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2009 DIGILAW 548 (GAU)

Nathu Ram Biswas @ Nathu Ram v. Union of India

2009-08-10

BIPLAB KUMAR SHARMA

body2009
JUDGMENT B.K. Sharma, J. 1. The petitioner who claims to be an Indian citizen by birth has filed this writ petition challenging the legality and validity of the order passed by the Foreigners Tribunal declaring him to be a foreigner (illegal Bangladeshi migrant) entering into Assam after the cut of date, i.e., 25.3.1971. 2. The proceeding before the Tribunal was initiated against the petitioner on the basis of the reference made by the State suspecting the petitioner to be an illegal Bangladeshi national entering into Assam after 25.3.1971. On receipt of the reference, FT(D) Case No. 60/2007 was registered against the petitioner and notice was issued. On receipt of the notice, the petitioner appeared before the Tribunal and filed written statement on 20.4.2007 alongwith the some documents. The Tribunal in consideration of the entire materials on record, declared the petitioner to be a foreigner against which the instant writ petition has been filed by the petitioner. 3. I have heard Mr. M.U. Mandal, learned Counsel for the petitioner as well as Ms. R. Chokraborty, learned Addl. Senior Government Advocate. I have carefully gone through the records of the Tribunal. 4. The petitioner alongwith the written statement, has also filed the photo copies of the voter list of 1990, a registered deed (incomplete), school certificate and a certificate from the Gaonburha. It was the plea of the petitioner that his ancestor had come to India much prior to 25.3.1971 and started residing in the locality. After filing the written statement, the petitioner remained absent in the proceeding before the Tribunal. The Tribunal considered the materials including the evidence of the particular officer who had stated before the Tribunal that while carrying out extensive scrutiny of the voter list of 1997 a doubt had arisen regarding the nationality of the petitioner, directed the petitioner to produce the documents which he failed to do so. Although the petitioner claimed to be an Indian citizen by birth, he failed to produce any documentary evidence. The Tribunal noticing the provision of Section 9 of the Foreigners Act, has held that the petitioner failed to discharge the burden of proof of Indian citizenship. Thereafter, the Tribunal upon examining the materials on record and the evidence produced by the State, held the petitioner to be a foreigner (illegal Bangladeshi migrant) entering into Assam after 25.3.1971. 5. The Tribunal noticing the provision of Section 9 of the Foreigners Act, has held that the petitioner failed to discharge the burden of proof of Indian citizenship. Thereafter, the Tribunal upon examining the materials on record and the evidence produced by the State, held the petitioner to be a foreigner (illegal Bangladeshi migrant) entering into Assam after 25.3.1971. 5. The records of the Tribunal which I have perused have revealed that the petitioner first appeared on 11.4.2007 by filing an adjournment petition and thereafter filed a written statement on 20.4.207. After filing the written statement he defaulted in appearance as recorded in the orders dated 4.3.2008, 7.6.2008 and lastly on 17.10.2008 on which date the Tribunal passed the ex parte order on the basis of the evidence on record. Although in the writ petition the petitioner has tried to establish his Indian citizenship by producing photo copies of the certified documents, but on perusal of the same, it cannot be said that the petitioner is an Indian citizen by birth. The petitioner after having failed to discharge his burden of proof as cast by Section 9 of the Foreigners Act has come to the writ court with material suppression of fact. It has not obliquely been stated that the petitioner after filing the written statement did not appear before the Tribunal on all subsequent dates. In paragraph-9 of the writ petition, the petitioner has blamed the Tribunal with the statement "that the impugned ex parte judgment and order has been passed without giving any opportunity of hearing and without considering the materials on record particularly the voter list of 1966, 1989, 1990 and 2005 as well as the written statement filed by the petitioner...." 6. The aforesaid statement in the writ petition is absolutely false and has been made to get a favourable order from this Court. However, when the reference of the Tribunal has revealed otherwise, the petitioner is not entitled to any relief from the writ court. 7. The documents on which the petitioner has placed reliance in this proceeding do not establish the Indian citizenship by birth. Nothing has been shown to establish the linkage to pre 25.3.1971 period. Further, photo copies of the documents, needless to say are in admissible in evidence. What the petitioner wants the writ court to believe ought to have been made believable to the Tribunal which the petitioner failed. Nothing has been shown to establish the linkage to pre 25.3.1971 period. Further, photo copies of the documents, needless to say are in admissible in evidence. What the petitioner wants the writ court to believe ought to have been made believable to the Tribunal which the petitioner failed. He after failing to discharge the burden of proof as envisaged under Section 9 of the Foreigners Act, has now invoked the writ jurisdiction by blaming the Tribunal with the above quoted statements which are absolutely false. The petitioner being a Bangladeshi national cannot expect better rights and privilege than an Indian citizen which may be available to him in the particular field. In the writ proceeding if the court finds that the petitioner has taken recourse to falsehood, the writ petition is liable to be dismissed. If the said principle is applicable in respect of the Indian citizen fighting litigations, the petitioner being a Bangladeshi national cannot say that he is entitled to preferential treatment de horse the said principles. 8. Realizing the fallacy of the case of the petitioner he has filed an additional affidavit on 13.2.2009 taking altogether a different stand regarding ex parte hearing blaming the same to the engaged Counsel, without however, naming him and making him a party respondent in this proceeding. Not only that no complaint has been lodged against the engaged counsel. Going by the experience, this Court has gathered dealing with such cases, it is a common ploy of such foreigner to blame their engaged counsel as the same is found to be handy. The writ court cannot give any indulgence to such untenable pleas. 9. For all the aforesaid reasons, I do not find any merit in the writ petition and accordingly it is dismissed with a direction to the Superintendent of Police, Morigaon to apprehend the petitioner forthwith and to detain him till such time he is deported to Bangladesh. The Superintendent of Police shall also ensure deletion of his name from the voter lists in consultation with the Election Officer. 10. List the matter on 14.9.2009 for furnishing compliance report by the by which the Superintendent of Police, Morigaon. 11. Registry shall send the copies of this judgment and order to the Union of India and the Superintendent of Police, Morigaon immediately. Another copy of the said judgment be furnished to Ms. R. Chokraborty, learned Addl. 10. List the matter on 14.9.2009 for furnishing compliance report by the by which the Superintendent of Police, Morigaon. 11. Registry shall send the copies of this judgment and order to the Union of India and the Superintendent of Police, Morigaon immediately. Another copy of the said judgment be furnished to Ms. R. Chokraborty, learned Addl. Senior Government Advocate for necessary follow up action. 12. Registry shall also send down the LCR to the Tribunal alongwith a copy of this judgment and order. Petition dismissed.