Md. Kumuruddin Sk. @ Kumuddin v. Foreigners Tribunal (II), Lakhimpur

3. The case projected in the writ petition is that the petitioner is a citi zen of India by birth and that his father was known as Usman Goni Sk. @ Ushman S k. @ Usman Jani, who was born at Village-Rampur (Taluk) under Coochbeher distric t in the State of West Bengal. It has further been stated in the writ petition t hat said father of the petitioner married one Kulsum Bibi of the same village, w ho is the mother of the petitioner. Later on, the petitioner’s parents shifted t o Assam and started living at Village-Marsuljhora under Golokganj P.S. in the di strict of Goalpara in the year 1958. According to the petitioner, he was born in that village in 1963. It has been stated that the name of the petitioner’s fath er was not enrolled in the voter list of 1966 as he become a mental patient in 1 965. After 1966 and to be precise in 1968, the petitioner along with said father shifted to another village namely Tekarkahata under P.S. Gossaigaon, presently P.S. Fakiragram in the district of Kokrajhar.

4. According to the petitioner, Annexure-1 document annexed to the writ pet ition is the proof of inclusion of the name of his father in the NRC of 1951. Th e petitioner has also annexed a money receipt dated 1.11.1957 containing the nam e of one Usman Goni Sk. in respect of Agri Gap Case No. 7/8. The petitioner has also annexed Annexure-3 copy of the tax collection receipt dated 14.10.1963 show ing receipt of Rupee one from Md. Usman Sk.

5. Above apart, the petitioner has also annexed Annexure-4 copy of the vote r list purportedly of 1971 containing the name of one Osman Sk. The said voter l ist pertains to 29 Kokrajhar West (Reserved) constituency. More importantly, the petitioner has annexed Annexure-5 copy of the order dated 19.5.2003 passed in F T 5/K/89, by which Foreigners Tribunal, Dhubri, Goalpara and Kokrajhar declared one Ushman Sk. as an Indian National. By the said order, the particular referenc e against one Ushman Sk. was answered taking note of the allegation that the sai d Ushman Sk. had entered into Assam along with his sons namely 1. Kamaruddin, 2. Abdul Ali and 3. Abdul Kuddus and with daughter Jubeda Khatun from East Pakista n. Three other documents, on which the petitioner has placed reliance, are the c opies of the voter list of 2005 showing the name of one Kumuruddin Sk. son of Os man; a certificate dated 10.2.2010 purportedly issued by the Gaoburha of Tekarkh ata Gaon certifying one Md. Kumuruddin Sk, son of Late Osmanguni Sk. residing at Village-Tekarkhata, P.S. Fakiragram in the district of Kokrajhar and the photoc opy of the voter list (extract) of 1971 containing the name of one Osman Sk. In the said voter list the year 1971 is apparently overwriting. Above are the documents on the basis of which, the petitioner claims to 6. be an Indian citizen, that too by birth. Be it stated here that all the above me ntioned documents are photocopies. Assailing the impugned order of the Tribunal, which is an ex-parte one, the petitioner has stated that he was not issued with any show cause notice and was also not furnished with the report of the local v erification officer and electoral registration officer and accordingly the impug ned order is in violation of the principles of natural justice. It has also been contended that in view of the earlier order of the Tribunal referred to above, the instant proceeding and the impugned order are hit by the principle of resjud icata. According to the petitioner, he did not receive any notice from the Tribu nal.

7. I have heard Mr. I.A. Talukdar, learned counsel for the petitioner as we ll as Mr. N. Upadhaya, learned State Counsel. I have also heard Mr. M. Bhagawati , learned CGC. I have also perused the records of both the proceedings i.e. proc eeding involved in this writ petition and the earlier proceeding in FT Case No. 5/K/89, on which the petitioner has placed reliance.

8. Both in the Vakalatnama and the affidavit sworn in support of the writ p etition, the petitioner has signed as Md. Kumuruddin Seikh naming his father by three names, about which mention has been made above. The petitioner has also id entified himself as Md. Kumuddin Sk. @ Kumuruddin Ali. In one of the affidavits filed by one Smt. Ajufa Bibi, it has been stated that she is legally married wif e of the petitioner residing at Dhakuakhana, Manikpur in the district of Lakhimp ur.

9. The impugned order dated 16.5.2009 pertains to one Md. Kumuddin Ali, son of Late Usman Jani. The records of the Tribunal have revealed that notice was s erved on the said person, who under his clear signature accepted the same on 13. 3.2009. The proceeding before the Tribunal was imitated on the basis of the refe rence made by the Superintendent of Police (B), Lakhimpur. In all the documents, the person concerned has been referred to as Md. Kumuddin Ali, son of Late Usma n Jani. Investigation was also in respect of the said person.

10. It is not the case of the petitioner that he is not the referee i.e. Md. Kumuddin Ali. What he has tried to emphasis is that Md. Kumuddin Ali and Md. Ku muruddin Sk. is one and the same person and that his father was also known by th e aforesaid three names. This projection has been made to project the instant ca se to be hit by the principles of resjudicata in view of the earlier proceeding in FT Case No. 5/K/89, which was finally decided on 19.5.2003 by the Foreigners Tribunal in respect of a reference pertaining to one Ushman Sk., in which the na me of his son Kamaruddin also cropped up. It is the case of the petitioner that said Kamaruddin is none else, but the petitioner and thus he could not have been proceeded with again branding him to a foreign national.

11. In paragraph 2 of the writ petition, the petitioner has stated that his father had married one Kulsum Bibi, but in the written statement filed by Md. Ku muruddin Sk. in the earlier proceeding i.e. FT Case No. 5/K/89, he named his mot her as Jubeda Khatun. Not only that, the certificate dated 14.11.2002 issued by the particular Gaon Burha, which was produced in the said proceeding also named Jubeda Khatun as the mother of Md. Kumuruddin Sk. Moreover, in the document pert aining to the said proceeding, the father of the petitioner was not indicated by three names and the proceeding was only in the name of Md. Oshman Sk. Thus, it was argued on behalf of the State and the Central Government that it is a matter of convenience for such suspected foreign nationals to place reliance on any do cument indicating the names therein to be relatable to them.

12. The fact of the matter is that the earlier proceeding in FT 5/K/89 perta ined to one Ushman Sk., whose one of the sons was indicated as Kamaruddin, but i n the instant proceeding, we are concerned with Md. Kumuddin Ali, son of Late Us man Jani. The person concerned also received notice in that name and never raise d the aforesaid contention now raised in the writ petition. In the present refer ence, the wife of the petitioner (Md. Kumuddin Ali) has been identified as Musst t Ajnaba Bibi, but the affidavit that ahs been filed in support of the case of t he petitioner refers to Smt. Ajufa Bibi. In the writ petition, the petitioner ha s stated that he was born in the year 1963. If that be so, his age on the day of filing of the writ petition (15.2.2010) would be 47 years. In the affidavit swo rn in support of the writ petition, the petitioner has also declared his age as 47 years. However, in the voter list of 2005, on which the petitioner has placed reliance (Annexure-6), the person concerned named Kumuruddin is shown as 51 yea rs of age and thus at the time of filing the writ petition, the said person was 56 years of age.

13. The purported voter list of 1971 (Annexure-4) clearly bears the sign of overwriting in the figures 1971. It can easily be seen that earlier figure was d ifferent and the said figure was converted to 1971. That apart, if the petitione r is an Indian citizen by birth and he was 51 years age in 2005, it is not under stood as to why his name does not appear in any one of the voter lists, pre and post 2005. In the written statement filed by Md. Kumuruddin Sk. in the earlier p roceeding on 27.2.2002, it was stated that the name of Ushman Sk, appeared in th e voter list of 1971 vide serial No. 53, House No. 18 under 5 No. Tekarkhata Gao n Panchayat under 29 West Kokrajhar LAC, but in the Annexure-4 copy of the voter list annexed to the writ petition, no such particulars appears coupled with the fact that the figure 1971 is apparently a subsequent insertion.

14. Prima facie, it appears that Kumuruddin Sk. and Kumuddin Ali are two dif ferent person and that the petitioner taking advantage of some kind of similarit y in the names has referred to the earlier proceeding in FT 5/K/89 and has proje cted the said case to be his own case. However, considering the matter in its en tirety, I am of the considered opinion that for ends of justice the petitioner b e given another opportunity to defend the reference by appearing before the Trib unal and placing his version of the case. Upon such appearance, the Tribunal sha ll decide the reference afresh consistently with the observations made above and insisting on documentary evidence to prove the projection made by the petitione r in the writ petition, about which discussions have been made above.

15. Presently the petitioner is in custody pursuant to the Division bench di rection in its order dated 17.2.2010. There is no question to releasing him from custody pending fresh adjudication by the Tribunal. However, he shall be allowe d to appear before the Tribunal to prove his case. The Tribunal shall decide the reference afresh as expeditiously as possible and strictly in terms of the prov isions of Foreigners Act, 1946 and the provisions made thereunder including the order dated 4.7.1979 issued by the Chief Secretary of the State, which is quoted below. (cid:28)GOVERNMENT OF ASSAM POLITICAL (B) DEPARTMENT ORDER BY THE GOVERNOR Dated Dispur the 4th July, 1979 No. PLB./ 64/77/99 : With reference to the State Government notification No. PLB 64/77/98 dated 04.07.79 constituting the Foreigners Tribunals, the following no te is prepared to serve as guideline as to how the Tribunal may regulate its own procedure to achieve speedy disposal of the cases in a fair and just manner. In case of dispute, the State Government entrusted vide Central Government’s not ification No. 1/1/64-(I)-F-III dated 3rd October, 1964 or the Superintendent of Police entrusted vide Central Government notification No. 1/1/64-(II)/(III) date d 03.10.64 may refer the question as to whether a person is or is not a foreigne r to a Tribunal. However, the cases of the following three categories of foreign ers shall not be so referred:- 1. 2. Cases of re-infiltrators (those who where deported in the past: Cases of fresh infiltrators who are detected either at the border at the time of infiltrating or during their journey from the border to the interior pl aces. 3. Cases of those foreign nationals who entered Assam legally on the streng th of valid passport/travel document but continued to stay in Assam illegally b eyond the period authorised by such passport/documents. As regard regards burden of proof, Section 9 of the Foreigners Act, 1946 may be referred to which reads as under. 9. If in any case not falling under Section 8 any question arises with reference to this Act or any order made or direction given there-under, whether any perso n is or is not a foreigner or is or is not a foreigner of particular class or de scription the onus of proof that such person is not a foreigner or is not a fore igner of such particular class or description, as the case may be, shall, notwit hstanding anything contained in the Indian Evidence Act, 1872, lie upon such per son. An identical provision is incorporated in Section 4 of the Registration of Foreigners Act, 1939. As regards the procedure for disposal of the cases and the power of the Tribunal s, clauses 3 and 4 of the Foreigners Tribunal Orders, 1964 may be referred to wh ich read as under: 3(1). The Tribunals shall serve on the person to whom the question relates a cop y of the main grounds on which he is alleged to be a foreigner and give him a re asonable opportunity of making a representation and producing evidence in suppor t of his case and after considering such evidence as may be produced after hear ing such persons as may deserve to be heard, the Tribunal shall submit its opini on to the officer or authority specified in this behalf in the order of referenc e. (2) Subject to the provisions of this Order, the Tribunal shall have power to re gulate its own procedure. The Tribunal shall have the powers of a Civil Court while trying a suit Summoning and enforcing the attendance of any person and examining him o

4. under the Civil Procedure Code, 1908 in respect to the following matters, viz.- (a) n oath. (b) (c) In exercise of the powers conferred on it under clause 3(2) of the Foreigners Tr ibunal Order, 1964, the Tribunal may regulate its own procedure as follows: Requiring the discovery and production of any document; Issuing Commissions for the examination of any witness. (1) The Tribunal shall serve on the person to whom the question relates a sh ow cause notice with a copy of the main grounds on which he is alleged to be a f oreigner. This notice should be served as expeditiously as possible. (2) The Tribunal shall give him a reasonable opportunity to show cause by fi ling a representation. Ordinarily, not more than 7 days’ time from the date of s ervice of the notice as aforesaid should be given to file such a representation. (3) The Tribunal shall give him a reasonable opportunity to produce evidence in support of his case. Ordinarily, not more than 7 days’ time should be given to produce such evidence. Prayer for examination of witness in Court or on Commission and producti (4) on of documents shall be refused if in the opinion of the Tribunal such prayer i s made for the purpose of vexation or delay or such other purpose. (5) endent of Police concerned. (6) (7) soon as thereafter as may be practicable. (8) The Tribunal shall hear such persons as may deserve to be heard. After the case has been heard, the Tribunal shall submit its opinion as The Tribunal’s final order containing its opinion need not be lengthy as The Tribunal shall take such evidence as may be produced by the Superint it is not a judgment; a concise statement will suffice. (9) The power of grating adjournment on and plea should be very sparingly ex ercised, and every case should be disposal of, as far as practicable within a pe riod of 30 days from the date receipt of the reference. (10) Since the proceeding before the Tribunal shall be of quashi-judicial nat ure, and since after hearing the case the Tribunal shall submit its opinion (as distinguished from judgment) only, at no stage of the proceeding will a Legal Pr actitioner or Pleader’s Clerk be allowed to appear to plead or act on behalf of a party to the proceeding before the Tribunal. However, a party to the proceedin g may be allowed to appear before the Tribunal either in person or by such other person or relation authorised by him in writing as the Tribunal may admit as fi t person to represent the party. Sd/- Chief Secretary to the Govt. of Assam (cid:29) Facilitating fresh adjudication, direction is hereby issued for appearan 16. ce of the petitioner before the Foreigners Tribunal (II) Lakhimpur on 09.04.2012 . The jurisdictional Superintendent of Police i.e. S.P. (B) Kokrajhar and SP(B) Lakhimpur will take necessary steps for appearance of the petitioner before the Tribunal on the said date and all other subsequent dates as may be fixed by the Tribunal. It is expected that the Tribunal will decide the reference afresh with in the shortest possible time keeping in mind the stipulation made in the afores aid order dated 4.7.1979 and the procedure laid down therein. The petitioner sha ll be given all reasonable opportunity of being heard.

17. The writ petition is disposed of. Let copies of this judgment and order be furnished to the SP(B) Kokrajhar and SP(B) Lakhimpur for necessary follow up action. An extra copy shall also be furnished to Mr. N. Upadhyay, learned State Counsel for his necessary follow up action.

18. e direction for fresh adjudication starting from 9.4.2012. Registry shall send down the case records immediately keeping in mind th