question arises whether a person is or is not a foreigner, the
onus of proving that he is not a foreigner is on that person.
38) The Apex Court has reiterated the said principle of law in Fateh Mohd., son of Nathu -Vs-Delhi Administration reported in AIR 1963 SC 1035
and Masud Khan -Vs- State of Uttar Pradesh reported in (1974) 3 SCC 469, observing that By reason of Section 9 of the 1946 Act whenever a
question arises whether a person is or is not a foreigner, the onus of proving that he is not a foreigner lies upon him and hence the burden is on the
proceedee to establish that he is a citizen of India in the manner claimed by him.
39) In the case of Sarbananda Sonowal (I) -Vs- Union of India and Another, reported in (2005) 5 SCC 665, where the question relating to the
constitutional validity of the Illegal Migrants (Determination by Tribunals) Act, 1983 was under consideration, the Hon’ble Supreme Court while
dealing with various enactments made for dealing with the foreigners including the different provisions of the Foreigners Act, 1946 have held that
Section 9 of the said 1946 Act casts the burden of proving that a person is not a foreigner or is not a foreigner of such particular class or description,
as the case may be, on such person and therefore, when an order made under the 1946 Act is challenged and a question arises whether the person
against whom the order has been made is a foreigner or not, the burden of proving that he is not a foreigner is upon such a person.
40) The Hon’ble Apex Court while laying down the law relating to the burden of proof has also noticed the general rule in the leading democracies
of the world that Where a person claims to be a citizen of a particular country, the burden is upon him to prove that he is a citizen of that country.
41) For the reasons aforesaid, we are of the view that the petitioner failed to prove herself to be an Indian national and as such, the impugned order
dated 26.07.2017, delivered on 29.07.2017, passed by learned Member, Foreigners Tribunal No. 1, Kamrup(R), Ulubari, Assam in G.F.T.(R) Case No.
171/2017 as well as the order dated 13.10.2017 passed by the said Tribunal in Misc. Case No. 01/2017 does not warrant any interference.
42) Accordingly, this writ petition being devoid of any merit and stands dismissed.
43) Registry shall return the records of G.F.T.(R) Case No. 171/2017 to the concerned Foreigners Tribunal No. 1, Kamrup(R), Ulubari, Assam.