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2009 DIGILAW 586 (GAU)

Aisa Bibi @ Aysha Khatoon v. Union of India

2009-08-19

BIPLAB KUMAR SHARMA

body2009
JUDGMENT B.K. Sharma, J. 1. The petitioner is aggrieved by the judgment and order dated 6.9.2008 passed by the Foreigners Tribunal, Goalpara in FT Case No. 1086/G/2006. By the said judgment and order, the particular reference made against the petitioner has been answered in favour of the State and against the petitioner declaring her to be an illegal Bangladeshi migrant entering into Assam after 25.3.1971. 2. The impugned order is ex parte because the petitioner did not respond to the proceeding. The explanation furnished for such non-appearance is nil. In paragraph 5 and 6 of the writ petition, it has been statues thus: 5. That your petitioner most respectfully begs to state that your petitioner could not be able to file her W/S in 2(two) consecutive dates. On the third day the learned Tribunal Goalpara disposed of the case in ex parte manner on 6.9.2008. A copy of the aforesaid ex parte judgment and order dated 6.9.2008 in FT Case No. 1086/G/06 is Annexure-B. 6. That your petitioner most respectfully begs to state that though she was not unaware of her aforesaid case but she did not know anything about the aforesaid judgment. However in the month of January 2009 she received the Quit India Notice No. 11/09 dated 30.1.2009 issued by the Superintendent of Police, Goalpara where she was directed to leave India within a period of 15 days from the date of receipt of her notice and should not thereafter re-enter India. After receiving the aforesaid notice your petitioner could learn about the aforesaid ex parte judgment and order dated 6.9.2009 in FT Case No. 1086/G/06 passed by the learned Member, Foreigner's Tribunal, Goalpara. Thereafter your petitioner consulted with an Advocate Goalpara who advised her to approach the Hon'ble High Court. Your petitioner accordingly collected money and engaged the advocate to file the writ petition. A copy of the Quit India Notice 30.1.2009 is annexed as Annexure-C. 3. I have heard Mr. H. Das, learned Counsel for the petitioner as well as Ms. R. Chakraborty, learned Addl. Sr. Govt. Advocate, Assam. None appeared on behalf of the Union of India. I have also verified the case records of FT Case No. 1086/06. 4. A copy of the Quit India Notice 30.1.2009 is annexed as Annexure-C. 3. I have heard Mr. H. Das, learned Counsel for the petitioner as well as Ms. R. Chakraborty, learned Addl. Sr. Govt. Advocate, Assam. None appeared on behalf of the Union of India. I have also verified the case records of FT Case No. 1086/06. 4. From the materials on record, it appears that the petitioner duly received notice and on the first day i.e., 4.3.2008, a prayer was made on her behalf to grant adjournment enabling her to file written statement. The prayer was allowed fixing the matter on 14.8.2008. On 14.8.2008, the petitioner remained absent but her engaged counsel filed a petition for adjournment. The prayer was allowed fixing the matter on 6.9.2008. On 6.9.2008 also, the petitioner remained absent without any steps. Situated thus, the Tribunal had no other option than to pass ex parte order against the petitioner. No reason has been furnished as to why the petitioner did not appear before the Tribunal. 5. The Tribunal on the basis of the materials on record, answered the reference in favour of the State. From the materials on record, it appears that the case of the petitioner was detected when there was revision of the Electoral Roll in 1997. The petitioner was suspected to be a foreigner. The reference was in the name of Aisa Bibi, but coming to the writ Court, the petitioner has taken another name in addition to that which is Aysha Kahtun. It is a matter of convenience for such foreigner to take different names according to the situation. It is only before the writ Court the petitioner has taken the other name, i.e., Aysha Khatun but before the Tribunal and also during the enquiry, she never took that name. Everything was in the name of Aisa Bibi. 6. According to the petitioner, she is an Indian citizen by birth and her name was included in the 1997 Voter List and that of her father in 1966 Voter List. However, in the writ petition, the petitioner has enclosed a certificate issued by the Goan Panchayat certifying one Aysha Khatun to have been married with Delbar Hussain and that her father Johiruddin Sk's name has been included in the 1966 Voter List. However, in the writ petition, the petitioner has enclosed a certificate issued by the Goan Panchayat certifying one Aysha Khatun to have been married with Delbar Hussain and that her father Johiruddin Sk's name has been included in the 1966 Voter List. As against the same, in the affidavit filed in support of the writ petition, the petitioner has described her husband as Dilbar Sheikh. The photocopy of the Voter List of 1966 showing the name of one Jahir Uddin Sheikh, aged 28 years, does not lead to anywhere towards establishing Indian citizenship of the petitioner. Apart from the fact that the photocopy is inadmissible in evidence, there is also nothing to show that Jahir Uddin Sheikh is the father of the petitioner. 7. In the writ petition, the petitioner has declared her age as 30 years. Her stand is that she is Indian citizen by birth. If that be so, it is not understood as to why the petitioner could not produce even a single document/voter list to establish the same. Further, if the father's name of the petitioner was included in 1966 voter list, it is not understood as to why she could not produce anyone of the voter list published thereafter and even before showing his name. 8. The Tribunal in its impugned order has discussed all the above aspects of the matter and I see no reason to interfere with the same. Consequently, the writ petition is dismissed. 9. The Superintendent of Police, Goalpara is directed to take the petitioner into custody immediately and to detain her in custody till such time she is departed to Bangladesh. 10. Let copies of this judgment and order be sent to the Union of India and the Superintendent of Police, Goalpara immediately. Another copy be furnished to Ms. R. Chakraborty, learned Addl. Sr. Govt. Advocate, Assam for her necessary follow up action. 11. List on 14.9.2009 to report compliance by the Superintendent of Police, Goalpara. 12. Registry shall send down the LCR to the Tribunal immediately along with of this judgment and order. Petition dismissed