Judgment & Order (Cav)

K.R. Surana, J.

1) Heard Ms. M. Deb, learned counsel for the petitioner. Also heard, Mr. J. Payeng, learned counsel for the FT and Border matters, representing respondent nos. 1, 4 and 6; Mr. S.P. Choudhury, learned CGC appearing for respondent no.2; Mr. H.K. Hazarika, learned Government Advocate for respondent no.3; and Mr. H. Kuli, learned counsel, appearing on behalf of Mr. A.I. Ali, learned standing counsel for the respondent no.5.

2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner, namely, Musstt. Aysha Khatun, has assailed the opinion dated 03.03.2018, passed by the learned Member, Foreigners Tribunal No. 5th, Goalpara, in F.T. Case No. F.T/5/84/MA/17 [arising out of IMDT Reference Case No. 854/04], thereby declaring the petitioner to be a foreigner as suspected in the reference case.

3) On receipt of notice, the petitioner entered appearance before the learned Foreigners Tribunal. On 01.04.2017, she had filed her written statement, denying the allegations and stating that she is a bonafide citizen of India by birth and was born and brought up at village- Rama Para Nonke under P.S. Baghbar in the district of Barpeta in the year 1956 approximately. Ashan Ullah Bepari and Ummekulsum Nessa are her parents. She is a literate woman. Abdul Aziz and Gulzan Nessa were her grandparents and Ahammad Ali and Mochiron Nessa were her maternal grandparents. She has disclosed the names of four children of her grandparents and eight siblings including herself. The petitioner claimed that the names of her parents appeared in the Voter list of 1966 and 1970 at village Rama Para Nonke under 52 Baghbar LAC. She got married with Moinuddin Ahmed, son of Abul Hussain of village Ramapara Pam under P.S. Baghbar in the district of Barpeta and she shifted to her matrimonial home. The petitioner has stated that she along with her husband had shifted from village Ramapara Pamto village Bamunpara,under P.S. Matia in the district of Goalpara, under 37 Goalpara East LAC, wherein she is staying till date. She has six children and disclosed their names. She has stated that although she had applied several times for enrolling her name along with the name of her husband before the Enumeration Officer of Bamunpara village, after shifting but due to unavoidable circumstances her name along with her husband was not enrolled and their names appeared in the Voters list of 1985 for the first time and she had cast her vote for the first time in the year 1985 along with her husband. Her name also appeared in the Voters list of 1997 and 2005 along with her husband. She has also stated that the name of her father has been stated as AshmatullaBepari instead of Ashan Ullah Bepari in the case record and both are names of same and one person. Accordingly, the petitioner had prayed for dismissing the proceeding and to declare her as a bonafide citizen of India by birth.

4) The petitioner had filed her evidence-on-affidavit on 26.04.2017, wherein she had reiterated the statement made in the written statement. In support of her evidence, the petitioner had exhibited the following documents viz., Certified copy of Voter List of 1966 (Ext.A); Certified copy of Voter List of 1970 (Ext.B); Certified copy of Voter List of 1985 (Ext.C); Certified copy of Voter List of 1997 (Ext.D); Certified copy of Voter List of 2005 (Ext.E); Photostat copy of her School Certificate (Ext.F). She was cross-examined on 23.05.2017.

5) Thereafter on 10.07.2017, one Md. Nurul Islam had filed his evidence-on-affidavit as DW-2. He had stated that the petitioner is her cousin in relation. He had reiterated the statements made by the petitioner in her written statement and evidence-on-affidavit. He was cross-examined on 26.07.2017. He has re-exhibited Ext. A to Ext. F, which were already exhibited by the petitioner.

6) On 21.12.2017, one Md. Abdul Mazidhad filed his evidence-onaffidavit as DW-3, wherein he had stated that he knows the petitioner and he has reiterated the statements made by the petitioner in her written statement and evidence-on-affidavit and had re-exhibited Ext.A to Ext.F. In his crossexamination on 21.12.2017, apart from referring to Ext. A to Ext. F, he has also exhibited a copy of a letter by the In-Charge Head-Teacher of Ramapara NC Girls LP School to the learned advocate for the petitioner, stating that the school documents were damaged and not available.

7) The learned Tribunal upon hearing the learned Assistant Govt. Reader and the learned counsel for the petitioner, by the impugned opinion dated 03.03.2018, declared the petitioner to be a foreigner. It was held that the petitioner claims Ashan Ullah Bepari and Ummekulsum to be her parents, whose names appeared in the Electoral Roll of 1966 and 1970 at village Rama Para Nonke, but the name of the petitioner appeared for the first time in the Electoral Roll of 1985 of village Bamunpara at with her husband. Accordingly, it was held that the petitioner had failed to prove that she is the daughter of Ashan Ullah Bepari of village Rama Para Nonke. It was further held that the petitioner had exhibited one letter dated 13.11.2017 (Ext.G), issued by the Head Teacher of 1109 No. Ramapara N.C. Girls LPS, addressed to Advocate A. Latif Ahmed regarding damage of documents, but the same was not found to be proved by the author.

8) The learned counsel for the petitioner, by referring to the statements made in paragraphs 10 and 11 of the writ petition, had submitted that on 02.05.2018, the petitioner had filed an application under Section 3A(2) of the Foreigners (Tribunals) Order, 1964 for review of the opinion dated 03.03.2018, and for allowing the petitioner an opportunity to produce and prove some more documents, annexed to the said application. However, the learned Tribunal had refused to accept the said application. It was also submitted that the petitioner had handed over all her documents to her engaged learned counsel, but her counsel had advised the petitioner that the voters lists and the school certificate were sufficient evidence to prove her nationality. Accordingly, it was submitted that the petitioner was wrongly advised by her learned counsel. It was submitted that there is no finding by the learned Tribunal regarding (a) which category of foreigner the petitioner belonged to; (b) when did she enter into India; (c) the original place of residence in specified territory from where the petitioner had purportedly migrated into India; and (d) from which date she has been residing in Assam. It was further submitted that the petitioner was born in the year 1956 and after her marriage, she had shifted to her matrimonial house in the year 1970 and in the year 1975, her husband had shifted to Bamunpara, and that ignoring these facts and the fact that the name of a voter will not appear in any voter list unless the person attains the age of 21 as on 28.03.1989 and thereafter on attaining the age of 18 years, the learned Tribunal questioned why her name did not appear in any voter list prior to 1985. Thus, it was submitted that there were good grounds for review, but the learned Tribunal, without assigning any reason, had refused to accept the review petition. Accordingly, it was submitted that the impugned opinion is liable to be interfered with and the matter be remanded back to the learned Tribunal for giving the petitioner an opportunity to file additional written statement and to prove further documents for ends of justice.In support of her submissions, the learned counsel for the petitioner had cited the case of State of Assam & Anr. v. Moslem Mandal & Ors., (2013) 3 GLR 402.

9) Per contra, the learned standing counsel for the FT and Border matters has made his submissions to oppose the writ petition and in support of his submissions, he has placed reliance on the case of Moslem Mandal (supra) cited by the learned counsel for the petitioner and also the case of Shukurjan Nessa @ Sukurjan v. The Union of India & Ors., W.P.(C) 245/2019.

10) It may be mentioned that the Tribunals records reveals that on 26.04.2017, the date when the evidence-on-affidavit was filed, by way of a Firisty, only photocopies of documents were filed. In the evidence-on-affidavit which is of four pages, the date given below the signature of the Notary is 26.04.16 but in pages 2, 3 and 4, the date given below the signature of the Notary is 26.04.17. The filing of the evidence-on-affidavit is reflected in the order 26.04.2017.

11) The petitioner has taken a plea that on 02.05.2018, she had filed a review petition before the learned Tribunal, but the same was not accepted by the learned Tribunal. From the copy of the purported review application, which is annexed as Annexure-3 to this writ petition, it is seen that in the affidavit filed in support of the application, the declaration by the petitioner, at the end of the said affidavit is as follows:-

                   And I sign this affidavit on this the 2nd day of May, 2018 at Goalpara. Identified by: sd/- (illegible- Aysha Khatun) Sd/- (illegible) Solemnly affirmed and declared 2.5.2018 before me by the deponent who is Advocate, Goalpara. Identified by A.B. Siddique, Advocate, Goalpara on this 2nd Day of May, 2018 at Goalpara.

                   Sd/- (illegible) 27/4/18 Notary ISTAQUE ALI Regd. No. GL (illegible) Goalpara, Assam

12) Thus, while the signature of the Notary Public is made on 27.04.2018, the deponent of the said affidavit, i.e. the petitioner was identified by her learned counsel on 02.05.2018 and the petitioner had signed the said affidavit on 02.05.2018. Accordingly, it cannot be accepted that any such review application as projected by the petitioner, was ever presented before the learned Foreigners Tribunal.

13) From the evidence available on record, apart from the voters list of 1966 (Ext.A); voters list of 1970 (Ext.B); voters list of 1985 (Ext.C); voters list of 1997 (Ext.D); and voters list of 2005 (Ext.E), the only other two exhibited by the petitioner are the School Certificate (Ext.F); and the Letter dated 30.11.2017 (Ext.G). Ext.F was exhibited by Md. Nurul Islam (DW-2), who has stated in the evidence-on-affidavit that he is a retired teacher, but he has not stated that the School Certificate (Ext.F) was issued by him. DW-2 has not identified the signature of the issuing authority and the said document has not been proved by the author of the document by producing contemporaneous records of the school like the attendance register and admission register etc.

14) Md. Abdul Mazid (DW-3) has stated in his evidence-on-affidavit that he knows the respondent of the proceeding (i.e. the petitioner). He has exhibited as Ext.F, a letter dated 13.11.2017, issued by one Joyrup Dutta, In- Charge Secretary/HT, 1109 No. Ramapara N.C. Girls L.P.S., addressed to Advocate A. Latif Ahmed, amongst others, stating that he has joined the said school on 06.09.2017 and he has come to know that this is a very old school, but the said school had vanished after suffering land erosion and flood of river Brahmaputra and presently, the school is located at char area and he does not have any old record of the school. Therefore, insofar as Ext.F is concerned, DW- 3 has not stated anything in his evidence-on-affidavit as to how he was privy to the said document, which is not addressed to him and of which he is not the author. Moreover, from the contents of Ext.G, the credibility of Ext.F certificate is lost as there are no official record regarding the authenticity of the contents of the said certificate. It may be further stated that no staff or teacher and head teacher of the school has come forward to prove the signature and the contents of Ext.F and Ext.G. Thus, the said Ext.F and Ext.G are found unreliable and not trustworthy in respect of their respective contents. Therefore, the said Ext.F and Ext.G cannot be relied upon to connect the petitioner with her projected father, whose name appears in the voter list of 1966 (Ext.A) and 1970 (Ext.B), whose existence is at village- Ramapara Nonke.

15) Accordingly, it cannot be said that the petitioner, whose name appears in the voters list of 1985 (Ext.C), 1997 (Ext.D), and 2005 (Ext.E) of village- Bamunpara along with her husband has any connection with Ashan Ullah Bepari and/or Achan Ullah, whose name appeared in the voters list of 1966 (Ext.A) and 1970 (Ext.B) respectively.

16) In view of the discussions above, no error or perversity is found in the finding of the learned Tribunal that the evidence of the petitioner is not sufficient to prove that the petitioner was born and brought up to genuine Indian parents. In this case, the petitioner has not been able to demonstrate that she could establish her name with Ashan Ullah Bepari, whose name appears in voters list of 1966 (Ext.A) and/or Achan Ullah, whose name appears in the voters list of 1970 (Ext.B). The other exhibited documents, being Ext.C to Ext.G, as discussed above fail to link the petitioner with her projected father, whose name appears in the voters list of 1966 (Ext.A) and 1970 (Ext.B).

17) It may be stated that the learned counsel for the petitioner, by referring to paragraph-67 of the Full Bench decision of this Court in the case of Moslem Mondal (supra) , has submitted that as the petitioner has produced additional documents before the Court in this writ petition, this Court would not be powerless to send back the matter before the learned Tribunal by giving opportunity to the petitioner to prove additional documents on the ground that subsequent to the passing of the impugned opinion dated 03.03.2018, the petitioner could discover new and important evidence, which was not earlier within her knowledge.

18) Per contra, the learned standing counsel for FT matters has submitted that this Court in exercise of certiorari jurisdiction may not like to substitute its own view on the considered decision of the learned Tribunal, which is a quasi judicial authority, moreso it is not proved that the petitioner had filed a review petition before the learned Foreigners Tribunal.

19) In this regard, it may be stated that as mentioned hereinbefore, the petitioner had signed the said affidavit on 02.05.2018 andthe petitioner was identified by her learned counsel on 02.05.2018. Therefore, the signature of the Notary Public, which is made on 27.04.2018 makes it very clear that the Notary Public had pre-dated the oath on 27.04.2018, while the petitioner, who is the deponent of the said affidavit appended to the projected review petition had signed the affidavit on 02.05.2018. Thus, the projected review application appears to be a manufactured document only to project a case before this Court as if the learned Tribunal have not accepted the review petition. It creates a doubt as to whether the petitioner had ever presented any review petition before the learned Foreigners Tribunal. Accordingly, the case of Moslem Mondal (supra) does not come to the aid of the petitioner in any manner.

20) It may be mentioned that the learned Tribunal, while sending the records to this Court had not made any index of documents and papers available in the record. It may be stated that after Ext.E, the record contains a small slip of paper containing certificate dated 23.10.89 by the Secretary, Baghbar Gaon Panchayat stating that the petitioner is the daughter of Ashan Ullah. The said document refers to entry made in the voter list of 1966 (Ext.A). The said document is countersigned on 04.11.93 by Extension Officer (Vety.), Matia. The said document is marked as Ext.H by the learned Member, Foreigners Tribunal No.5th, Mornai, Goalpara. However, the said document is not found to be proved for exhibited by the petitioner (DW-1), Md. Nurul Islam (DW-2) or by Md. Abdul Mazid (DW-3). There is no order in the order sheet to explain how Ext.H was exhibited and who had exhibited the said document. The learned Member, while putting his signature below Ext.H has not given any date. Be that as it may, the said Ext.H was not proved by calling the author of the said document. It may further be stated that the said Ext.H is not found to have been taken into consideration in the opinion and that in this writ petition, the petitioner has not made any statement concerning Ext.H. Therefore, in the absence of any witness properly exhibiting and proving Ext.H and the said document having not been considered in the impugned opinion, no observation of this Court has been called for because the said document was not proved by its author or otherwise in accordance with law.

21) Accordingly, the challenge to the impugned opinion dated 03.03.2018, passed by the learned Member, Foreigners Tribunal No. 5th, Goalpara, in F.T. Case No. F.T/5/84/MA/17 [arising out of IMDT Reference Case No. 854/04] fails. Consequently, this writ petition stands disposed.

22) Consequences of the opinion shall follow.

23) The Registry shall send the records back to the learned Tribunal along with a copy of this order to be made a part of record.

24) Before parting with the records, as it is found that in this case, the exhibited documents are not found to be properly kept in the Tribunal’s record, the Court is inclined to request the Home & Political (B) Department to consider as to whether any administrative order is required to be passed by the said authority so that the Foreigners Tribunals in the State of Assam, before sending the records to the High Court, would prepare an index of documents in the records and to also ensure that all the exhibited documents are kept in seriatim along with the evidence of the witnesses who had exhibited the respective documents.