High Court
Case Details
WP(C) 1121/2013 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER
Decision
Both the writ petitions involving two brothers, who had been declared to be fore igners (illegal Bangladeshi migrants) vide judgment delivered on the same day (1 1.2.2013) by the Foreigners Tribunal (III) Barpeta (Assam) in F.T. Case No. 145( III)/2011 and F.T. Case No. 157(III)/2011 have been heard together and are being disposed of by this common judgment and order. 2. Learned counsel for the petitioners having extensively argued in referen ce to WP(C) No. 1121/2013, the said case has been discussed as the base case tow ards answering both the writ petitions. Be it stated here that the evidence addu ced in both the cases are more or less the same with minor variations here that there. 3. The petitioner involved in WP(C) No. 1121/2013 claims to be the son of Z umo Khan @ Jashu Khan @ Md. Jashma. However, before the Tribunal, it was never h is case that his father is also know as Md. Jashma. 4. In the writ petition, the petitioner claims to be a citizen of India by birth and son of Zumo Khan @ Jashu Khan @ Md. Jashma. He also claims to be grand -son of one Hussain Khan, whose name appeared in voter lists of 1966 and 1970. A ccording to the petitioner his father’s name appeared in the voter list of 1989, 1993, 1997 and 2010 as Md. Jashma and Jashu Khan respectively. It is the furthe r case of the petitioner that his name appeared in the voter list of 1989 follow ed by 1993 and 1997. He has also referred to the certificate dated 10.2.2010 pur portedly issued by the local Gaonburha. Referring to the said documents, the pet itioner has contended that the learned Foreigners Tribunal could not have declar ed him to be a foreign national. 5. I have heard Mr. M.U. Mahmud, learned counsel for the petitioners and Mr . M. Bhagawati, learned CGC/State Counsel. I have also perused the entire materi als on record including the records received from the Tribunal. 6. The original reference was registered under the then IM(D)T Act as Refer ence Case No. 7141/B/98. Ever since the case was registered in 1998, long 15 yea rs have gone by to finally determine the issue as to whether the petitioner is a foreigner or not. On perusal of the records received from the Tribunal, it appe ars that on the basis of the house to house enumeration during the period from 1 6.1.1997 to 15.4.1997 upon inclusion of the name of the petitioner in the draft electoral roll, that was prepared on 24.7.1997, a doubt arose as to whether he i s a citizen of India or not. Upon enquiry etc., the local verification officer s ubmitted a report. The petitioner could not produce any document in support of h is Indian citizenship. Hence, the reference was made to the then IM(D)T, which e ventually came to be registered as F.T. Case No. 145(III)/2011. In the written statement filed by the petitioner on 28.9.2011, it was co 7. ntended that the petitioner is a citizen of India by birth and that his father’s name appeared in the voter list of 1970. It was also pleaded that his grand fat her’s name appeared in 1966 voter list. It was further contended that his father ’s name appeared in the voter list of 1997 and his (petitioner) name also appear ed in the voter list of 1993. However, in the written statement, the petitioner did not mention the names of his father and grand father. If we go by the name B ilat Khan stated to have appeared in the voter list of 1993 then his father’s na me is Jashu Khan. Similarly, Jashu Khan’s father’s name in the voter list of 199 7 is Hussain. In support of the said written statement, the petitioner submitted a self-sworn affidavit declaring his age as 41 years, S/o Jashu Khan as of 28.9 .2011. However, now coming to the Writ Court, he has declared his age as of 5.3. 2013 as 48 years, S/o Zumo Khan @ Jashu Khan @ Md. Jashma. The petitioner also submitted before the tribunal an affidavit as eviden 8. ce-in-chief of DW-1 sworn on 29.9.2012 declaring his age as 38 years, son of Jas hu Khan. In the said typed affidavit, there is insertion of names without any au thentication. The said names are Hussain Khan, Manik Jan Bibi, Bilayet Khan, Mus tt Bewla Khatun etc. The petitioner also submitted another affidavit on 29.9.201 2 as evidence-in-chief of DW-2 namely Jashu Khan, aged about 62 years (over writ ten). DW-2 submitted another affidavit dated 28.9.2011 describing his age as 72 years and stating there in that in the voter list of 1970, his name was wrongly recorded as Habidat Khan instead of Jashu Khan. In the first affidavit of DW-2 d ated 29.9.2012, the voter list of 1966, 1970, 1989, 1997 and 1993 have been refe rred to so as to claim that the name of the petitioners’ father appeared therein along with the petitioner. It was also contended that his parents name appeared in the voter list of 1970. Along with affidavit, photocopies of some voter list s had been enclosed. 9. The learned Tribunal upon discussion of the entire evidence on record ha s answered the reference in favour of the State and against the petitioner. As p er the Provision of Section 9 of the Foreigners Act, 1946. The burden of proof i s on the proceedee to prove that he is not a foreigner. 10. The learned Tribunal referring to the evidence and upon a threadbare dis cussion of the same has held that the evidence adduced by the petitioner did not discharge his burden of proof as envisaged under Section 9 of the said Act. In paragraph-3 of the written statement, the petitioner has stated that his father’ s name appeared in the voter list of 1970 of Village-Rangiya Nadir Pam under 53 No. Sarukhetri LAC, which is absolutely false statement as on perusal of Annexur e-B, it is found that the name of the petitioners’ projected father is not recor ded therein and that the said voter list is of Village-Tatikuchi under 54 No. Ch enga LAC and not of Village-Rangiya Nadir Pam under 53 No. Sarukhetri LAC. 11. Although the petitioner had contended before the Tribunal that the names of his parents namely Md. Jashu and Mustt Bewala Khatun had been included in th e voter list of 1989 (Annexure-C), but the said document reflects the name of Md . Jashma and not Jashu as mentioned in the affidavit. In the affidavit, the peti tioner named his brother as Bilayet Khan, but his brother is not Bilayet, he is Alom Khan involved in the other writ petition being WP(C) No. 1132/2013. In the writ petition, the petitioner has named himself as Bilat Khan @ Bilayet Khan. 12. It has rightly been held by the learned Tribunal that even if Jashma and Jashu are taken to be one and the same name, but there was no explanation as to how he could be aged 56 years in 1989 and after four years in 1993, could be 45 years of age. Again he became 52 years of age in 1997. The learned Tribunal has rightly held that if the said respective ages of the purported father of the pe titioner are taken into account then his father was born either in 1933 or in 19 45 or in 1948. In the affidavit of DW-2, the projected father’s age of the petitioner w 13. as shown as 62 years (on 29.9.2012 i.e. the date of swearing of the affidavit), which would go to show that he was born in or about 1950. As noted above, there is overwriting in the age coupled with wide variation of age from 62 years to 72 years as recorded in the other affidavit sworn on 28.9.2011. 14. While placing reliance on the aforesaid voter lists, the petitioner coul d not furnish any explanation as to why he could not produce any voter list pert aining to the year 1971, 1985, 1986, 1987, 1988, 1990, 1991, 1992 and 1994 and t herefore it has rightly been held by the learned Tribunal that if the projected father of the petitioner was born on or before 1948 or even in 1950, his name wo uld have been recorded in the NRC of 1951, but nothing could be produced in this regard. It has also rightly been held that a certificate issued by the Gaonburh a cannot be of any help to the case of the petitioner to prove his Indian citize nship. 15. The learned Tribunal has elaborately discussed the voter lists, which we re produced by the petitioner in support of his case, which includes the voter l ists of 1966 and 1970 mentioning therein the name of one Sajeran Nessa, whose na me was recorded along with the names of the projected grand-father of the petiti oner. However, the petitioner did not explain as to who is that Sajeran Nessa. A s regards the claim of the petitioner that in the voter list of 1970, the name o f one Habidat Khan appeared instead of Jashu Khan, apart from the fact that ther e cannot be such wide variation in the names and that the petitioner cannot go o n changing his father’s name to suit the purpose, on perusal of the voter list o f 1970 (Annexure-B), no name of any Habidat Khan or Jashu Khan is discernible. T herefore, as recorded by the learned Tribunal the statement made in the affidavi t dated 28.9.2011 is apparently not true statement and thus cannot be relied upo n. 16. It is needless to say that this Court exercising writ jurisdiction canno t sit on appeal over the findings recorded by the Foreigners Tribunal by re-appr eciating the evidence that has already been gone into with reasonable care and c aution with sound finding. In the impugned judgment, there is nothing to correct the errors so glaring on the face of the record. There is absolutely no error i n the judgment of the learned Tribunal and this Court exercising writ jurisdicti on will not sit on appeal over the appreciation of evidence and findings of fact arrived at by the learned Tribunal. 17. Above apart, merely by producing some photocopies of voter lists without proving the contents thereof with the linkage to the petitioner, the petitioner cannot claim Indian citizenship by birth towards discharging the burden of proo f under section 9 of the Foreigners Act 1946. As has been held by the Apex Court in (2010) 4 SCC 491 (LICI Vs. Ram Pal Singh Bisen) mere filing or exhibiting of a document in Court does not amount to proof of its contents. Admission of docu ment in Court may amount to admission of its contents but not their truth. 18. The writ petition is dismissed. WP(C) No. 1132/2013 19. This now leads us to the second writ petition being WP(C) No. 1132/2013 filed by the brother of the first petitioner namely Alom Khan. Like that of his brother Bilat Khan @ Bilayet Khan involved in WP(C) No. 1121/2013, in this writ petition also the petitioner has placed reliance on the same documents and the l earned Tribunal by its impugned judgment and order has answered the reference in favour of the State and against the petitioner. Independent of the same, I have gone through the entire materials on record including the records received from the Tribunal and it is found that the evidence adduced by both the petitioners are one and the same, about which discussions have been made above. This being t he position, this writ petition is also merits dismissal, which I accordingly do . 20. The Deputy Commissioner and S.P., Barpeta are directed to delete the nam es of the petitioners from the voter lists and to detain them in detention camp till they are deported to their country of origin. 21. Let a copy of this order be furnished to Mr. M. Bhagawati, learned CGC/S tate Counsel for necessary communication with Deputy Commissioner and S.P. Barpe ta. Registry shall also furnish copies of this order to the Deputy Commissioner and S.P. Barpeta for their necessary follow up action. Another copy be sent to t he union of India in the Home Department. 22. List after one month for submission of compliance report by both the abo vementioned authorities.