High Court · 2008

The Act provides wide ranging powers to deal with all foreigners or with respect to any particular foreigner or any prescribed class or description of f oreigner for prohibiting regulating or restricting their or his entry into India or their presence or continued presence including his arrest, detention and con finement. The most important provision is Section 9 which casts the burden of p roving that a person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall lie upon such person. Therefo re, where an order made under the Foreigners Act is challenged and a question a rises whether the person against whom the order has been made is a foreigner or not, the burden of proving that he is not a foreigner is upon such a person.

8. In Union of India v. Ghaus Mohammed, AIR 1961 SC 1526, the Chief Commiss ioner of Delhi served an order on Guaus Mohammad to leave India within three day s as he was a Pakistani national. He challenged the order before the High Court which set aside the order by observing that there must be prima facie materia l on the basis of which the authority can proceed to pass an order under Secti on 3(2)(c) of the Foreigners Act, 1946. In appeal the Constitution Bench rever sed the judgment of the High Court holding that onus of showing that he is not a foreigner was upon the respondent.

9. The Apex Court in Sarbananda Sonowal (I) case emphasizing on the gener al rule in the leading democracies of the world pertaining to citizenship observ ed thus :- (cid:29)It needs to be emphasized that the general rule in the leading democracies of t he world is that where a person claims to be a citizen of a particular country, the burden is upon him to prove that he is a citizen of that country. (cid:29) Further, in paragraph-17 of the said judgment, the Apex Court while hold 10. ing that there is good and sound reason for placing the burden of proof upon th e person concerned who asserts to be a particular country observed thus :- (cid:28)There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country. In order to estab lish 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 grand parents may also be relevant like under Section 6-A(1)(d) of the Citizenships Act. All these facts would necessarily be within the personal knowledge of the person concerne d and not of the authorities of the State. After he has given evidence on these points, the State authorities can verify the facts and can then lead evidence i n rebuttal, if necessary. If the State authorities dispute tha claim of citizens hip by a person and assert that he is a foreigner, it will not only be difficult 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)

11. In the instant batch of writ petitions, as will be noticed a little late r, in almost all the cases, the petitioners did not discharge their burden of pr oof, by adducing any evidence and/or proving the photocopies of the documents, m ostly voter list. The common feature of the cases is that the petitioners have m ade use of copies of voter lists at random so as to indicate any name resembling theirs. Their whole emphasis is mainly on such voter list and not anything else including oral evidence to prove their citizenships. The reason is obvious. It is very easy to pick up any voter list, find out names and particulars resembli ng theirs, obtain certified copies of the same and dump them to the writ Court t aking it for granted that the writ Court will swallow the same unmindful of requ irement of Section 9 of the Foreigners Act, 1946. After having generally noticed, the grounds on which the petitioners hav 12. e challenged the judgments of the Tribunals as well as the position of law, I no w deal with the cases individually. W.P. (C) NO.1094 OF 2008 District Sonitpur (Arising out of Ex-parte judgments and orders dated 5.10.2007 in FT (DC) Case No s.89/2007; 90/2007 and 91/2007)

13. The three petitioners who have been declared to be foreigners being the illegal migrants to Assam after 25.3.1971, have filed this writ petition. All t he independent judgments delivered on the same date i.e. 5.10.2007 are Ex-parte judgments. Although 3 separate proceedings were initiated against the petitione rs on the basis of the independent references and thus, independent writ petitio ns ought to have been filed, the petitioners have chosen to file a single writ petition challenging the independent judgments pertaining to their cases. Howeve r, the matter has been considered on its own merit.

14. As per the averments made in the writ petition, the petitioner No.1 Must t. Sarabari Begum @ Syera Begum, wife of Ruwan Hussain @ Mustakin is the mother of the petitioner No2 namely, Md. Jakir Hussain, son of Late Mustakin Ali. The petitioner No.3 is Mustt. Tabashum Begum @ Sabari Khatoon, wife of petitioner No .2 i.e. Md.Jakir Hussain. It is the case of the petitioners that they are all ci tizens of India by birth and their forefathers belonged to the State of Bihar. Referring to a particular plot of land stated to be in their possession without, however, indicating anything as to since when they are in possession of the la nd, the petitioners have contended that since they are in occupation of the sa id plot of land, they are citizens of India. In this connection, they have ann exed Annexure-’A’ documents dated 10.3.1995 issued by the Circle Officer, Tezpur Revenue Circle, Tezpur, which is a certificate certifying that the land describ ed in the certificate stands in the name of Mustt. Sayera Begum.

15. The petitioners have also enclosed Annexure-’B’ document which is a form of declaration for enrolment as a voter. The declaration was made on 21.4.1993 and in the particular column, the name of one Sahera Begum, wife of Late Mustak ib , aged 60 years as of 1st January, 1993 appears.

16. Annexure-’C’ and ’D’ are the copes of the purported Voters Identity Card s issued in favour of the petitioners No.2 and 3. Although no dates are indicat ed in the Identity Cards, but it can be presumed that while Annexure-’C’ Identit y Card was issued after 1.1.2003, Annexure-’D’ Identity Card was issued after 1 .1.2005 as respective age of the card holders are indicated as on 1.1.2003 and 1 .1.2005 respectively.

17. In the writ petition, it is the specific case of the petitioners that t he petitioners did not get opportunity of submitting the relevant documents befo re the Tribunal due to non-receipt of notice from the Tribunal. Such statement has been made in Paragraph-10 of the judgment. Thus, according to the petitione rs, they could have proved their citizenship before the Tribunal, had they been served with notice. On perusal of all the 3 orders dated 5.10.2007 passed in the aforesaid F 18. T. Cases, it is seen that the petitioners, in spite of service of notice, did n ot appear before the Tribunal. In this connection, I have verified the case re cords of the Tribunal. So far as the petitioner No.1 is concerned, although in t he writ petition, she has taken the alternative name of her husband as (cid:28)wife of Ruwan Hussain @ Mustakin (cid:29), but in the proceedings before the Tribunal, the name of her husband finds mention only as Ruwan Hussain and there is no other altern ative name.

19. The notice from the Tribunal was received by the petitioner No.2 Md Jak ir Hussain whom she claims to be her son. Similarly, the petitioner No.2 recei ved notice for himself as well as for his wife i.e. the petitioner No.3. Notic e was received under his clear signature. Thus, it cannot be said that the peti tioners did not receive notice in respect of the proceedings before the Tribunal . It is not the case of the petitioners that although the petitioner No.2 was s erved with the notices, but he did not inform the petitioners No.1 and 2 about t he proceedings before the Tribunal. Further under Order 5 Rule 15 of the Code o f Civil Procedure, 1908, the service of notice on the adult member of the family is sufficient. From the above, it will be seen that the plea of the petitioners that th 20. ey did not receive any notice from the Tribunal is a false plea. On this score a lone, this writ petition is liable to be dismissed. However, independent of suc h a position and also independent of an Ex-parte proceeding before the Tribunal, when the petitioners failed to discharge their burden of proof, as envisaged u nder Section 9 of the Foreigners Act, 1947, I have examined their case as projec ted in the writ petition in respect of their claim that they are all Indian citi zens by birth. As noticed above, Annexure-’A’ is a document pertains to one Mustt. Saye 21. ra Begum and not Mustt. Sarabari Begum, in whose name, the proceeding before th e Tribunal was initiated. In the document, she is also not described as Sarabari Begum. Further, in the document, the name of her husband is shown as Mustakin while in the proceeding before the Tribunal her husband’s name is Md. Ruwan Hu sain and the notice was also served mentioning her husband as Ruwan Husaain. Th us, this document on the face of it, does not belong to her and even if, same be longs to her, same does not prove her citizenship. As noticed above, the documen t is of 1995. The cut off date being 25.3.1971, such a document unless the linka ge to pre 25.3.1971 period in India is established to prove one’s Indian Citizen ship, is of no consequence.

22. Annexure-’B’ also pertains to one Sahera Begum wife of Late Mustakib and not Mustakin. The said document is a declaration made by the head of the fami ly for incorporation of name in the voter list. The declaration was made on 21.

4.1993 by one Md. Khaleque Husen and the age of Sahera Begum was declared to be 60 as on 1.1.1993. Thus, this document also does not belong to the petitioner and even it does, cannot prove her Indian citizenship.

23. In the writ petition, it is the case of the petitioner No.1 that her na me was incorporated in the Electoral Roll prior to 1966 of Tezpur Legislative As sembly Constituency. However, no document has been produced to establish the sa me.

24. As noted above, Annexure-’C’ and ’D’ are the Voter Identity Cards purpo rtedly issued in favour of the petitioners No.2 and 3. Interestingly, as agai nst the claim of the petitioners that the husband, father and father-in-law of t he petitioners No.1, 2 and 3 respectively is Late Mustakin Ali, but in Annexure- ’C’ Voter Identity Card, the father’s name of the elector Jakir Husain is Md. Mu slim. Similarly, in Annexure-’D’ Voter Identity Card, which is stated of the petitioner No.3, her husband is described as Md. Roban and not Md. Jakir Hussa in.

25. If we go by the aforesaid identity cards, the petitioner No.2 i.e. the h usband of the petitioner No.3 is younger than his wife i.e. the petitioner No.3 . While in Annexure-’C’ identify card, the age of the card holder is 20 as on 1 .1.2003, the age of the Annexure-’D’ card holder, whom the petitioner No.2 claim s to be his wife, is 23 yeres as on 1.1.2005. Apart from the above, such voter identity cards are of no consequence 26. , inasmuch as, the cut off date is 25.3.1971 and unless it is established that t he persons concerned are not illegal migrants and/or they were born in India aft er 25.3.1971 from their Indian parents, within the meaning of provisions relatin g to Citizenship Act and Foreigners Act, no amount of documents produced, which are of post 25.3.1971 without any linkage to their Indian origin within the mea ning the said Act, are of no consequence. Moreover, when the documents itself have caught the petitioners red handed coupled with the fact that they have take n recourse to falsehood in filing the writ petition and also failure to establi sh that they are Indian citizens by discharging their burden of proof to that ef fect, the irresistible and only conclusion which could be arrived at is that th e petitioners are all foreign nationals and are illegal migrants to Assam.

27. In the Tribunal, the prosecution duly established its case by proving th e documents/Exhibits and the petitioners failed to discharge their burden of pro of of Indian citizenship.

28. ned judgments of the Tribunal. In view of the above, the writ petition is dismissed upholding the impug

29. The Superintendent of Police i.e. the Respondent No.2 is directed to tak e immediate steps to take the petitioners into custody and to keep them under cu stody till they are deported from India. W.P. (C) NO.1355 OF 2008 District Barpeta (Arising out of Ex-parte judgment and order dated 31.12.2007 in FT Case No.164/2 007)

30. The four petitioners who have been declared as foreigners and illegal mi grants to Assam by the Foreigners Tribunal-I, Barpeta have filed this writ peti tion for setting aside and quashing of the said judgment and order. As in the first case, in this case also, the judgment of the Tribunal is pursuant to Ex- parte proceeding. According to the petitioners, on receipt of notice from the Tribunal, they had engaged two advocates namely, Mr. Nazrul Islam and Mr. Danesh Ali of Barpeta Court to represent them in the proceeding before the Tribunal, b ut due to reasons best known to the said counsel, they did not appear before th e Tribunal nor produced the documents annexed to the writ petition to prove tha t the petitioners are Indian citizens. Further allegation made against the enga ged counsel is that they also did not advise the petitioners to adduce evidence. Thus, according to the petitioners, the inaction on the part of the engaged c ounsel resulted in Ex-parte judgment and order challenged in this writ petition.

31. The Tribunal by its judgment dated 31.12.2007 has answered the reference , as to whether the petitioners entered into Assam after 25.3.1971 without any v alid document, in the affirmative. In spite of service of notice, the petitione rs did not submit written statement nor adduce any evidence. On the other hand, the prosecution examined the Enquiry Officer as P.W.1, who in his deposition p roved the enquiry report holding the petitioners to be foreigners and entered in to Assam after 25.3.1971. The Enquiry Officer in his deposition stated about th e failure on the part of the petitioners to produce any document pertaining to their citizenship of India. The Enquiry Officer also examined two co-villagers, who also suspected the petitioners to be foreigners. Since the burden of proof was with the petitioners but they did not submit any written statement and addu ce any evidence, the Tribunal had no option but to proceed Ex-parte.

32. The plea of the petitioners that their engaged counsel did not take any steps in the matter is not at all believable and cannot help the petitioners. T he petitioners cannot escape from their liability to discharge the burden of pro of of their Indian citizenship putting the blame on their engaged counsel. It wa s their bounden duty to appear before the Tribunal, which in fact, they did, bu t failed to discharge their burden by submitting written statement and adducing evidence. There is nothing to show that any complaint was lodged against the co unsel. They are also not party in this proceeding. The reference was received by the Tribunal on 7.5.2007 and the petitione 33. rs duly appeared on the date fixed which was 18.6.2007. The prayer for adjournm ent was granted fixing the matter on 24.7.2007. On 24.7.2007, the petitioners d id not appear before the Tribunal and the case was adjourned to 27.8.2007 on the basis of the prayer petition filed by the engaged counsel. 27.8.2007 was the date fixed for filing written statement. However, on 27.8.2007, the petitioners did not appear before the Tribunal and the case was adjourned to 28.9.2007 on the basis of the prayer made by their engaged counsel. On 28.9.2007 also, the pe titioners remained absent and the matter was again adjourned to 26.10.2007 on the basis of the petition filed by their engaged advocate. Same repetition wa s made on 26.10.2007. Noticing the fact that the petitioners had already taken four adjournments, the adjournment prayed for was granted as the last chance an d the matter was fixed on 21.11.2007 on which date also, the petitioners remaine d absent without any steps.

34. After the aforesaid dates, the matter was fixed on 17.12.2007 on which d ate, the petitioners remained absent without any steps. Thus, naturally, the Tr ibunal had no option than the order for Ex-parte hearing fixing the date as 29 .12.2007. The matter was heard on that day examining the I/O who proved the doc uments exhibited and thereafter, the impugned judgment and order was delivered on 31.12.2007. From the aforesaid position of the case, the plea of the petiti oners that their engaged counsel did not take any steps, is based on falsehood. In such an important matter, in which they were the suspects as foreigners, t hey did not respond to the proceedings before the Tribunal seriously, which in the normal circumstances would have the situation, had the petitioners been the Indian citizens. Now, coming to the writ Court they have blamed their engaged counsel without making them party in this proceeding.

35. In the Tribunal, the prosecution duly established its version of the cas e by proving the documents/exhibits which include the enquiry report against the petitioners.

36. Independent of the above position and since the petitioners have claimed to be Indian citizens on the basis of the documents annexed to the writ petitio n, I have examined the case of the petitioners as projected in the writ petition . As per the statements in the writ petition, the petitioner No.1 is son of L ate Sadar Mondal. He claims that he was a voter even in 1966 (Annexure-1) in th e Barpeta Legislative Assembly Constituency. Further statement made in the writ petition is that the petitioners caste their vote in 2005 Assembly Election (A nnexure-3). Annexure-2 is the photocopy of the certificate purportedly issued b y the Howly Town Committee, Howly certifying that Md. Maslem Mandal, son of Lat e Sadar Mandal is an inhabitant of Howly Town under police station and district Barpeta. The certificate is dated 10.3.2008 and has been issued by the Chairma n, Howly Town Committee.

37. Thus, the above are the 3 (three) documents (photocopies) on the basis of which the four petitioners claim that they are Indian citizens. While the pe titioners No.1 and 2 are the husband and wife, the petitioners No.3 and 4 are th eir sons. Their names are stated to have appeared in the 2005 Voters List perta ining to 43 No.Barpeta Legislative Assembly (Annexure-3).

38. Annexure-1 Voter List of 1966 (extract only and the photocopy) pertains to Muslim Ali, Son of Sadar, aged 22 years. The name of the petitioner No.1 is M oslem Mondal and not Muslim Ali. On being pointed out the same, the learned co unsel for the petitioners simply brushed aside the same stating the same to be a mistake on the part of the enumerator. When the question of citizenship is inv olved, such things cannot be taken lightly, more particularly, when the petition ers failed to produce any other voter list from 1966 to 2005 showing incorporat ion of their names in such voters list. If the petitioner No.1 was a voter in 1 966 there is no reason as to why he could not produce any other voter list of p ost 1966 containing his name except the one of 2005.

39. Annexure-2 certificate simply certifies that the petitioner No.1 is an i nhabitant of Howly Town and the certificate is dated 18.3.2008. This cannot prov e Indian citizenship of the petitioners.

40. Annexure-3 is the voter list of 2005 (extract and photocopy only) in whi ch the names of the petitioners are stated to have been incorporated. The incor poration of the names in any of the voter list prepared after the cut off date i .e. 25th March, 1971 is of no consequence unless the linkage to pre 25.3.1971 pe riod in India is established. It is in the year 2005, for the first time the na mes of the petitioners were incorporated in the voter list. However, in this doc ument also there are contradictions in the names in the said voter list and the names of the petitioners disclosed in the writ petition. The respective age of the petitioners have been indicated as 70, 61, 23, 19 years. If that be so, th e petitioner No.1, who claims that he was a voter of 1966, would not have been 22 years of age in 1966. Further, if the petitioners are Indian citizens by bi rth as they have claimed in the writ petition, they could have shown the documen ts pertaining to the same and at least the voter list prior to 2005, more so, w hen the petitioners No.1 and 2, as per the age recorded in the voter list of 200 5 as on 1.1.2005 were 70 and 61 years. 1966 to 2005 is a period of long 40 years . Had the petitioners No.1 and 2 been Indian citizens, they could have shown an y valid document covering this period of 40 years, instead of relying upon false document of 1966 and the voter list of 2005.

41. From the above, it is crystal clear that even in the writ petition, the petitioners have miserably failed to establish their Indian citizenship. Incor poration of their names in 2005 voters list is of no consequence as the cut off date4 is 25.3.1971.

42. In view of the above, the writ petition is liable to be dismissed which I accordingly do and the impugned judgment and order dated 31.12.2007 passed in FT Case No.164/2007 by the Foreigners Tribunal-I, Barpeta is upheld. Consequentl y, the direction is issued to the Superintendent of Police, Barpeta i.e. the Res pondent No.3 to take the petitioners into custody immediately and keep them unde r custody till such time they are deported from India. W.P. (C) NO.75 OF 2008 District Udalguri (Arising out of Ex-parte judgment and order dated 10.1.2006 in FT Case No.938/20 04)

43. In this case also, the petitioner claims to be an Indian citizen. As in the earlier two cases, in this case also, the judgment of the Tribunal declarin g the petitioner to be a foreigner is Ex-parte. The petitioner has only annexed the Quit India Notice dated 14.11.2007 (Annexure-’C’ to the writ petition) whic h was issued to her pursuant to the judgment and order in FT Case No.938/2004, but she has not annexed the copy of the judgment of the Tribunal.

44. According to the petitioner, she read up to Class VI at Tangla Model Hig h School and left the school in 1969 and that she was born of Tangla in 1957. In this connection, she has annexed copy of the certificate dated 24.12.2007 purpo rtedly issued by the Headmaster, Tangla Model High School, Tangla. The petition er has also annexed the photocopy of the purported certified copy of the voters list (extract only) of 1965 pertaining to Panery Assembly Constituency containi ng the name of Dhirendra and Paresh Chandra. According to the petitioner, she got married to one Paresh Chandra Saha in the year 1974 and since then, has been permanently residing at Tangla Town with her husband. She has 3 sons and 3 dau ghters. Two out of 3 daughters are married. According to her, she has been re siding there with her husband and 3 sons and one minor daughter.

45. The petitioner was surprised and shocked to receive Annexure-’C’ Quit In dia Notice issued by the Superintendent of Police, Udalguri stated to have been issued pursuant to the judgment of the Foreigners Tribunal, Udalguri in FT Cas e No.938/2004. According to the petitioner, she had no knowledge about the proce eding before the Tribunal as no notice was served on her.

46. I have gone through the records received from the Foreigners Trbiunal, U dalguri. On perusal of the same, there is no manner of doubt that the petitione r has taken recourse to falsehood.The notice pertaining to the case before the T ribunal was duly received by her on 11.8.2005 with her clear signature. Thus, i t is not the case of non-receipt of notice. Even after service of notice, the p etitioner remained absent in the proceeding before the Tribunal as a consequence of which same resulted in Ex-parte judgment and order. As per the judgment, the fact that the petitioner is a foreign national, is duly proved. The prosecution duly established its case by proving the documents/exhibits and the petitioner decided not to discharge her burden of proof as envisaged under Section 9 of t he Foreigners Act.

47. Independent of the proceeding in the Tribunal and the judgment thereof, I have duly taken note of the plea of the petitioner raised in the writ petitio n. Annexure-’A’ certificate dated 24.7.2007 pertaining to 1969 is not at all believable. If the petitioner was a student of Class-VI in 1969 as has been ce rtified in the certificate dated 24.12.2007 and has been residing in Assam for t he last several decades, her name would have surely appeared in the successive v oter lists. The voter list of 1965, even if believed to be true, pertains to on e Shri Paresh Chandra, whom she claims to be her husband, cannot make the petiti oner an Indian citizen. In spite of the fact that the petitioner was duly served with notice from the Foreigners Tribunal, she has taken recourse to falsehood i n this proceeding by making the statement that she was not served with notice fr om the Tribunal. Even if the story is believed, the petitioner having miserably failed to establish her case that she is Indian citizen by birth, as has been cl aimed in the writ petition, the inevitable conclusion is that she is a foreign national living in India illegally. Consequently, there is no question of inte rference with the impugned judgment and order of the Tribunal as well as the Qu it India Notice issued by the Superintendent of Police, Udalguri.

48. For all the aforesaid reasons, the writ petition is dismissed. The Supe rintendent of Police, Udalguri i.e. the Respondent No.2 is directed to take imm ediate steps to take the petitioner into custody and to keep her under custody t ill she is deported from India. W.P. (C) NO.5696 OF 2002 District Goalpara (Arising out of Ex-parte judgment and order dated 6.3.2002 in FT Case No. 398/G/ 1988)

49. In this case also, the proceeding before the Tribunal (IMDT) was Ex-part e. The petitioner in spite of receipt of notice, did not appear before the Tribu nal to prove her case and consequently, the proceeding resulted in Ex-parte judg ment and order dated 6/8.3.2002. In this case also, the plea of the petitioner is that her engaged advocate, for the reasons best known to him, did not appear and represent her before the IMDT in spite of having all valid and legal documen ts to prove that the petitioner is truly an Indian citizen. According to the pe titioner, she did not know about the fate of her case till she was communicated with the Annexure-6 order dated 25.6.2002 issued by the Superintendent of Police , Bongaigaon asking her to quit India as per the direction contained in the orde r.

50. From the order of the Tribunal, it appears that initially the petitioner appeared before the Tribunal and prayed for adjournment for submission of the relevant documents, but thereafter, she remained absent throughout the proceedi ng. The prosecution duly established its case that the petitioner is a foreig n national. Consequently, the Tribunal passed the impugned judgment and order da ted 6.3.2002.

51. I have gone through the records of the Tribunal. The order sheet reveal s that notice was duly served on the petitioner. The reference was made on 30. 12.1986 and the Tribunal merrily went on granting adjournments till the final ju dgment on 6.3.2002. The petitioner in spite of service of notice remained abse nt for years together, but yet the Tribunal did not decide the issue and kept on granting adjournments-after-adjournments. It took long 14 years to answer the reference in the affirmative declaring the petitioner to be a foreigner. The pe titioner having failed to establish her case by way of filing written statement and/or by adducing any evidence, the Tribunal passed the impugned judgment and order. The prosecution duly established its case that the petitioner is a fore ign national and illegal migrant to India.

52. Independent of the proceeding before the Tribunal, I have examined the case of the petitioner, as has been projected in the writ petition. According to the petitioner, she is the daughter of late Sanatan Das, in whose favour Anne xure-1 certificate of registration was issued in 1951. The registration was as citizen of India under the provisions of the Citizenship Act, 1955. Her purport ed father was a refugee from the then East Pakistan, now Bangladesh. Apart from this document, the petitioner has not produced any other document to support th e claim that she is an Indian citizen. Had she been an Indian citizen, she coul d have easily produced the documents pertaining to the same and at least, copie s of the voters list over the period. In the affidavit sworn in support of the statements made in the writ pet 53. ition, she has declared her age to be 51 years. If that be so, her name would have been included in the voters list for the last at least 30 years and she cou ld have easily produced any one of them. Instead, she has referred to the purpor ted registration certificate in the name of Sanatan Das, whom she claims to be her father. In the proceeding before the Tribunal and in the reference, there i s nothing to show that the petitioner is the daughter of late Sanatan Das. On the other hand, in the statement made by her before the I/O, who conducted the enquiry, she stated that she had migrated to India on being threatened of her life there about 18 to 20 years back. The statement was made on 24.4.1986. In h er statement, she also stated that her husband died in Bangladesh. It is another thing to say that she migrated to India on being threatened of her life, but i t is another thing to claim that she is an Indian citizen on the basis of the p urported registration certificate of 1951 standing in the name of one Shri Sana tan Das.

54. Irrespective of the aforesaid position, an important aspect of the matte r is as to whether the case of the petitioner comes within the stream of 1.1.196 6 to 25.3.1971. In her statement before the I/O made on 24.4.1986 stated that sh e came from Bangladesh about 18/20 years back. In the reference made to the Trib unal, in the particular column, (Column 12) of the format of the I/O’s report, r elating to the date of entry it was stated that the petitioner came to India abo ut 18/20 years ago. It is this enquiry report which was the basis of the referen ce and I/O proved this report dated 6.5.1986. If the petitioner had entered into India even 18 years before the report was furnished on 6.5.1986 (statement was made on 24.4.1986), then the case of the petitioner comes within the said perio d of 1.1.1966 to 25.3.1971. If that be so, the only consequence will be to get t he petitioner’s name registered with the prescribed Registering Authority in te rms of Section 6A of the Citizenship Act, 1955 with the consequence thereof.

55. The Tribunal did not address itself to the above aspect of the matter. W hen the I/O’s report proved in the proceeding before the Tribunal itself states that the date of entry to India of the petitioner is 18/20 years back, taking in to account the same, the petitioner will be a foreigner within the excluded str eam of 1.1.1966 to 25.3.1971.

56. In view of the above, the impugned order of the Tribunal stands modified to the extent that the petitioner shall now register herself with the specified Registering Authority and the necessary consequence thereof will follow. If the petitioner registers herself with the Registering Authority within 2 months fro m today, she may be exempted from deportation from India. However, in the event of her failure to do so, the Superintendent of Police Bangaigaon (Respondent No .3) who will monitor the matter, shall take her into custody in which she will r emain till deported to Bangladesh from India.

57. Writ petition is allowed to the extent indicated above. WP(C) No. 1358/2008 DISTRICT - BARPETA (Arising out of Judgment dated 14.1.2008 passed by the Foreigners Tribunal (1) B arpeta in FT Case No. 112/2007)

58. The six petitioners are of one family. While the petitioners No. 1 and 2 are the husband and wife, the remaining petitioners are their sons. The Tribuna l has answered the reference in the affirmative holding that the petitioners are foreigners and illegal migrants entering into India (Assam) after the target da te i.e. 25.3.1971. Although the petitioners submitted their written statement an d photocopies of some documents claiming to be Indian citizens by birth, but the reafter they remained absent in the proceeding and did not adduce any evidence t o discharge their burden of proof that they are Indian citizens. Consequently, t he proceeding resulted in Ex-parte judgment dated 14.1.2008. The prosecution dul y established its case that the petitioners are illegal migrants to India.

59. In the writ petition, the petitioners have referred to their written sta tement submitted on 3.10.2007 in the Tribunal. According to the petitioners, the y had engaged two advocates, namely Mr. Nazrul Islam and Danesh Ali to represent the petitioners in the proceeding before the Tribunal, but for the reasons best known to them they did not appear before the Tribunal, nor produced the documen ts annexed to the writ petition. They also did not advise the petitioners to add uce evidence and resultantly, the proceeding came to an end with the Ex-parte ju dgment.

60. The aforesaid story made out by the petitioners is simply not believable . It was their own duty to prove the documents annexed to the writ petition by p roducing the originals and also to adduce evidence in respect of their claim of Indian citizenship discharging the burned of proof as envisaged under Section 9 of the Foreigners Act. Simply by blaming the engaged advocates, they cannot esca pe their such liability. I have verified the records of the Tribunal, which reve als that the petitioners duly appeared before the Tribunal on number of occasion s, to be precise, 10.5.2007, 13.6.2007, 26.7.2007, 29.8.2007 and 3.10.2007. They appeared before the Tribunal either in person or through their advocate. While on 10.5.2007, 13.6.2007, 26.7.2007 and 29.8.2007, they made prayer for adjournme nt enabling them to file written statement, on 3.10.2007 the petitioners appeare d and filed their written statement, affidavit and documents. However, thereafte r, they remained absent from the proceeding as will be evident from the order sh eets. They remained absent on 27.11.2007, 17.12.2007, 3.1.2008 and even on the d ate of judgment i.e. 14.1.2008.

61. The aforesaid revelations from the records of the Tribunal will clearly go to show that the blame on the engaged advocates is an after thought and the g ame plan of the petitioners is to make out a ground of challenge to the order pa ssed by the Tribunal. There being material suppression of fact in disclosing the actual position regarding their appearance before the Tribunal, are not entitle d to invoke the extra-ordinary jurisdiction of this Court and the writ petition is liable to be dismissed on that score alone.

62. If the petitioners could appear in all other dates, it is not understood as to why they could not appear on the other dates. There is no explanation to that. The written statement was filed by all the petitioner and the affidavit in support of the written statement was signed by the petitioner No. 1. It was the ir stand that the name of the petitioner No. 1 appeared in the voter list of 196 6 and 1970 alongwith his father Mainuddin. Thereafter, the name of the petitione rs No. 1, 2 and 3 appeared in the voter list of 1997. Copies of birth certificat e in respect of petitioner No. 4, 5 and 6 all dated 10.3.1989 were also produced apart from the copy of the purported voter list of 1966 and 1970. The petitioners never proved the aforesaid documents by producing the or 66. iginals. The documents pertaining to post 25.3.1971 are of no consequence, unles s the linkage is established to pre 1971 period in India. Even if the photocopie s of the voter lists of 1966 and 1970 purportedly containing the names of the pe titioner No. 1 and his father are accepted, the question necessarily arises as t o why the petitioners could not produce copies of any other voter list published after 1970. In the documents pertaining to the proceeding before the Tribunal, the age of the petitioner No. 1 was recorded as 55 years. The proceeding was ini tiated on the basis of the requisition made by the Superintendent of Police, Bar peta by his order dated 25.7.2001, in which the age of the petitioner No. 1 was recorded as 55 years. In the statement made by the petitioner No. 1 before the I nquiry Officer, he declared his age as 55 years. The statement was made on 25.7. 2001. During inquiry, the petitioners could not produce any documents in support of claim of Indian citizenship.

67. If the petitioner was 55 years of age in 2001 then in that case he could not have been 25 years of age in 1966. The age against the name Iman Ali appear ing in the voter list of 1966 is 25. Further, in paragraph 2 of the writ petitio n, the petitioner No. 1 has stated that he is about 65 years old, but in the aff idavit sworn in support of the statements made in the writ petition, the petitio ner has declared his age as 42 years. On being pointed out such discrepancies re lating the actual age of the petitioner, learned counsel for the petitioner simp ly brushed aside the same as minor discrepancies. On being further asked as to w hy except the 1966 and 1970 voter lists, the name of the petitioner No. 1 is not to be found in any other voter lists after 1970, the learned counsel for the pe titioner could not submit anything. Likewise there was no answer as to the non-i nclusion of names of all other petitioners, at least that of the petitioner No. 2 in any of the voter list. Further as against the claim of the petitioners that the petitioner No. 2 is the daughter of Tanu Mia, whose name appeared in the 19 66 voter list, as per the enquiry conducted against the petitioners, the petitio ner No. 2 is the daughter of Late Fazar Ali. Thus it is a case of making use of any voter list (extract only) without any authentication that the names appearin g therein are actually that of the petitioners.

68. Above being the position, I do not find any infirmity in the impugned ju dgment and consequently, the writ petition is dismissed. The Superintendent of P olice, Barpeta (respondent No. 3) is directed to take into custody all the petit ioners and keep them in custody till their deported from India. WP(C) No. 1359/2008 District Sonitpur (Arising out of Judgment dated 31.12.2007 passed by the Foreigners Tribunal (1) Barpeta in FT Case No. 143/2007.)

69. In this case also the impugned judgment is Ex-parte. Inspite of receivin g notice, the petitioners did not appear before the Tribunal to discharge their burden of proof in respect of the reference made against them. However, the plea taken in the writ petition is that the petitioners had engaged one Md. Alauddin of Barpeta Court to represent them in the proceeding before the Tribunal and al so handed over the relevant documents. But he, for the reasons best known to him , did not take any step in the matter nor advised the petitioners to adduce evid ence as a consequence of which the proceeding resulted in Ex-parte judgment.

70. The Tribunal, in absence of any response from the petitioners inspite of service of notice, had no option than to decide the reference Ex-parte against the petitioners. The prosecution duly established its case that the petitioners are foreigners entering into India (Assam) after 25.3.1971.

71. I have gone through the records of the Tribunal. As against the aforesai d plea of the petitioners, it appears that the petitioner No. 1, on receipt of n otice duly appeared before the Tribunal on 3.8.2007 by executing Vakalatnama in favour of Advocates Alauddin Ahmed and Md. Baharul Islam about whom there is no mention in the writ petition. However, he remained absent on earlier occasions. The petitioners filed an application on 3.8.2007 praying for time to file writte n statement after collecting the relevant documents. The petitioner having not a ppeared on the subsequent date fixed, which was 20.9.2007, their engaged advocat e filed an application stating that the petitioners having not appeared before t he Tribunal, which might be because of some difficulties, adjournment should be granted. Accordingly, time was granted fixing the matter on 31.10.2007. However, on all subsequent dates none of the petitioners appeared with the resultant eff ect of the Ex-parte proceeding and the judgment.

72. From the above, it will be seen that the petitioners have taken recourse to falsehood. Contrary to the statements made in the writ petition, the petitio ner No. 1 had appeared before the Tribunal on 3.8.2007 and prayed for time to fi le written statement under his clear signature and by executing Vakalatnama in f avour of the aforementioned two advocates. The Vakalatnama was executed only by the petitioner No. 1 and the application was also filed by him only. Thus, there was no representation on behalf of the other petitioners, although notice was d uly served. Because of non-appearance of the petitioners on 20.9.2007, their eng aged advocate filed application for adjournment defending the petitioners. Howev er, coming to the Writ Court, the petitioners have blamed their engaged counsel, on their purported failure to appear. They have also not made them party respon dents in this proceeding. The reason is obvious, which is falsity on the part of the petitioners. On this score alone, the writ petition is liable to be dismiss ed.

73. The prosecution duly established its case by proving the documents/exhib its. During the enquiry conducted by the Investigating Officer, it was establish ed that the petitioners are Bangladeshis. Inspite of getting opportunities, the petitioners choose not to utilize the same for the obvious reasons. However, com ing to the Writ Court, the petitioners have taken all sorts of pleas, which is v ery easy to be taken. According to the petitioner, his father Hasen Ali’s name a ppeared in the voter list of 1966 and that the petitioners No. 1 and 2 caste the ir votes in 1997, their names having been included in the voter list of 1997. Ev en if their names were included in the 1997 voter list, same is of no consequenc e in absence of establishing any linkage to pre 25.3.1971 period in India. The A nnexure-1 purported voter list of 1966 purportedly containing the name of the fa ther of the petitioner pertains to Hasen Ali aged 56 years, while the petitioner himself described his father as Hasan Ali. In the reference also, name of the f ather of the petitioner was indicated as Hasan Ali and not Hasen Ali. It is not the case of the petitioner that Hasan and Hasen are one and the same person. The re is also no explanation as to why, there is no other voter lists, showing the name of the father of the petitioner.

74. In paragraph 4 of the writ petition, the statement made is that the peti tioners No. 1 and 2 were not qualified to caste votes in 1966 meaning thereby, t hey were minors at that point of time. However, the respective age recorded in 1 997 voter list on which the petitioners have placed reliance are 31 and 25 years . If the petitioner No. 2 was a minor in 1966, her age in 1997 would have been a tleast 31 years and not 25 years. However, this aspect of the matter need not de tain us, when the petitioners have miserably failed to establish their linkage t o pre- 25.3.1971 period in India. There is nothing to show that the person whose name appears in 1966 voter list is in fact is the father of the petitioner. Mer e resemblance of name does not mean that the person concerned is the father of t he petitioner No. 1.

75. In paragraph 2 of the writ petition, the statement made is that the peti tioner No. 1 is aged about 40 years and is a citizen of India by birth. Per cont ra in the affidavit, the petitioner has stated that his age is 45 years. Althoug h such discrepancies was sought to be explained as minor discrepancies, but in a matter relating to determination of one’s citizenship coupled with the claim th at the petitioners are Indian citizens by birth, such discrepancies coupled with the conduct of the petitioners cannot be ignored.

76. The petitioner No. 2 is his wife and the petitioners No. 3 and 4 are the sons of the petitioner No. 1. Although, in paragraph 4 of the writ petition it has been stated that the petitioners No. 1 and 2 were not qualified to cast vote s in 1966, but they had cast their votes prior to 1997, but there is no material to establish the same. What they have enclosed is the copy of the voter list of 1997 (extract only) purportedly containing the names of petitioners No. 1 and 2 . Even if, the same is held to be pertaining to the petitioners No. 1 and 2, wil l be of no consequence unless they establish their linkage to pre 25.3.1971 peri od in India. Mere statement of the petitioners that the name of the father of th e petitioner No. 1 appeared in the voter list of 1966 is not enough. As noticed above, the name appearing in the 1966 voter list is Hasen Ali and not Hasan Ali who is stated to be the father of the petitioner No. 1. Even in 1997 voter list purportedly containing the names of the petitioners No. 1 and 2, fathers name is shown as Hasu. It is not the case of the petitioner No. 1 that his father late Hasan Ali was also known as Hasen Ali and Hasu.

77. In view of the above, there is no merit in the writ petition. Accordingl y it is dismissed. The Superintendent of Police (respondent No.3), Barpeta is di rected to take into custody all the petitioners and keep them in custody till th e are deported from India. WP(C) No. 336/2008 DISTRICT - UDALGURI (Arising out of Judgment dated 5.10.2007 passed by the Foreigners Tribunal, Tezp ur in FT Case No. (DC) 97/2007.)

78. In this case, the reference was as to whether the petitioner entered int o India (Assam) during the period from 1.1.1966 to 25.3.1971. Inspite of service of notice, the petitioner did not appear before the Tribunal to contest the ref erence. I have verified the records of the Tribunal and upon such verification, it is found that the petitioner duly received notice from the Tribunal. However, she did not respond to the proceeding and consequently, the Ex-parte judgment w as passed answering the reference in the affirmative. Thus, the plea of the peti tioner that she did not receive any notice from the Tribunal cannot be accepted.

79. In support of the claim of the petitioner, she has annexed the copy of t he voter list of 1960 purportedly containing the name of her father. She has als o enclosed the copy of the school certificate dated 12.4.1989 certifying that sh e read upto Class-X in Loknayak Amio Kumar Das Girls’ High School, Tezpur. She h as also enclosed the voter list of 1993 purportedly containing her name. Althoug h the petitioner has contended that she is an Indian citizen by birth, but nothi ng has been shown to that effect. During the course of hearing, when it was poin ted out to the learned counsel for the petitioner that she in fact had received notice from the Tribunal as will be evident from the record, there was no explan ation in respect of the statement made in the writ petition that the petitioner never received any notice.

80. In terms of the judgment, the petitioner is to register herself with the Registering Authority as a foreigner within the stream of 1.1.66 to 25.3.1971. Opportunity is hereby granted to the petitioner to register herself as such with the Registering Authority within two months. In case of her failure to register within the target date, the consequence thereof will follow and the Superintend ent of Police, Sonitpur (respondent No. 2) will deport her from India. He will e nsure monitoring the case of the petitioner as regards the registration within t wo months. WP(C) No. 118/2008 DISTRICT - BARPETA (Arising out of Judgment dated 31.10.2007 passed by the Foreigners Tribunal (3) Barpeta in FT Case No. 24(III)/27.)

81. As in the earlier cases, in this case also, the challenge is to the Ex-p arte judgment. According to the petitioner, she did not receive any notice from the Tribunal as she was away from her husband due to some dispute with him. It i s her case that although her husband had received the notice, but he never infor med her about the same. It is only after her return to her husband in the first part of November, 2007, she could come to know that her husband had received the notice in connection with the proceeding before the Tribunal, which in the mean time delivered the Ex-parte judgment dated 31.10.2007 declaring the petitioner t o be a foreigner entering into Assam after 25.3.1971. In the Ex-parte proceeding the prosecution duly proved its case. It was 82. found that the petitioner neither during the enquiry nor in the proceeding befor e the Tribunal could discharge her burden of proof that she is an Indian citizen .

83. I have consulted with the records of the Tribunal, which reveals that th e case against the petitioner was initiated on the basis of the report furnished by the Electoral Registration Officer, which was pursuant to the direction of t he Election Commission for Intensive Revision of Electoral Roll. In the report d oubt was expressed against the inclusion of name of the petitioner in the draft electoral roll of 1997. Accordingly the matter was forwarded to the Superintende nt of Police, Barpeta for determination as to whether the petitioner is an India n citizen or not. The Superintendent of Police Barpeta duly carried out the enqu iry through the Investigating Officer and such enquiry revealed that the petitio ner was a foreigner entering into Assam after 25.3.1971. The matter was first taken up by the IM(DT) Barpeta as per the provision 84. s of the then existing IM(DT) Act, which has since been struck down by the Apex Court in Sonowal (1) Case. Thereafter, the matter proceeded as per the provision s of the Foreigners Act, 1946. In the writ petition the petitioner has not even obliquely stated about the proceeding before the IM(DT), in which she duly appea red on 24.1.2005 and filed Hazira. She prayed for time to collect documents enab ling her to file written statement, which was duly granted. However, on all subs equent dates, she remained absent before the Tribunal as will be evident from th e order sheet. Thus, it is not correct that the petitioner was unaware of the pr oceeding against her.

85. After scrapping of IM(DT) Act, when the matter was taken by the Foreigne rs Tribunal, once again notice was sent to the petitioner, which was duly receiv ed by her husband. As per the provision of Order V, Rule 15 CPC service on any a dult member of the family, whether male or female is sufficient. However, coming to the Writ Court, the petitioner has taken the aforesaid plea of remaining awa y from her husband and non-furnishing of any intimation by her husband, which is my considered opinion cannot be accepted. If such pleas are accepted, there wil l be always occasion for avoidance of notice and there will be no end to litigat ion. The matter will also have to be viewed from the angle that the petitioner d uly received notice from the IM(DT), but except once never responded to the proc eeding from 10.12.2003 to 16.7.2005. She always remained absent without step exc ept on 24.1.2005 on which date she filed Hazira and prayed for time to file writ ten statement after collecting necessary documents. Independent of the above, I have examined the case of the petitioner in 86. the writ petition. According to her, her father’s name is Abdul Sattar and his n ame was included in the voter list of 1965. Her name was included in the 1997 vo ter list. Firstly, there is no proof that the name of petitioner’s father is Abd ul Sattar Ali. Secondly, the inclusion of the name of the petitioner in 1997 vot er list with the endorsement (cid:28)D (cid:29) (Doubtful) is of no consequence unless her link age to pre 25.3.1971 period in India is established. Similarly, the marriage cer tificate of 1986 is also of no consequence. It may not be out of place to mentio n here that in the affidavit filed in support of the writ petition, the petition er has named her father as Late Abdus Sattar Ali and not Abdul Sattar Ali. Mere showing of any name to be that of the father of the petitioner does not conform to the requirement of Section 9 of the Foreigners Act, 1946.

87. In view of the above, the plea of the petitioner is not acceptable and c onsequently impugned judgment of the Tribunal is upheld and the writ petition is dismissed. The Superintendent of Police (respondent No. 4) Barpeta shall take i nto custody the petitioner and she will remain in custody till deported from Ind ia. WP(C) No. 32/2008 DISTRICT - KARBI ANGLONG (Arising out of Judgment dated 30.10.2007 passed by the Foreigners Tribunal, Dip hu in FT Case No. 196/2006 (T).)

88. The petitioners numbering 7 have been declared to be illegal migrants to India after 25.3.1971. On the basis of a reference made by the police, IM(DT) c ase No. 215/1989 was registered in which the petitioners duly appeared. After th e decision in Sonowal (1), the proceeding was transferred to Foreigners Tribunal , which in turn registered the case as FT Case No. 196/2006. Although the petiti oner No. 1 appeared before the Tribunal on several dates and prayed for time to file written statement, but remained absent after 22.1.2007, which naturally res ulted in the Ex-parte judgment dated 30.10.2007. The prosecution duly establishe d their case that the petitioners are foreigners and illegal migrants to Assam, India.

89. In the writ petition, the plea of the petitioners is that they are all c itizens of India and their names are included in the 1997 voter list. Their furt her plea is that the petitioner No. 1 was registered as a citizen of India as pe r the provisions of Citizenship Act, 1955. In this connection, the petitioners h ave annexed Annexure-1 photocopy of purported Certificate of Registration purpor tedly issued by the Registration Officer, Central Zone, Agartala on 21.7.1966. A ccording to the petitioners, the petitioner No. 1 got married with petitioner No . 2 in 1970 in Kotwali district of Tripura and they migrated to Assam in January , 1975 and since then have been residing at Bokajan (Betmal) in the district of Karbi Anglong and doing business of betel-nut at Bokajan.

90. As has been held above, the 1997 voter list is of no consequence unless the linkage is established to pre 25.3.1971 period in India. If the petitioner N o. 1 was registered in 1966 as an Indian citizen, his name would have appeared i n all the voter lists till 1997, which is not the case. The photocopy of the pur ported certificate of registration with visible overwriting is not at all believ able. Learned counsel for the petitioner also did not produce the original of th e same.

91. In the writ petition as in the other cases, the petitioners have blamed the advocate’s clerk for not taking steps in the matter. According to the petiti oners they handed over all necessary documents to the advocate’s clerk but he di d not take any step in the matter. Later on they came to know that the proceedin g before the Tribunal resulted in the impugned Ex-parte judgment and thereafter the Superintendent of Police issued quite India notice to them.

92. I have gone through the entire records of the proceeding before the Trib unal, which was initiated on the basis of the reference made way back in 1989. I nspite of service of notice, the petitioners remained absent on the first date f ixed, which was 6.2.1990. However, they appeared on 3.4.1990 and prayed for time to file written statement. Thereafter, it became a hide and seek game of the pe titioners. On some dates they appeared and on some dates they did not. To mentio n a few, the petitioner No. 1 appeared on 14.3.1991, 4.11.1994, 4.4.1995, 12.6.1 995, 14.12.1995, 12.9.1996, 24.10.1996, 10.1.1997, 21.3.1997 and 27.5.1997, with the prayer for granting time to file written statement. The Tribunal also meril y went on granting time.

93. The blame attributed to the advocate’s clerk without naming him will hav e to be considered in the above context. What the petitioners could not do for t he last about 16 years, they could do so immediately by filing the instant writ petition claiming to be Indian citizens, basis of which has been noted above. Th is being the conduct of the petitioners, there is nothing wrong in the Ex-parte judgment passed by the Tribunal. Even in the writ petition also, they have not b een able to make out any case. The plea of inclusion of their names in the 1997 and in absence of any explanation as to why the names of the petitioner No. 1 an d 2 are not in any of the voter list after 1966 till 1997, there is no manner of doubt that as per their own case, they are foreigners and illegal migrants to A ssam. They have miserably failed to show anything that they are Indian citizens conforming to the requirements of Section 9 of the Foreigners Act, 1946.

94. In view of the above, there is no merit in the writ petition and accordi ngly it is dismissed. The Superintendent of Karbi Anglong i.e. the respondent No . 4 shall the petitioners take into custody and they will remain in custody till deported from India. WP(C) No. 7/2008 DISTRICT - SONITPUR (Arising out of Judgment dated 9.8.2007 passed by the Foreigners Tribunal (2ND) Sonitpur in FT Case (II) No. 159/2006.) In this case also, the impugned judgment is Ex-parte. It is the case of 95. the petitioner that due to lack of communication system, she could not appear be fore the Tribunal on the date fixed, which was 14.6.2007. However, she engaged l awyer on 20.6.2007 and the said lawyer came to know that the next date fixed was 9.8.2007. On 9.8.2007, the said lawyer submitted a prayer petition seeking adjo urnment to