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2006 DIGILAW 58 (GAU)

Jahura Khatun v. Union of India

2006-01-10

B.K.SHARMA

body2006
B.K. SHARMA, J.— Both the petitions based on more or less same set of facts with the same issue involved, were heard analogously and are being disposed of by this common judgment and order. 2. The petitioners involved in these two writ petitions have been declared as foreigners and illegal migrants to India by the Illegal Migrants (Determination) Tribunal (IMDT), Barpeta consequent upon which the Superintendent of Police, Barpeta has issued orders directing the petitioners to remove themselves from India within 15 days from the date of service of notice. Being aggrieved by the orders passed by the Tribunal and the consequent notices issued by the Superintendent of Police, Barpeta, the petitioners have invoked the writ jurisdiction of this Court by filing the writ petitions. 3. In both the writ petitions the basic ground towards assailing the legality and validity of the orders passed by the Tribunal is the same, i.e non-receipt of any notice from the Tribunal towards passing the order & declaring them to be illegal migrants to India. It is their pleaded case that no notice was served on them in respect of the proceedings before the Tribunal and the impugned judgments and orders have been passed behind their back in violation of the principles of natural justice. According to the petitioners they were not aware of the proceedings in the Tribunal before passing the impugned judgments and orders and according to them on that score alone the impugned orders are liable to be set aside and quashed. 4. Specific averments made to the above effect in both the writ petitions are one and the same. Such statements have been made in paragraph-7 of the writ petitions. Be it stated here that while in the first writ petition being W.P.(C) No. 5474/05 the impugned judgment and order passed by the Tribunal is dated 07.04.05, in the second writ petition being W.P.(C) No. 5475/05 the impugned judgment and order is dated 10.03.05. The statement regarding non-receipt of notice in respect of proceedings before the Tribunal have been made in paragraph-7 of both the writ petitions. Paragraph-7 of the writ petition in W.P.(C) No. 5474/05 is quoted below: "7. The statement regarding non-receipt of notice in respect of proceedings before the Tribunal have been made in paragraph-7 of both the writ petitions. Paragraph-7 of the writ petition in W.P.(C) No. 5474/05 is quoted below: "7. That the petitioner begs to state that the reference U/s. 8(1) of IM (D)T Act 1983 was illegal on the ground of no enquiry was conducted as referenced in the reference and no prior notice was served to the petitioner at any point of time. It is further begs to state that no notice was served to the petitioner and no notice was received by the petitioner at any point of time prior to the judgment and order dated 07.03.05 for that a reason ex-parte judgment and order was delivered in violation of the principle of natural justice and on that ground alone the impugned judgment and order dated 07.03.05 passed in IM (D)T Case No. 1343/03 by the IM(D) T, Barpeta is illegal, arbitrary, discriminatory, malafide and without jurisdiction and the same is liable to be set aside and quashed." 5. The above specific stand of the petitioners in both the writ petitions is contrary to the reflections made in both the impugned judgments and orders, as per which notices were dully served on the petitioners, but upon their absence in the proceedings, the matters proceeded ex-parte against them. The proceedings in case No. 1343/03 and case No. 3004/04 respectively were initiated by the Tribunal upon references made by the Superintendent of Police, Barpeta alleging the petitioners to be illegal migrants having entered into India after 25th March, 1971 without any valid documents of travel. On perusal of the impugned judgments and orders dated 07.03.05 and 10.03.05 respectively, it appears that notices in both the cases were served on the petitioners as second party, but they remained absent in the proceedings without any steps. Consequently, the impugned judgments and orders had to be passed ex-parte against them. 6. The records of the proceeding before the Tribunal are clear testimony of service of notice on the petitioners. Upon verification of the same, it appears that in Case No. 1343/ 03 pertaining to the first writ petition, i.e. W.P.(C) No. 5474/05, notice was dully served on the petitioner, i.e. Smti. Jahura Khatoon and the petitioner dully received the notice from the process servers, Shri Narayan Sarmah and Shri Nur Hussain Sarkar. Upon verification of the same, it appears that in Case No. 1343/ 03 pertaining to the first writ petition, i.e. W.P.(C) No. 5474/05, notice was dully served on the petitioner, i.e. Smti. Jahura Khatoon and the petitioner dully received the notice from the process servers, Shri Narayan Sarmah and Shri Nur Hussain Sarkar. The notice was issued on 23.10.03 fixing the next date of proceeding on 06.12.03. Such service of notice on the petitioner is also reflected in the order of the proceedings before the Tribunal. By order dated 06.12.03 serviceof notice on the petitioner was recorded. On 26.04.04, Mr. Mazneet AH Ahmed, learned Advocate for the petitioner appeared and filed a petition praying for time and the same was allowed by the Tribunal fixhing the next date as 07.06.04. On that day also a petition for time was filed by the learned Advocate for the petitioner and the same was allowed fixing the next date as 17.07.04. However, on all subsequent dates, namely 31.08.04, 09.10.04,09.12.04,10.01.05 and 21.02.05, the petitioner remained absent without any steps and consequently by order dated 10.01.05 it was indicated that the case would proceed ex-parte. Upon verification of the records of the Tribunal, it also appears that since the petitioner did not appear before the Tribunal after appearing on 26.04.04 and 07.06.04, the Tribunal issued fresh notice to the petitioner by order dated 31.08.04. In the order dated 09.12.04 service of fresh notice on the petitioner was recorded. However, since she did not appear, the order dated 10.01.05 was passed recording that the proceeding against the petitioner would proceed ex-parte. As regards the service of notice for the second time, it appears from the records that the petitioner was once again was served with notice as reflected in the service report furnished by the process servers, namely Shri Ahmed AH and Shri Narayan Sarmah on 19.10.04. 7. The above reflections made by the records, leave no manner of doubt that the petitioner was duly served with the notice not once but twice and she appeared before the Tribunal through her Advocate on 26.04.04 and 07.06.04. But thereafter she remained absent which necessarily resulted in ex-parte proceeding against her. Thus, there is no manner of doubt that the statement made by the petitioners in paragraph-7 of the petition quoted above, is false and on this score alone the writ petition is liable to be dismissed. But thereafter she remained absent which necessarily resulted in ex-parte proceeding against her. Thus, there is no manner of doubt that the statement made by the petitioners in paragraph-7 of the petition quoted above, is false and on this score alone the writ petition is liable to be dismissed. The statement made in paragraph-7 of the writ petition has been verified by the petitioner as true to her knowledge which is again a falsity of the truth as reflected from the records. 8. Now coming to the second writ petition, i.e. W.P.(C) No. 5475/05, same is the state of affair regarding the service of notice. Although the petitioner in paragraph-7 of the writ petition like that of the petitioner in the first writ petition being W.P.(C) No. 54747 05 has made a bold statement that she was never served with any notice, but the records of the case have revealed that notice was dully served on her and the same was reflected in the order of the Tribunal dated 29.01.04. However, on all subsequent dates from 25.03.04 till delivery of the judgment on 10.03.05, the petitioner remained absent before the Tribunal. The records have revealed that the notice of the case was dully served on the petitioner by the 'process servers, namely Shri Pathak and Shri Daniram Talukdar. In fact, she appeared before the Tribunal on 24.02.04 through her Advocate who filed Hajira. Thus, as in the first case, in this case also the petitioner has resorted to falsehood towards invoking the writ jurisdiction of this Court. 9. After service of notice on the petitioners in both the cases when the petitioners decided to remain absent from the Tribunal in the proceedings initiated against them, no fault can be attributed to the Tribunal in proceeding with the cases ex-parte against the petitioners. The records have revealed that the cases were initiated upon the references made by the Superintendent of Police, Barpeta. The cases came to light when the respective Electoral Registration Officer 44 Jania Assembly Constituency and 45 Bagbar Assembly Constituency expressed doubt about the citizenships of the petitioners upon verification of the draft electoral rolls. Upon such doubt the matter was referred to the Superintendent of Police, Barpeta who upon enquiry, made a reference to the Tribunal on the basis of which the aforesaid cases were registered against the petitioners. Upon such doubt the matter was referred to the Superintendent of Police, Barpeta who upon enquiry, made a reference to the Tribunal on the basis of which the aforesaid cases were registered against the petitioners. Although notices were duly served on the petitioners as noticed above, they did not appear before the Tribunal after initial appearance which necessarily resulted in ex-parte proceeding against them. The Tribunal examined other relevant witnesses and on the basis of the materials, have come to the conclusion that the petitioners are illegal migrants to India. The Tribunal has also recorded in the impugned judgments as to how the petitioners inspite of service of notice did not appear before the Tribunal to contest the case. 10. As a general rule, suppression of a material fact by a litigant disqualifies him from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of Court by deceiving it. A calculated and designed suppression of material facts in order to secure admission and interim relief; which, if disclosed, would have disentitled the petitioner to the extra ordinary remedy, or in case would have materially affected the merits on both the interim and ultimate relief claimed would deprive the petitioner from considering his case on merit. In the instant case, as noticed above, there is total suppression of material fact and the conduct of the petitioners relating to the proceedings before the Tribunal whose orders are under challenge partake the character of concealment of material fact, misrepresentation and attempt to overreach the Court and as a rule of writ jurisdiction disentitle the petitioners to any relief, as has been held by the Apex Court in a number of cases, an application under Article 226 of the Constitution would be refused without hearing on the merits or a rule nise discharged, if it appears that the applicant has made a deliberate concealment of material facts with a view of mis lead the court. 11. In the instant case, the petitioners resorting to falsehood not only got the writ petitions entertained by the Court, but also became successful in obtaining an interim order. This being the position, the petitioners are not entitled to get any relief from the writ court. 11. In the instant case, the petitioners resorting to falsehood not only got the writ petitions entertained by the Court, but also became successful in obtaining an interim order. This being the position, the petitioners are not entitled to get any relief from the writ court. Their writ petitions are liable to be dismissed solely on the ground of suppression of material facts and misrepresentation relating to the proceedings before the Tribunal. 12. Independent of the above, the writ petitions have also miserably failed to establish their citizenship of India and that they are not illegal migrants to India The finding of fact arrived at by the authorities below cannot be interfered with lightly in absence of any convicting materials. The petitioners, to prove their citizenship of India have not been able to furnish any document. The documents annexed to the writ petitions purportedly pertaining to her father and her father-in-law do not inspire the confidence of this Court. The certificates (translated copies only) are all after the impugned judgments and orders and the deportation order passed by the Superintendent of Police, Barpeta. 13. The petitioners could not produce any valid documents to prove their citizenship of India either before the authority who verified the matter or before the Tribunal. Now coming to the writ Court with the aforesaid material suppression of fact they have tried to develop their respective cases by furnishing the documents which on the fact of it do not help the case of the petitioners. In any case, the finding of fact arrived at by the said authorities cannot be questioned by producing the documents issued after closure of the said proceedings. In the second writ petition, i.e. W.P.(C) No. 5475/05, the petitioner has identified her in reference to her father, but the records have revealed that her earlier husband was one Shri Hussain and the name of her present husband is Shri Lalmia. This aspect of the matter has been indicated in the service report contained in the records. 14. All the above factors lead to the irresistible conclusion that the petitioners are not entitled to any relief and their writ petitions are liable to be dismissed which I accordingly do. 15. This aspect of the matter has been indicated in the service report contained in the records. 14. All the above factors lead to the irresistible conclusion that the petitioners are not entitled to any relief and their writ petitions are liable to be dismissed which I accordingly do. 15. A vivid picture of threat to the North Eastern Region, more particularly to the State of Assam due to unabated illegal migration of Bangladeshi nationals has been depicted in the recent Supreme Court judgment reported in AIR 2005 SC 2920 (Sarbananda Sonowal Vs. Union of India and Ors). The judgment finds mention of the report of the Governor of Assam dated 08.11.98 furnished to the President of India. In the report it was clearly indicated that unabated influx of illegal migrants ofBangladeshi nationals into Assam has led to a perceptible change in the demographic pattern of the State and has reduced the Assamese people to a minority in their ' own State. In paragraph 37 of the judgment, the Apex Court referring to the report of the Governor has highlighted as to how the unabated influx of illegal migrants of Bangladesh into Assam is a contributory factor behind the outbreak of insurgency in the State and the illegal migration not only affects the people of Assam but has more dangerous dimensions of greatly undermining our national security. The report referred to by the Apex Court further mentioned about the activity of the Pakistani ISI in Bangladesh supporting the militants in Assam and as to how Muslim militant organizations have mushroomed in Assam. 16. After referring to the report of the Governor, the Apex Court has made the following observations in paragraph 38 of the judgment: "38. This being the situation there can be no manner of doubt that the State of Assam is facing "external aggression and internal disturbance" on account of large scale illegal migration ofBangladeshi nationals. It, therefore, becomes the duty of Union of India to take all measures for protection of the State of Assam from such external aggression and internal disturbance as enjoined in Article 355 of the constitution. Having regard to this constitutional mandate, the question arises whether the Union of India has taken any measures for that purpose." 17. It, therefore, becomes the duty of Union of India to take all measures for protection of the State of Assam from such external aggression and internal disturbance as enjoined in Article 355 of the constitution. Having regard to this constitutional mandate, the question arises whether the Union of India has taken any measures for that purpose." 17. There is no gainsaying that the influx of illegal migrants of Bangladesh into Assam has posed a serious threat to the integrity and security of the North Eastern Region, more particularly Assam. As has been observed by the Apex Court in the aforesaid judgment, their presence has changed the demographic character of the entire region and the people of Assam have been reduced to a status of minority in certain districts. The present two cases are only illustrative and not exhaustive. Many more such Jahura Khatoons and Sulema Khatoons perhaps are freely moving throughout the territory of Assam and for that matter India about which serious concern has been expressed umpteen number of times by various organizations about which categorical mention has been made in the aforesaid judgment of the Apex Court. 18. What is required is a strong political will unmindful of the political gains from the presence of the illegal migrants. It is the national interest and not the individual or political interest of any particular party, which must prevail under all circumstances. A clear message has been given by the Apex Court in the aforesaid judgment to be carried into action both by. the State and the Union of India. The present two cases are only pointer to the concern expressed by the Apex Court. 19. Both the writ petitions are dismissed. Consequently a direction is issued to the Superintendent of Police (SP), Barpeta to implement the impugned judgments and orders dated07.03.05 and 10.03.05 passed in Case No. 1343/2003 (Union of India Vs. Smt. JahuraKhatoon) and Case No. 3004/2004 (Union of India Vs. Sulema Khatoon) and consequential notices dated 30.03.05 and 19.03.05 issued by the S.P., Barpeta, Assam with all its promptness. Consequently a direction is issued to the Superintendent of Police (SP), Barpeta to implement the impugned judgments and orders dated07.03.05 and 10.03.05 passed in Case No. 1343/2003 (Union of India Vs. Smt. JahuraKhatoon) and Case No. 3004/2004 (Union of India Vs. Sulema Khatoon) and consequential notices dated 30.03.05 and 19.03.05 issued by the S.P., Barpeta, Assam with all its promptness. It is also directed that the S.P., Barpeta shall carry out further operation and enquiry to find out as to whether anyone else connection with the petitioners or any other persons(s) in the area are illegal migrants to India and upon detection of any such foreign nationals who are illegal migrants within his jurisdiction, he shall take prompt and immediate action towards deportation of such foreign nationals. 20. With the above observations and directions, both the writ petitions are dismissed.