High Court · 2012

Being aggrieved by the judgment and order dated 20.03.2012 passed in WP(C) No.57 25/2012 assailing the determination made by the learned Foreigners’ Tribunal (1s t), Morigaon, Assam in Case No. FT (D) 1190/2007 adjudging him to be an illegal migrant as referred to therein, the writ appellant/ writ petitioner is in appeal for redress. We have heard Mr. J. Ahmed, learned counsel for the appellant, Mr. M. Bhagawati, learned Central Govt. Standing Counsel for the Union of India and Mr. P.S. Deka , learned Govt. Advocate for the State respondents. The pleaded facts reveal that on a reference made by the Superintendent of Polic e (B), Morigaon to the then Illegal Migrant(Determination) Tribunal, Nagaon pr oceedings eventually were drawn up under the Foreigners’ Act, 1946 (hereinafter for short referred to as the Act) and numbered as Case No.FT(D) 1190/2007. In t he reference the person suspected to be the illegal migrant was named as Md. Has mat, S/o. Nasiruddin. Notice was also issued to him by the same name showing hi s place of residence to be village - Garubandha, P.S.- Mayong in the district o f Morigaon. According to the appellant, his name is Md. Hasmat Ali, S/o. Nazim Uddin of the same village and that in spite of thereof, the notice was served o n him. Being without any alternative, he accepted the notice and submitted his written statement. By designating him as Md. Hasmat Ali, S/o. Md. Nazim Uddin in his written state ment, the writ appellant/writ petitioner, inter alia pleaded that he was a citiz en of India by birth and stoutly denied the allegation that he was an illegal mi grant. He stated that the name of his father Md. Nazim Uddin and his grand fat her Md. Hamed Ali Sardar also known as Md. Hamed Ali appeared in the voters list of 1965 and 1971 of village- Koroiguri, P.S. Morigaon under 83 No. Bokani (SC) legislative assembly constituency of Assam respectively. He added further that in the year 1957/58, the Govt. of India had allotted land included in Dag No.30, 95 covered by Annual Khiraj Patta No.33, 39 to his grand father. Asserting tha t he was born on 01.10.1981 at village Garubandha, he claimed to have studied in Garubandha L.P. School and eventually appeared in the HSLC final examination, 2 002 from Borbori Milan High School. While contending that his father also held a plot of land covered by Dag No.118 included in periodic patta No.36, he also i nter alia referred to a land holding Certificate from the Mayong Revenue Circle issued in his name by the appropriate authority. In the proceedings before the learned Tribunal the prosecution examined 1(one) w itness who supported the report on which the case had been registered. The writ appellant/writ petitioner also examined himself and other witnesses and proved amongst others, the copies of voters list of 1965 and 1971 said to include the n ame of his grand father and father respectively. He also proved the photocopies of his HSLC examination admit card and also that of a Jamabandi in the name of his father. He produced as well the Ration Card issued by the Gagalmari Sambay Samitee Ltd. in his name and the certificate issued by the Circle Officer, Mayon g Revenue Circle. The learned Tribunal being of the view that the documents pressed into service b y the writ appellant/writ petitioner were fraught with discrepancies in the name of his father and grand father and thus could not be accepted as legal evidence of the facts contained therein, rejected the same and declared him to be an ill egal migrant having entered the State of Assam after 25.03.1971. The writ appellant/writ petitioner’s contentions as laid in the written statemen t before the learned Tribunal have been rejected by the learned Single Judge vid e the impugned judgment and order on the following counts: (1) law as required; the documents relied upon by him had not been proved in accordance with the name of his grand father has been shown differently in these documen (2) ts; (3) the ages of his father and grand father appearing from a document dated 20.11.1984 show overwriting and are incompatible with the entries in the voters list of 1965; (4) in another document purporting to be a receipt of payment of LIC premiu m the name of the father of the writ appellant/writ petitioner has been mentione d as Nizamuddin. The learned Single Judge in view of the above inconsistencies and anomalies vis- à-vis essential features of identification of the writ appellant/writ petitioner ’s father and grand father, concluded that no interference with the finding of t he learned Tribunal was warranted. Mr. Ahmed has urged that as would be apparent from the documents, namely- the vo ters list of 1965 and 1971, the HSLC admit card, the Ration Card and the land ho lding Certificate issued by the Circle Officer, Mayong Revenue Circle that the n ames of the grand father and father of the writ appellant/writ petitioner did ap pear as Hamed/Hamed Ali Sardar and Nazim Uddin consistently the learned Tribunal as well as the learned Single Judge erred in rejecting the documents duly prove d by him in the original proceedings. According to the learned counsel as the a uthenticity or the genuineness of these documents had not been questioned by the respondent authorities at any point of time, the same ought to have been accept ed as sufficient proof of the writ appellant/writ petitioner’s claim of citizens hip of India. Mr. Ahmed contended that while the respondent authorities had vis ibly vacillated qua the name of the writ appellant/writ petitioner’s father, he persistently insisted it to be Nazim Uddin and thus in view of the proved docume nts laid before the learned Tribunal, the reference ought to have been dismissed . The learned counsel has insisted that the learned Single Judge having left ou t of consideration these aspects, the impugned decision is liable to be interfer ed as well. Mr. Bhagawati has urged that the variations in the name of the grand father and father of the writ appellant/writ petitioner in the voters list of 1965 and 1971 and the anomaly in their age as evidenced by the documents dated 20.11.1984 are irreconcilable and thus the findings of the learned Tribunal and of the learned Single Judge are unassailable. Moreover, these documents not having been prov ed in accordance with law, no interference of this Court with the decisions impu gned is warranted. The learned State Counsel has endorsed these assertions. We have duly considered the pleaded facts, documents on record and the rival arg uments. On a perusal of the original records of the proceedings of the learned Tribunal, it transpires that in the verification Officer’s report forming the basis of th e reference under Section 9A of the Act, though the name of the father of the w rit appellant/writ petitioner was mentioned as Nasimuddin in the form for refere nce, it appears to be Nasiruddin. The reason for this variation is not forthcom ing. This assumes significance in view of the rejection of the writ appellant/w rit petitioner’s documents on the ground of difference in the name of his grand father in the voters list of 1965 and 1971. Noticeably, the writ appellant/writ petitioner’s recorded plea at the first instance had been that the notice of th e proceedings was not meant for him, the name of the father of the noticee being Md. Nasiruddin and not Md. Nazimuddin. The notice, according to him was served on him in spite of such objection. That the notice of the proceedings issued by the learned Tribunal had also been addressed to Md. Hasmat, S/o. Nasiruddin is a matter of record. In contradistinction, the documents on record produced on behalf of the writ app ellant/writ petitioner discloses that the name of the grand father of the writ a ppellant/writ petitioner in the voters list of 1965 had been mentioned to be Ham ed Ali Sardar, whereas, it appears as Hamed in the voters list of 1971 enlisting the name of his (writ appellant/writ petitioner) father as Nazimuddin. This na me of the father of the writ appellant/writ petitioner consistently appear in th e admit card issued by the Board of Secondary Education, Assam, the Ration Card issued by the Secretary, Gagalmari S.S. Ltd. as well as land holding Certificate dated 03.12.2008 issued by the Circle Officer, Mayong Revenue Circle. The certi ficate issued by the Gaon Bura, Bulukaguri Gaon, district- Mayong to the effect that Md. Hasmat Ali, S/o. Nazim uddin is a resident of Garubandha and that his f ather Md. Nazim Uddin, S/o. Md. Hamid Ali was enrolled in the voters list of 197 1 for 83 No. Bokuni (SC) Constituency of the Assam Legislative Assembly, also pr ima facie affirms the writ appellant/writ petitioner’s contentions. In the above view of the matter, rejection of these documents on the ground of a marginal difference in the name of his grand father in the aforementioned voter s list and inferred anomalies in the age exhibited by a document dated 20.11.198 4 prepared in the process of house-to-house enumeration to finalize the voters l ist, in our view, in the facts and circumstances of the case, if sustained would have the potential of denial of fair trial to the writ appellant/writ petitione r. In the above view of the matter, the impugned determinations made by the learned Tribunal and in WP(C) No.5725/2010 are set side. We are of the unhesitant opin ion that having regard to the gravity of the issue, the writ appellant/writ peti tioner ought to be left at liberty to prove his documents in support of his clai m of citizenship afresh. This is also in the fact of the finding of the learned Single Judge that the documents produced by him had not been proved in accordan ce with law. The matter thus stands remitted to the learned Tribunal for a fresh disposal by affording due opportunity to the parties to prove their respective cases. The w rit appellant/writ petitioner would appear before the learned Tribunal on 25.06. 2012 to take further order(s). The appeal is allowed to the extent indicated he reinabove. The Registry would transmit back the original records to the learned Tribunal fo rthwith. No costs.