Gauhati High Court
Khudeja Begum vs The Union Of India And 5 Ors on 25 January, 2021
Page No.# 1/8
GAHC010046572020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet./48/2020
KHUDEJA BEGUM
W/O- LATE OMAR ALI @ AMAR ALI, D/O- AKSHAD ALI, R/O- VILL.- NO. 2
DONGARGAON, P.O. NAGRIJULI, P.S. TAMULPUR, DIST.- BAKSA, BTAD,
ASSAM.
VERSUS
THE UNION OF INDIA AND 5 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF INDIA,
HOME AFFAIRS DEPARTMENT, NEW DELHI-01.
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-06.
3:THE ELECTION COMMISSION OF INDIA
NEW DELHI-01
INDIA
4:THE STATE CO-ORDINATOR
NRC
ASSAM
5:THE DEPUTY COMMISSIONER
BAKSA
DIST.- BAKSA
ASSAM
PIN- 781367.
6:THE SUPERINTENDENT OF POLICE (B)
Page No.# 2/8
BAKSA
DIST.- BAKSA
ASSAM
PIN- 78136
Advocate for the Petitioner : MR A ALI
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
25.01.2021
(Manojit Bhuyan, J)
Heard Mr. A. Ali, learned counsel for the review petitioner as well as Smt. J. Sarma,
learned counsel representing respondent no.1. Mr. J. Payeng, learned counsel represents
respondent nos.2, 5 and 6 whereas Ms. B. Das, learned counsel appears for respondent no.3.
Ms. L. Devi, learned counsel accepts notice for respondent no.4.
Petitioner seeks review of the order dated 13.05.2019 dismissing the writ petition i.e.
WP(C) 2889/2019 wherein challenge was made to the opinion dated 28.02.2019 of the
Foreigners' Tribunal, Baksa, Tamulpur, in F.T. Case No.2674/BAKSA/2016. The relevant portion
of the said order is extracted hereinunder:
"2. The petitioner assails the order/opinion dated 28.02.2019 passed by the Foreigners
Tribunal, Baksa, Tamulpur in F.T. Case No. 2674/BAKSA/2016, whereby, the Tribunal held that
the petitioner, Khudeja Begum, w/o Lt. Omar Ali, Village - No. 2 Dangargaon, Police Station -
Tamulpur, District - Baksa, BTC, Assam as the proceedee, failed to discharge her burden of
proof as mandated under Section 9 of the Foreigners Act, 1946 and accordingly, she was
declared to be a foreigner of post 25.03.1971 stream, having illegally entered into the
territory of India from the specified territory without any valid document.
3. The primary issue for determination is as to whether the petitioner, Khudeja Begum
succeeded to establish her linkage with her projected father, Akshad Ali and projected mother,
Manikjan Nessa. The Tribunal had, inter-alia, held that the petitioner as the proceedee, could
not produce any Electoral Roll of any period prior to 1997 having her name as a voter till the
Page No.# 3/8
age of 50 years, which she declared to be her age and thus, the petitioner had failed to prove
her Indian nationality.
4. On a reference made by the Superintendent of Police (Border), Nalbari, the Tribunal
issued notice and on receipt thereof, the petitioner duly entered appearance and contested
the case by filing her written statement and later on, by adducing her evidence on affidavit as
O.P.W.1 exhibiting 9 (nine) Nos. of documents. The petitioner also adduced evidence of 3
(three) witnesses viz. Hajarat Ali (O.P.W.2), Lal Bhanu (O.P.W.3) and Nurul Islam
Ahmed(O.P.W.4).
5. In her written statement, the proceedee stated that she was born in the year 1966 at
Village - Agmandia in the district of Barpeta and her parents' names were Lt. Akshad Ali and
Manikjan Nessa. It was mentioned that the name of her father was entered in the NRC
details(1951) in the district of Barpeta as well as in the Electoral Roll of 1966 under 52 No.
Baghbar LAC. The proceedee got married with Omar Ali of Village - No. 2 Dangargaon,
District -Baksa and she had been living with her husband since then. Save and except as
above, the proceedee did not disclose any other details like the year of her birth and names
of her grandparents and her siblings, etc. No explanation is made, in the written statement,
as about such non-disclosure. In Sarbananda Sonowal vs. Union of India and another, (2005)
5SCC 665, it is held that in order to establish one's citizenship, normally he may be required
to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their
place of birth and citizenship. In a proceeding under the Foreigners Act, 1946 read with
Foreigners(Tribunals) Order, 1964 the issue is whether the proceedee is a foreigner or not
and Section 9of the Foreigners Act, 1946 casts the burden of proof on the proceedee to prove
that he is not a foreigner. The same is based on the legal principle that the facts which are
within the personal knowledge of a person should be proved by him and not the party who
avers the negative because those facts are within the personal knowledge of the person
concerned and not of the authorities of the State. After such proceedee has given evidence
on the above points, the State authorities can verify the facts and can, thereafter, lead
evidence in rebuttal, if necessary.
6. In her evidence on affidavit, the proceedee besides reiterating the statements made in
the written statement, as indicated above, further stated that her parents' names were
enrolled in the Electoral Roll of the year 1970 from same village as in 1966 and her name was
enrolled along with her husband and son in the Electoral Roll of 1997 from Village - No. 2
Dangargaon under 58 No. Tamulpur LAC. She further stated that she had two sons and one
daughter.
7. For the purpose of discharging the burden as not being a foreigner, the petitioner
sought to link herself with her projected parents and to establish the link, the following
documents were exhibited :-
(i) Ext.-1 - Certified copy of extract of Electoral Roll of 1966 pertaining to Village -
Agmandia under 52 No. Baghbar LAC showing (i) Akshad Ali (40 years),
son of Shahar Ali and (ii) Manikjan Nessa (33 years), wife of Akshad Ali
as voters;
(ii) Ext.-2 - Certified copy of extract of Electoral Roll of 1970 pertaining to Village -
Agmandia under 52 No. Baghbar LAC showing (i) Akshad Ali (44 years),
Page No.# 4/8
son of Shahar Ali and (ii) Manikjan Nessa(37 years), wife of Akshad Ali as
voters;
(iii) Ext.-3 - Certificate dated 25.02.2018 issued by Gaonbura, Agmandia;
(iv) Ext.-4 - Certified copy of extract of Electoral Roll of 1997 pertaining to Village -
No. 2 Dangargaon in the then Nalbari district, showing(i) Omar Ali (60
years), son of Motuz Ali, (ii) Khudeja Begum (50 years), wife of Omar
and (iii) Hanu Ali (35 years), son of Omar as voters;
(v) Ext.-5 - Elector Photo Identity Card (EPIC) issued on 01.10.2013 to Khudeja
Begum (57 years), relation name - Omar;
(vi) Ext.-6 - Certified copy of Jamabandi obtained on 18.08.2018 in respect ofa plot of
land at Village - Agmandia for the year 1968 - 1969showing the name of
Akshad Ali, son of Sahar Ali;
(vii) Ext.-7 - A pass book for National Rural Employment Guarantee Scheme of
Department of Posts, India where the name of the accountholder was
not shown;
(viii) Ext.-8 - A certificate dated 16.07.2015 issued by the Secretary, 85 No. Agmandia,
Jadavpur Gaon Panchayat and countersigned by the Block Development
Officer, Agmandia stating that Khudeja Begum got married to Amar Ali, a
resident of No. 2 Dangargaon,on 30.12.1975;
(ix) Ext.-9 - A pass book of State Bank of India issued to Khudeja Begum,wife of Omar
Ali on 14.09.2017.
8. From Ext.-4, it could be seen that the proceedee's name was, for the first time,
enrolled as a voter in the year 1997 at the age of 50 years with her husband and son. If the
proceedee was 50 years in the year 1997, then she must have been born in and around 1947
and must have attained the age of adult suffrage in and around the year 1968. But the
proceedee had failed to produce any Electoral Roll for the period from 1968 to 1997 where
her name was enrolled as a voter nor did she state about the reason for such non-enrollment
of her name as a voter. For the purpose of establishing linkage to predecessors who are
Indian citizens and relatable to a period prior to the cut-off date of 25.03.1971 the proceedee
projected, as mentioned above, Akshad Ali as her father and Manikjan Nessa as her mother
respectively, both names having appeared in the Electoral Rolls of 1966 (Ext.-1) and
1970(Ext.-2). As the name of the proceedee did not appear with her projected parents in any
of the Electoral Rolls as voters together, the proceedee sought to draw linkage with her
projected parents by placing reliance in the certificate issued by the Gaonbura, Agmandia on
25.02.2018 (Ext.-3) and the certificate dated 16.07.2015 issued by the Secretary, 85
No.Agmandia, Jadavpur Gaon Panchayat (Ext.-8). For that purpose, the proceedee adduced
theevidence of her witnesses, O.P.W.2 and O.P.W.4.
9. O.P.W.4 who was the Secretary of 85 No. Agmandia, Jadavpur Gaon Panchayat and
who issued Ext.-8, stated in his deposition that Ext.-8 was issued on the basis of Ext.-1
andExt.-2 and there was no old records except the certificate issue register. The Tribunal had
observed that O.P.W.-4, in his cross-examination, testified that he issued Ext.-8 on the basis
Page No.# 5/8
of the certificate of the Gaonbura and version of the proceedee. It was further observed that
Ext.-8 was issued on 16.07.2015 whereas the certificate of the Gaonbura (Ext.-3), on the
basis of which Ext.-8 was stated to be issued carried the date of 25.02.2018 as the author of
Ext.-3 i.e. O.P.W.2 nowhere mentioned about any other certificate issued by him. In view of
the above situation, the Tribunal did not accept the testimony of O.P.W.4 and Ext.-3 and held
that Ext.-3 could not be accepted for the purpose of linkage of the proceedee with her
projected parents. On perusal of Ext.-4 and Ext.-8, another irreconcilable fact has emerged.
In Ext.-4, name of Hanu Ali, aged 35 years, found to be enrolled as a voter who was shown
to be the son of the proceedee and her husband. If the same is accepted, then the marriage
of the proceedee must have to be solemnized prior to 1962. But in Ext.-8, O.P.W.4 had
endorsed that the marriage of the proceedee was solemnized on 30.12.1975 about which the
proceedee was found to be conspicuously silent in the entire proceeding. O.P.W.4 having not
disclosed the source of his such information, put his testimony into suspicion, which
destroyed its credibility. For the aforesaid reason apart from the reason assigned by the
Tribunal, Ext.-8 cannot be accepted as a valid piece of evidence for the purpose of linkage.
10. The person who issued Ext.-3 i.e. the Gaonbura, Agmandia was examined as O.P.W.2.
He stated that he knew the proceedee and her father whose name was enlisted as a voter
in1965 and 1970. The proceedee was born at Village - Agmandia and had sisters viz. Jahira
Khatun and Solemen Begum, who were also living in the said village. The father of the
proceedee died in the year 1985 in an accident. In his cross-examination, O.P.W.2 stated tha
the had come to depose for the proceedee and he did not know whether the father of the
proceedee came from Bangladesh. He testified that he issued Ext.-3 certificate on verbal
request of the proceedee and he issued the same on the basis of Voter Lists but he did not
have any record of villagers. The Ext.-3 only stated that the proceedee was the daughter of
Akshad Ali and she got married to Omar Ali. If the version of O.P.W.2 is considered along with
other materials on record, without considering their veracity for the moment, then it would
emerge that the proceedee was living at Village - Agmandia from the year 1947 till her
marriage on 30.12.1975, having attained the age of 21 years in 1968 and if that is so, it was
incumbent on the part of the proceedee to have proved her enrollment as a voter together
with her projected parents in the Electoral Roll of 1970 and the period subsequent thereto till
1975 and to show the linkage through other acceptable and reliable documents instead of
Ext.-3 which was issued only on 25.02.2018. The veracity of the version of O.P.W.2 comes
under a cloud when the same is read along with the testimony of O.P.W.3.
11. In this connection, a reference may also be made to an order dated 27.03.2019 passed
by a co-ordinate Bench of this Court in the writ petition, WP(C) No. 7919/2018
(JalekhaKhatun vs The Union of India and 6 Ors.), wherein it has been observed as under:
"There is another aspect of the matter which assumes importance and forms
part of the records. The certificates at Exhibits-D and E carries with it the State
Emblem. In this respect we would observe that the Central Government has framed
statutory rules called State Emblem of India (Regulation of Use) Rules, 2007 (in short
the Rules) in exercise of powers conferred by section 11of the State Emblem of India
(Prohibition of Improper Use) Act, 2005 (in short the Act). Section 3 of the Act
specifically prohibits improper use of the State Emblem. It says that notwithstanding
anything contained in any other law for the time being in force, no person shall use
Page No.# 6/8
the emblem or any colourable imitation thereof in any manner which tends to create
an impression that it relates to the Government or that it is an official document of the
Central Government or the State Government, without the previous permission or
authorization. This section starts with a non-obstante clause, meaning thereby that it
has overriding effect over all the laws for the time being in force. Rule 5 of the Rules
provides that use of the official emblem is restricted to the authorities specified in
Schedule-I. Rule 10 makes the restriction more specific. It says that no person, other
than those authorized under the Rules, shall use the emblem in any manner. Sub-rule
(2) of Rule 10 clearly provides that no Commission or Committee, Public Sector
Undertaking, Bank, Municipal Council, Panchayati Raj Institution, Non-Government
Organization, University (other than those authorized under the Rules) shall use the
emblem in any manner. Schedule-Ito the Rules contains a list of constitutional and
statutory authorities, Ministries and Departments of the Central Government, State
Governments or Union Territory Administrations and other Government functionaries
which may use the emblem. Therefore, the certificates issued by the respective
Gaonburahs at Exhibits-D and E containing the State Emblem of India cannot be
regarded as valid and acceptable documents. It stands that the State Emblem has
been improperly used and the same being in clear violation of the aforesaid Act and
Rules, have rendered the said certificates as inadmissible in evidence ."
In view of the above observations, the certificate issued by the Gaonbura (O.P.W.-2) at
Ext.-3 containing the State Emblem of India cannot be regarded as valid and acceptable
document.
12. O.P.W.3, Lal Bhanu (42 years), wife of Mahmud Ali, claimed to be the younger sister of
the proceedee and deposed that she had five elder sisters. In her cross-examination, O.P.W.3
stated that as proof of link with the proceedee and the projected father, a land document was
exhibited. She admitted that she did not submit any proof that she was the younger sister of
the proceedee. As have been mentioned above, the proceedee did not mention anything
about her siblings in her written statement as well as in her evidence filed on affidavit. It was
only in the cross-examination the proceedee stated that she had sisters as siblings. O.P.W.2
mentioned about 2 (two) sisters of the proceedee and did not name O.P.W.3 as a sister of the
proceedee. In none of the documents marked as exhibits before the Tribunal, the name of
the purported siblings of the proceedee including O.P.W.3 appeared, not to speak of as a
voter in any of the Electoral Rolls so exhibited. The oral evidence of a person adduced in
support of the proceedee in a proceeding where the matter involved is the status of
citizenship of the proceedee, to be acceptable, the status of citizenship or the person
adducing oral testimony must not be in any doubt. It must be kept in mind that in a
proceeding of such nature where the proceedee brings a witness to support his/her claim of
citizenship as a close relative like sister it cannot be said that such a witness is an
independent witness and, therefore, the Court or the Tribunal is to be cautious and
circumspect in accepting the veracity of oral evidence so adduced unless it is corroborated by
other reliable, acceptable and dependable material. The decision on conferment of citizenship
on a proceedee cannot be decided in the affirmative unless the proceedee discharges the
burden of proof that lies on him/her under the law. It is noticed that there is no evidence on
Page No.# 7/8
record wherefrom the status of Indian citizenship of O.P.W.3 can be ascertained. No evidence
including documentary evidence in the form of any Electoral Roll/Voter List was exhibited and
proved before the Tribunal to establish the fact of presence of O.P.W.3 on Indian soil prior to
25.03.1971. Save and except the oral testimony of O.P.W.3 as a sister of the proceedee, no
linkage between herself and the proceedee has been established from any other evidence. In
such situation, the endeavour made by the proceedee, in the absence of cogent, reliable and
acceptable documentary evidence, to traverse the distance of proving her status of citizenship
by way of oral testimony of O.P.W.3, whose status as citizen of India itself and as a sister of
the proceedee are not clear and in doubt, in the considered opinion of this Court, has fallen
short of the requirement to be acceptable for the fact of presence of the proceedee on Indian
soil prior to 25.03.1971.
13. In so far as Elector Photo Identity Card (Ext.-5) is concerned, besides not being
proved, it is a post 25.03.1971 document. It has been held by a co-ordinate bench of this
Court in W.P.(C) No. 3547/2016 (Md. Babul Islam vs State of Assam) that merely producing
such an Elector Photo Identity Card in the absence of supporting evidence, would not be a
proof of citizenship. Similarly, the copy of the pass-book (Ext.-9) is not a proof of citizenship,
in view of the decision rendered in W.P.(C) No. 583/2017 (Gulbhan Begum vs Union of
India).The copy of the Jamabandi (Ext.-6), besides being not proved, does not establish any
kind of linkage for the proceedee in view of stand-alone reflection of the name of Akshad Ali
therein.
14. A perusal of the order/opinion dated 28.02.2019 passed by the Tribunal shows that the
Tribunal had appreciated the entire evidence led by the petitioner before it in the proper
perspective and, thereafter, had rendered the finding that the petitioner had failed to
establish her claim to be a citizen of India by reliable and cogent documentary evidence. Such
a finding being a finding of fact, a writ Court exercising jurisdiction under Article 226 of the
Constitution of India does not, ordinarily, interfere with such finding of fact unless there is
perversity because the jurisdiction so exercised is supervisory and not appellate. In view of
the point raised on behalf of the petitioner, the evidence led before the Tribunal by the
petitioner is once again revisited only to reassure ourselves as to whether there was any
perversity or error in appreciation in the order/opinion of the Tribunal. There being none, this
writ petition is, resultantly, found to be bereft of merit and the same stands accordingly
dismissed. There shall be no order as to costs.
Concerned State authorities to take action accordingly.
Office to send back the case records to the Tribunal forthwith"
The present review petition is laid on the following grounds :
"(i) For that the petitioner is having sufficient link documents i.e. Gaonbura Certificate
(Ext-3), Panchayat Certificate (Ext-8) and PAN card etc.
(ii) For that the local Govt. Gaonburah was examined as DW-2 who issued the certificate
Page No.# 8/8
(Ext-3) stating that the petitioner is a daughter of Akshad Ali whose name appeared in the
voter list of 1966 (Ext.-1) and 1970 (Ext-2).
(iii) For that the Panchayat Secretary was examined as DW-4 who issued the certificate
(Ext-8) stating that the petitioner is a daughter of Akshad Ali whose name appeared in the
voter list of 1966 (Ext.-1) and 1970 (Ext-2).
(iv) For that Pan card is a very reliable document to proof nationality which is annexed to
this petition as Annexure-J where in her father's name appeared.
(v) For that the petitioner has filed this present review petition as per the liberty granted by
the Hon'ble Supreme Court of India and her case may kindly be reconsidered by setting aside
the opinion passed by then Learned Tribunal"
Having noticed the grounds seeking review vis-a-vis the findings of this Court, we would first
observe as to the parameters available for seeking review. It is well settled that the scope of
review is limited to discovery of new and important matter or evidence which, after exercise
of due diligence, was not within the knowledge of the review petitioner or could not be
produced at the time when the order was passed or there has been a mistake or error
apparent on the face of the record or for any other sufficient reason. There is no dispute that
review cannot partake the character of an appeal, that is, for re-hearing and correcting a
judgment. The fact that a decision is erroneous on merit is no ground for review. On a plea
taken that the decision is erroneous on merit due to wrong interpretation of facts, cannot be
a ground for review. The error must be such as would be apparent on mere looking of the
record without requiring any long-drawn process of reasoning, inasmuch as, the reappraisal
of the entire evidence on record for finding the error would amount to exercising appellate
jurisdiction, which is not permissible.
In the instant case, the grounds assigned for causing review of the order are entirely different
from the recognised parameters of review. By the present petition, this Court has been called
upon to re-appraise and re-appreciate the facts which have already been answered in the
opinion of the Tribunal as well as in our order dated 13.05.2019.
We place on record our disapproval with regard to the change of counsels, where Ms.
H. Ahmed had earlier represented the petitioner and now a different counsel i.e. Mr. A. Ali has
appeared with fresh and different set of arguments which were not placed at the time of
hearing of the writ proceeding.
We, therefore, find no merit in the present review petition. Accordingly, the same
stands dismissed, however, without any order as to cost.
JUDGE JUDGE
Comparing Assistant
