High Court
Case Details
WP(C) 5648/2009 BEFORE THE HON’BLE MR. JUSTICE N. CHAUDHURY
Legal Reasoning
By this application under Article 226 of the Constitution of India, the petition er has challenged the final order dated 14.09.2009 passed by the learned Foreign er’s Tribunal, Dibrugarh, in F.T. Case No. 265 of 2006 thereby holding the petit ioner a foreigner of post 1971 stream. [2] The fact involved in this case is required to be stated in brief. The S uperintendent of police of Dibrugarh made an endorsement expressing doubt that t he petitioner, namely, Sri Swapan Kumar Dey, is an illegal migrant from village Mirjapur P.S. Lakshan in the district of Cummilla of Bangladesh and that he ente red into India after 25.03.1971 without any valid document. He submitted a repor t before the Screening Committee and thereupon a reference was drawn up for deci sion by the learnedTribunal. In the meantime, the IM(D)T Act, 1983 came to be ad judicate as illegal and provisions of Foreigner’s (Tribunal) Orders 1964 became operational. Notice was issued by the Foreigner’s Tribunal, Dibrugarh, to the pr esent petitioner, who is a cycle mechanic and is not an educated person. He appe ared before the learned Tribunal pursuant to the notice issued to him by the For eigners Tribunal, Dibrugarh, but did not submit any written objection. It appear s from the final order referred to above that the petitioner went on taking tim e verbally for producing original documents and witnesses in support of his clai m of citizenship and ultimately he did not produce the same. He, however, produc ed the photocopies of certificate of registration as a citizen of India under th e Provisions of the Citizenship Act, 1955, issued to his grandfather, Rasik Ch. Dey, on 29.11.1956, a letter dated 01.06.1955 issued to his father Lt. Jogesh Ch . Dey from Assistant Relief and Rehabilitation Officer, Jorhat and also transfer certificate of Shapekathi Provincialised Higher Secondary School, Sivasagar, is sued on 14.08.2009. Since the said documents were not produced in original, the learned Foreigner’s Tribunal did not consider the same and consequently held tha t the petitioner failed to discharge the burden cast on him under Section 9 of t he Foreigners Act, 1964. The learned Tribunal decided the reference in affirmati ve declaring the petitioner a foreigner of the stream of post 1971. The said ord er is under challenge before this Court. On the basis of order dated 18.12.2009 passed by this Court, the petitioner surrendered before the Superintendent of po lice and thereupon he sent him to the Detention Camp of Dhubri and the petitione r has been in the detention camp for last 4 years.
Legal Reasoning
[3] Heard Mr. G. N. Sahewalla, learned Senior Counsel assisted by Ms. R. Ja in, learned counsel for the petitioner. Also heard Mr. M. Bhagwati, learned CGC appearing for respondent No.1 as well as Ms. B. Dutta, learned Government advoc ate, Assam, appearing for respondent Nos. 2 to 5. [4] Mr. G. N. Sahewalla, learned Senior Counsel, has produced the origina ls of the aforesaid certificates of registration, letter dated 01.06.1995 and th e transfer certificate dated 14.08.2009. The learned Senior counsel has drawn my attention to the voter list of 120 Naharkatia of the voter list of the year 200 8. In Serial No. 1388 of the said voter list, the name of the petitioner is show n with his father’s name as Lt. Jogesh Ch. Dey. [5] Mr. Bhagwati, learned Central Government Counsel submits that in the s aid voter list the age of the petitioner is shown as 50 years, where as the peti tioner could not produce any voter list of the proceeding year to show that the petitioner has become voters after attaining the 18 years of age. Mr. Bhagwati s ubmits that under Section 9 of the Foreigners Act, it is the burden of the notic e receiver to prove that he is not a foreign national, but in the case in hand t he petitioner failed to produce the original of the certificates and also could not produce any witness. Per contra, Mr. Sahewalla submits that the petitioner d id not understand the language of the Court and he being a cycle mechanic is not aware of the legal position. The learned senior counsel submits that without be ing aware of the legal position that original documents are necessary for the pu rpose of proving the same, the petitioner produced photocopy of the said certifi cates thereon. [6] Section 30 of the CPC lays down the procedure for power of the Court d escribing the provisions empowering the Court to make necessary orders relating proof of documents. The Hon’ble Supreme Court has consider this provisions in th e case of Maria Margerida Sequeira Fernandes reported in (2012) 5 SCC 370 held t hat it is the duty of the learned Court to be proactive in regard to arriving at finding in respond to the lis, when the matter is pending before the Court. The Hon’ble Supreme Court has observed that Section 30 of the CPC should be frequen tly resorted by the Court of the original jurisdiction, but the same has not bee n followed by the Courts. In the said judgment the Hon’ble Supreme Court has cau tioned the learned Courts below in regard to its responsibility to properly adju dicate the dispute pending before it even if a party fails to act in the way he should. The provisions of Section 30 of the CPC has given enough power to the Co urt of original jurisdiction to take all necessary steps so as to cull out the t ruth in regard to responsibility of learned Civil Court under the Code of Civil Procedure, is also equally applicable for tribunal constituted under special Act and under such situation the responsibility of the learned Foreigner’s Tribunal also would include exercise of jurisdiction in the spirit of Section 30 of the CPC. This is so because a Foreigner’s Tribunal has been cast with the responsibi lity of deciding the valuable right of a citizen which is hallmark for enjoyment of any other right available under Constitution of India. In this view of the m atter, it is not expected of the Foreigners Tribunal to Act Mechanically being o blivious on ground realities. As in this case, the petitioner is not a qualified person and is engaged in cycle repairing, he has been served with a notice unde r the Foreigner’s Tribunal Order 1964 and he had to stand trial without being ai ded by any duly qualified counsel. He is in possession of rightful documents whi ch is discernible from the fact that the original certificates have been produce d before this Court by the learned Senior Counsel. If the learned Tribunal had e xercised the power and responsibility cast on it under spirit of Section 30 of t he CPC, the same documents would have found place in the records of the proceedi ng and in that event perhaps the impugned order would not have been passed. The net result is that a citizen is in custody for more than 4 years in spite of bei ng in possession of the relevant documents. [7] Having gone through the original documents, particularly the letter d ated 01.06.1955, the photocopy of which was placed before the learned Tribunal, it appears thus the father of the present petitioner was appraised on 01.06.1955 that the further financial assistance would not be admissible to him. The petit ioner has also produced the original certificate of registration of his grandfat her, namely, Rasik Ch. Dey. It appears from the said certificate that as on 29.1 1.1956 the said Rasik Ch. Dey was certified to be a citizen of India under Provi sion of Section 5 (1) (a) citizenship Act, 1955 under the ceal and signature of the Registering authority, namely, the Sub Deputy Collector. It is not in dispu te that Lt Jogesh Ch. Dey was the father of the petitioner. The certificate prod uced by him from Shapekathi Provincialised Higher Secondary School also makes th e same disclose as to his parentage. The petitioner has produced a letter in ori ginal issued on 01.06.1955 showing that the said Jogesh Ch. Dey was the Secretar y of the Refugee Association, Saphekati and that his grandfather was given certi ficate of registration by the competent authority, it is not possible to uphold the final order passed by the learned Tribunal referred to above. The learned tr ibunal has not considered the aforesaid document and merely refused the same on the ground that the originals are not produced. The final order does not indicat e as to whether the learned Tribunal had enquired of the petitioner as to the or iginals of the documents photocopy of which were produced by him. However, once the originals have been produced before this Court and the same is perused, ther e is no doubt that the petitioner’s father was in India on 01.06.1955 and moreov er that the petitioner was a student of Shapekathi Provincialised Higher Seconda ry School in 1969. [8] In view of above, the impugned final order passed by the learned Foreig ner’s Tribunal is set aside with direction to the learned Foreigner’s Tribunal, Dibrugarh to decide the reference afresh after considering the aforesaid documen ts. If the petitioner cannot afford to engage any counsel, the learned Tribunal shall pass necessary orders to providing legal aid to the petitioner so that the documents relied by the petitioner are proved in accordance with law. Writ peti tion is allowed. Petitioner shall be released from detention camp forthwith. Reg istry shall make necessary communication to the Superintendent of Detention Camp , Goalpara, immediately for release of the petitioner from jail. However, till t he reference is decided the petitioner shall not leave the district of Dibrugarh . The petitioner shall appear before the learned Tribunal on or before 28.10.201 3 to receive necessary order.
Decision
[9] The writ petition stands disposed of. [10] The records shall be sent back to the learned Tribunal forthwith.