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2005 DIGILAW 522 (GAU)

Babul Rahman v. Union of India

2005-07-21

BIPLAB KUMAR SHARMA

body2005
JUDGMENT B.K. Sharma, J. 1. This writ petition is directed against an order passed by the Foreigners' Tribunal holding the Petitioner herein to be a foreigner. 2. As per the averments made in the writ petition, the Petitioner is a businessman by profession and to maintain his family he visits various places and moves around the State. According to the Petitioner he and his family members are ordinary resident of Digboi town and his father's name was enrolled in the voter list of the year 1966 in the Digboi Constituency. It is the further case of the Petitioner that he along with his family has shifted to Tirapgaon, Lido. According to him, his name has been included in the voter list of 1993 in Margherita Constituency. In support of such claim, the Petitioner has annexed photocopies of the certified copies of such voter lists containing his and his father's name. While the voter list containing the name of his father is stated to be 1996, the voter list containing the name of the Petitioner is stated to be of 1993. The name of the father of the Petitioner has been shown as Insan Ali. The age of the Petitioner has been shown as 50 years. 3. According to the Petitioner he received a copy of the order dated 10.08.04 passed by the learned Member of the Foreigners' Tribunal, Dibrugarh in the last part of August, 2004 by which he has been declared as foreigner with a direction to registrar his name in the Foreigners' Registration Office within two months. It is the definite case of the Petitioner that the order was passed ex-parte against him on the basis of reference made to the Tribunal for a decision as to whether he is a citizen of India under the provisions of Citizenship Amendment Act, 1985. 4. As regards the service of notice by the Tribunal, the Petitioner has categorically stated in the paragraph-5 of the writ petition that he had no notice of the case and as such no steps could be taken to contest the case. In paragraph 5 of the writ petition, the Petitioner has further stated that in the impugned order dated 10.08.04, name of the father has been wrongly shown as Imran Rahman, but in fact, he is the son of Insan Ali. 5. In paragraph 5 of the writ petition, the Petitioner has further stated that in the impugned order dated 10.08.04, name of the father has been wrongly shown as Imran Rahman, but in fact, he is the son of Insan Ali. 5. In tune with the statements made in paragraph-5 of the writ petition, the Petitioner has made further statement in paragraph-6 that he had no knowledge about the case filed against him in the year 2002 on the basis of the report of the Superintendent of Police and the Electoral Registration Officer, Tinsukia. According to him the impugned proceeding was taken up ex-parte and the impugned order was also passed ex-parte. It is the stand of the Petitioner that he was born and brought up at Digboi and as such the impugned order declaring him to be a foreigner is illegal. In paragraph-9 of the writ petition, the Petitioner has stated that he is a permanent resident of Tirapgaon, P.O. Lido, PS. Margherita, Dist. Tinsukia and a citizen of India. 6. It is on the above basis the instant writ petition has been filed making a challenge to the order dated 1018/04 passed by Tribunal declaring him to be a foreigner. 7. While entertaining the writ petition by order dated 01.12.04, a direction was issued requiring the Petitioner to tile an additional affidavit furnishing the particulars relating to his date of birth, purported business etc. The Petitioner was also directed to appear in person before this Court. The Petitioner appeared before this Court on 15.12.04. On being asked, he declared his age as 50 years contrary to the age declared in the affidavit which is 60 years. As regards the documents annexed to the writ petition, the answer of the Petitioner was that he lost the originals of the same on 14.12.04 and prayed for some time to substitute the documents by obtaining the certified copies from the appropriate authority. 8. The Petitioner filed an additional affidavit on 15.12.04 declaring his age to be 50 years. As regards his purported business he has stated that he is a vegetable vendor at Tirapgaon. At times he also works as a daily labourer. This is contrary to the definite stand of the Petitioner in paragraph 2 of the writ petition that he has business for which he has to move around the State to earn his livelihood. 9. As regards his purported business he has stated that he is a vegetable vendor at Tirapgaon. At times he also works as a daily labourer. This is contrary to the definite stand of the Petitioner in paragraph 2 of the writ petition that he has business for which he has to move around the State to earn his livelihood. 9. The record of the case was called for from the Tribunal and the same has been received. The learned Govt. Advocate was also requested to obtain instruction regarding purported voter list containing the name of the Petitioner and his father. The Election Officer, Margherita by his communication dated 07.05.05 addressed to the learned Sr. Govt. Advocate, Assam intimated that the electoral roll of 1993 of 124 Margherita L.A.C. does contain the name of Shri Babul Rahman, son of Insan Ali, Lido, but the original copy of the electoral roll of 1966 is not available in the office. If that be so, it is not understood as to how the Petitioner could obtain the extract of the certified copy of the voter list of 1966 containing the names of his father. The certified copies of the extract of the aforesaid voter, lists, which the Petitioner produced later on, were issued from the office of the Election Officer, Margherita on 27.09.04 and 04.02.05 respectively. While the certified copy dated 27.09.04 contains the name of the purported father of the Petitioner, the certified copy dated 04.02.05 contains the name of Babul Rahman. 10. I have heard Mr. R.C. Paul, learned Counsel for the Petitioner and Ms. R. Chokraborty, learned State counsel appearing for the Respondents. I have gone through the materials on record including the records of the Tribunal. I have given anxious consideration to the submissions made by the learned Counsel and materials on record. From the proceedings before this Court following discrepancies have emerged: a) While the Petitioner has produced purported certified copy of the extract of the voter list for 124 Digboi LAC for the year 1966 purportedly containing the name of his father, the Election Officer, Margherita in his letter dated 07.05.05 has categorically stated that the original copies of the electoral roll of 1966 is not available in the office. If that be so, the question necessarily arises as to how the certified copy dated 27.09.04 could be issued to the Petitioner. If that be so, the question necessarily arises as to how the certified copy dated 27.09.04 could be issued to the Petitioner. Either the certified copy is manipulated one or the same has been issued surreptitiously and without any basis by the staff of the Election Officer, Margherita. b) While the Petitioner has described himself to be a resident of Village Tirapgaon, P.O. Lido, Margherita, Dist. Tinsukia in paragraph 9 of the writ petition, the name of the Village in the certified copy of the extract of the voter list containing the name of the Petitioner has been described as Ranggaon. c) As against the original statement made in the writ petition that the Petitioner is a businessman by profession and earns his livelihood by visiting places and moving around the State, in the additional affidavit filed by him on 15.12.04 he has stated that he is a roadside vegetable vendor and at times he also works as daily labourer. 11. The aforesaid contradictions in the own case of the Petitioner stare on the face of it. In addition to the above, the record of the Tribunal has made the following revelation: (i) The Tribunal issued notice to the Petitioner by order dated 07.07.04. The order sheet reveals that the notice on the Petitioner was duly served. However, the Petitioner did not appear before the Tribunal which necessarily resulted in passing the impugned order ex-parte against him. On verification of the records, it is found that the Petitioner duly received notice from the Tribunal by acknowledging the same putting his signature on 25.07.04. I have verified the signature of the Petitioner appearing in this proceeding and the signature in the notice. Both the signatures are of the same person, i.e. the Petitioner. On being shown and asked to clarify, the learned Counsel for the Petitioner had no answer to the same. On the basis of the acknowledgement notice by the Petitioner, the process server furnished his report certifying service of notice on him. Thus, the Petitioner has made false statement in the writ petition that he never received any notice from the Tribunal. (ii) The entire proceeding was initiated against the Petitioner on the basis of the report submitted by the Electoral Registration Officer, 124 Margherita LAC. Thus, the Petitioner has made false statement in the writ petition that he never received any notice from the Tribunal. (ii) The entire proceeding was initiated against the Petitioner on the basis of the report submitted by the Electoral Registration Officer, 124 Margherita LAC. On physical verification, the Petitioner could not produce any documents in support of his citizenship of India and his eligibility for enrollment as voter in the final electoral roll, 1997. (iii) During the investigation by the Police and the Election Officer, the Petitioner produced a document (a pass) and the electoral registration Officer in the prescribed form recorded the remarks that the pass shows the name of the father of the Petitioner as Yakub Ali, but in the draft electoral roll the name of the father of the Petitioner was shown as Insan. (iv) The records have also made a shocking revelation. It contains a statement of the Petitioner dated 04.11.99, in which the Petitioner declared his age as 40 years and his place of birth as Village-Islampur, P.S. Patharkandi, Dist. Karimganj, contrary to his statement in the additional affidavit dated 15.05.04 that he was born and brought up at Digboi. In the said statement the Petitioner stated that he had been residing in the present place for about 15 years. He stated that his father's name is Abdul Rahman. He categorically stated that his father's name is not Insan Ali. 12. The aforesaid revelations made by the records leave no manner of doubt that the Petitioner resorted to falsehood somehow to escape from the law of the land requiring him to prove his Indian citizenship. At times he declared his age as 40 years and at times as 50 years. In the affidavit sworn in support of the averments made in the writ petition, he has declared his age as 60 years. 13. Although the Petitioner has stated to be a resident of Village Tirapgaon, but in the extract of the voter list his village has been described as Ranggaon. In this document his age has been recorded as 50 years. As per his own statement the name of his father is Abdul Rahman and not Insan Ali. 13. Although the Petitioner has stated to be a resident of Village Tirapgaon, but in the extract of the voter list his village has been described as Ranggaon. In this document his age has been recorded as 50 years. As per his own statement the name of his father is Abdul Rahman and not Insan Ali. If that be so, the certified copy of the extract of the voter list produced by him in support of his citizenship wherein the name of his father has been indicated as Insan Ali cannot be said to be pertaining to the Petitioner. 14. The writ petition is liable to be dismissed solely on the ground of making false statement that no notice was served on him from the Tribunal. As indicated above, the Petitioner duly received notice from the Tribunal with due endorsement putting his signature. However, he did not appear before the Tribunal and now has invoked the writ jurisdiction of this Court by resorting to falsehood making statement that no notice was served on him. 15. The certified copy of the extract of the voter list of 1993 containing the name of the Petitioner is of no help to him inasmuch as the case came to light with further process of verification etc. being carried out in 1997 by the Police and the Electoral Registration Officer. In the proceeding he could not produce any document except the purported pass wherein also the name of the father of the Petitioner is indicted as Yakub Ali. As per his own statement made before the authority his father's name is Abdul Rahman and not Insan Ali. Thus, the very identity of the Petitioner could not be established by him. There is room for doubt as to whether it is the Petitioner whose name appeared in the draft electoral roll of 1993 or it pertains to someone else. If the name of the Petitioner was included in the roll, the question necessarily arises as to why at least his wife's name did not appear there. 16. Although the Petitioner has annexed purported certified copy of that part of the voter list of 1966 pertaining to 124 Margherita LAC containing the name of the purported father (Insan Ali), as per the aforementioned communication dated 07.05.05 made by the Election Officer, Margherita to the Sr. Govt. 16. Although the Petitioner has annexed purported certified copy of that part of the voter list of 1966 pertaining to 124 Margherita LAC containing the name of the purported father (Insan Ali), as per the aforementioned communication dated 07.05.05 made by the Election Officer, Margherita to the Sr. Govt. Advocate, Assam the original copies of the electoral roll of 1966 are not available in the office. As observed above, either the certified copy is manipulated one or the same has been issued surreptitiously and without any basis by the staff of the Election Officer, Margherita. 17. In view of the above, there is no other alternative than to dismiss the writ petition on the both grounds of falsehood resorted to by the Petitioner and the materials available on record clearly pointing out the inherent discrepancies in the own case of the Petitioner leading to the irresistible conclusion that the Petitioner is a foreigner and not a citizen of India. This perhaps is the reason why the Petitioner did not appear before the Tribunal in spite of receipt of the notice and took a chance for favourable consideration by invoking the writ jurisdiction of this Court. 18. The writ petition stands dismissed making the impugned order of the Tribunal absolute. The State machinery and for that matter the Respondents, more particularly the Respondent No. 3 shall take immediate step for deportation of the Petitioner by following due procedure. In the process the Superintendent of Police, Tinsukia shall also issue necessary instruction for taking appropriate action for detection and deportation of any other foreigner who are involved with the Petitioner. According to the Petitioner he has his family along with him. He will also order an enquiry as to how the Petitioner could obtain a certified copy of 1966 electoral rolls, if the same is not available in the Office as stated by the Election Officer, Margherita and shall take immediate action on that basis. 19. Before parting with the case records I express my serious concern as to how the Petitioner could enter and remain in India The instant case leads to irresistible conclusion that many other such foreigners like that of the Petitioner are freely living in India under the very nose of the authorities at the helm of affairs. The threat from such foreigners and easy excess to the Indian soil need not be emphasized. The threat from such foreigners and easy excess to the Indian soil need not be emphasized. If timely action is not taken by the State administration to detect and deport such foreigners in near future, same will pose a serious threat to the Indian demography and its fabrics. It is expected that the State and the Central Govt. will rise to the occasion and shall take measures to curb such threat to the nation. 20. Let a copy of this judgment and order be immediately sent to the Superintendent of Police, Tinsukia for his immediate necessary follow up action. Let copies of this judgment and order be also furnished to the Chief Secretary, Secretary, Home and Director General of Police, Assam for their necessary follow up action. Petition dismissed.