Jainab Bibi v. State

#3. In the writ petition, the petitioner has taken the plea that although sh e received notice, she could not take proper steps, as she is illiterate. Anothe r ground urged is that during the year 2006, she was pregnant and consequently c ould not take any steps. A child was born to her on 15.2.2006 and she had to fac e difficulty in taking care of her child.

#4. I have heard Mr. R. Sarma, learned counsel for the petitioner as well as Mr. H.K. Barman, learned State Counsel. I have also heard Mr. M. Bhagawati, lea rned CGC. I have perused the materials on record including the records receipt f rom the Tribunal.

#5. The case against the petitioner was registered way back in the year 1999 on the basis of the reference received from the Superintendent of Police, Dhubr i. After scrapping of the IM(D)T Act by the Apex Court in Sarbananda Sonowal (1) case reported in (AIR 2005 SC 2920), the case was transferred to the Foreigners Tribunal, which tried the reference. In the said Tribunal, the petitioner appea red on 22.8.2006 through her engaged counsel and prayed for time to produce docu ments. The prayer was granted fixing the matter on 6.9.2006. On 6.9.2006, the petitioner remained absence. However, her engaged couns 6. el filed an application seeking further time to file written statement and the p rayer was granted.

#7. After the aforesaid date, i.e. 6.9.2006, it had been the story of absenc e of the petitioner without any steps. She did not appear on all subsequent date s, which are 27.9.2006, 25.10.2006, 18.11.2006, 13.12.2006, 11.1.2007, 13.2.2007 , 23.3.2007, 27.4.2007, 24.5.2007, 21.6.2007, 17.7.2007, 11.9.2007, 15.11.2007, 13.2.2007, 7.2.2008, 3.4.2008, 24.4.2008, 30.5.2008 and 26.6.2008.

#8. She also remained absent on the next date i.e. 21.7.2008, however, learn ed Tribunal thought it prudent to issue fresh notice to her fixing the matter on 22.8.2008. Notice was duly served as recorded in the order dated 16.12.2008. Th ereafter also the petitioner remained absent as recorded in the orders dated 27. 1.2009, 27.2.2009, 6.4.2009, 13.5.2009, 18.6.2009, 24.7.2009, 5.9.2009, 31.10.20 09, 21.12.2009, 4.2.2010 and finally on 19.3.2010, on which date the Tribunal pa ssed the impugned exparte judgment.

#9. It appears that on 4.2.2010, the State examined PW-1, who in his evidenc e proved the verification the enquiry reports (Ext. 1, 2, 3 and 4). The said wit ness in his statement stated that when doubt arose about nationality of the O.P. i.e. the petitioner an enquiry was conducted and the said enquiry revealed that she is a Foreign National and not an Indian citizen.

#10. From the above, what is seen is that the plea of the petitioner that the re was some difficulty on her part to appear before the Tribunal in 2006 and the same resulted in exparte proceeding is not at all tenable inasmuch as even afte r 2006, the Tribunal gave her enough opportunity by adjourning the matter on sev eral dates. Not only that fresh notice was served on her and inspite of receipt of notice, she did not appear. Thus, the explanation furnished by the petitioner in the writ petition about her difficulty in responding the proceeding before t he Tribunal is not believable and acceptable.

#11. Above apart, there is also misleading statements in the writ petition. I n paragraph 2 of the writ petition, the petitioner has stated that she is the da ughter of Jafar Sheikh and Chakimaon Bibi. In paragraph 3 of the writ petition i t has been stated that her father (this time named as Jafar Ali) had two wives n amely Amjat Baini and Chakiman Bibi and that said Amjat Baini has a special Fami ly Identity Card bearing No. 446216 issued in 1989 by the Deputy Director of Foo d and Civil Supplies, Dhubri.

#12. Noticing the overwriting in the said Identity Card omitting the original name to Ali, this court had requested the learned State Counsel to obtain a rep ort regarding veracity and otherwise of the said Family Identity Card. Mr. Barma n, learned State Counsel has produced the letter dated 13.12.2011 addressed to M s. R. Chakraborty, the then Additional Sr. Govt. Advocate, Assam by the Deputy D irector of Food & Civil Supplies and Consumer Affairs. Along with the said lette r the said Family Identity Card and enquiry report along with relevant documents have also been enclosed. The enquiry was conducted in respect of the queries ma de by this Court about the existence of the said Family Identity Card. The repor t has revealed that the Family Identity Card stands in the name of one Amjad Bah ani and not Amjat Baini. The word (cid:28)Bahani (cid:29) has been scored off in the Family Ide ntity Card and has been converted to Ali. According to the petitioner, the said Family Identity Card stands in the name of her step mother, but the enquiry repo rt has revealed that the said Family Identity Card stands in the name of a male person namely Amjat Bahani son of Zafar Ali. Thus there is total misrepresentati on of actual facts on which score alone the writ petition is liable to be dismis sed.

#13. If we go by the records of the Tribunal, the age of the petitioner at th e time of filing the writ petition in May 2010 was about 43 years. Thus, natural ly, if she is an Indian citizen, her name would have appeared in the voter lists and other documents. However, in the writ petition, the petitioner has annexed only one copy of the voter list of 2005. The cut off date being 25.3.1971, the p etitioner will have to establish her linkage to pre-1971 and cannot take the ple a that as her name appeared in the voter list of 2005, she be declared as Indian citizen. The petitioner has also referred to certain other documents so as to c laim that the persons named in the particular voter list of 1966 (extract only) are her parents. Unless linkage is established to the said persons and explanati on is furnished as to why her parents name did not appear in other documents inc luding the voter list published thereafter i.e. 1966, this Court cannot accept s uch a plea of the petitioner. Moreover as has been held by the Apex Court in (20 10) 4 SCC 491 (LICI Vs. Ram Pal Singh Bisen) mere execution of document is not e nough to prove the contents thereof and something more is required as per the pr ovision of Evidence Act.

#14. Above apart, this Court exercising writ jurisdiction cannot appreciate t he evidence like an original Court. Moreover, when there is misleading statement s and suppression of material facts, on that score alone the petitioner invoking writ jurisdiction is not entitled to any relief. For all the aforesaid reasons, I do not find any merit in the writ petit 15. ion and accordingly it is dismissed. The respondents namely the Superintendent o f Police (B) Dhubri and the Deputy Commissioner, Dhubri shall now take consequen tial action towards deportation of the petitioner from India and deletion of her name from the voter list.

#16. Let copies of this judgment and order be furnished to the Superintendent of Police (B) Dhubri and the Deputy Commissioner, Dhubri and also to the Union Government in the Ministry of Home. Extra copy shall also be furnished to Mr. H. K. Barman, learned State Counsel for his necessary follow up action.

#17. Registry shall send back the records of the Tribunal immediately. Mr. R. Sarma, learned counsel for the petitioner is permitted to take back the Ration Card that was submitted for verification.