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2010 DIGILAW 11 (GAU)

Barun Saha v. Union of India

2010-01-08

BIPLAB KUMAR SHARMA

body2010
JUDGMENT B.K. Sharma, J. 1. This writ petition is directed against the order dated 17.8.2009 declaring the petitioner to be a foreigner of post-1971 stream. The order so passed is by the Foreigners' Tribunal (2nd) Dhubri in FT case No. 63/BLP/06 (State of Assam v. Barun Saha). 2. The petitioner claiming himself to be an Indian citizen by birth has filed this writ petition assailing the legality and validity of the aforesaid impugned order. 3. The petitioner claims to be a driver by profession and that the name of his father is Late Sachindra Saha @ Jatindra Saha. According to the petitioner his father's name appeared in Annexure-1 voter list (Photo copy) of 1966 as Sachindra Saha, father unknown. 4. The petitioner has placed reliance on the ration card issued by the Food and Civil Supplies authority (Annexure-2). Further stand of the petitioner is that in Annexure-3 Election Document dated 3.10.2004 his name appeared. The petitioner has also placed reliance on Annexure-4 certificate dated 10.1.2008 issued by the Chairman, Bilasipara Town Committee certifying that the petitioner is a resident of the particular Ward. The petitioner has also placed reliance on Annexure-5 photo copy of the voter list of 2004 containing his name. Annexure-7 photo copy of the voter list is without any date. However, the petitioner has indicated the same to be of 1966. Such indication is handwritten and the said voter list contained the name of Late Sachindra Chandra Saha and indicates his father as unknown. 5. Above are the documents on which the petitioner claims to be an Indian citizen by birth. The impugned order passed by the Tribunal is ex parte one. According to the petitioner he had engaged an advocate, namely Mr. Amrit Lal Bairagi of Dhubri to take steps in the proceeding before the Tribunal. His case is that after filing the written statement he was under the impression that the Tribunal would deliver the justice. His stand is that he being a driver, there was communication gap between him and his engaged counsel and resultantly the ex parte impugned order was passed. 6. I have heard Mr. D.R. Gogoi, learned Counsel for the petitioner as well as Ms. R. Chokraborty, learned Addl. Sr. Govt. Advocate. I have also heard Mr. P. Das, learned Counsel representing the Union of India in the Ministry of Home Affairs. 6. I have heard Mr. D.R. Gogoi, learned Counsel for the petitioner as well as Ms. R. Chokraborty, learned Addl. Sr. Govt. Advocate. I have also heard Mr. P. Das, learned Counsel representing the Union of India in the Ministry of Home Affairs. The records of the Tribunal have also been carefully perused. On the basis of the same, I record my findings as follows : 7. The records of the Tribunal have revealed that the case against the petitioner was first registered as IM(D)T case No. 3382/D/2005. After service of notice etc. the petitioner duly appeared before the Tribunal and in the meantime the case was registered as FT case No. 63/BLP/2006 after scrapping of IM(D)T Act by the Apex Court. The petitioner appeared on 4.4.2007 and prayed for time by filing application and the same was allowed fixing the matter on 27.4.2007. On 27.4.2007 the engaged counsel of the petitioner filed a petition for time and the same was allowed fixing the matter on 23.5.2007 for written statement. 8. On all subsequent dates upto 22.11.2007 the petitioner prayed for time to file written statement which are 23.5.2007, 26.6.2007, 12.7.2007, 26.7.2007, 31.7.2007, 21.8.2007, 19.9.2007, 23.10.2007, 15.11.2007 and lastly 22.11.2007. Prayer for filing written statement was made on behalf of the petitioner and all the prayers were granted. All along the petitioner was represented by his engaged counsel and the petitioner remained absent. 9. On 29.12.2007 the petitioner remained absent without any step and the matter was adjourned to 17.1.2008 on which date also he remained absent without any step. On the subsequent dates, i.e. 20.2.2008, 26.3.2008, 24.4.2008, 16.5.2008, 11.6.2008, 17.7.2008, 7.8.2008, 18.9.2008, 6.11.2008, 19.12.2008, 5.2.2009, 4.3.2009, 14.5.2009, 1.7.2009, 9.7.2009, 1.8.2009, 13.8.2009 and finally 17.8.2009, the petitioner except on 24.4.2008 and 18.9.2008 remained absent before the Tribunal but his engaged counsel kept on praying for time to file written statement. No such written statement nor any evidence was filed or adduced and the resultant effect was the impugned ex parte order dated 17.8.2009. 10. With the aforesaid revelation from the records of the Tribunal, the plea of the petitioner in the writ petition about the failure to appear before the Tribunal is nothing but a false statement. On that score alone the writ petition is liable to be dismissed. 10. With the aforesaid revelation from the records of the Tribunal, the plea of the petitioner in the writ petition about the failure to appear before the Tribunal is nothing but a false statement. On that score alone the writ petition is liable to be dismissed. The records of the Tribunal have further revealed that during the enquiry conducted against the petitioner enough materials were collected to prove that the petitioner is a foreign national (illegal Bangladeshi migrant). During the enquiry the name of the petitioner's father was recorded as Late Jatindra Saha and notice from the Tribunal was also served in that name. In the Vakalatnama filed before the Tribunal, the petitioner put his father's name as Late Jatindra Saha @ Sachindra Saha, but in the writ petition he has named his father as Jatindra @ Sachindra. Thus, it is a matter of convenience for the petitioner to describe his father by any name to suit the purpose. The enquiry was conducted in the year 2004 and on that point of time the age of the petitioner was recorded as 40 years. If the petitioner is an Indian citizen by birth, his name would have appeared in the voter list published prior to the year 2004. However, the petitioner has not been able to indicate any such voter list. 11. The only documents on which the petitioner has placed reliance is the photo copy of the voter list of 1966 indicating the name Sachindra Chandra Saha, father unknown, Annexure-2 family identity card dated 6.11.2008 (typed and photo copy), and Annexure-3 election document which is only a self declaration for inclusion of name in the voter list. Annexure-5 is the typed and photo copy of the voter list of 2004 showing the name of the petitioner and his purported father. 12. Above are the documents on the basis of which the petitioner wants to establish the case that he is an Indian citizen by birth. Such documents cannot establish the plea of the petitioner. As has been held by the Apex Court in Bhanwaroo Khan and Ors. v. Union of India and Ors. reported in (2002) 4 SCC 346 , long stay in the country and enrolment in the voter list would not confer any right on an alien to continue to stay in the country. 13. As has been held by the Apex Court in Bhanwaroo Khan and Ors. v. Union of India and Ors. reported in (2002) 4 SCC 346 , long stay in the country and enrolment in the voter list would not confer any right on an alien to continue to stay in the country. 13. The foreigner is not entitled to any fundamental right guaranteed by Article 19 of the Constitution of India. In this connection I would like to refer to the following observations of the Apex Court in Anwar v. State of J&K reported in (1971) 3 SCC 104 . 4. The petitioner is not a citizen of India. He is, therefore, a foreigner as defined in the Foreigners Act. Not being a citizen, he is clearly not entitled to any fundamental right guaranteed by Article 19 of the Constitution. He has thus no right to remain within the territories of India. His entry into this country was also without any right and indeed he himself does not claim to have entered into India in accordance with the provisions of the Foreigners Act and the others made thereunder. The only rights which he can claim in the present proceedings are those contained in Articles 20 to 22. 14. The writ petition is dismissed. The Superintendent of Police (B) Dhubri and the Deputy Commissioner, Dhubri shall ensure detention and deportation/push back of the petitioner to Bangladesh and deletion of his name from the voter list. Let the compliance report he furnished to this Court on or before 9.2.2010. 15. Let the copies of this judgment and order be sent to the Union of India in the Ministry of Home Affairs, Superintendent of Police (B) Goalpara and Deputy Commissioner, Goalpara for their necessary follow up action. Another copy of the same be furnished to Ms. R. Chokraborty, learned Addl. Sr. Govt. Advocate. 16. Let the LCR be sent down to the Tribunal immediately alongwith a copy of this judgment and order.