High Court
Case Details
WP(C) 3631/2013 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER (CAV) 1. This writ petition is directed against the impugned judgment an d order dated 23.04.2013, passed by the learned Member, Foreigners Tribunal-III, Barpeta Assam, in FT Case No.20/III/07 (IMDT REF case No.3116/1997 dated 28.05. 1998) (State of Assam -vs- Kanuwa Begum). 2.
Legal Reasoning
I have heard Ms. S. sultana, learned counsel for the petitioner. I have also heard Mr. M. Bhagabati, learned CGC and Mrs. H.M. Phukan, learned S tate Counsel. I have also considered the entire materials on record, including t he records received from the tribunal. 3. As will be evident from the records of the case, long 16 years h ave gone by since the particular reference was made against the petitioner suspe cting her to be a foreign national, who entered into Assam after the cut off dat e i.e. 25.03.1971. 4. The case emanated from the report of the jurisdictional Local Ve rification Officer (LVO) to the then Electoral Officer for 46 No. Sarukhetri Ass embly Constituency, having doubt about the citizenship of the petitioner, forwar ded the matter in the prescribed format vide his memo dated 06.11.1997 to the Su perintendent of Police for deciding the question as to whether she is a citizen of India or not. On receipt of the request placed by the ARO, the Superintendent of Police forwarded the matter vide Reference Case No.3116/1997 dated 28.05.199 8 to the Foreigners Tribunal, Barpeta for determination of the nationality of th e petitioner. On receipt of notice, the petitioner did not respond to the same a nd accordingly by order dated 09.12.2003, an order for Ex-parte hearing was pass ed. Thereafter summons were sent to the LVO for adducing evidence, but none of t he summons was returned by the police concerned. Another notice was issued to th e petitioner, which was duly received by her, but again she remained absent with out any step. 5. After scraping the IMDT Act by the Apex Court in Sarbananda Sono wal -vs- Union of India, reported in AIR 2005 SC 2920, a fresh notice was served on the petitioner, on receipt of which, she appeared and filed Written Statemen t on 25.06.2007. The LVO and another witness, namely, Moinul Hoque, Gaonburah of village Barmara were summoned and were examined on oath by the tribunal on 26.0 9.2008 and 02.01.2009, respectively. On the other hand, the petitioner prayed fo r time to adduce her evidence. The records have revealed that on all subsequent dates, the case was to be adjourned mostly due to absence of the petitioner and on 13.08.2009, her engaged counsel filed a petition praying for permission to wi thdraw the Vokalat Nama on the ground of non cooperation on the part of the peti tioner. The petition was allowed and fresh notice was issued to the petitioner, on receipt of which, she again appeared on 27.10.2009 along with her newly engag ed counsel and submitted a petition to allow her to file written statement. The prayer was allowed. Thereafter on the 7th date fixed for filling written stateme nt, the petitioner filed her 2nd written statement on 26.03.2010. But on subsequ ent three consecutive dates fixed for relevant documents, she remained absent wi thout any steps. On the 4th date, she appeared along with her engaged counsel an d filed a petition, showing cause of her absence and prayed for further time, wh ich was allowed. On the next three dates also, petitions were filed on her behal f praying for time, which was allowed. 6. When the petitioner remained absent on consecutive 7th dates, vi de order dated 28.12.2010, her side of the case was closed and the matter was fi xed for hearing of argument on 17.01.2011. However, she again appeared on 25.11. 2011 along with another advocate and filed a petition for setting aside the orde r for Ex-parte hearing. Her prayer was allowed. Eventually after granting severa l adjournments, the petitioner filed her 3rd written statement on 18.02.2012. Th e LVO was again summoned, who appeared on 11.06.2012 and was examined. Thereafte r the case was again adjourned for evidence of the petitioner consecutively for nine dates and ultimately on 10.04.2013, the petitioner filed her evidence-in-ch ief and she was cross examined. 7. The aforesaid facts in respect of the proceeding before the Trib unal would go to show as to how delay is caused in deciding such a sensitive iss ue as to whether the proceedee is a foreign national or not. It need not to be e mphasized that the case of a suspected foreign national is required to be dispos ed of as quickly as possible. But as the experience of this Court goes, in some cases, such proceedings last even for 20 years and even more than that. As discussed in the impugned judgment and also found in the reco 8. rds of the tribunal, the LVO Sri Kitabuddin Ahmed was examined on oath twice on 26.09.2008 and 11.06.2012 by the Tribunal. He in his evidence stated that during 1997 while he was posted and working as Executive Engineer in Barpeta E & D Div ision, as per the direction of the Electoral Registration Officer for 46 No. Sar ukhetri Legislative Assembly, he had gone to the village Barmara along with Gaon bura of the said village and met the petitioner. During enquiry, on being asked, she failed to furnish any relevant document in support of her Indian Citizenshi p. Accordingly, he submitted his report (Ext.1). In his cross examination, he de nied that no time was allowed to the petitioner to submit the relevant documents . Another witness, namely, Moinul Hoque, the Gaonburah of village Barmara stated in his evidence that he had accompanied the LVO while visiting the petitioner a nd that she could not produce any document in support of her nationality. 9. As discussed in the impugned judgment and also revealed from the records of the tribunal, the petitioner took four years to file her 1st written statement on 26.11.2007. Thereafter she filed her 2nd written statement on 26.0 3.2010 followed by the 3rd written statement on 18.02.2012. In her 1st written s tatement, she has stated that the name of her father was enrolled as a voter in the voter list since 1966 under 54 No.Senga Legislative Assembly; that she was m arried to Laskar Ali, Son of Gumar Ali of village Barmara. Along with the writte n statement, she also submitted photocopy of one voter list of 1966 and certific ate dated 23.08.2007 issued by Gaonbura of village Baysa only. 10. In the 2nd written statement, improving her previous version mad e in her 1st written statement, she has stated that she was born and brought up at village Bardia and that she was married to Mr. Laskar Ali, son of late Gumar Ali. Further statement made is that her father Nowaz Kha’s name was recorded in the voter list of 1966 and 1970. In para 6 of this written statement, she has sp ecifically stated that her father died about 35 years back. 11. In para 3 of her 3rd and final written statement, thepetitioner has stated that the names of her father and mother are recorded in the (cid:28)current voter list (cid:29). In para 4 of the said written statement, she has stated that the na me of her father and mother appeared in the voter list of 1970. The petitioner i n her evidence on affidavit stated that she was born and brought up at village B ardia and that her father had purchased landed property in 1976 and that names o f her parents and her uncle Ali Akbar Kha were recorded in the voter list of 196 6 and 1970. In support of her case, the petitioner produced the certified copies of voter list of 1966 and 1970; one registered sale deed, showing purchase of l and by her father; certificate of Gaonbura of village Byasa; another certificate of Gaonbura of village Barmara and a certified copy of voter list of 1997. 12. On perusal of the entire evidence on record, the learned tribuna l has found discrepancies as recorded in para 19 of the impugned judgment. In he r 1st written statement or in the affidavit filed in support of her said written statement, the petitioner nowhere mentioned the name of her parents. She also d id not mention anything about other voter list, except the voter list of 1966. T here is also no mention of any landed property purchased by her father. Similarl y in her 2nd written statement, she has nowhere mentioned anything about the vot er list of 1997, wherein the name of her husband is said to have been enrolled. She also has not stated anything about appearing the name of her mother or the n ame of the elder brother of her father in the voter list of 1970. Even, their na mes have not been mentioned in the written statement. 13. In para 3 of her 3rd and final written statement, the petitioner has stated that names of her father and mother are recorded in the current vote r list whereas in her 2nd written statement, she has specifically stated that he r father died about 35 years ago, which is self contradictory. In her 3rd writte n statement, she has also stated that name of her parents are recorded in the vo ter list of 1997 and that the concerned Gaonbura has issued a certificate showin g that her father has a permanent resident of village Bordia. But it is found fr om the record that no voter list of 1997 showing the name of her father Nowas Kh a as a voter is furnished to or proved. The certificate of the Gaonbura of villa ge Byasa shows that Runupa Khatun (not Kanuwa Begum), daughter of Newaz Khan (no t Nowaz Kha) is a permanent resident of village Bhogdia (not Bordia). This certi ficate further shows that Runupa Khatun is the wife of Naskar and not Laskar Ali . 14. As discussed in the impugned judgment, Annexure-1 and Annexure-2 are the certified copies of voter list of 1966 and 1970, respectively of villag e Bordia. On the other hand, the Annexure-4 is the certificate given by Gaonbura of village Byasa. 15. Noticing the above contradictions, the learned Tribunal having h eld that the petitioner is not a citizen of India, but a foreigner, this Court e xercising its power of judicial review under Article 226 of the Constitution of India, cannot sit on appeal to interfere with the said findings. 16. 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 17. Above apart, 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 document in evid ence does not amount to its proof, in other words, mere making of exhibit of a d ocument does not dispense with its proof, which is required to be done in accord ance with law. It was the duty of the petitioners to have proved the documents i n accordance with law. Under the Law of Evidence also, it is necessary that cont ents of documents are required to be proved either by primary or by secondary ev idence. At the most, admission of documents may amounts to admission of contents but not its truth. Thus, the documents (Photocopies) having not been produced a nd 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. In view of the above, I do not find any infirmity in the finding 18. s recorded by the learned tribunal and accordingly the writ petition stands dism issed. 19. Let copies of this judgment and orders be forwarded to Superinte ndent of Police (B), Barpeta and Deputy Commissioner, Barpeta, for their necessa ry follow up action of detaining the petitioners in the detention camp till her deportation to her Country of origin and also for deletion of her name from the voter lists. Another copy of this judgment be furnished to Mrs. H.M. Phukan, le The Registry shall transmit the case record immediately to the Tribunal arned State Counsel for her necessary follow up action. 20. along with a copy of this Judgment. 21. uty Commissioner and Superintendent of Police (B), Barpeta. List after one month for furnishing compliance report by the Dep