Md. Majidur Rahman v. State of Assam

#4. On 21.9.2011, another set of lawyer appearing on behalf of the petitione r submitted that the petitioner would appear before this Court on 23.9.2011. How ever, as recorded in the order dated 23.9.2011 after much efforts and constant m onitoring of the case by this Court, as reflected in the aforesaid orders, the p etitioner could be arrested by the Police on 22.9.2011.

#5. After such non-compliance of the order of this Court by the petitioner, upon invoking writ jurisdiction of this Court, the petitioner filed an additiona l affidavit on 1.11.2011 through his relation, in which it has been stated that after filing of the writ petition, the petitioner had gone to Meghalaya where he remained for about 2 (two) years and could come back only in August, 2011. Acco rding to the said affidavit, the petitioner was not aware of the orders passed b y this Court in his own writ petition.

#6. In the aforesaid affidavit, the petitioner has also made certain stateme nts to the effect that he is an Indian citizen and not a foreigner, as has been held by the Tribunal.

#7. The petitioner has also filed another affidavit on 17.12.2011 through on e Mominur Islam, who claims to be the brother of the petitioner stating about th e NRC of 1951 purportedly containing the name of the father of the petitioner, c ertificate issued by the particular Gaon Panchayat dated 8.8.2005, Admit Card is sued by the Board of Secondary Education, Assam (SEBA), containing the name of o ne Mazidur Rahmal Akond and also the Mark sheet dated 9.7.93 containing the same name. In the said affidavit, it has also been stated that the petitioner was a student of Higher Secondary School. In this connection, the petitioner has refer red to the admit card issued by the Assam Higher Secondary Education Council and the mark sheet for the year 1994 and 1995.

#8. I have heard Mr. D.P. Chaliha, learned senior counsel for the petitioner as well as Mr. H.K. Barman, learned State Counsel and so also Mr. T.C. Chutia, learned Standing Counsel, SEBA and Mr. M. Bhagawati, learned CGC. I have also pe rused the records of the Tribunal. My findings are as follows.

#9. As the records of the Tribunal have revealed, the petitioner Md. Majidur Rahman S/o. Md. Nur Baktar Rahman, aged about 28 years was suspected to be an i llegal migrant and accordingly, the Superintendent of Police(B), City, Guwahati, made a reference to the Tribunal. The enquiry was conducted during the year 200

#10. On receipt of the reference, the Tribunal issued notice to the petitione r and he appeared before the Tribunal on 30.11.2007. Thereafter on all subsequen t dates, namely, 9.1.2008, 30.1.2008, 13.2.2008, 27.02.2008, he remained absent without any steps. It appears that the petitioner on the first date of appearanc e had submitted 3 (three) documents (all photocopies). The first document (not legible) contains the purported signature dated 19.1.1989 of the Secretary, Sout h Salmara Mondol Congress(I) Committee and the said document projected as voter list (extract) only contains the names of Abdul Karim and Alchan Nessa Bibi, age d 35 and 25 years.

#11. The 2nd document is dated 6.10.1985 purportedly containing the NRC entry naming 9 (nine) persons, one of whom is Noor Bhakta Sk S/o. Abdul Sk aged 16 ye ars. The 3rd document is dated 8.8.2005 purportedly issued by the particular Gao n Panchayat certifying that one Mozidur Rahman Akand S/o. Nur Bokto Akand was re sident of the said Gaon Panchayat under P.S. South Salmara in the district of Dh ubri. The certificate also certifies that the name of his father had entered in the NRC of 1951.

#12. The petitioner never exhibited and proved the said documents in the proc eeding before the Tribunal and as noted above, remained absent all throughout af ter the first appearance.

#13. As regards his non-appearance before the Tribunal, the petitioner has st ated in paragraph 5 of the writ petition that after submission of the aforementi oned documents, the office staff of the Tribunal told him not to worry about the matter and that if necessary, would serve further notice on him. Accordingly, h e did not appear any further in the Tribunal. Thus, the petitioner has blamed th e office staff of the Tribunal without naming them. This kind of plea is not at all tenable that too in a proceeding in which as per the provisions of Section 9 of the Foreigners Act, 1946, the burden of proof lies on the proceedee to estab lish his Indian citizenship.

#14. That apart, mere production of some photocopies of some documents cannot absolve the liability of the proceedee to prove the same as required under the Evidence Act. Even mere admission of a document in evidence does not amount to p roof. In other words mere making of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law. Under the Law o f Evidence also, it is necessary that contents of documents are required to be p roved either by primary or by secondary evidence. At the most, admission of docu ments may amount to admission of contents but not its truth. Documents having no t been produced and marked as required under the Evidence Act, cannot be relied upon by the Court. Contents of the documents cannot be proved by merely fining i n a Court.

#15. In the instant case, the conduct of the petitioner has been noted above. Firstly, he appeared before the Tribunal on the first date fixed and submitted the aforesaid documents (all photocopies). Thereafter he remained absent all thr oughout. Secondly, coming to the writ court invoking its writ jurisdiction, he d efied the interim order passed by this Court, in terms of which he was required to appear before the Sr.SP(B) on or before 12.6.2009. Not to speak of appearing before the said authority, he did not even respond to the instant proceeding ins pite of several opportunities granted. Eventually, because of the constant monit oring of this case by this Court, he could be arrested on 22.9.2011.

#16. It is only after the aforesaid development, the petitioner has now urged all sorts of grounds by filling additional affidavit inter alia contending that he is known by 3 (three) names, namely, Md. Majidur Rahman Akond @ Md Md. Mozid ur Rahman @ Mozidul Rahmal Akand and that his father is also known by two names, namely Shri Nur Bhakta Sk @ Nur Bokto Akand. With the aforesaid contention, he has placed reliance on the documents annexed to the affidavit filed on 17.12.201 1. Document-1 is the purported NRC entries containing the name of his father No or Bhakta Sk S/o. Abdul Sk. Document-2 is the aforementioned G.P. certificate da ted 8.8.2005 certifying the petitioner to be the son of said Nur Bokto Akand, wh ose name entered in the NRC of 1951. Documents 3 & 4 are the admit card and mark sheet issued by the SEBA in favour of one Md. Mozidur Rahmal Akond. Documents 5 & 6 are the admit card and mark sheet issued by the Higher Secondary Education Council, Guwahati in favour of one Mozidur Rahman Akand. Documents No. 7 & 8 ar e also admit card and mark sheet issued by Assam Higher Secondary Education Coun cil in favour of Md. Mozidur Rahman Akand S/o. Md. Nur Bakta Bepary. The word ’B epary’ although tried to be scored off by using eraser but is still legible. Doc ument No. 9 is another certificate purportedly issued by the Principal of the pa rticular School in favour of one Md. Mozidur Rahman Akand S/o. Md. Nur Bakta Bep ary. Like wise, Document-10 is also a School Certificate issued in favour of Md. Mozidur Rahman Akond S/o. Md. Nur Bakta Bepary. Document marked as Document No. 11 is the extract of the voter list of 1966 and 1970 containing the name of one Nur Bakta Sk. Document No. 12 is again the HSLC certificate issued in favour of one Md. Mozidul Rahmal Akond. Documents No. 13 & 14 are the certificates issue d in favour of Md. Mozidur Rahman Akond S/o. Md. Nur Bakta Bepary. On the basis of the aforesaid documents, the petitioner claims that he i 17. s an Indian citizen, by birth. However, there is no explanation as to why the pe titioner at the first instance before the Tribunal, could not produce any of the said documents except the 3 (three) documents about which discussions have been made above. There is also no explanation as to why there is variation in his na mes, even in the School certificates, more particularly, in the HSLC certificate s and HSSLC certificates. While in the HSLC certificate, the person named is one Md. Mozidur Rahmal Akand, in the HSSLC certificates, the candidate named is Md. Mozidur Rahman Akand. Likewise, there is also variation in the name of the fath er of the said candidate. While in the admit card relating to HSLC examination, he has been named as Md. Nur Bakta Bepary but in the HSSLC certificate, the fath er of the candidate is Md. Nur Bakter Akand. In another admit card of the same c ouncil, his name is Md. Nur Bakta Bepary and the word (cid:28)Bepary’ was sought to be erased. The voter list on which the petitioner has placed reliance, contains the name of Nur Bakta Sk whom the petitioner has sought to identify as his father w ith the plea that Nur Bakta Akond, Md. Nur Bhakta Sk, Md. Nur Bakta Bepary and N ur Bakter Akand are one and the same person. There is no explanation as to how t here could be so much of variation in names in the documents pertaining to 2 (tw o) successive examinations, namely, HSLC and HSSLC. While in the HSLC certificat e, the name of the candidate is Md. Mozidul Rahmal Akond in the HSSLC certificat e, the name of the candidate is Md. Mozidur Rahman Akond.

#18. With the above kind of variations and conduct, the petitioner cannot be permitted to invoke the writ jurisdiction. Even otherwise also, the writ Court c annot make a roving enquiry in respect of the documents on which the petitioner has placed reliance after defying the proceeding before the Tribunal and defying the interim order of this Court.

#19. The proceeding before the Tribunal was in the name of Md. Majidur Rahman S/o. Md. Nur Bhaktar Rahman. Notice of the proceeding was also served on the pe titioner in that name and he also responded to the same by appearing on the firs t date on which date he produced the aforementioned three documents (all photoco pies) without proving the contents thereof. The petitioner cannot be permitted t o take any name resembling to his and his father’s name, so as to contend that a ll the names belong to one and the same person.

#20. As has been held by the Apex Court way back in 1969 in Tilokchand Motich and Vs. H.B. Munshi reported in (1969) 1 SCC 110, the petitioner has no right to move the Court for enforcement of his fundamental right on a petition containin g misleading and inaccurate statement and if he files such a petition, the Court will dismiss it. A calculated design and suppression of material facts in order to secure admission and interim relief, which, if disclose, would entitled the petitioner to the extra ordinary remedy, or in any case, would have materially a ffected the merits on both the interim and ultimate relief claimed would deprive the petitioner from considering his case on merits. In the instant case, the pe titioner after invoking the writ jurisdiction, defied the interim order passed b y this Court and he remained away from the proceeding for more than 2 (two) year s.

#21. This Court while exercising extra ordinary jurisdiction under Article 22 6 of the Constitution of India, cannot make a roving enquiry on disputed questio ns of facts. The petitioner was given opportunity to defend the reference made a gainst him, which he failed to avail of. Having regard to the provisions of Sect ion 9 of the Foreigners Act 1946, which mandates the proceedee to discharge the burden of proof, it was incumbent on the part of the petitioner to discharge the same in accordance with law. He having failed to do so and there being no reaso nable ground to interfere with the exparte proceeding against him, this Court ex ercising its power of judicial review under Article 226 of the Constitution of I ndia, cannot interfere with the findings of the Tribunal. In the instant case, during investigation made by the SI(B), the petitio 22. ner could not produce any document to prove his Indian citizenship. The Tribunal has rightly observed in its impugned order that mere production of photocopies of the three documents mentioned above, was not enough. The petitioner did not p roduce the originals of the same nor did he prove the same. The Tribunal has als o referred to the decision of the Apex Court reported in AIR 1961 SC 1526 (The U OI & Ors Vs. Ghaus Mohammad) in which the Apex Court referring to section 9 of t he Foreigners Act 1946 held that the onus of showing that he is not a foreigner was upon the said petitioner. It was further observed that the proceeding under Article 226 of the Constitution of India would not be appropriate for a decision on the question. The petitioner after having failed to discharge the said burde n of proof as envisaged under Section 9 of the Foreigners Act, 1946, cannot now be permitted to invoke the writ jurisdiction with the kind of conduct noted in t his proceeding and raising all sorts of disputed question of facts.

#23. Situated thus, I have no hesitation to dismiss the writ petition upholdi ng the order passed by the learned Tribunal. Writ petition is dismissed leaving the parties to bear their own costs.

#24. Registry may transmit the case records to the Tribunal. The Sr. Superintendent of Police (B), Kamrup (Metro) and the Deputy Comm 25. issioner, Kamrup (Metro) are directed to take appropriate action in the matter t owards deportation of the petitioner from India and deletion of his name from th e voter list, if found to have entered.

#26. Let copies of this judgement and order be furnished to the Sr. Superinte ndent of Police (B), Kamrup (Metro) and the Deputy Commissioner, Kamrup (Metro). Another copy be sent to the Union of India in the Ministry of Home. An extra co py of this judgement and order may also be furnished to Mr. H.K. Barman, learned State Counsel for his necessary follow up action.

#27. List after one month for furnishing reports by the Sr. Superintendent of Police (B), Kamrup (Metro) and the Deputy Commissioner, Kamrup (Metro).