High Court
Case Details
WP(C) 1291/2013 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (Oral) The petitioner has filed the present writ petition challenging t he opinion rendered by the learned Member, Foreigner’s Tribunal, Barpeta in FT C ase No.232(III)/2011 vide order dated 29th January, 2013, whereby and whereunder it has been opined that the petitioner is a foreigner within the meaning of For eigners Act, 1946 coming to Assam from the specified territory after 25th March, 1971. [2] A proceeding was initiated against the petitioner under the prov isions of the Illegal Migrants (Determination by Tribunals) Act, 1983, which was registered and numbered as IMDT Reference Case No.2252/2001 before the Tribunal , alleging that the petitioner is an illegal migrant. The said proceeding, how ever, has been transferred to the Foreigners Tribunal, in view of the declaratio n made by the Apex Court in Sarbananda Sonowal (I) -Vs- Union of India & Anr. re ported in (2005) 5 SCC 665 that the IMDT Act is ultra vires the constitution and directing transfer of the proceeding from the IMDT to the Foreigners Tribunal. The proceeding, thereafter, was registered as FT Case No.232(III)/2011 in the Foreigners Tribunal No.III, Barpeta. The petitioner contested the said proceedi ng by filing written statement contending inter alia that he is an Indian nation al by birth and his parents name are also enumerated in the voters list of 1965. It has also been pleaded that his father was issued with a passport by the aut hority under the provisions of the Passports Act on 17th September, 1953 and the petitioner’s name has also been enumerated in the voters’ lists of 1997, 2005 a nd 2010. It has further been contended that his mother’s name, namely, Sara Kha tun Bibi, was also enumerated in the voters list of 1970. [3] The petitioner, in order to discharge his burden of proof, under Section 9 of the Foreigners Act, examined himself as witness and also proved 9( nine) documents, being the passport dated 17th September, 1953 issued in the nam e of Abdul Aziz Sheikh (Exhibit-1); certificate dated 1st January, 2012 issued b y the village headman of Dumuria Village certifying that the petitioner is a res ident of Dumuria as Exhibit-2; voters list of 1965 containing the names of Abdul Aziz, son of Osman Ali, Sara Khatun Bibi, wife of Aziz Ali, Abdul Mannaf, son o f Aziz Ali as Exhibit-3; voters list of 1970 containing the names of Sara Khatun Bibi, wife of Aziz Ali and Abdul Mannaf, son of Aziz Ali as Exhibit-4; voters l ist of 1997 containing the name of Abdul Mannaf, son of Abdul as Exhibit-5; vote rs list of 1997 containing the name of Motaleb, son of Abdul as Exhibit-6; voter s list of 2005 containing the name of Abdul Mannaf, son of Abdul Aziz as Exhibit -7 and voters lists of 2005 and 2009 containing the name of the petitioner as Ex hibits-8 and 9, respectively. According to the petitioner, Abdul Aziz Sheikh an d Abdul Aziz is one and the same person and Sara Khatun Bibi is his mother. The Tribunal upon appreciation of the evidence on record has passed the impugned or der opining that the petitioner is a foreigner within the meaning of the Foreign ers Act coming to Assam (India) from the specified territory after 25th March, 1 971. Hence, the present petition.
Legal Reasoning
[4] I have heard Mr. MU Mahmud, learned counsel for the petitioner, Mr. JMA Choudhury, learned Central Government counsel appearing for the responde nt No.1 and Mr. RK Bora, learned State counsel appearing for the respondent Nos. 2 and 3. Referring to the deposition of the petitioner as well as the doc [5] uments exhibited before the Tribunal, it has been submitted by Mr. Mahmud, learn ed counsel for the petitioner that the petitioner could prove that Abdul Aziz Sh eikh and Abdul Aziz is one and the same person, who is the petitioner’s father a nd whose name appeared in the voters list of 1965 (Exhibit-3) and in whose favou r the passport was issued by the authority (Exhibit-1). The learned counsel fur ther submits that the petitioner could also prove that Sara Khatun Bibi is his m other, whose name appeared in the voters’ lists of 1965 as well as in 1970. It has also been submitted by Mr. Mahmud that the petitioner has not been cross-exa mined by the Government on the statement made and as such, whatever he has state d in the examination-in-chief remains un-rebutted and has to be accepted. It ha s also been submitted that the difference of age of Abdul Aziz reflected in the voters list and the passport has to be ignored as the Election Commission of Ind ia always makes a mistake in recording the age in the voters list. The learned counsel further submits that in another proceeding instituted before the Tribuna l, namely, FT (3rd Tribunal) Case No.112(III)/2009, the same Tribunal has declar ed the petitioner’s brother as Indian national. Mr. Mahmud, therefore, submits that the learned Member, Foreigners Tribunal has committee illegality in opining that the petitioner is a foreigner and such finding is perverse, being not base d on the evidence adduced by the parties. [6] Per contra, Mr. Choudhury, learned Central Government counsel an d Mr. Bora, learned State counsel appearing for the respondents supporting the o rder passed by the learned Member, Foreigners Tribunal, submit that the opinion is based on the evidence adduced by the parties, which has been rendered after p roper appreciation of the evidence on record. Referring to the documents exhibi ted by the petitioner before the Tribunal, more particularly, Exhibits-1, 3 and 4, it has also been submitted that though the petitioner in his deposition has s tated that Abdul Aziz Sheikh and Abdul Aziz is one and the same person, who has not been cross-examined by the State, it is apparent from the Exhibits-1 and 3 t hat Abdul Aziz Sheikh and Abdul Aziz is not one and the same person, as while th e date of birth of Abdul Aziz Sheikh has been recorded as 12th February, 1913 in the passport issued (Exhibit-1), the age of Abdul Aziz in Exhibit-3 has been re corded as 40 years. It has also been submitted that there is no evidence on rec ord that Aziz Ali, who is shown to be the husband of Sara Khatun Bibi is Abdul A ziz, who, according to the petitioner, is his father. The learned counsel refer ring to the Exhibits-4 and 5 voters list of 1970 and 1997 submits that though th e petitioner has claimed that Abdul Mannaf, son of Aziz Ali, whose name was reco rded in the voters list of 1970 as Abdul Mannaf, son of Aziz Ali, and as Abdul M annas, son of Abdul in the voters list of 1997, is one and the same person, who, according to the petitioner is his brother, those are 2(two) different persons, as the age of Abdul Mannaf, son of Aziz Ali in the voters list 1970 has been re corded as 26 years and the age of Abdul Mannas, son of Abdul in the voters list 1997 has been recorded as 31 years. The learned counsel also submits that Exhib it-7 document, i.e. voters list of 1997 contained the name of one Md. Abdul Mann as, whose age is 40 years and, therefore, Abdul Mannas and Abdul Mannaf is not o ne and the same person. I have considered the submissions advanced by the learned counse [7] l appearing for the parties and also perused the records, apart from the opinion rendered by the learned Member, Foreigners Tribunal. The petitioner in order to prove that he is an Indian national a [8] nd is not a foreigner has examined himself. No other witness was examined by th e petitioner. The petitioner in his examination-in-chief has stated that Abdul Mannaf and Abdul Aziz Sheikh is one and the same person. The petitioner in orde r to prove that he is an Indian national, as noticed above, has proved 9(nine) d ocuments. In Exhibit-1, passport, the name of Abdul Aziz Sheikh appears, whose date of birth has been recorded as 12th February, 1913, as is apparent from the original passport produced before this Court by Mr. Mahmud, learned counsel for the petitioner. The petitioner has also proved the document being the voters li st of 1965 containing the name of Abdul Aziz, son of Osman Ali, whose age in the said voters list is recorded as 40 years. If Abdul Aziz Sheikh was born in the month of February, 1913, his age in the voters list of 1965 ought to have been recorded as 52 years. But the age of the person, namely, Abdul Aziz, has been r ecorded in the 1965 voters list was recorded as 40 years. It is, therefore, evi dent that Abdul Aziz, whose name has been enumerated in the 1965 voters list and Abdul Aziz Sheikh in whose favour passport was issued is not one and the same p erson. The contention of the petitioner that mistake has been committed by the Election Commission in recording the age of Abdul Aziz in the voters list of 196 5, cannot be accepted as no evidence is led in that respect. It also appears th at in Exhibit-3 voters list of 1965 as well as Exhibit-4 voters list of 1970, th e name of one Sara Khatun Bibi has been recorded, whose husband’s name is Aziz A li. No evidence is led by the petitioner to demonstrate that Aziz Ali and Abdul Aziz, whose another name claims to be Abdul Aziz Sheikh, are one and the same p erson. The petitioner having claimed that his father’s name is Abdul Aziz @ Abd ul Aziz Sheikh, the petitioner could not, therefore, proof that Sara Khatun Bibi is his mother’s name, whose name appeared in the voters lists of 1965 and 1970. Exhibit-4 voters list also contains the name of one Abdul Mannaf, whose age ha s been recorded as 26 years. In the voters list of 1997 (Exhibit-5), the name o f Abdul Mannas, son of Abdul appears, whose age, however, has been recorded as 3 1 years. According to the petitioner, Abdul Mannaf and Abdul Mannas is one and the same person. While the age of Abdul Mannaf has been recorded as 26 years in the voters list of 1971, in the voters list of 1997, the age of Abdul Mannas has been recorded as 31 years. If Abdul Mannaf and Abdul Mannas is one and the sam e person, his age in 1997 voters list would have been 53 years. Again in the vo ters list of 2005 (Exhibit-7), the name of one Md. Abdul Mannas, son of Abdul Az iz, aged about 40 years was recorded. Hence, they cannot be one and the same p erson. The petitioner’s name has been recorded in the voters list of 2005 and 2 009, (Exhbits-8 and 9), whose name has also been recorded in the voters list of 1997 (Exhibit-6). The petitioner has also proved the certificate issued by the village headman (Exhibit-2), which is dated 1st January, 2012. Those documents having been issued after 25th March, 1971 and not pertaining to the period prior to 25th March, 1971, those are not relevant for the purpose of recording the fi nding that the petitioner is not a foreigner and is an Indian national, the cut off date being 25th March, 1971, more so, when the petitioner could not prove by adducing any evidence that his parents name appeared in the voters list or the person in whose favour passport was issued is his father. The contention that t he petitioner’s brother has been declared as Indian citizen by the Tribunal and as such the petitioner also ought to have been declared as Indian citizen, also cannot be accepted, as the petitioner is required to prove the same, which he fa iled to do. [9] In view of the aforesaid discussion, I am of the view that the l earned Member, Foreigners Tribunal has not committed any illegality in passing t he impugned order requiring interference in exercise of the writ jurisdiction un der Article 226 of the Constitution of India. [10] [11]
Decision
The writ petition is, therefore, dismissed. No costs. The Registry is directed to send down the records.