High Court · 1971
Case Details
WA 129/2013 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA HON’BLE MR. JUSTICE L.S. JAMIR JUDGMENT & ORDER (ORAL) Hazarika, J This appeal by the proceedee under the provisions of Foreigners Act, 194 6 is directed against the judgment and order dated 6.5.2013 passed by the learne d Single Judge in WP(C) No.1291/2013 dismissing the writ petition filed by the p resent appellant challenging the order dated 29.1.2013 passed by the learned Mem ber, Foreigners Tribunal-III, Barpeta (Assam) in FT Case No.232 (III)/2011 on th e basis of the reference made by the Superintendent of Police (’SP’ for short), Barpeta. 2. The aforesaid FT case had been registered against the appellant. The app ellant’s case in brief is that a proceeding was initiated against the appellant under the provisions of the Illegal Migrants (Determination by Tribunals) Act, 1 983 (’IMDT Act, 1983’ for short), which was registered and numbered as IMDT Refe rence Case No.2252/2001 before the Tribunal, alleging that the appellant is an i llegal migrant. The said proceeding, however, had been transferred to the Foreig ners’ Tribunal, in view of the declaration made by the Apex Court in Sarbananda Sonowal (1) -vs- Union of India and another, reported in (2005) 5 SCC 665 that I MDT Act is ultra vires the Constitution and directing transfer of the proceeding from the IMDT to the Foreigners’ Tribunal. The proceeding, thereafter, was regi stered as FT Case No.232(III)/2011 in the FT No.(III), Barpeta. The appellant co ntested the said proceeding by filing written statement contending inter alia th at he is an Indian national by birth and his parents’ name were also enumerated in the voters list of 1965. It has also been pleaded that his father was issued with an Indian passport by the authority under the provisions of Passport Act wa y back on 7.9.1953 and the appellant’s name has also been enumerated in the Vote rs list of 1997, 2005 and 2010 under the 42 No. Patacharkuchi Legislative Consti tuency. It has further been contended that his mother’s name, namely, Sara Khatu n Bibi, was also enumerated in the Voters list of 1970. The appellant in support of his contentions has examined himself as witn 3. ess and also proved nine (9) documents, being the passport dated 7.9.1953 issued in the name of Abdul Aziz Sheikh (Ext 1); Certificate dated 1.1.2012 issued by the village Headman of Dumuria village certifying that the appellant is a reside nt of Dumuria (Ext 2); Voters list of 1965 containing the names of Abdul Aziz, S on of Osman Ali, Sara Khatun Bibi (wife of Aziz Ali), Abdul Mannaf, son of Aziz Ali as Ext 3. The voters list of 1970 containing the names of Sara Khatun Bibi, wife of Abdul Aziz and Abdul Mannaf son of Aziz Ali (Ext 4); Voters list of 1997 containing the name of Abdul Mannaf, son of Abdul (Ext 5) Voters list of 1997 c ontaining the name of Motaleb, son of Abdul as Ext 6; Voters list of 2005 contai ning the name of Abdul Mannaf, son of Abdul Aziz, Ext 7, Voters lists of 2005 an d 2010 containing the name of the appellant as Exts 8 and 9 respectively. Accord ing to the appellant, Abdul Aziz Sheikh and Abdul Aziz is one and the same perso n and Sara Khatun Bibi is his mother. The Tribunal upon appreciation of the evid ence on record, passed the order as indicated hereinabove opining that the appel lant is a foreigner within the meaning of Foreigners Act coming to Assam, (India ) from the specified territory after 25th March 1971.
Legal Reasoning
Aggrieved by the order dated 29.1.2013 a writ petition being WP(C) No.12 4. 91/2013 was filed by the appellant challenging the legality of the aforesaid ord er dated 29.1.2013. The learned Single Judge of this Court after hearing the cou nsel appearing for the parties and upon perusal of the materials on record, was not inclined to interfere with the impugned order passed by the learned Tribunal in exercise of power under Article 226 of the Constitution of India and dismiss ed the writ petition. Hence, the instant appeal challenging the judgment and ord er dated 6.5.2013 passed by the learned Single Judge.
Legal Reasoning
Heard Mr. MU Mahmud, learned counsel appearing for the appellant. Also h 5. eard Mr. M Bhagabati, learned Central Govt. Counsel appearing for the respondent No.1 and Mr. BJ Dutta, learned State counsel appearing for the respondent Nos.2 and 3. 6. It has been contended by Mr. Mahmud that copies of the voters list issue d in the name of his father were produced by the appellant before the learned Tr ibunal, as well as, copy of the passport dated 7.9.1953, which was issued in the name of his father, voters list of 1965 and 1970 containing the name of the fat her of the appellant as well as his mother; voters list of 1997, 2005 and 2010 w here the appellant’s name appeared; copies of the certificate issued by gaonbura h stating about his residential status; copy of the affidavit sworn in by the ap pellant clarifying about the anomalies in the name and ages of the appellant as well as his parents and copy of the judgment and order dated 23.3.2010 passed by the learned Tribunal whereby the appellant’s elder brother name was declared as an Indian citizen were produced before the Tribunal, which were duly exhibited as Ext.1 to 9. But the learned Tribunal did not take into consideration the said documents/papers while passing the judgment declaring him as foreigner and henc e, according to the learned counsel, the Tribunal ought not to have opined that the petitioner is not an Indian, more so when those documents as well as the sta tements made by the appellant have not been challenged by the State by way of ad ducing evidence. Though the appellant in his written statement filed on 21.1.201 2 had produced almost all the documents and the learned Tribunal also marked tho se documents as exhibits, but the opposite party/State never filed counter again st those documents nor challenged the veracity of the same in any way yet while passing the impugned judgment, learned Tribunal overlooked those documents which has caused serious miscarriage of justice. 7. It has further been contended that the appellant filed written statement as well as evidence in chief as DW 1 annexing all the necessary documents requi red to be proved as an Indian citizen, but the learned Tribunal did not rely upo n the documents so submitted by the appellant and only on the ground of some ano malies regarding the names and ages of the appellant and his parents declared hi m as foreign national, pursuant to which the appellant has been arrested and kep t in the detention camp at Goalpara since 22.3.2013. The anomalies of names and ages of the appellant, his parents and elder brother are mistakes not committed by the appellant nor by his parents and elder brother but were committed by the enumerator, Government official and competent authorities for which neither the appellant nor his parents and elder brother have any hand or/can be blamed. Even in this regard, the appellant has sworn an affidavit on 3.1.2012. Mr. Mahmud, l earned counsel has submitted that in another proceeding, instituted before the T ribunal, namely, FT (3rd Tribunal) Case No.112 (III)/2009, the same Tribunal has declared the petitioner’s brother as Indian national. Mr. Mahmud, therefore, su bmits that the learned Member, Foreigners Tribunal has committed illegally in op ining that the petitioner is a foreigner and such finding is perverse, being not based on the evidence adduced by the parties. 8. The learned State counsel as well as Central Govt. Counsel, on the other hand, supporting the opinion rendered by the Tribunal have submitted that there being anomalies in the names and ages of the appellant and his parents and elde r brother and the appellant being not able to produce evidence to prove that he is the son of late Abdul Aziz Sheikh @ Abdul Azid @ Azid Ali @ Abdul Azid and yo unger brother of Abdul Mannas @ Abdul Mannaf, the Tribunal has rightly rendered the opinion that the appellant is a foreigner and not an Indian. Section 9 of th e Foreigner’s Act 1946 imposed the burden on proceedee to prove that he or she i s not a foreigner but Indian national. To discharge the burden, the appellant ha d examined himself as witness and also proved nine documents mentioned hereinabo ve. 9. We have considered the submissions made by the learned counsel appearing for the parties. Also perused the materials available on record, including the judgment rendered by the learned Single Judge as well as the Tribunal. 10. In view of the facts and circumstances narrated hereinabove, the questio n arises as to the scope of interference with the Tribunals order in a writ proc eeding. Article 226 of the Constitution of India confers on the High Court, powe r to issue appropriate writ to any person or authority within its territorial ju risdiction. It has been held by this Court that the Tribunal constituted under t he Foreigners Act 1946, (’1946 Act’ for short) read with Foreigners (Tribunals) Order 1964, (’1964 Order’ for short) is required to discharge the quasi judicial function. The High Court, therefore, has the power under Article 226 of the Con stitution to issue writ of certiorari quashing the decision of the Tribunal in a n appropriate case. The scope to interfere with the Tribunal’s order in exercise of jurisdiction under Article 226, however, is limited, inasmuch as, the writ o f certiorari can be issued for correcting errors of jurisdiction, or failed to e xercise its jurisdiction or if such court or Tribunal acts illegally in exercise of its undoubted jurisdiction or when it decides without giving an opportunity to the parties to be heard or violates the principles of natural justice. The po wer of writ court under certiorari jurisdiction being supervisory and not appell ate jurisdiction, the Court cannot review the findings of facts reached by the i nferior court or Tribunal. However, writ of certiorari can be issued if prima fa cie found in Tribunal’s order an error apparent on the face of the record, as no ticed above has occurred. In the instant case at hand, the appellant had examine d himself as a witness and had also exhibited as many as 9 (nine) exhibits, vera city of which are not put to challenge. On behalf of the prosecution no evidence was led per contra. It is true that under the scheme of Foreigners Act, the ini tial burden of proof lies on the appellant and he had successfully discharged th e burden. Having done so the onus to prove the prosecution case shifts on the pr osecution which was not discharged by the prosecution. The contents of the docum ents proved at trial and not contradicted by the prosecution has to be deciphere d by the Tribunal judiciously. The doubt, if any, which might arise in the mind of the Tribunal must be answered not like a common man but like a prudent person who is trained in law. In the instant case, on the face of the evidence on reco rd brought forward by the alleged foreign national was unduly interpreted agains t him merely on the basis of some discrepancies as regards the age of the person concerned recorded in such documents. It is to be noted that those persons conc erned including the appellant were not the writer of those documents. The ages s o recorded in those documents no doubt point out discrepancies but they are not so major so as to totally disbelieve, disregard and belie the evidence of the ap pellant/petitioner so as to disrobe the precious-most right of the citizen of a country. On the face of the failure of the prosecution to rebut the case of the appellant, the Tribunal cannot supplement the said rule and even the benefit of doubt, if any, be waived in favour of the appellant. 11. We have perused the record of the Tribunal. Various orders passed by the Tribunal in the proceeding are quoted hereinbelow; (cid:28)07-01-2012 O. P/2nd Party has appeared and filed a petition praying to give another date for submission of written statement. Prayer is allowed. Fix 21-01-12 for submit w/s. 21-01-2012 O.P/2nd party has submitted written statement along with some documents. Issue summons to witness I/O for the 1st party. Fix 03-03-12 for evidence of the 1st party. 3-3-2012 O.P side is present. Witness inquiry officer for the 1st party side is absent. Reissue summons to him. Fix 3-5-2012 for evidence of 1st party side. 03-05-2012 O.P/2nd party has filed a petition for absences his ld. counsel & give a nother date for evidence of the 1st party. Witness 1st party is absent. Issue fresh summon to the witness for the 1st party. Fix 23-05-2012 for evidence of the 1st party. 23-05-2012 Summons to witness I/O for the 1st party has not been returned. Witness I/O is absent. O.P side has filed a hajira. Issue fresh summon to the witness I/O for the 1st party. Fix 30-06-2012 for evidence of the 1st party. 30-06-2012 O.P/2nd party side is absent without step. Summons to witness I/O has not been returned. I/O is absent. Fix 23-07-2012 for documents & affidavit. 23-07-2012 O.P has filed a petition praying to give another date for submission of documents & affidavit. Prayer is Fix 06-08-2012 for documents & affidavit. 06-08-2012 O.P has submitted affidavit and documents. Fix 03-10-2012 for hearing of this case. 03-10-2012 Ld. Presiding Officer is on leave. Today is fixed for hearing of this case. O.P has filed a hajira. Fix 08-11-2012 for hearing of this case. 8/11/12 O.P is present alongwith ld. Adv. Ld. Asstt. GP is also present. O.P. has filed certified copy of voters’ list of 1985 and 2005 today. He has already filed his evidence on Affidavit. Arguments of both sides is heard. Fix 30-11-2012 for order. Ld. Adv. for the O.P is present. Detailed order could not be written today for want of time. Fix 08-12-2012 for order. 30-11-12 10-12-12 Case record is put up today as this office of the Tribunal was closed on 8/12/12 (the date fixed) due to holiday for 2nd Saturday. Fix 29-1-13 for order. FT Case No.232(III) of 2011 (Reference IMDT Case No.2252/01) STATE -VS- ABDUL MATALI
Decision
ORDER 29.01.2013: OP is absent without step. Learned Asstt. G.P. is present. Detailed order is separately type-written and attached to the case recor d. The OP Abdul Matali s/o Late Abdul Aziz of village Dumuria under Patacha rkuchi PS in the District of Barpeta, is found to have entered into India withou t authority subsequent to 25.03.1971 and hence he is termed to be a foreigner of post 25.03.1971 stream. This case stands disposed of. Intimate SP(B), Barpeta, accordingly, for further necessary action. Member, Foreigners’ Tribunal-III, Barpeta (cid:29) The orders quoted hereinabove would reveal that the learned Tribunal after recei pt of the reference from the Superintendent of Police, Barpeta on 5.12.2008 fixe d 3.3.2012, 3.4.2012, 23.5.2012 and 30.6.2012 for the evidence of the first part y, i.e. the Investigating Officer. The orders passed on various dates quoted fro m the original record of the Tribunal would show that though repeatedly dates we re fixed for evidence by the 1st party, but there was no recording of any eviden ce from the prosecution side. 12. Learned Single Judge did not examine the legality of the judgment passed by the learned Tribunal in the above context considering the various orders quo ted hereinabove. We have, therefore, taken up of our own to scrutinize the recor d. Ignoring the fact that though several adjournments were granted for evidence of the first party/Investigating Officer, no evidence was recorded and the case was fixed for hearing. What was the material presented during argument by the le arned counsel for the parties is not discernable. But the facts noted above whic h are apparent on the face of the record have apparently been missed by the lear ned Single Judge. 13. l as by the Tribunal that the appellant is a foreigner is not correct. In the above premises, the view taken by the learned Single Judge as wel 14. The question of determination of citizenship of a person in a country st rikes upon the very root of right of such person emanating from the Constitution and other laws in force in the country. Any doubt cast upon a person regarding his/her citizenship status stigmatizes him/her and causes the potential to affec t his/her fundamental rights. As such, determination of citizenship status of a person is of immense consequence and has to be proceeded strictly in accordance with law so as to afford all opportunity to such a person to prove his/her citiz enship credential, because the law in vogue mandates that the burden of proof of citizenship lies on the person against whom, he/she being a foreigner is allege d. Hence, considering the facts and circumstances of the case and in view o 15. f the discussion made hereinabove, the orders dated 29.1.2013 and 6.5.2013 passe d by the Foreigners’ Tribunal and the learned Single Judge respectively are liab le to be set aside and quashed, which we hereby do. Accordingly, the matter is r emitted to the learned Foreigners Tribunal-III, Barpeta, Assam. The Tribunal aft er hearing the parties and on the basis of the evidence on record shall pass nec essary order afresh determining the issues before it within a period of 3 (three ) months from the date of appearance of the appellant. 16. now appear before the learned Foreigners Tribunal-III, Barpeta on 04.12.2013. The appellant having full knowledge of the proceedings before him shall 17. Mr. Mahmud, learned counsel appearing for the appellant has submitted th at the appellant has been taken into custody and presently he is in the detentio n camp at Goalpara. The Superintendent of Police, Barpeta as well as the Officer -in-Charge of the detention camp at Goalpara, are, therefore, directed to releas e the appellant from custody forthwith, making it clear that during the pendency of the proceeding before the learned Tribunal, the appellant shall not leave th e State of Assam without obtaining written permission from the learned Member, F oreigners Tribunal-III, Barpeta. The appellant is further directed to appear bef ore the Officer-in-Charge of the jurisdictional Police Station fortnightly. 18. The Registry is directed to send down the records to the learned Member, Foreigners Tribunal, Barpeta-III, Barpeta, Assam forthwith. 19. s. However, there shall be no order as to costs. In the result, the appeal is allowed in terms of the aforesaid direction