Sona Bhanu vs The Union Of India & Ors.

(S.K Medhi, J.)

Heard Shri R. Ali, learned counsel for the petitioner. Also heard Ms. D. Borpujari, learned CGC; Shri G. Sarma, learned Standing Counsel, Home Deptt. & NRC; Shri P. Sarma, learned GA, Assam; Shri N. Kalita, learned counsel appearing on behalf of Shri AI Ali, learned Standing Counsel, ECI.

Invoking the jurisdiction under Article 226 of the Constitution of India, the petitioner herein, namely, Sona Bhanu, has assailed the judgment and opinion dated 12.06.2019 passed by the learned Member, Foreigners Tribunal No. 6, Barpeta in FT Case No. 91/2015, whereby, answering the reference against the petitioner as proceedee, the learned Tribunal held that she was an illegal migrant post the stream of 25.03.1971. Aggrieved by the said opinion of the learned Tribunal, the petitioner has preferred the instant writ petition.

The facts in brief that emerged before the learned Tribunal was that a reference was forwarded by the Superintendent of Police (B), Barpeta under the IM(D)T Act vide Reference No. 626/D/98, expressing doubt regarding the nationality of the petitioner. Subsequently, after the setting aside of the IM(D)T Act by the Hon'ble Supreme Court in the case of Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665, the pending cases including the present case were transferred to the respective Foreigners Tribunals under the Foreigners Act. In such a backdrop, the present case came to be placed before the aforementioned Tribunal, registered as FT Case No. 91/2015.

After registration of the case, the Tribunal issued notice to the petitioner, who appeared and filed her written statement denying the allegation of being an illegal migrant and contending that she is a citizen of India by birth. Subsequently, during the proceeding, the petitioner as proceedee adduced evidence of herself as DW-1 and she also adduced in evidence as many as 17 documents, exhibited as Exhibit-A to Exhibit-H. Her projected father, Sultan Khan, also adduced evidence in her favour as DW-2. Amongst the documents exhibited was a certificate, in connection with which the concerned village headman adduced evidence in her favour as DW-3. She also adduced in evidence a certificate issued by the Secretary of the local Gaon Panchayat, and the said Secretary also adduced evidence in her favour as DW-4. All the witnesses adduced by the petitioner's side, including the proceedee, were cross-examined on behalf of the State.

Upon completion of the proceeding, however, the Tribunal was not convinced about the case of the petitioner and it returned the reference against her, holding her to be a foreigner post the stream of 25.03.1971. Being aggrieved, the writ petition has been filed.

Shri Ali, the learned counsel for the petitioner submits that the petitioner has laid cogent evidence regarding her projected grandfather whose name figured in the voters list of 1966 and 1970. It is submitted that she also adduced evidence regarding her projected father. It is submitted that the Gaon Panchayat certificate should be taken as sufficient link evidence, as also the certificate issued by the village headman. It is submitted that the author of the respective documents had also adduced evidence and the petitioner's father also adduced evidence in her favour. In the context of adequate evidence adduced by the petitioner as proceedee, the learned Tribunal committed error in law and facts in discarding such cogent evidence and declaring the petitioner as a foreigner. The learned counsel submits that the said judgment and opinion requires interference in exercise of certiorari jurisdiction by the Court under Article 226 of the Constitution of India.

On the other hand, Shri Sharma, the learned Standing Counsel for Home Department of the State and NRC, supports the impugned judgment and opinion, contending that there is no infirmity in the same. It is submitted that the projected father, Sultan Khan, appears only in the voters list of 1985. It is submitted that as per the ages enumerated in the voters list, the age gap between the said Sultan Khan and his mother is only 10 years. It is submitted that there are also discrepancies in the voter lists and that the written statement is also vague. It is submitted by the learned Standing counsel that there is variance between the place of birth of the petitioner from her testimony and that of her projected father. It is submitted that the Gaonburah who had adduced evidence stated that she was born in village Chasra and that there is no statement that Chasra and Digher Pam are the same villages and same places. It is submitted that DW-4 issued the certificate without any verification. The learned Standing counsel submits that there is no merit in the writ petition and that the same should be dismissed, upholding the judgment and opinion passed by the learned Foreigners Tribunal.

We have perused the pleadings of the writ petition, the written statement, the evidence adduced during the proceeding, the documents exhibited, and other relevant materials. We have considered the submissions of the learned counsels of both the sides.

The written statement of the petitioner as proceedee before the learned Tribunal is somewhat brief, in which she has not stated many details. Though she has stated about being born and brought up in village Chasra within the jurisdiction of Baghbar Police Station in the district of Barpeta, she has not stated about her date of birth. She has stated about her grandfather, Afser Kha, appearing as a voter in the voter lists of 1966 and 1970 against Serial No. 56 and 57 with regard to House No. 17 in village Chasra under Baghbar LAC. She has also stated about her father, Sultan Kha, being voter in 1997 and 2014 against Serial Nos. 100 and 146 against House No. 36 in village Chasra under Baghbar LAC.

In her testimony before the Tribunal as DW-1, the petitioner stated that she was born and brought up in village Chasra under Baghbar Police Station in the district of Barpeta. Here also, she did not state about her date of birth. In the testimony also, she has reiterated about her projected grandfather, Afser Kha, appearing as a voter in the voter lists of 1966 and 1970 against Baghbar LAC of village Chasra. She also reiterated about the appearance of her father's name in the voter lists of 1985, 1997, and 2014.

In cross-examination, she stated that she was born and brought up at Digher Pam under Baghbar PS, but could not state her year or date of birth. She stated about her grandfather being about 60 years old when he expired, at which time the petitioner was 6–7 years old. She stated that her grandfather had cast his vote regularly when alive. She also expressed ignorance as to when her father had casted his vote for the first time.

The projected father, Sultan Kha, adduced evidence on affidavit as DW-2, in which also he stated that the petitioner was born and brought up at village Chasra under Baghbar PS in the district of Barpeta. He stated about her marriage to Aynal Haque of village Satrakanara under Baghbar PS in the district of Barpeta. DW-2 also stated about his father, Afser Kha, being a voter in 1966 and 1970 in Baghbar LAC, and about his also being a voter in 1985, 1997, 2010, and 2014 in village Chasra with regard to Baghbar LAC. In cross-examination, DW-2 stated that the petitioner was his daughter, but he could not say her date and year of birth, stating further that she was probably born 40 years ago. He referred to the Gaon Panchayat certificate to create his linkage with her. He could not state the age of his father when he died. He also expressed ignorance as to when he cast his vote for the first time and stated that maybe he casted his vote in 1985. He denied the suggestion that he was not the father of petitioner Sona Bhanu, and denied that he was not a resident of village Chasra.

One Sarbesh Ali, village headman, adduced evidence before the Tribunal as DW-3, stating that he was the village headman of village Aligaon and in-charge of village Chasra for the last two years, and that he knew the petitioner. He stated that her father's name is Sultan Khan and she is married to one Aynal Haque of Satrakanara. DW-3 affirmed that he had exhibited the certificate which he exhibited as Exhibit-G and his signature thereon as Exhibit-G(i). He stated that he issued the said document on the request of the petitioner and her father, stating further that he knew the petitioner and her father for many years and as he knew their family members, therefore, he issued the said certificate. He stated that he is maintaining a register book for the purpose of village survey as per intimation issued by the Circle Officer of Baghbar Revenue Circle. He exhibited as Exhibit-G(ii) the relevant page which was certified with seal and signature of the Circle Officer, and he exhibited as Exhibit-G(iii) the relevant page of the register book.

In cross-examination, he stated that he certified the petitioner as a resident of village Chasra, but he had not mentioned about the petitioner's father's inhabitancy in village Chasra. DW-3 could not state about when the petitioner was born or about her date of marriage, but speculated that probably it was in 1980. He clarified in cross-examination that house number entry in Exhibit-G(iii) as House No. 36 in Serial No. 80 was made two years back. He further clarified that since he was holding the post of Gaonburah of village Chasra as in-charge for the last two years only, he does not know as to what was the family of Sultan Kha two years back. He admitted that Exhibit-G(iii) only establishes the fact that Sultan Kha is a resident of village Chasra, but it does not reflect as to how long he is residing in village Chasra. However, he stated that he had seen him since his childhood. He denied that the parents of Sona Bhanu, the petitioner, were not residents of village Chasra and that they were Indian nationals.

DW-4 is Surat Jamal Ahmed, the Secretary of the Village Panchayat of No. 69 Satra Kanara Gaon Panchayat. In his testimony, he stated that he does not know the petitioner personally, but she is a resident of Chasra Gaon and her father's name is Sultan Khan and she was married to Aynal Hoque of Satra Kanara village. He admitted that he had issued a certificate in her favour, which he exhibited as Exhibit-F and Exhibit-F(I) as his signature. He stated that the petitioner had submitted an application along with NRC details and voters list of 1966, 1970, and 1997. He exhibited as Exhibit-F(III) the application; Exhibit-F(IV) as the NRC details; Exhibit-F(V) as the voters list of 1966; Exhibit-F(VI) as the voters list of 1970; and Exhibit-F(VII) as the voters list of 1997. He stated that on the basis of these documents he issued the certificate.

In cross-examination, DW-4 admitted that he came to know the petitioner only after she applied for the certificate in their Gaon Panchayat office. He stated that while issuing such certificates, usually the village headman is consulted, but while issuing this certificate the village headman was not present. DW-4 admitted that he does not know the petitioner's husband as well. He admitted that he had not done cross-verification of the documents submitted by OP with the custodian of the original documents. He admitted that he had not seen Sultan Khan or Afser Kha, the projected father and grandfather respectively of the petitioner. He also admitted that no members of the paternal side of the petitioner appeared before his office to prove the particulars mentioned by the petitioner in the application. He stated that he entered her age as 38 years on the basis of what she entered in the application. However, he denied that without any authority he issued this linkage certificate and also denied that he issued the certificate without any documents.

The rival submissions made have been duly considered and the materials placed before this Court including the records of the Tribunal have been carefully perused.

With regard to the aspect of burden of proof as laid down in Section 9 of the Act of 1946, the law is well settled that the burden of proof that a proceedee is an Indian citizen is always on the said proceedee and never shifts. In the said Section, there is non-obstante clause that the provisions of the Indian Evidence Act would not be applicable. For ready reference, Section 9 is extracted hereinbelow-

In this connection, the observations of the Hon’ble Supreme Court in the case of Fateh Mohd. Vs. Delhi Administration [AIR 1963 SC 1035] which followed the principles laid down by the Constitutional Bench in the case of Ghaus Mohammad Vs. Union of India [AIR 1961 SC 1526] in the context of Foreigners Act, 1946 would be relevant which are extracted herein below-

Before embarking to adjudicate the issue involved vis-a-vis the submissions and the materials on record, we are reminded that a Writ Court in exercise of jurisdiction under Article 226 of the Constitution of India would confine its powers to examine the decision making process only. Further, the present case pertains to a proceeding of a Tribunal which has given its findings based on the facts. It is trite law that findings of facts are not liable to be interfered with by a Writ Court under its certiorari jurisdiction.

Law is well settled in this field. The Hon’ble Supreme Court, after discussing the previous case laws on the jurisdiction of a Writ Court qua the writ of certiorari, in the recent decision of Central Council for Research in Ayurvedic Sciences Vs. Bikartan Das [Civil Appeal No. 3339 of 2023] has laid down as follows:

In the instant case, the written statement is absolutely vague and apparently, has not met the requirements, as laid down by the Hon’ble Supreme Court in the case of Sarbananda Sonowal (supra). There is a requirement to disclose the following:

In the instant case however, in the written statement filed on 10.07.2017, there is no mention of the date or year or birth of the petitioner; there is no mention of the names of the parents of the petitioner and there is no mention of the names of the siblings. Such omission is vital and would be fatal for discharging the burden by the petitioner as proceedee to establish her citizenship.

With regard to the requirements qua a written statement, this Court has made the following observations in the case of Rashminara Begum Vs. UoI & Ors., reported in 2017 (4) GLT 346 which we endorse:

So far as the Voters Lists are concerned, those of 1966, 1970, 1985, 1997 and 2010 have been relied upon which however do not contain the name of the petitioner. The same contains the names of the projected grandparents, projected parents and also a sibling. However, no link could be established by those Voters Lists with the petitioner. It appears that there is not a single Voter Lists in which the name of the petitioner appears and it is submitted that her name was prefixed with “D” in the Voter Lists of 1997.

We also find force in the contention advanced by the learned Standing Counsel that so far as those Voters Lists are concerned, there is huge gap of 1970 to 1985 which is the most crucial period to determine the aspect of citizenship. The first Voter List wherein the name of the projected father appears is of the year 1985 when his age has been shown as 40 years. The logical deduction is that his name should have been there from the year about 1966 and there is no explanation as to why his name was not there in the previous Voters List. We also find force in the contention that in the said Voters List, the difference in age of the projected father and the projected grandmother is 10 years. This is giving benefit of doubt that there is another name Hazera Khatun who is also shown to be the wife of Afsar Kha (projected grandfather) whose age is the same as the father of the petitioner i.e. 40 years by accepting that she is the step-grandmother.

So far as the oral evidence is concerned, the petitioner as DW1 except for two Certificates by the Gaon Burah and Gaon Panchayat could not produce any documentary evidence to establish her citizenship or her link with the projected father which would be essential in view of the fact that the petitioner appears to have been born after the cut-off date. Further, DW1 in her cross-examination had stated that when she was 6-7 years old, her grandfather had died which would mean that such death was in or about the year 1985. On the other hand, DW2 the projected father had said that his father had died about 20 years ago which would be about 1998. Further, DW2 in the cross-examination, he had deposed that he did not know the date and year of birth of the petitioner which is most unusual for a father. Law is very clear that oral evidence alone cannot prove citizenship unless the same is corroborated and supported by cogent and relevant documentary evidence which are trustworthy. We also find force in the contention advanced by the learned Standing Counsel that the evidence of the projected father as DW2 would not be of any relevance in absence of a common Voters List with the petitioner to connect her with the projected father.

In this connection, one may gainfully refer and rely upon the Judgment dated 21.11.2019 passed by a Co-ordinate Bench in a case of Asia Khatun vs. Union of India [WP(C)/4020/2017] wherein the following observations have been made:

As regards the deposition of DW3 – the Gaon Burah, he had stated that he knows the family only from last two years and that the petitioner is a resident of Chasra. DW4, who is Secretary of the Gaon Panchayat had deposed in his cross-examination that he came to know the petitioner only when she had applied for the Certificate and that he does not know her husband. Such deposition would not at all be adequate to establish the citizenship of the petitioner.

So far as the reliance on the Panchayat Certificate dated 23.07.2015 is concerned, this Court finds force in the submission advanced by the learned Standing Counsel, Home Department who by relying upon the case of Rupjan Begum Vs. Union of India, reported in (2018) 1 SCC 579 has submitted that such GP Certificate cannot establish citizenship. For ready reference, the relevant observations made by the Hon’ble Supreme Court are extracted herein below:

We have also noted that the Panchayat Certificate contains a Disclaimer at the foot and would be valid only if accompanied by certain other documents which admittedly was not done in the present case.

In the case of Momin Ali Vs. State of Assam, reported in 2017 (2) GLT 1076, a Co-ordinate Bench has laid down the following principles regarding the requirement of consistency between the pleadings and the evidence which we endorse:

In view of the aforesaid facts and circumstances, we are of the opinion that the impugned order dated 12.06.2019 passed by the learned Member, Foreigners Tribunal No. 6, Barpeta in FT Case No. 91/2015does not call for any interference.

The writ petition accordingly stands dismissed. Interim order passed earlier stands vacated. The actions consequent upon the opinion rendered by the learned Tribunal would follow in accordance with law.

The records be returned to the concerned Foreigners Tribunal forthwith, along with a copy of this order.