High Court
Case Details
WP(C) 3670/2012 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT & ORDER (ORAL) The instant writ petition has been filed by the writ petitioner challeng ing the legality and validity of the judgment and order dated 2.1.2012 passed by the learned Member, Foreigners Tribunal (1st) Morigaon in FT(D) Case No.1363/20 07 whereby and whereunder the learned Tribunal held and declared the writ petiti oner as an illegal migrant who came to India after 25.3.1971 and directed to del ete the name of the writ petitioner Musstt. Sahida Khatun @ Mahiran Nessa, wife of Jamal from the voters list as per law and further directing the Deputy Commis sioner (Election) and Superintendent of Police (B), Morigaon for taking necessar y action in view of Govt. Notification No.P.L.B./149/2008/88 dated 17.6.2009. 2. eard Mr. N Upadhyay, learned State counsel appearing for respondents. Heard Mr. A Sharif, learned counsel appearing for the petitioner. Also h 3. The facts in brief may be noted at the outset;- The Superintendent of Police vide communication dated 5.12.1997 in conne ction with D/N Case No.1087/1997 made a reference to the Member, Foreigners Trib unal (1st), (’Tribunal’ for short), Morigaon holding the view that one Musstt. M ahiran wife of Jamal aged about 41 years in 1997, a resident of village Kuranibo ri, PS Mayong, district Morigaon, Assam is suspected to be an illegal migrant wh o entered into India on or after 25.3.1971. Mahiran could not produce any docume nt to prove her Indian citizenship and that she is not an illegal migrant. Moreo ver, the name of Mahiran did not appear in electoral rolls prepared prior to 25t h day of March, 1971 and also in any public records, such as Panchayat Family Re gister, Refugee Register etc. The SP(B), Morigaon made the reference on the basi s of the verification report dated 6.11.1997 basing on the spot Local Verificati on in respect of one Mahiran, wife of Jamal, resident of village Kuranibori unde r 79 Jagiroad S.C. Assembly Constituency, which was done during house to house e numeration commenced from 16.1.1997 to 15.4.1997. The verification report furnis hed by the E.R.O., LAC to the SP(B), Morigaon does not mention the name of the p etitioner. The petitioner’s case is that the said verification report dated 6.11 .1997 was prepared by the ERO, LAC for 79 Jagiroad SC, Assembly Constituency was on the basis of verification officer’s report dated 26.9.1997. The said report contains the name of one Mahiran wife of Jamal, a resident of Village Kuranibori whose date of birth as per report dated 26.9.1997 is 1957. However, the name of the petitioner was not mentioned in the aforesaid report. On receipt of the ref erence from the SP(B), Morigaon a case being FT(D) Case No.1363/2007 was registe red against Mahiran, wife of Jamal, resident of village Kuranibori, District Mor igaon and formal notice was issued to the opposite party, i.e. Mahiran on 23.7 .2009 fixing next date on 10.12.2009 but the notice could not be served as t he police of Mayong Police Station found a good number of women named as Mahira n Nessa. Due to difference of names of husband of all the women named as Mahiran Nessa, the police returned the notice as unserved to the Foreigners Tribunal, M origaon, with a detailed report dated 10.9.2009. Thereafter, no fresh notice was served but the Sub Inspector (B) of Mayong PS issued a direction to the police personnel on 24.10.2009 on the back page of the unserved notice to serve and ret urn, whereas the said notice was already returned to the Tribunal, with the deta iled report as far back as on 10.9.2009. Under pressure from police personnel wh o came to the house of the petitioner, she had to receive the notice and put her signature thereon as Mahiran Nessa although her name is Musstt. Sahida Khatun. After receipt of the notice, she had engaged an Advocate to appear before the Tr ibunal on her behalf. Accordingly her engaged counsel prepared the written state ment and filed the same before the Tribunal, wherein she has also raised the que stion of correction of her name. The learned Tribunal verbally asked her to writ e her name as Musstt. Sahida Khatun @ Mahiran. Along with the written statement so filed, she had also annexed various relevant documents to prove that she is a bonafide Indian citizen by birth and not an illegal migrant as claimed and also to prove that she is not Mahiran. The documents annexed in the written statemen t are;- i) Annexure-1- the voters list 1966, No.83 Bokani (SC LAC), wherein name of her father appears in Sl No.92 holding No.18 as Samiruddin son of Mamud Hussain. ii) Annexure-2- voters list of 1966, No.83 Bokani (SC, LAC) wherein name of her husband appears in Sl No.197 holding No.48 as Jamal, son of Jamir, iii) Annexure-3, Certificate dated 7.7.2011 issued by Ruhit Das Sarka r, Gaonburah, Burgaon in proof of the fact that her father’s name was included i n the voters list of 1966 in Sl No.92, holding No.18 and voters list of 1970 in sl. No.84 holding No.18 of village Kuranibori under No.83, Bokani (SC LAC). iv) Certificate dated 15.7.2010 issued by Md. Osman Ali, Govt. Gaonb ura, Buraburi to proof the fact that the petitioner’s name was included in the v oters list of 1970. v) Annexure-4- voters list of 1971, No.83 Bokani (SC LAC) wherein t he name of the petitioner appears in Sl. No.900 holding No.48 of village Kuranib ori to prove her Indian citizenship. She had also annexed voters list of 1975, 1979, 1985 and 1989 in her wri tten statement. After filing of the written statement, next date was fixed for her evide nce. Accordingly, her evidence was recorded on 10.8.2007, wherein she had catego rically stated that she was born at village Patekibori under Mayong Police Stati on, then District Nagaon, Assam and that she also read up to Class IV at Patekib ori Primary School and that she had submitted the voters list of 1971, 1975, 197 9, 1985 and 1989 wherein her name appears as voter, village Kuranibori, PS Mayon g now District Morigaon, Assam. She had further stated that the land records and other documents of her father were also filed to prove Indian citizenship of he r father, other family members from her father’s and husband’s side to prove her Indian citizenship. However, despite her evidence and filing of the aforesaid d ocuments, the learned Tribunal passed the impugned judgment and order declaring her as a Foreigner as indicated hereinabove. Further case of the petitioner is that while passing the impugned judgme nt and order, the learned Tribunal did not consider the following points;- i) whether the petitioner was born at village Patekibori under Mayo ng PS, District at present Morigaon, Assam, ii) whether at the time of her birth, her parents were Indian citize n, whether she is responsible for any mistake committed by the comp etent authority in respect of voters list of 1971 (omitting the name of the LAC) iii) where her name appears as voter, iv) whether Mahiran and Saheda Khatun is the same person or not.
Legal Reasoning
The learned State counsel, on the other hand, supporting the opinion ren 4. dered by the Tribunal has submitted that there being anomalies in the document s ubmitted by the petitioner, the Tribunal has rightly rendered the opinion that t he petitioner is a foreigner and not an Indian. More so, Section 9 of the Foreig ners Act 1946 imposed the burden on proceedee to prove that he or she is not a f oreigner but Indian National. In the instant case in hand, the petitioner could not prove by authentic document that she is an Indian national though she has su bmitted several documents. Therefore, submitted Mr. Upadhyay, learned State coun sel that the Tribunal has rightly passed the judgment and order which may not be interfered with in the instant writ petition invoking power under Article 226 o f the Constitution of India. I have considered the submissions made by the learned counsel appearing 5. for the parties. Also perused the materials available on record including the ju dgment rendered by the learned Tribunal. 6. In view of the facts and circumstances narrated hereinabove, the questio n arises as to the scope of interference with the Tribunal’s order in a writ pro ceeding. Article 226 of the Constitution of India confers on the High Court, pow er to issue appropriate writ to any person or authority within its territorial j urisdiction. It has been held by this Court that the Tribunal constituted under the Foreigners Act 1946, (’1946 Act’ for short) read with Foreigners (Tribunals) Order 1964, (’1964 Order’ for short) is required to discharge the quasi judicia l function. The High Court, therefore, has the power under Article 226 of the Co nstitution to issue writ of certiorari quashing the decision of the Tribunal in an appropriate case. The scope to interfere with the Tribunal’s order in exercis e of jurisdiction under Article 226, however, is limited, inasmuch as, the writ of certiorari can be issued for correcting errors of jurisdiction, or if it fail ed to exercise its jurisdiction or if such court or Tribunal acts illegally in e xercise of its undoubted jurisdiction or when it decides without giving an oppor tunity to the parties to be heard or violates the principles of natural justice. The power of writ court under certiorari jurisdiction being supervisory and not appellate jurisdiction, the Court cannot review the findings of facts reached b y the inferior court or Tribunal. However, writ of certiorari can be issued if p rima facie found that in Tribunal’s order there is an error apparent on the face of the record. In the instant case at hand, the petitioner had examined herself as a witness and had also exhibited several exhibits, veracity 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 initial burden of proof lies on the petitioner and she had successfully discharged the burden. Having d one so, the onus to prove the prosecution case shifts on the prosecution which w as not discharged by the prosecution. The contents of the documents proved at tr ial and not contradicted by the prosecution has to be deciphered by the Tribunal judiciously. The doubt, if any, which might arise in the mind of the Tribunal m ust be answered not like a common man but like a prudent person who is trained i n law. In the instant case, the evidence on record, viz. Ext. Ka (voters list of 1971), Ext. Kha (Copy of draft chitha), Ext. Ga (copy of Jamabandi 1975-76), Ex t Gha (1) to Gha (9) (revenue receipts for the year 1966-2008), Exts. Unga and C ha (voters lists of 1966 and 1970 respectively), Ext Chaa, Ja and Jha (voters li st of 1975, 1979 and 1985 respectively of Jagiroad constituency), Ext. Niya and Ta (certificates issued by Gaonbura and Secretary, Kuranibari GP) Ext. Tha (cert ificate issued in respect of petitioner’s marriage) brought forth by the alleged foreign national were not duly considered by the Tribunal, rather the same was unduly interpreted against her. The learned Tribunal observed that name of the c onstituency has not been mentioned in the voters list of 1971, where the petitio ner’s name appeared as voter. It is to be noted that the documentary evidence pr oduced by the petitioner were prepared under the authority of statutory law by s tatutory authority by following procedure laid down by law. When no allegation i s made that the name of the petitioner in the electoral roll is not the person i nvolved in the proceeding, it is not proper to presume otherwise, that too witho ut any evidence adduced by the prosecution. On the face of the failure of the p rosecution to rebut the case of the petitioner, the Tribunal cannot supplement t he said rule and even the benefit of doubt, if any, against the petitioner. The question of determination of citizenship of a person in a country st 7. rikes upon the very root of right of such person emanating from the Constitution and other laws in force in the country. As such, determination of citizenship s tatus 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 hi s/her citizenship credential, because the law in vogue mandates that the burden of proof of citizenship lies on the person against whom, he/she being a foreigne r is alleged. 8. When the petitioner has proved that she is an Indian citizen, the burden to prove the said fact is discharged. Now the burden is shifted to the prosecut ion to prove their case. Hence, there is no question of dispensing with the pros ecution evidence. So far this case is concerned, there is a serious lapse on the part of the prosecution in discharging their burden by adducing evidence to reb ut the case/evidence of the petitioner. In view of the same, the finding that th e petitioner is not Indian citizen is absolutely perverse and not sustainable in law. 9. Hence, considering the facts and circumstances of the case and in view o f the discussion made hereinabove, the judgment and order dated 2.1.2012 passed by the learned Foreigners Tribunal (1st), Morigaon in FT(D) Case No.1363/2007 is interfered with. Consequently, the matter is remitted to the learned Foreigners Tribunal 10. (1st), Morigaon for a decision afresh. The petitioner shall appear before the le arned Tribunal on 10.3.2014. 11. The Registry is directed to send down the records to the learned Member, Foreigners Tribunal (1st), Morigaon forthwith. On receipt of the record of the case, the prosecution may be given a chance to adduce evidence within a reasonab le period and after hearing the parties shall pass necessary order in accordance with law. The whole proceeding may be completed preferably within a period of t hree months from the date of appearance of the petitioner before the Tribunal as fixed hereinabove. 12. Needless to say that impugned judgment and order is interfered with dire cting the Tribunal for passing necessary order in accordance with law and has no t determined finally the status of the petitioner. Thus, keeping in mind the fac t that the petitioner was allowed to remain free on certain conditions as per or der passed by this Court on 4.3.2013 in MC No.2433/2012, it is, therefore, provi ded that during the pendency of the proceedings after remand before the Tribunal , she will be allowed to remain free, subject to observance of the following con ditions; 1) the petitioner shall not leave the State of Assam without obtain ing written permission from the learned Member, Foreigners Tribunal (1st), Morig aon, 2) the petitioner shall appear before the Officer-in-Charge of Juri
Decision
sdictional police station fortnightly. 13. . However, there shall be no order as to costs. The writ petition is hereby allowed in terms of the aforesaid directions