Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 872 (GAU)

Jayanti Barman v. State of Assam

2009-12-07

BIPLAB KUMAR SHARMA

body2009
JUDGMENT B.K. Sharma, J. 1. The challenge made in this writ petition is the order dated 18.8.2008 by which the Foreigners Tribunal, Kamrup (Metro) while answering the reference in question being FT Kamrup (M) Case No. 12/2008 corresponding to IM(D)T Case No. 2483/04 and Police case No. 432/06 has held that the petitioner is a foreigner who entered Assam (India) after the cut off date, i.e. 25.3.1971, without any valid documents. Presently, the petitioner is in custody of the authority for deportation to Bangladesh. 2. As in many other such cases, in the instant case also the petitioner in spite of receipt of notice from the Tribunal did not appear before the same and/or respondent to the proceeding. The ground of such nonappearance as usual is that since the petitioner is illiterate and did not have any knowledge about the contents of the said notice, failed to appreciate the far reaching effect of such notice. Further ground urged is that the petitioner was not aware of the rigmarole. Another ground urged is that the petitioner had forgotten that she had been served with a notice to appear before the Tribunal. Accordingly the Tribunal concluded the proceeding ex-parte with the eventual impugned order. 3. If the petitioner failed to respond to the proceeding before the Tribunal and consequently the Tribunal had to proceed ex-parte, the writ Court without any valid ground cannot set aside the said proceeding and the consequential order. The aforesaid grounds in paragraph-6 of the writ petition are hardly any ground to set aside the ex-parte proceeding. If such grounds are allowed as grounds to set aside the ex-parte proceeding, there will be no end to the legal proceeding and the foreigners merrily roaming around in Assam will continue to live in Assam to the detriment of the Indian citizen. 4. According to the petitioner, her father, namely Late Ishwar Barman alias Ishwar Chandra Barman who was aged about 32 years on 20.4.1969 had entered into the soil of India on 10.4.1964 alongwith other family members such as wife, three daughters and one son which include the petitioner. They had allegedly migrated from the village Ghagra of Mymensingh District Bangladesh. According to the petitioner she was just about 5 years of age at that point of time. They had allegedly migrated from the village Ghagra of Mymensingh District Bangladesh. According to the petitioner she was just about 5 years of age at that point of time. Their family while entering into India first arrived at Dalu in the District of Meghalaya and they had reported to the appropriate authority of Govt. of India seeking relief. Accordingly they were issued with Relief Eligibility Certificate bearing No. 740 dated 26.3.1965 (Annexure-1). 5. Further case of the petitioner is that after entering into Indian soil the family was registered as per the provision of the Citizenship Act, 1955. Such registration was effected by Annexure-2 certificate bearing No. 328462 dated 6.12.1971. 6. As per the narration in the writ petition, the petitioner got married in the year 1978/1979 with one Shri Kukil Barman of Village Digarumukh under PS Pragjyotishpur, Kamrup (Metro) and presently residing there with her husband and children. The petitioner has placed reliance on Annexures-3 and 4 certificates (photo copies) dated 11.7.2009 and 4.7.2009 purportedly issued by the village Gaonburha. The contents of the first certificate is that the petitioner is the daughter of Late Ishwar Chandra Barman of Village No. 3 Derapathar, PO Derapathar, PS Kaki in the District of Nagaon, Assam as on 11.7.2009 and that her father's name appeared in 1997 voter list of No. 38 Kaki Jila Parishad. So far as Annexure-4 certificate is concerned, same has certified that the petitioner is the resident of Chandrapur Bagisha (Digarumukh), Mauza Panbari, Dist-Kamrup (Metro). 7. On the basis of the aforesaid documents, it is the case of the petitioner that she is an Indian citizen and thus, the proceeding initiated, firstly in IM (D)T and secondly in the Foreigners Tribunal are not sustainable and the consequential quit India notice dated 13.9.2001 (Annexure-6) is also not legally valid. 8. I have heard Mr. A. Chamuah, learned Counsel for the petitioner as well as Ms. Chokraborty, learned Addl. Sr. Govt. Advocate appearing for the State. I have also gone through the records of the Tribunal and so also the originals of Annexures-1 and 2 documents annexed to the writ petition about which mention has been made above. On a close scrutiny of the entire materials on record and in consideration of the submissions advanced by the learned Counsel for the parties, my findings and conclusion are as follows: 9. On a close scrutiny of the entire materials on record and in consideration of the submissions advanced by the learned Counsel for the parties, my findings and conclusion are as follows: 9. At the first instance, it must be said that, as noted above, there is no valid explanation as to why the petitioner did not respond to the proceeding before the Tribunal. She filed the writ petition on 24.8.2009 i.e. after about 1 and 1/2 years of the impugned order dated 18.8.2008 passed by the Foreigner's Tribunal in the aforesaid FT Kamrup (M) case No. 12/08 and more than six months after quit India notice dated 13.1.2009 was served on her. It was only when she was taken into custody by the police, she woke up from her slumber and filed the writ petition. Perhaps her expectation was that in her case also the police and the State administration would show the same lethargy as is shown in the case of other Foreign nationals regarding their detection, detention and deportation which has been the experience of the Court dealing with a number of cases. If there is no valid ground to set aside the ex-parte order of the Tribunal, there is no question of entertaining the writ petition and on that score alone, the writ petition is liable to be dismissed. However, I have also gone into the merit of the case of the petitioner as has been projected in the writ petition. 10. As per the declaration made in the affidavit verifying the contents of the writ petition, the petitioner is aged about 50 years. It that be so, her name would have appeared in many documents and at least in several voter lists. However, there is none. 11. As regards the Annexures-1 and 2 documents on which the petitioner has placed heavy reliance, on a scrutiny what I find is that Annexure-1 is the purported Relief Eligibility Certificate without any official seal with an overwritten signature dated 26.3.1967 and with no entries in the portion "For Official Use", Annexure-2 certificate is dated 17.10.1971 pertaining to one Shri Ishwar Chandra Barman certifying that he has been registered under Section 5 (1) (a)/(d) of the Citizenship Act, 1955. If the same Ishwar Chadnra Barman is the father of the petitioner and was registered only on 17.10.1971, it is not understood as to how the Relief Eligibility Certificate could have been issued in 1967. As per the own declaration of the petitioner, her father was aged about 32 years as on 10.4.1969, but in Annexure-2 certificate dated 17.10.1971 his age is shown as 40 years. There is overwriting in the column "Place of Birth" and only legible portion is "gala". But in paragraph 2 of the writ petition it is the stand of the petitioner that their family was the resident of "Ghagra". On the fact of it, the certificate is fictitious and cannot be relied upon. Even if the same is relied upon, same pertains to only Shri Ishwar Chandra Barman and not to the petitioner. Further, if the family of the petitioner had entered into Indian soil on 10.4.1964, as has been claimed by the petitioner and was registered vide Annexure-1 Relief Eligibility Certificate and Annexure-2 Certificate of Citizenship Registration, the names of all family members would have appeared in many more documents including the voter lists. However, there is none. 12. The petitioner has placed reliance on Annexure-3 certificate (photo copy) dated 11.7.2009 purportedly issued by the Govt. Gaoburha. But in the certificate there is no indication as to which area or village the issuing authority belongs. The certificate has only certified that the petitioner is the daughter of Late Ishwar Chandra Barman who is the resident of No. 3 Derapathar under PS Kaki in the District of Nagaon and that her father's name had appeared in 1997 voter list of No. 38 Kaki Jila Parishad. If the petitioner had entered into India on 10.4.1964 alongwith her father and other family members, the petitioner could have placed reliance on many more documents including several voter lists instead of placing reliance on Annexure-3 Certificate certifying inclusion of her father's name in the aforesaid 1997 voter list. There is no explanation as to why the name of the petitioner who is 50 years of age is not included in the voter list. Inclusion of name in the voter list 1997 is of no consequence as the cut off date is 25.3.1971. Further as has been held by the Apex Court in Bhanzuaroo Khan and Ors. v. Union of India and Ors. Inclusion of name in the voter list 1997 is of no consequence as the cut off date is 25.3.1971. Further as has been held by the Apex Court in Bhanzuaroo Khan and Ors. v. Union of India and Ors. 2002 (4) SCC 346 , long stay in a country and enrolment in the voter lists would not confer any right on alien to continue to stay in the country. 13. I now examine the Annexure-4 certificate dated 4.7.2009 certifying the petitioner and her husband to be the residents of village Chandrapur Bagisha (Digarumukh) in the District of Kamrup (Metro), Assam. According to the said certificate they have been married for last 30/33 years. This certificate does not mean anything. It only certifies about the relationship of the petitioner with one Shri Kukil Barman for the last about 30/33 years. As per this certificate, the petitioner is a resident of Chandrapur Bagisha (Digarumukh), Mauza Panbari, District Kamrup (Metro), but as per the Annexure-3 Certificate she is a resident of Village No. 3 Derapathar, Mouza Kaki, PS Kaki in the District of Nagaon, Assam. Significantly, both the certificates are of July/2008. While the Annexure-3 Certificate is dated 11.7.2009, Annexure-4 Certificate is dated 4.7.2009. Thus, the petitioner claims to be a resident of two places of two different distincts in the State of Assam at the same time. All these facts clearly show that the petitioner is undoubtedly a foreigner and the Tribunal has rightly declared her to be so. 14. For the aforesaid reasons, I do not find any merit in the writ petition, rather it is an abuse of the process of law. The writ proceedings have become an easy way out for such foreign nationals who after not responding to the proceedings before the Tribunal for obvious reasons, approach the writ Court dumping documents and asking the writ Court to interfere with the orders of the Tribunal blaming the Tribunal with all sorts of untenable pleas and with the mind set that such foreign nationals have the legal rights to stay in Assam with patronage from the authorities shouldering the duties and responsibilities towards detection, detention and deportation of the foreign nationals. 15. The writ petition is dismissed. The petitioner is already in the custody of the authorities. 15. The writ petition is dismissed. The petitioner is already in the custody of the authorities. Such authorities shall now ensure deportation/push back of the petitioner from the Indian soil observing all the formalities and shall also ensure that she does not come back to India like many such foreign nationals who even after deportation/push back easily come back to India making a mockery of the very establishment of the Foreigners Tribunals and the proceedings thereunder. Additionally, they also burden the writ Court on conclusion of the proceedings before the Tribunal which has become a never ending business. Unless the authority shows a serious concern and take steps in war footing towards detection, detention and deportation of such foreign nationals on which the Apex Court has already emphasized in the same cases of Sarbananda Sonowal (I) reported in AIR 205 SC 2920 and Sarbananda Sonowal (II) reported in 2007 (1) SCC 174 , it will be a mockery of the very establishment of the Foreigners Tribunal and the proceedings thereunder. What will be the resultant effect, is known to all. 16. List the matter on 22.12.2009 for furnishing compliance reports on the aforesaid directions by the Commissioner and Secretary, Department Home Affairs, Govt. of Assam, the Director General of Police, Assam and the Superintendent of Police, Kamrup (Metro). Let a copy of this judgment and order be furnished to Ms. R. Chokraborty, for her necessary follow up action.