Facts
The petitioner, Shajiran @ Saziran Bewa, challenged an opinion dated 26.06.2018 passed by the Foreigners Tribunal-5th, Barpeta, which declared her a foreigner who entered Assam after 25.03.1971
Source reference: p. 3The petitioner claimed Indian citizenship by birth in village Balagaon, citing her father as Nabur Uddin Sheikh
Source reference: p. 3-4She submitted voter lists from 1966 and 1970 containing her parents' names, and lists from 1985 and 1989 containing her name along with her husband's
Source reference: p. 4She also produced certificates from Gaonburahs (village headmen) and examined herself (DW-1), a Gaonburah (DW-2), and a projected paternal uncle (DW-3) to establish her lineage
Source reference: p. 5-6Issues
1. Whether the petitioner produced sufficient admissible documentary evidence to establish a link to her projected Indian parents and prove her citizenship under Section 9 of the Foreigners Act, 1946?
Source reference: p. 7, 112. Whether the oral testimonies of the petitioner’s witnesses and the Gaonburah certificates were sufficient to discharge the burden of proof in the absence of consistent pleadings and legal document formats?
Source reference: p. 9-10, 12-13Law Applied
Section 9 of the Foreigners Act, 1946, which places the burden of proving citizenship on the proceedee
Source reference: p. 11Basiron Nessa v. Union of India, which establishes that documentary evidence must be proved from records and cannot be substituted by oral testimony
Source reference: p. 9The "Rule of Conduct" under Section 50 of the Evidence Act, 1872 regarding proof of relationship
Source reference: p. 5, 10State Emblem of India (Prohibition of Improper Use) Act, 2005, and the 2007 Rules therein, as interpreted in Sajeda Khatun v. Union of India, which renders documents bearing unauthorized State Emblems (like Gaonburah certificates) inadmissible
Source reference: p. 12-13Rashminara Begum v. Union of India were cited to emphasize that failure to plead material facts (like the existence of a paternal uncle) leads to an adverse presumption
Source reference: p. 10Reasoning
The court found that the petitioner failed to establish a "link" between herself and her projected father, Nabur Uddin Sheikh. While the 1966 and 1970 voter lists (Ext. A & B) proved the existence of the parents, they did not mention the petitioner
Source reference: p. 11The records mentioning the petitioner (Ext. C & D) only linked her to her husband, not her father
Source reference: p. 11The court rejected the oral testimony of DW-3 (paternal uncle) because his existence and relationship were never mentioned in the petitioner’s initial written statement, creating a discrepancy between pleadings and proof
Source reference: p. 7, 10The Gaonburah certificates (Ext. E & F) were declared "wholly inadmissible" because the Gaonburah utilized the State Emblem of India without authorization, violating statutory rules
Source reference: p. 12-13The court noted that an Elector Photo Identity Card (EPIC) is not a valid piece of evidence for citizenship without supporting documents, especially when it is a post-reference document
Source reference: p. 13Holding
The court answered both issues in the negative, holding that the petitioner failed to discharge the burden of proof required under the Foreigners Act.
The writ petition was dismissed, and the Tribunal's opinion declaring the petitioner a foreigner was upheld. The Registry was directed to return the records to the Tribunal for future reference
Source reference: p. 14Original Court PDF
Shajiran @ Saziran BewavsThe Union Of India And 5 Ors.
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