Gauhati High Court
Momtaj Begum vs The Union Of India And 6 Ors on 17 May, 2023
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GAHC010099122023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2629/2023
MOMTAJ BEGUM
D/O- LATE ABU BAKKAR MIYA,
W/O- TOFIJUDDIN,
VILL- ABADIGAON.
P.S- MANIKPUR, DIST- BONGAIGAON, ASSAM
VERSUS
THE UNION OF INDIA AND 6 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, NEW DELHI- 110001.
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-6
3:THE ELECTION COMMISSION OF INDIA
NIRVACHAN SADAN
ASHOKA ROAD
NEW DELHI-110001
4:THE STATE COORDINATOR
NATIONAL REGISTER OF CITIZENS
ASSAM
BHANGAGARH
GUWAHATI-05
DIST- KAMRUP (M)
5:THE DEPUTY COMMISSIONER
BONGAIGAON
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ASSAM
PIN-783380
6:THE SUPERINTENDENT OF POLICE (B)
BONGAIGAON
ASSAM
PIN-783380
7:THE OFFICER IN CHARGE
MANIKPUR POLICE STATION
BONGAIGAON
ASSAM
PIN-78339
Advocate for the Petitioner : MR. M I HUSSAIN
Advocate for the Respondent : DY.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
HONOURABLE MR. JUSTICE ROBIN PHUKAN
JUDGMENT & ORDER (ORAL)
Date : 17-05-2023
(A.M. Bujor Barua, J)
Heard Mr. M.I. Hussain, learned counsel for the petitioner and Ms. L. Devi,
learned counsel for the respondents No. 1 and 4, being the Union of India and
the State Coordinator of NRC, respectively. Also heard Ms. A. Verma, learned
counsel for the respondents No. 2, 6 and 7, being the authorities in the Home
Department; Mr. A.I. Ali, learned counsel for the respondent No. 3, being the
authorities in the Election Commission of India and Mr. T.R. Gogoi, learned
counsel for the respondent No. 5, being the Deputy Commissioner, Bongaigaon.
2. The petitioner Momtaj Begum was referred to the Foreigners' Tribunal No.
1, Bongaigaon for rendering an opinion as to whether she is a person who had
entered the State of Assam from the specified territory on or after 25.03.1971
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and accordingly Case No. BNGN/FT/63/10 was registered. In course of the
proceeding, the petitioner presented a certificate from the Gaon Panchayat
Secretary dated 18.01.2023 and made a prayer that the said certificate be
accepted by claiming that it is a new discovery. The Tribunal on being not
satisfied that it is a new discovery had rejected the prayer by arriving at its
conclusion that the certificate of the Gaon Panchayat Secretary could not be
treated as a new discovery.
3. We see no reason not to accept the said view of the Tribunal, but at the
same time, when the petitioner is required to discharge her burden under
Section 9 of the Foreigners Act, 1946 that she is an Indian citizen, she must be
given all opportunities, as may be available, to produce any relevant material
which may indicate that she is an Indian citizen. Usually the method adopted is
that a person is identified from a given voters' list which may indicate that the
said person is an Indian citizen and thereafter prove that the person concerned
is the father of the proceedee.
4. In the instant case, the petitioner relied upon the voters' list of 1966 of
village Numberpara Part III under Srijangram Circle in the present Bongaigaon
district which contains the name of Abubakkar son of A. Sukur at Sl. No. 3. A
claim is made that Abubakkar son of A. Sukur of the voters' list of 1966 of
village Numberpara Part III is the father of the petitioner. The petitioner
accordingly intended to rely upon a certificate of the Gaon Panchayat Secretary
which may contain the information that the petitioner is the daughter of
Abubakkar of the voters' list of 1966 of village Numberpara Part III.
5. A certificate depicts the existence of a fact which is vouched upon by the
person issuing the certificate. In other words, the existing fact that may be
reflected in a certificate would have to be within the knowledge of the person
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who issues the certificate meaning thereby, either the person concerned is a
custodian of a public record from which the information can be derived or the
person concerned may have personal knowledge about the existence of the
fact.
6. If the petitioner intends to prove through the certificate of the Gaon
Panchayat Secretary that Abubakkar of the voters' list of 1966 of village
Numberpara Part III is the father of the petitioner, the core requirement would
be to examine the person who had issued the certificate to depose before the
Tribunal firstly, as to the source of his knowledge and secondly, that as per such
knowledge Abubakkar of the voters' list of 1966 of village Numberpara Part III is
the father of the petitioner. Irrespective of a certificate, the said deposition can
be made by any person, including that of a Gaon Panchayat Secretary, provided
the person concerned has appropriate knowledge about the existence of the
fact that Abubakkar of the voters' list of 1966 of village Numberpara Part III is
the father of the petitioner and such knowledge may flow either from any public
record that may be maintained by the person including the Gaon Panchayat
Secretary or it is to his personal knowledge and if it is personal knowledge, the
circumstance under which the personal knowledge had been acquired also
would have to be explained.
7. From such point of view, for the interest of justice and in order to enable
the petitioner to discharge the burden under Section 9 of the Foreigners Act,
1946, the petitioner may produce any such person who may have the
knowledge, as indicated above that Abubakkar of the voters' list of 1966 of
village Numberpara Part III is the father of the petitioner and if any such person
is presented, the said person may be allowed to depose before the Tribunal.
Once the deposition is made, the respondents in the Home Department through
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the Superintendent of Police(B), Bongaigaon may cross-examine such person in
order to extract the veracity of such deposition.
8. If the petitioner is relying upon any school certificate, similarly, as laid
down by this Court in the case of Rupa Das Vs. Union of India & Ors., reported
in 2019 SCC OnLine Gau 5663, the petitioner may also examine the Headmaster
of the school along with the original school records from which the information
could have been obtained. The petitioner to appear before the Tribunal on
01.07.2023 for doing the needful. Upon undertaking the process, the Tribunal to
pass a reasoned order.
Writ petition stands disposed of as indicated above.
JUDGE JUDGE
Comparing Assistant
