Gauhati High Court
Beli Bewa vs The Union Of India And 7 Ors on 12 February, 2025
Author: M. Nandi
Bench: Kalyan Rai Surana, Malasri Nandi
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GAHC010147372018
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4457/2018
BELI BEWA
D/O- LATE SHELKU SK, W/O- KALAM SK @ KHALAM, VILL- NALBARI, P.S-
KOKRAJHAR, DIST- KOKRAJHAR, ASSAM, PIN- 783370
VERSUS
THE UNION OF INDIA AND 7 ORS
REP. BY THE MIN OF HOME AFFAIRS, NEW DELHI- 01
2:THE ELECTION COMMISSION OF INDIA
REP. BY THE CHIEF ELECTION COMMISSIONER
NEW DELHI- 01
3:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM
HOME AND POLITICAL DEPTT
DISPUR
GUWAHATI-6
4:THE DEPUTY COMMISSIONER
DHUBRI
DIST- DHUBRI
ASSAM
PIN- 783301
5:THE SUPERINTENDENT OF POLICE(B)
DHUBRI
DIST- DHUBRI
ASSAM
PIN- 783301
6:THE DEPUTY COMMISSIONER
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KOKRAJHAR
DIST- KOKRAJHAR
ASSAM
PIN- 783370
7:THE SUPERINTENDENT OF POLICE(B)
KOKRAJHAR
DIST- KOKRAJHAR
ASSAM
PIN- 783370
8:THE STATE COORDINATOR
NRC
BHANGAGARH
GHY- 0
Advocate for the Petitioner : MD H R AHMED, MR. A ISLAM
Advocate for the Respondent : ASSTT.S.G.I., SC, NRC,SC, F.T,SC, ELECTION COMMISSION.
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE MALASRI NANDI
JUDGMENT
Date : 12-02-2025
(M. Nandi, J)
Heard Md. H.R. Ahmed, learned counsel for the petitioner. Also heard Ms.
A. Verma, learned Standing Counsel, FT Matters; Ms. B. Sarma, learned counsel,
CGC; Mr. H. Kuli for A.I. Ali, learned Standing Counsel, ECI; Mr. P. Sarmah,
Additional Senior Govt. Advocate and Mr. G. Sarma, learned Standing Counsel,
NRC.
2. By filing this application under Article 226/227 of the Constitution of India
for issuance of a writ against the impugned opinion dated 09.01.2018, passed
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by the learned Member, Foreigner's Tribunal (6), Bilasipara, Dhubri in F.T.
6th/DBB/593/2017, whereby the petitioner has been declared as foreigner of
post 1971.
3. The case of the petitioner is that the father's name of the petitioner is
Shelku Sk, mother's name of the petitioner is Mohuron Bibi. The parents' name
of the petitioner has been enrolled in the voter list of 1959 and father's name of
the petitioner has also appeared in the voter lists of 1966 and 1970 under 36
Bilasipara Assembly Constituency, Vill. Barshi Pt.II, P.S. Bilasipara of the then
Goalpara District (now-Dhubri).
4. The petitioner got married with one Kalam Sk of village Barshi Pt.II, P.S
Bilasipara under Dhubri district of Assam about 40 years back. But, after 10
years of her marriage, husband of the petitioner expired. Out of their wedlock,
three children were born namely, Bellal Uddin Sk, Habeja Begum and Nasibin
Begum. The name of the petitioner has been appeared in the voter list of 1997
in the aforesaid address.
5. Subsequently the petitioner had shifted to Nalbari village under Kokrajhar
district about 15 years back i.e. in the year 2002. The letter 'D' was put against
her name in the voter list at Nalbari village. The Local Verification Officer (LVO)
has submitted verification report in the prescribed format to the Electoral
Registration Officer without giving any comment in which stream the petitioner
was suspected as foreigner and most of the column of the report are kept blank.
The LVO report itself would go to show that there was no enquiry before
submitting the report. As such, on that ground alone, the entire proceeding is
vitiated and the matter required a fresh enquiry. But the ERO has forwarded the
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same to the Superintendent of Police, Dhubri for further action. Thereafter, the
Superintendent of Police, Dhubri made the reference to the Foreigner's Tribunal,
Dhubri for its opinion.
6. Accordingly, the learned member, Foreigner's Tribunal, 6 th Dhubri,
Bilasipara issued notice to the petitioner in connection with the aforesaid F.T.
case asking her to appear before the Tribunal and to file written statement with
supportive documents. Accordingly, the petitioner filed her written statement
denying the allegation made in the reference and enclosed voter lists of 1959,
1966, 1970 in respect of her parents. Moreover, the elder brother-in-law of the
petitioner also adduced evidence stating that the petitioner is his younger sister-
in-law, he knew the proceedee since her birth but the written statement,
evidence and the documents were not duly considered by the learned Tribunal
and passed the impugned order declaring the petitioner as foreigner. Hence, this
writ petition.
7. It was urged by the learned counsel for the petitioner that the petitioner
was born at village Barshi (now Barshi part II) under Dhubri district in the year
1955 which is substantiated from the voter list of 1977 and deposition of his
brother in law. As such, as per provisions of Section 3 of the Citizenship Act,
1955, the petitioner is a bonafide citizen of India by birth.
8. It is further submitted that the petitioner exhibited as many as four
documents i.e. voter lists of 1959, 1966, 1970 in respect of her father and voter
list of 1997 of her own and those were duly proved with original as revealed
from the records. The evidence of the petitioner was not controverted by the
State during the proceeding and as such, the same was duly accepted and
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admitted as public documents u/s 74/76/77/78/90 of the Indian Evidence Act.
9. According to learned counsel for the petitioner, the certified copies of voter
lists of 1959, 1966, 1970 are public documents and those public documents
could not be proved by calling witnesses u/s 77 of the Indian Evidence Act. But
the learned Tribunal failed to appreciate the said fact and as such the finding of
the learned Tribunal is perverse, contrary and without authority of law which
has vitiated the entire proceeding and as such the impugned opinion dated
09.01.2018 is liable to be set aside.
10. Another point raised by learned counsel for the petitioner is that in the
notice issued to the petitioner no grounds were disclosed as well as no
opportunity of hearing was given to the petitioner by the Enquiry Officer at the
time of the enquiry and as such the entire proceeding is in gross violation of
principle of natural justice as such the impugned opinion of the learned Tribunal
is perverse and liable to be set aside.
11. Per contra, Ms. Verma, learned Standing Counsel, FT Matters, has
stressed her argument on the point that mere filing of written statement and
oral testimony in a proceeding under the Foreigners Act, 1946 would not be
enough. The fact in issue would have to be proved by the proceedee by
adducing documentary evidence, which is admissible and relevant. But here in
this case, the petitioner has failed to prove her link with her parents along with
the documents. Therefore, it is not proved that she is a citizen of India by birth
and has prayed for dismissal of the writ petition.
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In support of her submission, the learned Standing Counsel has
relied on the following case laws -
a) WP(C) 562/2016 (Bijay Das vs. Union of India &
Ors.)
b) (2020) 3 GLT 347 (Nur Begum vs. Union of India
& Ors.)
c) WP(C) 4020/2017 (Asia Khatun vs. Union of India
& Ors.)
d) (2023) SCC Online SC 996 (Central Council of
Research in Ayurvedic Society vs. Bikartun Das)
12. Having heard the learned counsel for the parties, the moot question to be
decided here whether the opinion given by the learned Tribunal is perverse.
13. As per evidence of the petitioner as DW-1, it discloses that she is the
daughter of Shelku Sk and granddaughter of Kauya Sk, of village Barshi Part II
and her father's name has been recorded in the voter lists of 1959, 1966, 1970
and her name has been enrolled in the voter list of 1997. The petitioner
exhibited voter list of 1959 vide Ext. A showing the name of one Shelku Sheikh,
the son of Kauya and Mohuron Bibi, wife of Shelku. 1966 and 1970 voters' lists
vide Ext. B and Ext. C, show the name of only Shelku Sheikh, son of Kauya
Sheikh. But the name of the petitioner has been enrolled in the voter list of
1997 vide Ext. D(1) as Beli Bewa, wife of Kamal. No any documents have been
submitted by the petitioner to prove the fact that she is the daughter of Shelku
Sheikh and Mohuron Bibi. Without furnishing any documents to prove her link
with her projected parents, the petitioner cannot claim that she is the daughter
of Shelku Sheikh and Mohuron Bibi.
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14. One Md. Chengtu SK, adduced evidence on behalf of the petitioner as
DW-2. According to him, the present petitioner is his younger sister-in-law and
he knew the petitioner since her birth and he reiterated the same thing
whatever stated by DW-1 in her Evidence-In-Affidavit. Though DW-2 stated that
the petitioner is his younger sister-in-law but it is interesting to note that the
petitioner has nowhere disclosed that how DW-2 related to her and knew about
her parents and family members. It also reflects from the evidence of DW-2 that
he is the resident of village Barshi Pt.I but the present petitioner used to reside
at village Nalbari under the Kokrajhar district. According to the petitioner, she
had shifted at Nalbari about 15 years back. Under such backdrop, it is difficult to
believe that the DW-2 is the right person disclosing family background of the
petitioner.
15. Regarding report of Verification Officer, it appears from the record that
though each and every column was not filled up by the Local Verification Officer
but in the format it is clearly written that "produced no document". In the last
page of the report, it is mentioned that the petitioner could not produce any
document in support of her claim of Indian Citizenship which raises reasonable
doubt about her Citizenship. Under such backdrop, it cannot be said that the
Local Verification Officer did not apply his mind when enquiry was made against
the petitioner.
16. In Sarbananda Sonowal vs. Union of India reported in (2005) 5
SCC 665, the Apex Court while discussing the problem being faced by the State
of Assam due to illegal migration and their continued presence in the State has
been vividly discussed the alarming situation. While striking out of the IM(D)T
Act, 1983, the Apex Court also dealt with the modality of proving one's
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citizenship. It has been emphasized that the burden of proof is always on the
proceedee as per provisions of Section 9 of the Foreigners Act, 1946. In
Sarbananda Sonowal (1) (supra), the Apex Court dealing with the burden
of proof, made the following observation-
"26. There is good and sound reason for placing the
burden of proof upon the person concerned who asserts to
be a citizen of a particular country. 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. Sometimes the place of
birth of his grandparents may also be relevant like under
Section 6-A(1)(d) of the Citizenship Act. All these facts would
be necessarily be within the personal knowledge of the
person concerned and hot of the authorities of the State.
After he has given evidence on these points, the State
authorities can verify the facts and can then lead evidence in
rebuttal, if necessary. If the State authorities dispute the
claim of citizenship by a person and assert that he is a
foreigner, it will not only be difficult but almost impossible for
them to first lead evidence on the aforesaid points. This is in
accordance with the underlying policy of Section 106 of the
Evidence Act which says that when any fact is especially
within the knowledge of any person, the burden of proving
that fact is upon him."
17. Moreover, merely by producing some stray documents, one cannot
establish his Indian citizenship, something more is required as per the law of
evidence. As has been held by the Apex Court, in LIC of India vs. Ram Pal
Singh Bisen (2010) 4 SCC 491, even admission of a document in evidence
does not amount to its proof, in other words, mere making of exhibit of a
document does not dispense with its proof, which is required to be done in
accordance with law.
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18. The learned Tribunal has discussed all the above aspects of the matter in
its impugned opinion. It has rightly been observed that the petitioner has failed
to prove the link with her projected parents. The name of the petitioner enrolled
in the voter list of 1997 as Beli Bewa, wife of Kamal. It is not reflected from the
evidence of DW-1 and DW-2 that when the petitioner got married to the said
Kamal and when her husband expired.
19. Needless to say that, the High Court exercising its power of judicial review
under Article 226 of the Constitution of India cannot sit on appeal over the
findings of facts recorded by the Court/ Tribunal. It is only when the
Court/Tribunal exercises a jurisdiction without being empowered or in excess of
it or fails to exercise the vested jurisdiction or acts illegally, the Writ Court
exercising its jurisdiction can interfere with the same. The High Court can
interfere with the order of the Tribunal exercising its writ jurisdiction only if it is
proved that it is a case of no evidence at all or there is error apparent on the
face of the record. The power of judicial review under Article 226 of the
Constitution is limited only to correction of errors apparent on the face of the
records and does not need long drawn out process of reason on points whether
there may be conceivably two views. In the instant case, we do not find any
infirmity in the impugned judgment and order requiring any interference of this
Court exercising its power of judicial review under Article 226 of the Constitution
of India.
20. Accordingly, the writ petition is dismissed.
21. Therefore, there would be no impediment for the respondents and their
competent authorities to take appropriate action as per directions contained in
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the impugned opinion dated 09.01.2018.
22. With the above observation, the writ petition is disposed of.
23. There shall be no order as to costs.
24. Transmit the records to the Tribunal.
JUDGE JUDGE
Comparing Assistant
