Judgment & Order (CAV):

Shamima Jahan, J.

1. Heard Mr. Z. Hammad, learned counsel appearing for the petitioner. Also heard Ms. A. Verma, learned Standing Counsel, Home Department, Ms. R. B. Bora, learned Government Advocate, Assam, Mr. N. Kalita, learned counsel representing Mr. A. I. Ali, learned Standing Counsel for the ECI; Ms.K. Phukan, learned CGC appearing for the Union of India.

2. By this application filed under Article 226 of the Constitution of India, the petitioner has challenged the legality and validity of the opinion dated 26.07.2016, passed by the learned Member, Foreigners’ Tribunal No. 5th, Morigaon, Assam, in Case No. FT (D) 121/2015 (New) and FT(D) No. 82 of 2012 (Old), arising out of (D/N Case No. 2072 dated 26.06.1998, whereby the petitioner was declared a foreigner of post-25.03.1971 stream.

FACTS

3. The petitioner stated that the Superintendent of Police (B), Morigaon, submitted a reference dated 26.06.1998 to the Member, Foreigners’ Tribunal, Nagaon, on the ground that the proceedee, i.e., the petitioner entered into India (Assam) after 25th of March, 1971. The aforesaid reference was received by the learned Tribunal No. 5, Morigaon, and the same was registered as FT (D) 121/2015, as mentioned above. Thereafter, notice was issued to the petitioner and the petitioner filed the written statement on 08.07.2014.

4. In the said written statement, the petitioner stated that the investigation and enquiry conducted by the Superintendent of Police (B) is based on false information. He stated that his father, namely, Nurul @ Nurul Islam was enlisted in the voters’ list of 1965, from House No. 45, under 84 No. Assam Legislative Assembly of Lahorighat Constituency. He then stated that in the voters’ list of 1970, his father appeared as a voter from House No. 43, under the same constituency.

5. The petitioner, thereafter, stated that he casted his vote in 1989, and that his name was reflected in the 1989 voters’ list, wherein his name was mentioned against his father’s name as Nurislam instead of Nurul Islam. To further establish his citizenship, he relied on a family Identity Card, wherein his name and his family were recorded and that the said card was issued by the Inspector of Food and Civil Supplies, Morigaon.

6. The petitioner was also examined as DW No. 1 and he stated in his evidence that his father had casted his vote in 1965 and 1970 and that his father’s name was Nur Islam, son of Arfan Ali. He further stated that he casted his vote in the year 1989 and not thereafter, and since the remark- ‘D’ has been put, he could not vote any further. He also stated that he has a Family Identity Card, and that the documents relating to a landed property that his father had, were destroyed in the flood. This witness was cross-examined, wherein he stated that he could not say, as to which year, he bought a plot of land. He also stated that he did not have any Voter ID and that he had no brothers and that his mother’s name was Omela Khatun.

7. Thereafter, the petitioner produced DW No. 2, who was one Joynal Abdin and who is stated to be a neighbor and he stated that the father of the petitioner voted in the year 1965 and 1970, and that the petitioner casted his vote in 1989, not before that. This witness was cross-examined and during his cross-examination, he stated that the petitioner has a younger brother, namely, Saidul Islam, and that the father of the petitioner had no landed property and that wife of the petitioner has been casting vote and her name is Bimala Khatun.

8. The petitioner had produced documents, which are exhibited by the learned Tribunal as follows:

                   i) Exhibit-Ka, certified copy of 1965 voters’ list.

                   ii) Exhibit-Kha, certified copy of 1970 voters’ list.

                   iii) Exhibit-Ga, certified copy of 1989 voters’ list. iv) Exhibit-Gha, certificate issued by Gaonburah.

                   v) Exhibit-Unga, certificate issued by President of Gaon Panchayat

9. The learned Tribunal considered the said documents along with the evidence of the petitioner and others and by opinion dated 26.07.2016, had answered the reference in the affirmative, i.e, by declaring the petitioner as foreigner of post-25.03.1971 stream mainly on the following grounds:

                   i) The voters’ list of 1965 as well as 1970 reflected the name of the father of the petitioner as Nural Islam and Nurul Islam, respectively, whereas petitioner has stated in his deposition that name of his father was Nur Islam.

                   ii) In the voters’ list of 1989, the name of the father of the petitioner shown against the petitioner was Nurislam, thereby showing a discrepancy.

                   iii) There is discrepancy in the name of his father in certificates issued both by Gaonburah and the Panchayat President, making the said certificates unbelievable.

                   iv) The petitioner stated that he had no brother, but DW-2 stated in his deposition that petitioner had a younger brother.

                   v) Petitioner stated that his father had a landed property, the documents of which got damaged in the flood, but DW-2 stated that petitioner’s father had no land.

                   vi) In spite of giving many opportunities, petitioner could not produce relevant documents. As such, it was decided that the petitioner could not prove his linkage.

On these grounds, the learned Tribunal declared the petitioner as a foreigner and the same is challenged in the instant petition.

SUBMISSIONS:

10. Mr.Z. Hammad, learned counsel for the petitioner submitted that Gaonburah has given a certificate that petitioner is the son of Nurul Islam and that he knows both father and son very well. By the said certificate, it was also certified that the petitioner is the resident of the locality, where the Gaonburah resided. However, he fairly submitted that the Gaonburah was not examined. He also submitted that the petitioner had one Family Identity Card, which was not exhibited before the Court. The learned counsel relied on the voters’ list of 1965 and 1970, wherein the name of the father of the petitioner was reflected. He then submitted that he appeared as a voter vide voters’ list of 1989, but from a different village, which according to the learned counsel, was the same village but there was a fraction between the said village and a different name was ascribed. He, thereafter, relied on the voters’ list of 1997, but fairly submitted that it was not exhibited. He then relied on the deposition of petitioner and DW- 2, to bring home the fact that petitioner was the son of Nurul Islam, whose name appeared in the voters’ list before 1971.

11. Per contra, Ms A Verma, learned counsel for the FT matters, submitted that in the voters’ list of 1965 and 1970, the mother of the petitioner was not shown as a voter along with the father of the petitioner and further that, the petitioner also did not appear in any voters’ list along with his mother, father, or any other siblings. She relied on a judgment rendered by this Court in Rashminara Begum –Vs- Union of India, reported in 2017 (4) GLT 346, wherein this Court held that the written statement being the basic document, should contain all the particulars which shall be narrated by the proceedee.

ANALYSIS AND FINDINGS

12. At the outset, we would like to deal with the voters’ list produced by the petitioner. In the voters’ list of 1965, the name of the projected father of the petitioner was mentioned as Nural Islam, who is stated to have voted in Assam Legislative Assembly Elections from House No. 45, under No. 84 Lahorighat LAC, and the same was exhibited as Exhibit-Ka. In the next voters’ list, i.e., voters’ list of 1970, the name of the projected father of the petitioner was reflected as Nurul Islam from House No. 43, under No. 84 Lahorighat Constituency. It is noticed that the name of the projected father of the petitioner was differently spelled in both the voters’ list. After 19 years, i.e., in the voters’ list of 1989, the name of the petitioner was reflected in the said list, as the son of Nurislam and his age was shown to be 28 years. In the said list, the house number of the petitioner was shown as 222 and the constituency was shown as No. 83 Dhing and the address of the petitioner was shown as village – Tatikata Pather, Ward No. 75. It be stated here that petitioner had not stated in his pleadings that he has changed his place from that of his father’s. Further, in the said list of 1989, the petitioner was shown to be of 28 years and it is unknown as to why the petitioner did not place the voters’ list prior to 1989, wherein he appeared as a voter. DW No. 2, in his deposition stated that petitioner first appeared as a Voter in 1989 and as such, it could not be deduced that in spite of the petitioner’s attaining majorityin 1979, he did not vote for the country and the same raises suspicion as to his citizenship. The petitioner has mentioned about 1997 voters’ list, wherein his name appeared, but neither certified copy of the said list was produced nor it was exhibited before the Tribunal. As such, the same is not admissible in evidence.

13. Apart from the said voters’ list which did not have the potentiality to establish the linkage between the petitioner and his father, the petitioner had relied on the certificate issued by the Gaonburah on 07.06.2014, wherein it was stated that the petitioner was the son of Nurul Islam and that the petitioner is the resident of Tatikata Pather. The petitioner had also relied on the certificate issued by the President of Tatikata Gaon Panchayat, wherein it was stated that the petitioner was the son of Nurul Islam and that the petitioner is the resident of Village- Tatikata Pather. Both the documents were exhibited as Exhibit-Gha and Unga. However, the author of the said certificates were not examined and as such, the same cannot be taken in evidence as it is no res integra that a certificate has to be proved in two stages, first, the authenticity of the certificate has to be proved, and second, the contents of the certificate needs to be proved. The contents of the certificate can be proved only by examining the author of the said certificate, which is not done in the instant case. In Romila Khatun –vs- Union of India; reported in 2018 (4) GLT 373, this Court had made the following observations:-

                   “It is trite 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 contents is another. Not only the document would have to be proved but its contents would also have 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……”

In yet another decision, rendered by this Court in WP(C) No. 5132 of 2019 (Alekjan Begum –Vs- Union of India), this Court has held as follows:-

                   “…………The two link documents are the Exhibit-D Certificate of the Gaonburah of village Balartari and the Exhibit-E Certificate issued by the Secretary of the Gaon Panchayat. Whereas the Gaonburah was examined as DW-3 to prove the Exhibit-D Certificate, there was no evidence/oral testimony tendered by the author of the Exhibit-E Certificate. Thus, the Exhibit-E Certificate rendered itself as inadmissible”

It is as such, be stated herein that the said certificates did not establish any linkage of the petitioner with his father.

14. The further reliance of the petitioner on the statement of DW-2, namely, Joynal Abdin, also cannot help the petitioner for two reasons. First, oral evidence of the witness cannot be relied to establish citizenship without the corroborating materials on record. The said witness had not annexed any documents to substantiate his statement apart from stating about the exhibits already produced by the petitioner. Second, the statement of this witness who is stated to be a neighbor goes in contradiction to the statement of the petitioner, inasmuch, as, the petitioner had stated that he had no brother, but this witness had stated that the petitioner had a younger brother, and that too, by stating the name of the said younger brother of the petitioner, namely, Saidul Islam. There is yet another discrepancy in the statements of the petitioner and this witness to the effect that petitioner stated that his father had a landed property, the documents of which was destroyed in the flood, but this witness stated that his father had no landed property at all. Furthermore, the petitioner in his statement, stated that he voted in the year 1989, and not after that, but this witness stated that before 1989, petitioner had never voted. It is, therefore, noticed that there are discrepancies in the evidence of the petitioner and the witnesses that the petitioner produced. This raises doubts with regard to truthfulness of the witnesses, as well as the petitioner. Therefore, in view of so many discrepancies on record, both in the voters’ list as well as in other documents, this Court cannot rely on the same. Furthermore, the linkage which is required to be established by the proceedee with his ancestor, whose name should appear in documents prior to 25th of March, 1971, is although produced but the name is not found reliable as stated above.

CONCLUSION:-

15. On the available materials, we find that the Tribunal rendered opinion upon due appreciation of the entire facts, evidence and documents brought on record. We would also like to observe herein that the certiorari jurisdiction of the writ Court being supervisory and not appellate jurisdiction, this Court would refrain from reviewing the findings of facts reached by the Tribunal although for the ends of justice, some exercise has been done to the said effect. We are, in view of the aforesaid facts and circumstances, of the opinion that impugned order dated 26.07.2016, passed by the learned Member, Foreigners’ Tribunal No. 5th, Morigaon, Assam, in Case No. FT (D) 121/2015 (New) and FT(D) No. 82 of 2012 (Old), arising out of (D/N Case No. 2072 dated 26.06.1998, does not call for any interference and the instant writ petition being devoid of merits, stands dismissed.

16. The actions consequent upon the opinion rendered by the learned Tribunal would follow in accordance with law. 17. The records of the aforesaid FT Case be returned to the learned Foreigners’ Tribunal-No. 5th, Morigaon, Assam, forthwith, along with a copy of this order.