High Court · 2012

Being aggrieved by the judgment and order dated 1.3.2012 rendere d in WP(C) No. 2147/2009 sustaining the determination made by the learned Foreig ners’ Tribunal, Kamrup (Metro) adjudging the appellant/ writ petitioner to be a foreigner under the Foreigners’ Act, 1946 (for short, hereinafter referred to a s ’the Act’), he is in appeal for redress.

2. We have heard Mr DP Chaliha, Senior Advocate for the appellant; Mr M. Bhagwati, learned Central Govt. counsel for the Union of India and Mr PS Deka, learned Govt. Advocate for the State respondent.

3. Sans unnecessary details, the pleaded facts are that on a refere nce made against him a proceeding being FT Kamrup (M) Case No. 429/2007 was regi stered against the appellant/ writ petitioner under the Act on the imputation th at he was a Bangladeshi national and had entered Assam (India) after 25.3.1971 a nd had been residing in the Indian territory illegally. On receipt of the notice of this proceedings, the appellant/ writ petitioner appeared before the learned Tribunal and filed three documents, namely, (i) photocopy of the voters’ list; (ii) photocopy of NRC; and (iii) photocopy of Gaon Panchayat certificate in supp ort of his plea that he was not a foreigner. Admittedly, thereafter he could not appear in the proceedings as, according to him, the houses of his locality incl uding that of his were gutted in a devastating fire. It was also pleaded by him that he was assured by the staff of the learned Tribunal that his documents were adequate enough to sustain his stand. It was after receiving the Quit India Notice from the office of 4. the Senior Superintendent of Police (B), City Guwahati on 12.5.2009 and on enqui ry being made in the office of the learned Tribunal that he was served with a co py of the judgment and order dated 27.2.2008 rendered by it declaring him to be a foreigner under the Act. He thereafter approached this Court with the aforemen tioned writ petition assailing this determination asserting inter alia that he w as a citizen of India by birth and that his father wore the same nationality and had been living in India since before 1940. Along with the writ petition, he pr oduced certain documents as would be dwelt upon subsequent hereto.

5. The Additional Superintendent of Police (B) Dhubri, Assam in par a 6 of his affidavit averred that the name of the father of the appellant/ writ petitioner was enrolled in NRC, 1951 and also in the voters’ list of 1966 of Vil lage-215 Monirchar Boidergaon under 32-South Salmara LAC. That the name of the a ppellant/ writ petitioner was enumerated in Village 2125 Monirchar Boidergaon un der 22-South Salmara LAC in 1992 and that his name was included in the voters’ l ists of 1997 and 2008 of the same village was also stated. This affidavit signed by the above referred deponent, however, did not indicate the manner of affirma tion of these averments in the concluding paragraph i.e. para 7 of his counter, though he did so vis-à-vis the contents of paragraphs 1 to 4 as true to his know ledge.

6. As the records would reveal, in course of the writ proceedings t he appellant/ writ petitioner though directed to surrender before the Senior Sup erintendent of Police (B) City Guwahati, he neither did so nor could he be arres ted by the police. Instead on 1.11.2011 and 17.12.2011 he filed two additional a ffidavits through others. Whereas in his first affidavit he contended that afte r the institution of the writ petition he had gone to Meghalaya and had returned therefrom only in the month of August, 2011; along with the second affidavit fi led through one Mominur Islam, he submitted certain additional documents. The le arned Single Judge noticing certain anomalies in the name of the appellant/ writ petitioner in the documents sought to be relied upon by him, caused enquiries t o be made and to further the purpose also summoned the original records which, a s the order dated 11.1.2012 would reveal, were returned after due scrutiny. By t he judgment and order impugned herein, the learned Single Judge rejected the app ellant/ writ petitioner’s challenge on the following grounds:- a) Out of the three documents (all photocopies) submitted before the learned Tri bunal, the first, which is not legible, contained the purported signature dated 19.1.89 of the Secretary, South Salmara Mondol Congress (I) Committee. The said document represented to be an extract of a voters’ list contained the names of A bdul Karim and Alchan Nessa Bibi, aged 35 and 25 years. The second document is dated 6.10.85 purportedly reflecting the names of nine persons, one of whom is Noor Bhakta Sk, son of Abdul Sk, aged 16 years. The third document is dated 8.8.2005 purportedly issued by a Gaon Panch ayat certifying that one Mozidur Rahman Akand, son of Nur Bokto Akand was a res ident of the said Panchayat under P.S. South Salmara in the district of Dhubri. b) These documents were not proved and exhibited by the appellant/ writ petition er in the proceedings before the learned Tribunal. c) The appellant/ writ petitioner’s attempt to shift the blame on the office sta ff of the learned Tribunal assuring him not to worry about the proceedings was n ot tenable as the burden of proof under Section 9 of the Act is on the proceedee . d) He did not respond to the order of this Court directing him to surrender befo re the Senior Superintendent of Police (B0, City Guwahati and could be eventuall y arrested on 22.9.2011 following constant monitoring of the case by the Court. e) The name of the appellant/ writ petitioner and his father appeared differentl y in several documents filed along with the additional pleadings which render th e claim of his citizenship of India untrustworthy. There is no explanation to ju stify such variations. f) There is no explanation as to why the appellant/ writ petitioner could not pr oduce all these documents before the learned Tribunal. g) In exercise of the writ jurisdiction no roving enquiry into the disputed fact s is called for.

7. Mr Chaliha has emphatically urged that the learned Tribunal and the learned Single Judge having failed to construe the documents filed by the ap pellant/ writ petitioner in the right perspective, the impugned decisions are li able to be interfered with in the interest of justice. Referring to the affidavi t filed the Additional Superintendent of Police (B), Dhubri, the learned senior counsel has insisted that as thereby the authenticity and adequacy of the docume nts filed by the appellant/ writ petitioner in substantiation of his claim of In dian citizenship had been admitted in categorical terms, the learned Single Judg e fell in error in discarding the same. According to him, it is apparent from th e order dated 11.1.2012 passed by the learned Single Judge on the culmination of the necessary enquiries made by him that the contents of paragraph No.6 of the affidavit of the Addl. Superintendent of Police (B), Dhubri had been based on th e original records and, thus, the documents relied upon by the appellant/ writ p etitioner constitute unimpeachable testimony of his claim of Indian nationality. Mr Bhagawati, however, insistently urged that considering the fo 8. rm of the affidavit submitted by the Addl. Superintendent of Police (B), Dhubri, no credibility whatsoever to the documents relied upon by the appellant/ writ p etitioner can be attributed and, thus, in the teeth of the detailed discussion a nd the reasonings recorded by the learned Single Judge to discard the same, no i nterference in this appeal is warranted. The learned State counsel endorsed this view as well.

9. We have analysed the pleadings of the parties and the documents accompanying the same. We have perused the above referred order dated 11.1.2012 as well. It is obvious from the affidavit filed by the Addl. Superintendent of P olice (B), Dhubri that the averments made in paragraph No. 6 therein pertaining to the documents of the appellant/ writ petitioner have not been affirmed at all as required in law. Paragraph No. 7 of the affidavit which recites the mode of affirmation of the averments made in the preceding paragraphs does not refer to the paragraph No. 6 at all. The averments contained in paragraph No.6 of this af fidavit, therefore are dehors any affirmation by the deponent and, thus, are of no evidentiary relevance. The order dated 11.1.2012 though suggests that the rel evant records of the learned Tribunal had been examined, neither the same nor th e impugned judgment and order demonstrate that the recitation in paragraph No.6 of the affidavit filed by the Addl. Superintendent of Police (B), Dhubri vis-à-v is the documents of the appellant/writ petitioner had been made on the basis th ereof (records). In that view of the matter, the plea of authenticity and adequa cy of these documents based on admission of the State respondents referring to t he official records does not commend for acceptance.

10. The appellant/writ petitioner, to start with, has offered his n ame with several aliases. Noticeably, however, he has chosen not to name his fa ther as Nur Bakta Bepary. Whereas his name in the High School Leaving Pass Certi ficate issued in the year 1993 by the Board of Secondary Education, Assam is rec orded as Md. Mozidul Rahmal Akond with his date of birth as 30.4.75, his name in the marksheet for the said examination registers it as Md. Mozidur Rahmal Akond . His name in the admit card issued by the Assam Higher Secondary Education Coun cil in the year 1994 and 1995 is shown as Mozidur Rahman Akand, son of Nur Bakte r Akand and Md. Mozidur Rahman Akand, son of Md. Nur Bakta Bepary. In the voters ’ list of 1992, he is enlisted as Mozidur Rahman, son of Noor Bakta Akond, aged 18 years. Whereas in the certificates issued by the RBPHS School, South Salmara, Patakata Janapriya High School and Mandur Gaon ME School, P.O. Sarkarer Gaon, h is father’s name is again shown as Md. Nur Bakta Bepary, his father’s name in t he voters’ list of 1966 is registered as Nur Bakt Sheikh. His father’s name is r egistered in the excerpt of the document stated to be NRC issued by the Officer- in-Charge of South Salmara Police Station on 6.10.85 as Noor Bhakta Sk.

11. On a cumulative consideration of all above, the view taken by th e learned Single Judge to reject these documents as unassailable proof of his id entity and citizenship of India, according to us, appears to be a plausible one. To reiterate, the affidavit filed by the Addl. Superintendent of Police (B), Dh ubri can by no means be construed to be an admission of the genuineness and suff iciency of these documents to buttress the claim of Indian citizenship of the ap pellant/writ petitioner. These documents, as the above discussion would demonstr ate, are laden with inherent anomalies and inconsistencies rendering the same un trustworthy and unreliable.

12. Having regard to the seriousness of the issue involved with the above state of the documents furnished by the appellant/ writ petitioner, we are disinclined to intervene.

13. ssed. No costs. The judgment and order impugned is affirmed. The appeal is dismi