High Court
Case Details
WP(C) 2017/2013 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER (CAV) This writ petition is directed against the judgment and order dated 11.02.2013 p assed in FT Case No. 06 (III)/2012 (Reference IM(D)T No. 30/04) (State of Assam -Vs- Rahman Ali @ Rakhman Ali and others).
Legal Reasoning
I have heard Dr. B. Ahmed, learned counsel for the petitioners. Also hea 2. rd Mr. M. Bhagawati, learned CGC and Mr. N. Upadhyay, learned State Counsel. I h ave also considered the entire materials on record including the records receive d from the Tribunal. On receipt of the notice from the Tribunal, the petitioners who are the 3. husband and wife and their minor son responded to the same by submitting written statement and photocopies of some documents. Learned Tribunal, on perusal of th e entire evidence on record and appreciating the same, has held that the petitio ners are illegal migrants having entered into India without any authority subseq uent to 25.03.1971. 4. In the proceeding before the Tribunal, the petitioners, particularly the petitioner No. 1 Rahman Ali @ Rakhman Ali, produced 7(seven) documents, which a re copies of the voter lists of 1965, 1970, 1989, 1997 and 2010; Certificate of the Gaonburah and the Sale Deed dated 10.12.1963 (Exhibit- 1 to 7). As recorded in the impugned judgment, the petitioner named his father as Khurshed Ali @ Furs hed Ali, son of Haitulla. However, in the written statement, the OP No. 1, no wh ere stated the name of his father or grandfather, though in paragraph-5, he stat ed that his own name along with his father appeared in the voter list of 1965 un der 53 No. Sarukhetri, Legislative Assembly Constituency. In the affidavit filed in support of his written statement, the petitioner No. 1 named himself as Rahm an Ali, son of Khurshed Ali. In paragraph-2 of the evidence on affidavit, the pe titioner No. 1 named his father as Khurshed Ali @ Furshed Ali. He also named his mother as Hajera Khatun. In Paragraph-3 of the said affidavit, he also stated t hat the name of his father and grandfather appeared in the voter lists of 1970 a nd 1965 under 53 No. Sarukhetri, Legislative Assembly Constituency. 5. In paragraphs 4, 5 and 6 of the affidavit, the petitioner stated that hi s own name appeared along with his father in the voter lists of 1989, 1997 and 2 010. As recorded by the learned Tribunal, in paragraph-2 of the affidavit, the w ords (cid:28) @ Furshed Ali (cid:29) and in paragraph-3 of the affidavit, the words (cid:28)and also m y Grand father’s name (cid:29) were added subsequently. In the very first line of the af fidavit, it is found written as (cid:28)I Rahman Ali, aged about 43 years, son of Khurs hed Ali, by caste Muslim & & (cid:29). It has been rightly recorded by the learned Tribun al that when the affidavit was sworn by Rahman Ali, son of Khurshed Ali, the afo rementioned words quoted above were not there. Moreover, the affidavit was not s worn showing the father of the petitioner No. 1 as Furshed Ali. 6. Independent of the above, upon verification of the records received from the Tribunal and on perusal of the said affidavit, subsequent insertion of word s after swearing of the affidavit is easily discernible. Such insertion is witho ut any authentication. Thus, the very sanctity of producing a sworn affidavit in the court of law has been destroyed. The petitioner No. 1 has also not clarifie d that the name of Furshed Ali was wrongly inserted as Khurshed Ali in the 1989, 1997 and 2010 voter lists. Similarly, there was also no clarification that the name of Khurshed Ali was wrongly recorded as Furshed Ali in the voter lists of 1 965 and 1970. 7. On perusal of the documents produced by the petitioners, it is found tha t the age of Furshed Ali is recorded as 30 and 35 years respectively in the 1965 and 1970 voter lists, whereas the age of Khurshed Ali is recorded as 65 years i n 1989 voter list. If Furshed Ali and Khurshed Ali is one and the same person, h is age should have been recorded as 54 year and not 65 years in the 1989 voter l ist. In paragraph-2 of the affidavit submitted by the petitioner No. 1, he ha 8. s named his mother as Hajera Khatun, but Exhibits 1 and 2 clearly show the name of the wife of Furshed Ali as Hajiran Nessa. In Exhibit 3, the name of the wife of Khurshed Ali is shown as Hajera Nessa. Significantly, in Exhibits 4 and 5, i t is shown as Hajera Khatun, wife of Khurshed Ali. Exhibit 6, certificate issued by the Gaonburah indicates Rakhman Ali as son of Khurshed Ali. Exhibit 7 sale d eed was registered in the name of one Haitullah Mia, son of Aripullya Mia, but o n perusal of the exhibits 1 and 2, it is found that the name of the father of Ha itulla Ali recorded therein as Arik Ulla and Arik and not Aripullya Mia. 9. Above being the position, the Learned Tribunal has rightly held that the re are serious discrepancies in the version of the petitioners vis-à-vis documen ts produced by them. The petitioners also failed to produce any voter list of pr e 1989 showing the name of Khurshed Ali. 10. The learned Tribunal has also considered the 5 documents produced by the petitioner No.2 and marked as Exhibit 8 to 12. In paragraph-9 of the affidavit filed by her, it has been stated that the name of her grandfather appeared in th e voter list of 1966 (Exhibit-10) where the name of one Lyad Ali, son of Azim Al i, aged about 80 years along with 5 other Members of his family is found recorde d. However, in absence of any linkage established to the said name, the learned Tribunal rightly disbelieved the story made out by the petitioners and I see no reason to interfere with the findings of the learned Tribunal. 11. In Sarbananda Sonowal-I Vs. union of India reported in (2005) 5 SCC 665, the Apex Court while discussing the problem being faced by the State of Assam d ue to illegal migration and their continued presence in the State has been vivid ly discussed the alarming situation. While striking down the IM(D)T Act, 1983, t he Apex Court also dealt with the modality of proving one’s Indian citizenship. It has been emphasized that the burden of proof is always on the proceedee as pe r provisions of Section 9 of the Foreigners Act, 1946. In Sarbananda Sonowal-I, the Apex Court dealing with the burden of proof, made the following observation :- (cid:28)26. There is good and sound reason for placing the burden of proof upon the per son concerned who asserts to be a citizen of a particular country. In order to e stablish one’s citizenship, normally he may be required to give evidence of (i) his date of birth (ii) place of birth (iii) name of his parents (iv) their place of birth and citizenship. Sometimes the place of birth of his grandparents may also be relevant like under Section 6-A(1)(d) of the Citizenship Act. All these facts would be necessarily be within the personal knowledge of the person concer ned and hot of the authorities of the State. After he has given evidence on thes e points, the State authorities can verify the facts and can then lead evidence in rebuttal, if necessary. If the State authorities dispute the claim of citizen ship by a person and assert that he is a foreigner, it will not only be difficul t but almost impossible for them to first lead evidence on the aforesaid points. This is in accordance with the underlying policy of Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any per son, the burden of proving that fact is upon him. (cid:29) Above apart, merely by producing some photocopies, one cannot establish 12. his Indian citizenship. Even in case of production of certified copies of the do cuments, something more 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), e ven admission of a document in evidence does not amount to its proof. In other w ords, mere making of exhibit of a document does not dispense with its proof, whi ch is required to be done in accordance with law. It was the duty of the petitio ners to have proved the documents in accordance with law. Under the Law of Evide nce also, it is necessary that contents of documents are required to be proved e ither by primary or by secondary evidence. At the most, admission of documents m ay amounts to admission of contents but not its truth. Thus, the documents (Phot ocopies) having not been produced and marked as required under the Evidence Act, cannot be relied upon by the Court. Contents of the document cannot be proved b y merely filing in a Court. 13. Needless to say that the High Court exercising its power of judicial rev iew 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 Court/ Tri bunal exercise a jurisdiction without being empowered or in excess of it or fail s to exercise the vested jurisdiction or acts illegally, the Writ Court exercisi ng its jurisdiction can interfere with the same. The High Court can interfere wi th the order of the Tribunal exercising its writ jurisdiction only if it is prov ed that it is a case of no evidence at all or there is error apparent on the fac e of the record. The power of judicial review under Article 226 of the Constitut ion 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 there may be conceivably two views. In the instant case, I do not find any infirmity in th e impugned judgment and order requiring any interference of this Court exercisin g its power of judicial review under Article 226 of the Constitution of India. 14.
Decision
The writ petition is dismissed. There shall be no order as to costs. 15. Let copies of this judgment be sent to SP(B), Barpeta and the Deputy Com missioner, Barpeta for taking further course of action towards detention of the petitioner in the detention camp for his deportation to his country of origin an d for deletion of his name from the voter list. Copies of this order shall also be sent to the Union Govt. in the Ministry of Home and so also to the above two authorities for their necessary follow up action in terms of this judgment and o rder. Another copy be furnished to Mr. N. Upadhyay, learned State Counsel for hi s follow up action. 16. List after one month for furnishing report by the respondents, more part icularly, the SP(B), Barpeta and Deputy Commissioner, Barpeta regarding action t aken in terms of this judgment and order. 17. Let the LCR be sent down along with the copy of this judgment and order.