Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 565 (GAU)

Abdul Kuddus v. State of Assam

2009-08-13

BIPLAB KUMAR SHARMA

body2009
JUDGMENT B.K. Sharma, J. 1. The petitioner is aggrieved by order dated 8.7.2008 passed by the Foreigners Tribunal (1st), Morigaon in FT (D) Case No. 767/06 declaring the petitioner to be a foreign national (illegal Bangladeshi migrant) entering into Assam after the cut off date i.e., 25.3.1971. 2. As usual, the impugned order is an ex parte one because of non-participation of the petitioner in the proceeding before the Tribunal. The reason shown for such non-appearance is that on receipt of the notice from the Tribunal, he engaged an advocate of Morigaon Court, who prepared and submitted written statement. Thereafter, the said advocate took all the responsibilities to conduct the case and also told the petitioner that he need not appear before the Tribunal any more. 3. The petitioner received Quit India Notice on 29.11.2008 and on enquiry, he came to know that the reference has been answered against him. Thus, the stand of the petitioner is that since the engaged counsel of the petitioner took all the responsibilities to conduct the case, he did not appear before the Tribunal, which resulted in the impugned ex parte order. Such plea is absolutely untenable. 4. I have heard Mr. A. Sharif, learned Counsel for the petitioner as well as Ms. R. Chakraborty, learned Addl. Senior Government Advocate, Assam. None appeared on behalf of the Union of India. I have also carefully gone through the records of the Tribunal. 5. As against the aforesaid plea of the petitioner for non-appearance before the Tribunal, the records of the Tribunal have revealed that the petitioner on receipt of notice duly appeared before the Tribunal on 25.1.2007 by filing an adjourned petition and a hazira. The adjournment was granted fixing the matter on 20.6.2007, on which date, there was no appearance on behalf of the petitioner. However, he appeared on 10.5.2007 and filed written statement and photocopies of certain documents. 6. On the next date fixed, i.e., 5.7.2.007, the petitioner duly appeared before the Tribunal, but on all subsequent dates namely, 17.9.2007, 19.12.2007, 1.4.2008 and 8.7.2008, the petitioner avoided the proceeding by remaining absent. Consequently, the Tribunal had no other option than to pass the impugned ex parte order. 6. On the next date fixed, i.e., 5.7.2.007, the petitioner duly appeared before the Tribunal, but on all subsequent dates namely, 17.9.2007, 19.12.2007, 1.4.2008 and 8.7.2008, the petitioner avoided the proceeding by remaining absent. Consequently, the Tribunal had no other option than to pass the impugned ex parte order. Coming to the writ court, the blame is on the engaged Counsel, as if, it is the duty of the advocate to establish Indian citizenship of the petitioner and the petitioner does not have any responsibility to discharge the burden of proof, as envisaged under Section 9 of the Foreigners Act, 1946. 7. The above revelation from the records of the Tribunal clearly establishes that the petitioner has taken recourse to the falsehood in making the statement in the writ petition that on receipt of the notice from the Tribunal, he had engaged an advocate, who in turn, prepared written statement and took all the responsibilities to do the needful in the proceeding. The records of the Tribunal have revealed otherwise. Moreover, the petitioner has also not named the advocate concerned and in fact, Mr. A. Sharif, learned Counsel appearing for the petitioner, during the course of hearing, submitted that the petitioner has nothing to grind against the engaged Counsel. 8. In the writ petition, the petitioner has enclosed certain documents, which are all photocopies, in support of his claim of Indian citizenship. Such documents lead to no-where. Filing of some documents and picking up any name from such documents, so as to establish relationship with the said person as father or mother or even grand-father or grand-mother does not establish Indian citizenship of a foreigner. 9. Before the Tribunal, the petitioner in his written statement, has stated differently than what has been stated in the writ petition. In the said written statement, there is no mention of Annexure-A photocopy of the Jamabandi purportedly of the year 1930-31. In the said written statement, it was stated that against the name of the petitioner in the Voter List "D" was inserted and accordingly, he could not caste his vote. It in the stand of the petitioner that he is also known as Mokbul Hussain. The certificate (photocopy) dated 15.9.1999 annexed to the written statement, names the person as Md. Maqbul Hussain. It in the stand of the petitioner that he is also known as Mokbul Hussain. The certificate (photocopy) dated 15.9.1999 annexed to the written statement, names the person as Md. Maqbul Hussain. The petitioner also enclosed a photocopy of the declaration in the prescribed form for inclusion of his name in the Voter List. Such declaration was made in the name of Md. Maqbul Hoque and not Maqbul Hussain. 10. Above are the documents on the basis of which the petitioner wanted to establish his Indian citizenship and that too, by birth. The petitioner is aged 45 years as per the declaration made in the affidavit. If that be so, it is not understood as to why his name was not included in any of the Voter List. The learned Tribunal has discussed the matter in detail and on the basis of the materials on record and on the basis the proved documents/reports of the State has held the petitioner as foreign national (illegal Bangladeshi migrant) entering into Assam after 25.3.1971.1 see no reason to interfere with the said findings arrived at by the learned Tribunal. 11. Accordingly, the writ petition is dismissed. The Superintendent of Police, Morigaon is directed to take the petitioner into custody immediately and to keep him in custody till such time he is deported to Bangladesh. 12. List on 14.9.2009 for furnishing compliance report by the Superintendent of Police, Morigaon. 13. Registry shall forward copies of this judgment and order to the Union of India and the Superintendent of Police, Morigaon forthwith. Another copy of this judgment and order be furnished to Ms. R. Chakraborty, learned Addl. Senior Government Advocate, Assam for her necessary follow up action. 14. Registry shall send down the LCR to the Tribunal immediately along with copy of this judgment and order. Petition dismissed.