State of Assam v. Md. Hasmat Ali

By means of this writ petition, the petitioner has challenged th e judgment dated 13.04.2010 passed by the Foreigners Tribunal (1st), Morigaon i n case No. FT(D) No. 1190/2007 (State of Assam vs. Md. Hasmat Ali) by which the petitioners has been declared to be illegal migrant after the cut off date, i.e.

25.03.1991.

#2. I have heard Mr. J. Ahmed, learned counsel for the petitioner as well as Mr. H.K. Barman, learned State counsel. I have also heard Mr. M. Bhagwati, lear ned CGC. The records of the Tribunal was called for and on receipt of the same, I have perused the same.

#3. In the writ petition the petitioner has named himself as Md. Hasmat Ali, son of Md. Nazim Uddin. According to the petitioner, the notice issued by the T ribunal containing his name as Md. Hasmat Ali, son of Nasiruddin was served on h im and as there is no other person in the petitioner’s name, he received the sam e. It has been stated that the Tribunal committee gross illegality declaring the petitioner to be an illegal migrant.

#4. In the written statement filed before the Tribunal a copy of which has b een annexed as Annexure-I to the writ petition, it was contended by the petition er that his grandfather’s name was enrolled in the voter list of 1965. It was al so contended that his father’s name was also enrolled in 1971 voter list. It was further pleaded that the Govt. of India allotted land to his grandfather under annual kharij patta in 1957 under the particular description indicated in the wr itten statement.

#5. In the said written statement the petitioner had stated that he was born on 01.10.1981 in village Garubandha under Mayong P.S. in the District of Moriga on and he read in Garubandha L.P. School and passed class IV examination in 1991 . He also appeared in HSLC final examination in 2002 from Borbori Milan High Sch ool. The petitioner has also referred to an order dated 30.10.1978 purportedly p ertaining to his father and also the Pan Card issued in his name. In the written statement the petitioner also contended that his name was enrolled in the voter list of 1997 and that he had applied for enrolment of his name in the voter lis t of 2005. The Tribunal in due consideration of the evidence adduced by the petiti 6. oner and the State, found that the State witness (PW1) had proved the enquiry re port (Exhibit I) by which the antecedents of the petitioner were verified with the statement that the petitioner could not produce any valid documents to estab lish his Indian citizenship and that his mother tongue is Bengali.

#7. As recorded in the findings of the Tribunal, the petitioner describing h imself to be the son of Md. Nazim Uddin exhibited Exht. ’Ka (cid:29), Exht. ’Kha’, Exht. ’Gha’ and Exht. (cid:28)Gha-1’ . He also produced Ration Card issued by Gagalmari Sama bai Samittee in his name and the certificate issued by the Revenue Circle Office r (Mayong) and the Pan Card. Although the petitioner relied upon the certificate issued by one Shri 8. Maya Ram Boro, Gaon Bura, Bulukaguri Gaon who also deposed in the proceeding bef ore the Tribunal as O.P.2, but he did not prove the said certificate. No whisper was made by him about the said certificate. In Exhts. ’Ka’, ’Kha’ and ’Gha’ documents, the name of one Nazimuddin ap 9. pears. The alleged grandfather of the petitioner was named as Hamed in support o f which the petitioner placed reliance on Exht. ’Ka’, ’Kha’ and ’Gha’ in which t he names of Hamed; Hamed Ali Sardar and Hamed Ali Seikh appear. It was contende d on behalf of State that since notice was served on the petitioner naming him a s Md. Hasmat, son of Nasir Uddin and he also received notice and never contended before the Tribunal that the name of his father is Nazimuddin and not Nasir Udd in, the documents containing the name of Nazimuddin whom the petitioner projecte d as his father cannot establish the Indian citizenship of the petitioner. As no ticed above, in the proceeding before the Tribunal and in the documents pertaini ng to the reference, the father of the petitioner was named as Nasir Uddin and n ot Nazimuddin.

#10. In view of the above discrepancies, the Tribunal has answered the refere nce in favour of the State and against the petitioner. In the proceeding before the Tribunal it was never contended by the petitioner that the name of his fathe r was wrongly mentioned as Nasir Uddin instead of Nazimuddin.

#11. As has been described by the Apex Court in Life Insurance Corporation of India and another vs. Rampal Singh Bisen reported in (2010) 4 SCC 491, mere adm ission of a document in evidence does not amount to its proof. In other words, m ere marking of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law. Under the evidence also, it is neces sary that contents of documents are required to be proved either by primary or b y secondary evidence. At the most, admission of documents may amount to admissio n of contents but not its truth. Documents having not been produced and marked a s required under the Evidence Act cannot be relied upon by the Court. Contents o f the document cannot be proved by merely filing in a court.

#12. One interesting feature of the matter is that in the Tribunal the petiti oner also exhibited a document dated 20.11.1984 which is a declaration for inclu sion of name in the electoral roll. In the said document, name of Md. Nazimuddin whom the petitioner projects as his father appears showing his age (overwriti ng) as 42 years. In the said document the grandfather of the petitioner (as clai med by the petitioner) Hamed Ali was shown as 110 years of age. On the other han d in the voter list of 1965 Md. Hamed Ali Sardar was shown as 70 years of age. I n another document, namely in the payment receipt of LIC premium standing in the name of Md. Hasmat Ali, his father is described as Nizumuddin. The cut off date being 25.03.1971, the persons suspecting to be foreign 13. national (Bangladeshi national) will have to establish his link to the period pr ior the said cut off date which the petitioner failed to do. Because of the wide variation in the documents vis a vis the reference made against the petitioner, the Tribunal declined to believe the story of the petitioner. This Court exerci sing its power of judicial review under Article 226 of the Constitution of India cannot sit on appeal over the findings recorded by the Tribunal and re-apprecia te the evidence like an appellate court. For all the aforesaid reason, I am of the considered opinion that there 14. is no merit in the writ petition and accordingly it is dismissed leaving the par ties to bear their own costs. The Registry is directed to send down the case records to the Tribunal i 15. mmediately alongwith a copy of this judgment. Copies of the judgment shall be fo rwarded to the Superintendent of Police (B), Morigaon and the Deputy Commissione r, Morigaon for consequential action as contemplated by law including deletion o f the name of the petitioner, if found to have entered in any of the voter lists . A copy of the judgment shall also be send to the Union of India, Home Departme nt, New Delhi for its appraisal. Another copy be furnished to Mr. H.K. Barman, l earned State counsel for his necessary follow up action.