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2009 DIGILAW 518 (GAU)

Mustt. Sahera Khatun @ Sahera Banu v. Union of India

2009-08-01

BIPLAB KUMAR SHARMA

body2009
JUDGMENT B.K. Sharma, J. 1. The petitioner who has been declared to be a foreigner (illegal Bangladeshi Migrant) by the Foreigners Tribunal, has filed this writ petition challenging the legality and validity of the order, so passed by the Tribunal. The impugned order is dated 12.2.2009 passed by the Foreigners Tribunal, Jorhat in JFT case No. 838/2006. 2. I have heard Mr. M.U. Mandol, learned Counsel for the petitioner as well as Ms. R. Chakraborty, learned Additional Senior Govt. Advocate. I have also heard Ms. Nitu Hawellia, learned Central Govt. Counsel. I have also gone through the entire records of the Tribunal. 3. The petitioner in the affidavit filed in support of her writ petition has named her father as late Nizam Uddin Sk @ Nizam Ali. In support of her claim that she is an Indian citizen, she has enclosed certain documents showing the name of her father as Nizam Ali, some time as Nizam Uddin Sk, etc. She has also enclosed the photocopy of the voter list (extract) of 2005, showing the name of one Sahera Khatun, which she claims to be her name. She has also annexed the Annexure-6 affidavit describing her father as Nizam Uddin Sk. 4. The Tribunal upon hearing the parties and on perusal of the materials on records, has answered the reference against the petitioner and in favour of the State. 5. As against the aforesaid plea and the documents filed, the petitioner, in her defence before the Tribunal stated that she is the daughter of one Sabder Ali Mandal and that the name of her father was incorporated in various voter list. The petitioner also produced Ext. A. Ext. B and Ext. C documents claiming Indian citizenship. The said documents are certificate of the Gaon Panchayat, self sworn affidavit of the petitioner and photocopy of the voter list of 1966. In all the said documents, the father of the petitioner is shown as Sabder Ali Mandal. Thus, before the Tribunal, it was the case of the petitioner that she is the daughter of Sabder Ali Mandal. Now, coming to the writ Court, she has changed the name of her father describing him to be late Nizam Uddin Sk @ Nizam Ali. Not only that, she has also annexed documents to show that her father is Nizam Uddin Sk and/or Nizam Ali. 6. Now, coming to the writ Court, she has changed the name of her father describing him to be late Nizam Uddin Sk @ Nizam Ali. Not only that, she has also annexed documents to show that her father is Nizam Uddin Sk and/or Nizam Ali. 6. The above aspect of the matter has been discussed by the Tribunal in the impugned order dated 12.2.2009. In Ext. B affidavit, filed before the Tribunal, the petitioner named her father as Sabder Ali Mandal and also stated that name of her father was wrongly mentioned in the notice as Nizam Sk. The particular statement made in the affidavit is reproduced below: That, through this Affidavit I confirm and declare that my father's actual name is SABDER ALI MANDAL instead of NIZAM SEIKH, and this affidavit shall applicable official purposes. 7. The aforesaid affidavit was filed to prove that it is Sabder Ali Mandal, who is her father and not Nizam Sk. Now, coming to the writ Court, the petitioner has changed her version, so as to claim that it is Nizam Uddin Sk @ Nizam Ali, who is her father. The aforesaid affidavit before the Tribunal was sworn on 6.1.2008 However the petitioner sworn another affidavit on 24.2.2009 (Annexure 6 to the writ petition), just before filing the writ petition on 13.3.2009 naming her father as Nizam Uddin Sk. While the affidavit (Ext. B) before the Tribunal was filed to contend that her father's name is Sabder Ali Mandal and not Nizam Uddin Sk, but Annexure-6 Affidavit, annexed to the writ petition, has been sworn to contend that her father is Nizam Uddin Sk. Thus, it is a matter of convenience for the petitioner to take different name under different circumstances. 8. The petitioner having taken a particular stand before the Tribunal which did not find favour of the Tribunal and resultantly the impugned order was passed she cannot be permitted to take altogether a different stand even to the extent of describing her father by different name. If this is allowed, it will be a mockery of writ jurisdiction. The suppression, which is so material and stares on the face of it itself speaks volumes of the false claim of the petitioner that she is an Indian citizen. If this is allowed, it will be a mockery of writ jurisdiction. The suppression, which is so material and stares on the face of it itself speaks volumes of the false claim of the petitioner that she is an Indian citizen. The impugned order of the Tribunal is unassailable, as the petitioner miserably failed to discharge her burden of proof casts on her by Section 9 of the Foreigners Act, 1946. 9. For all the aforesaid reasons, the writ petition is dismissed. The petitioner is already in judicial custody. Now, the Superintendent of Police, Jorhat and Dhubri shall ensure her deportation to Bangladesh, without any delay and furnish report of compliance on or before 14.9.2009. 10. The registry is directed to send copies of this judgment and order forthwith to the Union of India and the Superintendent of Police, Jorhat and Dhubri. Another copy be furnished to Ms. R. Chakraborty, learned Addl. Senior Govt. Advocate for necessary follow up action. 11. Let the LCR be sent down to the Tribunal alongwith the copy of this judgment and order.