High Court · 2012

2. We have heard Mr MA Sheikh, learned counsel for the appellants a nd Mr M Bhagawati, learned Central Govt. counsel for the Union respondents. Mr PS Deka, learned State counsel has been heard for the State respondents.

3. The appellants had approached this Court with the aforementioned writ petition being aggrieved by the decision dated 1.1.2009 of the learned Tri bunal in the same case declaring them to be foreigners under the Foreigners’ Act , 1946 (for short, hereinafter referred to as ’the Act’). As in course of the he aring it had been chiefly contended that they were not served with the notice of the proceedings before the learned Tribunal rendering them unable to contest th e same, this Court by order dated 1.12.2009 required it (Tribunal) to decide the issues before it afresh by taking into account the evidence that may be laid by the appellants/ writ petitioners and after a final determination, transmit the order along with the records hereto. By the judgment and order dated 8.2.2010, t he learned Tribunal reaffirmed its earlier finding as alluded hereinabove.

4. According to the appellants, they are citizens of India by birth and are permanent residents of the district of Morigaon in the State of Assam. They have averred that the grandfather of the appellant No.1, Late Kartik Biswas was a resident of Village--Barunguri under Lahorighat P.S., Mouza-Bokani in the district of Nagaon and had been allotted Annual Khiraj Patta No. 2 in Village- No.2 Barunguri of the same locality by the Government of Assam for the year 1939 -40. The appellant No.1’s father, Late Banabashi Biswas, according to the appell ants, was permanently settled in the same village. The appellants further assert ed that the names of Late Banabasi Biswas and his family members had appeared in the voters’ list of the year 1966 for the Assam Legislative Assembly Bokani Co nstituency No. 83(SC) of Part 112 of the said village. That the name of the appe llant No.1 was recorded in the voters’ list of 1997 in respect of Assam Legislat ive Assembly Mangaldoi Constituency (No. 67) (SC) of Part 139 of Village Hiloikh unda, Mouza-Pub-Rangamati, P.S. Mangaldoi, District- Darrang, Assam was averred as well. According to the appellants, due to heavy erosion caused by the river B rahmaputra engulfing the village Hiloikhunda, the family had to shift to Vill-Ka sashila, Mouza-Mayong under Mayoung P.S. in the district of Morigaon, whereafter , they moved to Village No.2 Murkata, Mouza-Mayong in the same district where t he family members are presently residing. In categorical terms they pleaded that they had not received the notice of the proceedings before the learned Tribunal and, thus, could not arrange for their representation therein. The learned Trib unal as stated hereinbefore, by the judgment and order dated 1.1.2009, acting on the report on which the reference was registered and the evidence adduced by th e prosecution, held the appellants to be foreigners under the Act.

5. It transpires from the records that after the issues were direct ed to be probed into afresh by the learned Tribunal, the appellants caused cross -examination of the witnesses of the prosecution to be made and also examined th ree witnesses including the appellant No.1. They also filed their written statem ent through the appellant No.1 and produced the following documents:- i) Voters’ list of the Legislative Assembly Election for the year 1966/1970 show ing the name of the father of the appellant No.1. ii) Voters’ list of the Legislative Assembly Election for the year 1997 disclosi ng the name of the appellant No.1. iii) Annual Kheraj Patta No.2 for the year 1939/40 and 1940/41 in the name of th e grandfather of the appellant No.1. iv) Copy of the Kutcha Patta in the name of the grandfather of the appellant No. 1 for the year 1953 in Patta No.7 and Dag No. 48. v) Copy of the Jamabandi in respect of Patta No. 19 and Dag No. 33, 32, 31 in th e name of the appellant No.1. vi) Permanent Resident Certificate issued by the Puthimari Gaon Panchayat. vii) Voters’ list of the Legislative Assembly Election for the year 1966/ 1970/1 975 showing the name of the father of the appellant No.2 etc.

6. The learned Tribunal on an evaluation of the facts and the evid ence adduced, returned the same finding adjudging the appellants to be foreigner s entering the State of Assam after 25.3.1971. The learned Single Judge having s ustained the findings of the learned Tribunal, the appellants are in appeal.

7. Mr Sheikh has insistently argued that having regard to the docum ents produced by the appellants, their status as citizens of India by birth is i rrefutable and, thus, the conclusion to the contrary is erroneous on the face of the record. When queried by this Court, however, the learned counsel has admitt ed that in a proceeding under the Act, the provisions of the Indian Evidence Act , 1872 are applicable and, thus, any document sought to be introduced as evidenc e has to be proved in accordance therewith. He admitted as well that in the inst ant case, the appellant did not undertake that exercise vis-à-vis the documents sought to be relied upon to prove their claim of citizenship of India. Mr Sheikh , however, laid the blame on the learned counsel conducting the proceeding on th eir behalf for this lapse and sought for an opportunity to enable them to prove the documents in accordance with law.

8. The learned counsel for the respondents, however, emphatically r esisted this plea contending that the appellants having failed to avail the oppo rtunity granted to them at the first instance to prove their case before the lea rned Tribunal, they are not entitled to any further opportunity in this regard a s the same would amount to abuse of the process of the Court.

9. We have extended our thoughtful consideration to the pleadings o n record and the documents available. A plain reading of the impugned judgment a nd order reveals that the learned Single Judge not only had concluded that in ab sence of proof of the documents produced by the appellants in accordance with la w, no cognizance thereof can be taken, an analysis thereof on merits was also un dertaken by His Lordship. According to the learned Single Judge, on a cumulative consideration of the said documents as well, the claim of the appellants to be the citizens of India by birth was not acceptable. The following are the anomali es/ inconsistencies noticed by the learned Single Judge in rejecting the content ions of the appellants/ writ petitioners: a) The documents relied upon by them were not proved in accordance with the provisions of the Indian Evidence Act. As they had not pleaded that those were within the purview of the exceptions engrafted in Section 65 of the Indian Evid ence Act, it was incumbent on them to prove the same in accordance with the pres criptions thereof. No prayer was also made by them before the learned Tribunal t o prove the documents. No reliance on the said documents, thus, could be placed. b) The evidence of P.W.1 and P.W.2 adduced by the prosecution corroborated each other on material particulars to the effect that in course of the enquiry t he appellants had failed to produce any document in support of their Indian nati onality and instead the appellant No.1 had disclosed that they had illegally com e from village and P.S. Kaidachar, district Moimansingh of Bangladesh after Marc h, 1971 and settled at Village Kachasella under Mayong P.S. on Government land. Some doubt with regard to the name of the father of the appellant No.2 w The two pattas and the Jamabandi did not indicate any year of the issuan The age of the appellant No.1 appearing in the voters’ list of 1997 did The reports based on such investigation had been proved as Exhibits-2 and 3. c) In course of his testimony, the appellant No.1 could not correctly ident ify the location of village Hiloikhunda and, thus, the averment made to that eff ect in the written statement was without any acceptable basis. d) ce thereof. e) not tally with the one furnished by him in course of his evidence. f) The discrepancy in the age of the grandfather of the appellant No.2 and the name of his father was noticeable from the records, more particularly, the v oters’ list of 1970, 1975 and 1991. g) as demonstrable by the contemporaneous records. h) Though they had claimed to be Indian citizens by birth, the names of non e of the appellants except that of the appellant No.1 is purportedly shown to ha ve appeared in the voters’ list of 1997. The appellant No.2 who is the mother of the appellant No.3 though claime i) d herself to be an Indian citizen by birth, her name does not appear in any of t he voters’ list during the relevant period. j) The written statement of the appellants though contain factual assertion s in support of their claim of Indian citizenship, it is not supported by an aff idavit. The verification also is unsigned. k) There is no explanation as to why the names of the grandfather and the f ather of the appellant No.1 do not appear in any voters’ list except for the yea r 1966 and 1970.

10. Apart from the fact that inspite of an opportunity being granted by this Court the appellants admittedly had failed to prove their documents in accordance with law, on a scrutiny thereof, we are of the view that the conclusi ons arrived at by the learned Tribunal and the learned Single Judge are plausibl e in the facts and circumstances of the case. The evaluation thereof, in our est imate, cannot, thus, be repudiated as wholly illogical and untenable to merit in terference therewith. Having regard to the fact that responding to the appellant s’ insistence for an opportunity to defend themselves in the proceedings before the learned Tribunal on the plea of not having been served with a notice thereof , a fresh exercise was ordered to be undertaken, the request for another opportu nity to them to prove the documents in accordance with law does not appeal to us .

11. Noticeably, the learned Single Judge has observed in the impugne d judgment and order that though in passing the order dated 1.12.2009 permitting the appellants to contest the proceedings before the learned Tribunal on merit their plea that the notice thereof though received by Sri Sukumar Biswas was not made known to them as he had been living separately had been considered, the ev idence of the appellant No.1 reveals that Sri Sukumar Biswas and the appellants used to stay together in the same house. That to this extent, there was, thus, a suppression of material fact by the appellants before this Court facilitating a nother opportunity to the appellants to contest the proceedings before the learn ed Tribunal was recorded as well.

12. Be that as it may, having regard to the materials on record and the conclusions recorded hereinabove, we find no cogent or convincing reason to upset the impugned judgment and order.

13. The appeal fails and is dismissed. No costs.