High Court
Case Details
WP(C) 2123/2013 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER (CAV) 1. This writ petition is directed against the judgment and order da ted 26.09.2012, passed by the learned Member, Foreigners Tribunal (2nd), Morigao n, in Case No. FT(C) 36/2009 [IM(D)T Case No.551/2001] (State of Assam -vs- Md. Samsuddin and others), declaring the petitioners to be foreigners, who entered
Legal Reasoning
into Assam after cut of date i.e. 25.03.1971. I have heard Mr. T.N. Srinivasan, learned counsel for the petiti 2. oners. I have also heard Mrs. H.M. Phukan, learned State Counsel and Mr. M. Bhag abati, learned CGC. I have also perused entire materials on record including the records received from the tribunal. 3. On receipt of the notice from the tribunal, the petitioners appe ared before the tribunal and filed their written statement on 26.04.2011, inter- alia, contending that they are all Indian citizens by birth and that the Investi gating Officer never visited them for any enquiry. It was contended that the nam e of the petitioner No.1 appeared in the voter list of 1966 and thereafter, in t he voter lists of 1997 and 2005. It was further contended that the name of the f ather of the petitioner No.2 Late Akbar Ali appeared in the voter list of 1966 a nd that of the petitioner No.2 in the voter list of 1997. As regards the other p etitioners, it was contended that they being their children, they are also India n citizens by birth. 4. In support of their aforesaid plea in the written statement, the y produced one certificate on plain paper purportedly issued by the Gaonburah on 17.04.2011; another three such certificates all dated 13.04.2011; another certi ficate, certifying that one Aiton Nessa, wife of late Akbar Ali is the resident of the particular locality; voter list of 2005, containing the name of one Samsu ddin, son of Iman Ali; voter list of 2004, containing the names of Aiton Nessa, wife of Samsuddin and Afazuddin, son of Samsuddin; voter list of 1997, containin g the names of Samsuddin and Aiton Nesa; voter list of 1970, containing the name of Iman Ali, copy of Jamabandi, containing the name of Iman Ali, son of Fazar A lil; voter list of 1966, containing the name of Iman Ali. 5. Oral evidence was adduced by both the parties. The PW-1, PW-2 an d PW-3 supported the case of the State by stating that when the police had visit ed the petitioners’ searching for proof of their Indian citizenship, they could not produce any documents. PW-3 proved the enquiry report. 6. The petitioners examined two witnesses, namely, Md. Samsuddin i. e the petitioner No.1 and one Khalilur Rahman as DW-1 and DW-2, respectively. In his deposition the DW-1 stated about his family and their background. In his cr oss examination, he stated that he is possessing his uncle’s land, but has been staying on Government land. He also stated that he could not produce any certifi cate regarding his birth in India. DW-2 in his deposition stated that the petiti oner No.1 is known to him. It is this witness, who in his deposition referred to the aforesaid documents produced by the petitioners. In his cross examination, he admitted of not having received any notice from the tribunal. He also admitte d that he is not the Government Gaonburah. He also stated that he is not aware a s to when the petitioners No.3 and 4 were born. 7. The learned tribunal in appreciation of the entire evidence on r ecord having held that the petitioners are not Indian citizens, but are illegal migrants, the petitioners have invoked the writ jurisdiction of this Court. Need less to say that this Court exercising writ jurisdiction cannot sit on appeal ov er the appreciation of the evidence by the fact finding authority i.e. the Forei gners Tribunal so as to return another finding. 8. As discussed by the learned tribunal, the DW-2 could not say abo ut casting of votes by the petitioners and he is also not aware of the marriage between the petitioner No.1 and 2 and as to when their children were born. He in his deposition admitted that Exhibit- Gha, Unga, Cha and Chha copies are not du ly filled up. 9. The Investigating Officer Akan Ali in his deposition as PW-3 cat egorically stated that during enquiry, it was found that the petitioners are ori ginally from village and police station Iswarganj of Moimon Singh district of Ba ngladesh and migrated to Mohmari village in Lahorighat police station of Morigao n district after 25.03.1971. 10. Merely by producing certain photocopies of documents, the petiti oners cannot establish their Indian citizenship that too by birth. Above apart, merely by producing some photocopies, one cannot establish his Indian citizenshi p. Even in case of production of certified copies of the documents, something mo re is required as per the Law of Evidence. As has been held by the Apex Court in (2010) 4 SCC 491 (LIC of India Vs. Ram Pal Singh Bisen), even admission of a do cument in evidence does not amount to its proof, in other words, mere making of exhibit of a document does not dispense with its proof, which is required to be done in accordance with law. It was the duty of the petitioners to have proved t he documents in accordance with law. Under the Law of Evidence also, it is neces sary that contents of documents are required to be proved either by primary or b y secondary evidence. At the most, admission of documents may amounts to admissi on of contents but not its truth. Thus, the documents (Photocopies) having not b een produced and marked as required under the Evidence Act, cannot be relied upo n by the Court. Contents of the document cannot be proved by merely filing in a Court. 11. Needless to say that the High Court exercising its power of judi cial review under Article 226 of the Constitution of India cannot sit on appeal over the finding of facts recorded by the Court/Tribunal. It is only when the Co urt/ Tribunal exercise a jurisdiction without being empowered or in excess of it or fails to exercise the vested jurisdiction or acts illegally, the Writ Court exercising its jurisdiction can interfere with the same. The High Court can inte rfere with the order of the Tribunal exercising its writ jurisdiction only if it is proved that it is a case of no evidence at all or there is error apparent on the face of the record. The power of judicial review under Article 226 of the C onstitution is limited only to correction of errors apparent on the face of the records and does not need long drawn out process of reasons on points whether th ere may be conceivably two views. In the instant case, I do not find any infirmi ty in the impugned judgment and order requiring any interference of this Court e xercising its power of judicial review under Article 226 of the Constitution of India. Accordingly the writ petition stands dismissed. 12. Let copies of this judgment and orders be forwarded to Superinte ndent of Police (B), Morigaon and Deputy Commissioner, Morigaon, for their neces sary follow up action towards detention of the petitioners in the detention camp till they are deported to Bangladesh and their names are deleted from the voter lists. Another copy of this judgment be furnished to Mr. J.U. Laskar, learned S tate Counsel for his necessary follow up action. 13. ribunal along with a copy of this Judgment. 14. uty Commissioner and Superintendent of Police (B), Morigaon. List after one month for furnishing compliance report by the Dep The Registry shall transmit the case record immediately to the T