Decided on November 30,2018

Mojafor Ali @ Muzafar Ali Appellant
UNION OF INDIA Respondents


NANI TAGIA, J. - (1.) Heard Mr. MJ Quadir, learned counsel for the petitioner as well as Ms. G. Sarmah, learned counsel for respondent No.1; Mr. J. Payeng, learned counsel for respondent Nos. 2, 3, 5 and 7; Ms. N. Upadhyay, learned counsel for respondent No.4 and Ms. U. Das, learned counsel for respondent No.6. By this petition, under Article 226 of Constitution of India, the petitioner has challenged the legality and validity of the order dated 29.06.2018 passed by the learned Member, Foreigners' Tribunal No. 3rd, Morigaon, in F.T. Case No.27/2015 whereby the petitioner/ opposite party has been held to be a foreigner having entered into India after 25.03.1971. The aforesaid case was registered upon a reference made by the Supdt. of Police (B), Nagaon with the allegation that petitioner was a foreigner who had illegally entered into India (Assam) from the specified territory after 25.03.1971. Notice issued by the Tribunal was served upon the petitioner whereafter he had entered appearance and filed his written statement. In his written statement, it has been averred that the actual name of the writ petitioner/proceedee is Md. Mojafor Ali but his name is wrongly written as Mussahbar Ali. Similarly his father's actual name is Md. Ali Hussain, who is also known as Abdul Malek for which reason his father's name is written as Abdul Malek in the voter list. It is further stated that the petitioner was born and brought up at Baligaon under Mikirbhea Police Station and have studied upto Class-V. It is further stated that his father Ali Hussain casted his vote from 80 No. Morigaon LAC in 1966 from Parashutangani village vide Sl. No. 252, House No. 58. It is further stated that the petitioner had landed property in his own name under Saraibahi Mouza vide Patta No.365 and Dag No.620. In support of his case, the petitioner/opposite party had exhibited the following documents: Ext. A-Gaonburah Certificate in the name of the OP. Ext. B -Birth Certificate in the name of the OP. Ext. C -School Certificate. Ext. D - 1966 voter list of OP's father Ext. D1 is the name of the father of OP. Ext. E -1970 voter list of OP's father. Ext. F -2008 voter list of OP's. Ext. G -Jamabandi copy in the name of the OP. Ext. H -Draft Citha in the name of the OP. Although the petitioner has exhibited the Exhibits- A to H mentioned above, learned counsel for the petitioner submits that the primary link documents of the petitioner with his father Ali Hussain are the Exhibit No."A" (Gaonburah Certificate), Exhibit-"B" (Birth Certificate), Exhibit-"C" (School Certificate) and Exhibit-"G" (Jamabandi). We have perused the aforesaid four exhibits. Exhibit-A is the certificate dated 7.11.2015 issued by Gaonburah, Parashutangoni Kisam Circle and Mouza, Mikirbheta, Dist. Morigaon, whereby the petitioner has been certified to be the son of Late Ali Hussain (Malek). Exhibit-B is the birth certificate issued by the Registrar, Birth and Death, Mikirbheta State Dispensary, Morigaon, certifying that the date of birth of the petitioner/proceedee to be 31.07.1976. Exhibit-C is the School Certificate dated 17.11.2015 issued by the Headmaster/Secretary of Abhayapur ME School, Morigaon, certifying that Md. Muzafar Ali is the son of Md. Ali Hussain. The last exhibit which is relied upon by the petitioner is Exhibit-D, Jamabandi issued on 09.09.2014 by the Circle Officer, Mikirbheta, Dist. Morigaon, wherein the name of the pattadar is shown as Md. Majafor Ali i.e. the petitioner against Patta No. 365 and Dag No.620. On perusal of the records and the Exhibits- A, B, C and G, we find that Exhibit-A has not been proved by examining the author of the certificate i.e. Gaonburah, which make Exhibit-A inadmissible piece of evidence and hence unreliable. The said certificate cannot be accepted for yet another reason that the said certificate is embossed with State Emblem on the top of the said certificate. With regard to improper use of State Emblem in certificate, this Court in the order dated 20.11.2018 passed in W.P.(C) No.7115/2016 (Sultana Begum Vs. Union of India and others) has held as follows: " ..We would observe that the Central Government has framed statutory rules called State Emblem of India (Regulation of Use) Rules, 2007 (in short the Rules), in exercise of powers conferred by Section 11 of the State Emblem of India (Prohibition of Improper Use) Act, 2005 (in short the Act). Section 3 of the Act specifically prohibits improper use of the state emblem. It says that notwithstanding anything contained in any other law for the time being in force, no person shall use the emblem or any colourable imitation thereof in any manner which tends to create an impression that it relates to the Government or that it is an official document of the Central Government or the State Government, without the previous permission or authorization. This section starts with a non-obstante clause, meaning thereby that it has overriding effect over all the laws for the time being in force. Rule 5 of the Rules provides that use of the official emblem is restricted to the authorities specified in Schedule-I. Rule 10 makes the restriction more specific. It says that no person, including former Ministers, former Members of Parliament, former Members of Legislative Assemblies, former Judges and retired Government officials (other than those authorized under the Rules) shall use the emblem in any manner. Sub-rule (2) of Rule 10 clearly provides that no Commission or Committee, Public Sector Undertaking, Bank, Municipal Council, Panchayati Raj Institution, Non- Government Organization, University (other than those authorized under the Rules) shall use the emblem in any manner. Schedule-I to the Rules contains a list of constitutional and statutory authorities, Ministries and Departments of the Central Government, State Governments or Union Territory Administrations and other Government functionaries which may use the emblem. ." In the light of the law laid down in the aforesaid writ petition, the said certificate dated 07.11.2015 issued by the Gaonburah (Exhibit-A) containing State Emblem, cannot be considered as a valid and acceptable document. Any document or certificate issued by an authority using the State Emblem, who are otherwise not authorized to use the State Emblem under the Act and the Rules must be held to be inadmissible in law, as explain in Sultan Begum (supra). Further, we find that so far as the Exhibit-B (Birth Certificate) and Exhibit-C (School Certificate) are concerned, the issuing authority of said certificates has never been examined nor correctness of the contents of the said certificates was proved by producing the originals thereof before the learned Tribunal. So far as the Exhibit-G (Jamanbandi) is concerned, the same has also not been proved by examining the concerned revenue authority. In any case, the said Jamabandi being issued on 9.9.2014, which is a post 25.3.1971 document does not come in aid of the petitioner in any manner. Learned counsel for the petitioner has also referred to the depositions of DW.2 (Abdul Gofur). DW.2, who is stated to be the paternal uncle of the writ petitioner/opposite party, who deposed on 26.04.2016 that he knew the writ petitioner/opposite party and the proceedee is his nephew and his elder brother, namely, Ali Hussain is also known as Malek. By referring to the aforesaid statement made by DW.2, learned counsel for the petitioner submits that while paternal uncle of the petitioner has categorically stated that the opposite party is his nephew and son of his elder brother, there is no reason to disbelieve his statement. Per contra, Mr. J. Payeng, learned State Counsel, submits that there is no mention made by the opposite party /proceedee about the DW.2 in his written statement and therefore, the deposition made by DW.2 cannot be taken into account and the same be ignored. Be that as it may, this Court vide order dated 18.04.2018 passed in W.P.(C) No. 562/106 (Bijoya Das Vs. Union of India and others) has held 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 are admissible and relevant. In view of the ratio laid down by this Court in Bijoya Das (Supra), we are not inclined to accept the oral testimony made by the DW.2 in absence of any documentary evidence which are admissible and relevant. For the aforesaid discussions and findings, we find no infirmity in the impugned order dated 29.06.2018 passed by the learned Member, Foreigners' Tribunal No. 3rd, Morigaon, in F.T. Case No. 27/2015. The writ petition lacks merit and the same stands dismissed with no order as to cost. Registry to send back the case records to the concerned Tribunal forthwith. ;

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