High Court
Case Details
WP(C) 342/2013 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER (CAV) 1. This writ petition is directed against the judgment dated 22.06. 2010, passed by the learned Member, Foreigners Tribunal (1), Morigaon, in F.T. C ase No.39/2007 (State of Assam -vs- Md. Nur Islam and others), by which the 09(n ine) petitioners have been declared to be foreigners, who illegally entered into Assam after 25.03.1971.
Legal Reasoning
I have heard Mr. M. U. Mandol, learned counsel for the petitione 2. rs. I have also heard Mr. J.U. Laskar, learned State Counsel and Mr. M. Bhagabat i, learned CGC. I have also perused entire materials on record including the rec ords 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 19.07.2007, inter- alia, contending that they are not illegal migrants, but bona fide citizens of I ndia by birth. According to the written statement, the names of the petitioner N os. 1 and 2 and their family members appeared in the voter list of 1966 and 1970 and other petitioners being their children are automatically Indian citizens b y birth. It was also contended that the names of the parents of petitioner No.2 appeared in the voter list of 1965. 4. With the above averments made in the written statement, the peti tioners claimed to be Indian citizens by birth. In support of their such content ion, the petitioners produced photocopies of the voter lists of 1966, 1970, and also 1970, 1975, 2004; one sale deed dated 17.04.1984; another sale deed of 16.0 5.1984; a certificate dated 16.04.2010, issued by the Government Gaonburah; phot ocopy of voter list of 1965, another photocopy of voter list of 1965, photocopie s of 04(four) birth certificates and voter list of 2005. 5. While the State examined two witnesses as PW-1 and PW-2, the pet itioners examined two witnesses as OPW-1 and OPW-2. In the evidence of PW-1, it was stated that the petitioners are known to him and that they have been residin g in the village called Barbari since about 1975-76. He in his deposition furthe r stated that he did not know where they used to reside prior to 1975-76. Furthe r statement made by the witness is that when the police visited them for an enqu iry relating to their citizenship, they could not produce any documents in suppo rt of their Indian citizenship. In his cross examination, the witness stated tha t it was known to him that the petitioners No.1 and 2 had been casting votes sin ce 1985. He denied that he did not accompany the police party and that the polic e did not ask for any documents. He also stated that it was not to his knowledge as to whether the name of the petitioner No.1 was in the voter lists of 1965 an d 1970. He denied that the petitioners No.1 and 2 are Indian citizens by birth. 6. PW-2 in his deposition stated about the enquiry conducted and as to how he had gone to the petitioners’ place along with the PW-1 and on being a sked they could not produce any documents in support of their Indian citizenship . In his cross examination, he denied that he did not ask for documents from the petitioners. He also denied that the name of the petitioner No.1 was included i n the 1970 voter list. He also denied that the enquiry was not conducted properl y. 7. OPW-1 is the petitioner No.1, who in his deposition referred to the voter list of 1965 and 1970, so as to contend that his name appeared in the 1970 voter list and that of his father Ahmad Kha in the 1965 voter list. He also stated that the name of his father-in-law, namely, Jonab Ali Sheikh appeared in the voter list of 1965. Further statement made by him is that the name of the p etitioner No.2 appeared in the voter list of 2004 and that he had purchased a pl ot of land in 1984. He further stated that the name of his father-in-law Jonab A li appeared in the voter list of 1970. In the cross examination, he admitted tha t apart from the voter list of 1970, purportedly containing his name he could no t submit any other documents and that he has not submitted any voter list contai ning his name after 1970. 8. OPW-2 in his deposition stated that the petitioners are known to him and that they have been residing in the village since 1975. In the cross ex amination, he stated that the petitioner No.1 came to the village from the place called Dewaguri and that he has seen the petitioner No.1 casting votes. 9. The learned tribunal in appreciation of the evidence has held th at the petitioners could not establish their Indian citizenship that too by birt h and accordingly answered the reference in favour of State and against the peti tioners. None of the documents produced by the petitioners had been proved as re quired as per the law of evidence. In the voter list of 1965, 1970 and 1975, the name of one Nur Islam, Son of Ahamed, aged 29 years and 60 years respectively h ad appeared. 29 (twenty nine) years old Nur Islam i.e the petitioner No.1 in 197 0 could not have become 60 years in 1975. Similarly in the voter list of 2008 of 79 No. Jagirod LA constituency, name of one Nur Islam, aged 65 years appears. O n a bare perusal of the documents, it appears that the name and age of the petit ioner No.1 including his father’s name do not tally with each other. In the vote r list of 2008, name of one Nurul Islam appears who cannot be said to be Nur Isl am. 10. Mere filing of some documents without proving the same as requir ed under the law of evidence, cannot establish the Indian Citizenship of the pet itioners. As per the own evidence of the petitioner No.1, he did not produce any voter list containing his name published after 1970. There is no explanation fo r the same. 11. As has been held by the Apex Court in (2010) 4 SCC 491 (LIC of I ndia Vs. Ram Pal Singh Bisen), even admission of a document 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 the documents in accordance with law. Under the Law of Evidence also, it is necessary that contents of docum ents are required to be proved either by primary or by secondary evidence. At th e most, admission of documents may amounts to admission of contents but not its truth. Thus, the documents (Photocopies) 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 by merely filing in a Court. 12. 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 13. In view of the above, I do not find any infirmity in the finding s recorded by the learned tribunal and accordingly the writ petition stands dism issed. Let copies of this judgment and orders be forwarded to Superinte 14. ndent of Police (B), Morigaon and Deputy Commissioner, Morigaon, for their neces sary follow up action of detaining the petitioners in the detention camp till th eir deportation to their Country of origin and deletion of names from the voter lists. Another copy of this judgment be furnished to Mr. J.U. Laskar, learned St ate Counsel for his necessary follow up action. 15. ribunal along with a copy of this Judgment. 16. 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