Union of India v. Md. Durjan Ali)
Case Details
WP(C) 6025/2010 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER The petitioner who has been declared to be a foreigner (illegal Bangladeshi migr ant) by the Foreigners Tribunal has filed this writ petition challenging he said declaration. The impugned order of the Tribunal is dated 14.5.2010 passed in F. T. Kamrup (Metro) Case No. 125/2007 corresponding to IM(D)T Case No. 1535/2005 a nd Police Case No. 340/2006 (Union of India Vs. Md. Durjan Ali).
Legal Reasoning
2. I have heard Dr. B. Ahmed, learned counsel for the petitioner and have a lso heard Mr. N. Upadhyay, learned State Counsel. As usual, none has appeared fo r the Union of India. I have also gone through the entire materials on record in cluding the case file received from the Tribunal. According to the petitioner, h e is a citizen of India by birth. His paternal great grand father is Late Sadhu Sikdar @ Sadhu Sheikh and his grand father is Wassil Ali. He claims that his fat her is Md. Mohammed Ali. It will be pertinent to mention here that in the writ p etition, the petitioner has declared his age as 31 years.
Decision
3. The petitioner has annexed certain documents to the writ petition in sup port of the aforesaid claim which include the photocopies of annual khiraj patta pertaining to Dag No. 169 for the year 1924-25 and also annual patta bearing No . 81 issued by the Settlement Officer, Kamrup, Assam. The said documents stand i n the name of one Sadhu Sheik and Inam Ali; Wassil and Wazuddin. 4. The petitioner has also enclosed another land document (photocopy), purp ortedly of 1952 containing the name of Sadhu Sikdar S/o Fazu Sikdar. On the othe r hand in the land document of 1924-25 Sadhu Sheikh’s father’s name is Faizuddin . The other document annexed to the writ petition are the photocopies (extract o nly) of voter lists of 1966, 2010, 1970, 1971, 1997, 2005 and 2004. Along with t he writ petition, the petitioner has also annexed the copy of the written statem ent that was filed before the Tribunal. 5. In the voter list of 1966, the name of one Wassil Sheikh S/o Sadhu Sikda r appears and so also in the voter list of 2010. In the voter list of 1970 also the name of one Wasin Sheikh appears while in the voter list of 1971 the name of one Mohammed Ali appears. Interestingly, in the voter list of 1997, the name of the petitioner appears as S/o Mohammed Ali aged 28 years along with his purport ed parents namely Mohammed Ali and Dudhjan Nessa, aged 42 and 32 years respectiv ely. Thus, the petitioner was only 4 years younger than his mother. Coupled with this, his age has increased by only 3 years from 1997 to 4.11.2010 when he had sworn the affidavit in support of the writ petition describing his age as 31 yea rs. When the learned counsel for the petitioner was asked to explain these discr epancies, there was no answer. 6. Same is the condition in the voter list of 2005, in which as has been cl aimed by the petitioner, his name appears along with his parents age 51d and 39 respectively as against his own age as 35 years. Thus taking into the account th e aforesaid 1997 and 2005 voter lists, while the petitioner was only 4 years you nger than his mother, he was also only 14 years and 16 years younger than his fa ther. Coupled with this, as the time had gone by, the petitioner became younger than what he was in 1997 and 2005. Same is the position in respect of the 2008 v oter list where as claimed by the petitioner his name appears along with his par ents aged 54, 42 and 38 years respectively. Thus in this voter list also, he was only 4 years and 16 years younger than his mother and father. No answer could b e furnished to the said discrepancies by the learned counsel for the petitioner when he was asked to explain the same. 7. Coupled with the above and as has been discussed in the impugned judgmen t and order (but not disclosed in the writ petition), in the ration card that wa s produced by the petitioner before the Tribunal (Ext-5), the name of the origin holder Intaz Ali has been scored off and replaced by Mohammed Ali without any a uthorization and endorsement. Similarly, the name of Faizuddin has also been sco red off so as to be replaced by Wassil, the purported father of Mohammed Ali. Mo reover, two vital pages of the said special family identity card has also been r emoved. The petitioner could not furnish any explanation in respect of the same neither before the Tribunal nor before this Court. 8. On being pointed out the said discrepancies in the own exhibited documen t of the petitioner, the learned counsel for the petitioner submitted that the s aid discrepancies be left aside towards consideration of the case of the petitio ner on the basis of other documents annexed to the writ petition and exhibited b efore the Tribunal. It is often seen that coming to the Writ Court the declared foreigners s 9. ubmit document (all photocopies) claiming the same to be pertaining to them. Nee dless to say that such production of further documents without producing the sam e before the tribunal cannot improve upon the case of the petitioner. As has bee n held by the Apex Court in LICI Vs. Rampal Singh Bisen reported in (2010) 4 SCC 491, mere admission of a document in evidence does not amount to its prove. In other words, mere marking of exhibit on a document does not dispense with its pr oof, which is required to be done in accordance with law. It was the duty of the petitioner to prove the documents (photocopies of which were only produced), in accordance with law. The petitioner failed to comply with the requirement to pr ove the documents in accordance with the provisions of the Evidence Act. The pet itioner cannot establish his Indian citizenship by producing certain photocopies of documents without exhibiting and proving the same in accordance with the pro visions of Evidence Act. At the most, admission of document may amounts to admis sion of contents but not its truth. Merely by exhibiting certain documents claim ing the names appearing therein to be that of the petitioner’s great grandfather and grandfather is not sufficient. The petitioner measurably failed to establis h that they are his great grandfather and grandfather. 10. The above aspect of the matter has been discussed by the learned Tribuna l in its impugned judgment and order. The finding of fact arrived at by the lear ned Tribunal cannot be lightly interfered with exercising writ jurisdiction. Tha t apart, as discussed above, there is inherent contradiction in the own case of the petitioner. It is very easy to pick up any name from the voter list claiming the same to be that of one’s great grandfather or grandfather. 11. As the experience of this Court goes dealing with scores of foreign nati onal cases, there is similarity in names in the voter list and/or the voter list s contain similar/identical names. This is precisely the reason as to why an eve n otherwise also unless and until the proceedee establishes that the said names are relatable to him by adducing evidence, it will be totally unsafe to swallow the story of such proceedee that any one of the said names in the voter list is that of his grandfather and great grandfather. 12. If the petitioner is a citizen of India by birth, he could have produced some cogent evidence to establish the same. However, that is not to be found in the instant case and instead the petitioner has placed reliance on certain phot ocopies of voter lists referring to certain names claiming the same to be that o f his great grandfather and grandfather without, however, establishing the linka ge thereof as required under the Evidence Act. If the petitioner is really a citizen of India by birth there was no nec 13. essity for him to produce the forged Special Family Identity Card (Ext-5), which has been discussed above. This Court exercising its power of judicial review ca nnot sit on appeal over the finding recorded by the learned Tribunal on the basi s of the evidence adduced before it. Accordingly, the writ petition is dismissed . The respondents namely the Superintendent of Police (B) Kamrup and the Deputy Commissioner, Kamrup (M) shall now take consequential action towards deportation of the petitioner from India and deletion of his name from the voter list. In f act, the names of all declared foreigners by the Tribunal are required to be del eted forthwith. 14. Let copies of this judgment and order be furnished to the Superintendent of Police (B) Kamrup and the Deputy Commissioner, Kamrup (M) and also to the Un ion Government in the Ministry of Home Affairs. 15. ith the copy of this judgment and order. Registry shall send back the records of the Tribunal immediately along w