Research › Search › Judgment

Gauhati High Court · body

2010 DIGILAW 85 (GAU)

Mahadev Haider v. State of Assam

2010-02-05

BIPLAB KUMAR SHARMA

body2010
JUDGMENT B.K. Sharma, J. 1. The petitioner has invoked the writ jurisdiction of this Court challenging the legality and validity of the order dated 7.11.2008 passed by the Foreigners' Tribunal Dibrugarh in FT case No. 21/2006 declaring him to be a foreigner entering into Assam after the cut-off-date, i.e. 25.3.1971. 2. The instant litigation has a chequered history. The case against the petitioner was first registered under the then IM(D)T Act, 1985. The case was registered as IMDT case No. 1447/2001. By the judgment and order dated 16.3.2002, the petitioner was declared as an illegal migrant. Aggrieved, the petitioner preferred an appeal before the Appellate Tribunal and the Appellate Tribunal also confirmed the order of the earlier Tribunal, Thereafter, the petitioner approached this Court by filing a writ petition being WP(C) No. 6988/2002 and the same was dismissed by order dated 12.11.2002. Aggrieved, the petitioner preferred a writ appeal being WA No. 27/2003. The appeal was allowed by judgment and order dated 6.8.2003 remanding the matter back to IM(D)T, Dibrugarh to proceed further in the matter after giving opportunity to the petitioner to produce evidence. 3. After the aforesaid order in the writ appeal, the petitioner appeared before the IM(D)T by filing his written statement inter alia contending that he is an Indian citizen by birth and born and brought up to village Goraimari under Khowang Police Station and that his parents were Ghatak Haider and Haridash. As per the written statement, they had migrated to West Bengal in 1970 from erstwhile East Pakistan and started residing at Khidirpur in the District of West Dinajpur, West Bengal. His father occupied a plot of land as a "Raiyat" covered under GL No. 89, Khatian No. 508, Touji No. 15. In support of such a claim, a document stated to be of 7.6.1970 was enclosed with the written statement. 4. When the proceeding before the IM(D)T was pending, the Apex Court struck down the IM(D)T Act, 1985 vide its judgment in Sarbananda Sonowal v. Union of India reported in AIR 2005 SC 2920 . Thereafter the proceeding against the petitioner started under the provisions of Foreigners Act, 1946 and the Rules framed thereunder. The case was registered as FT case No. 21/2006. In the proceeding before the Foreigners Tribunal, the petitioner adduced oral evidence in the form of DW 1, DW 2 and DW 3. Thereafter the proceeding against the petitioner started under the provisions of Foreigners Act, 1946 and the Rules framed thereunder. The case was registered as FT case No. 21/2006. In the proceeding before the Foreigners Tribunal, the petitioner adduced oral evidence in the form of DW 1, DW 2 and DW 3. The Tribunal on the basis of the materials on record has passed the impugned order dated 7.11.2008 declaring the petitioner to be foreign national (illegal migrant). Hence this writ petition. Thus, this is the 6th proceeding for determination of the reference as to whether the petitioner is illegal migrant entering to Assam after the cut-off-date, i.e. 25.3.1971. 5. I have heard Mr. G.P. Bhowmik, learned Counsel for the petitioner as well as Ms. R. Chokraborty, learned Addl. Sr. Govt. Advocate. I have also gone through the entire records including the records of the Tribunal. 6. Needless to say that the writ Court exercising the power of judicial review under Article 226 of the Constitution of India cannot sit on appeal over the findings recorded by the Tribunal and/or reappreciate the evidence on record unless it is shown to be a case of perverse finding and a case of no evidence at all. The Tribunal in its impugned order dated 7.11.2008 has recorded all the details narrated above. 7. In the writ appeal referred to above, the order passed was to proceed further in the matter after giving opportunity to the petitioner. At the time of remanding the matter back to the Tribunal the State had already adduced its evidence. 8. As per the direction of the Superintendent of Police, Dibrugarh, the appointed Enquiry Officer made an enquiry against the petitioner to find out as to whether he is an Indian citizen or an illegal migrant. Prima facie it was found that the petitioner is an illegal migrant and accordingly the Enquiry Officer submitted his report to the Screening Committee which scrutinized the same and sent its recommendation to the Superintendent of Police for appropriate proceeding against the petitioner. The Superintendent of Police also was satisfied that there was a prima facie case against the petitioner and accordingly the reference was made to the IM(D)T, Dibrugarh. 9. The Superintendent of Police also was satisfied that there was a prima facie case against the petitioner and accordingly the reference was made to the IM(D)T, Dibrugarh. 9. The State examined PW 1, Shri Risheswar Saikia, who deposed that during the enquiry the petitioner admitted that he had come to India from the village Kusan under police station Naria in the District of Faridpur, East Bengal before 25/26 years. The enquiry was made on 2.4.2010 and the petitioner could not produce any evidence to prove that he had come to Assam before 25.3.1971. The Enquiry Officer found that the petitioner was an illegal migrant and accordingly submitted his report in the prescribed format. The report was exhibited and proved in the proceeding. It will be pertinent to mention here that the petitioner did not make any challenge to his admission made before PW 1. 10. The stand of the petitioner before the Foreigners Tribunal has been noted above. The only plea advanced by the petitioner in support of his case was the aforesaid document (Khatian) stated to be of 1970 (7.6.1970). 11. The aforesaid document was exhibited to prove the factum of migration of the petitioner's father from East Pakistan (now Bangladesh) to West Bengal in 1970. To the question put by the Court, the petitioner admitted that the said document (Exhibit "Ka") under the signature of the so called officer, the date 8.6.1970 is a manipulated one inasmuch the digit "7" was originally "9", but was made it appear as "7" by overwriting. Thus, the said document was of the year 1990, but was made to appear to be of 1970 by manipulation of the digit "9" converting it to "7". 12. The contradiction in the depositions made by DWs as has been noted by the Tribunal, is also noteworthy. According to the petitioner, he was born on 10.3.1971 and since then he had been living at a place called "Khowang". DW 2, Shri Krishna Das of Khowang Kawoimari village stated in his evidence that he had seen the petitioner at village Goroimari since 1971. According to his statement, Kawoimari and Goroimari are two different villages and there is a big river called Dihing between the two villages. DW 2 in his deposition further stated that when he saw the petitioner, he was two years old and it was in 1971. Thus there is inherent contradiction in his statement. According to his statement, Kawoimari and Goroimari are two different villages and there is a big river called Dihing between the two villages. DW 2 in his deposition further stated that when he saw the petitioner, he was two years old and it was in 1971. Thus there is inherent contradiction in his statement. As observed by the Tribunal, the two villages Kawoimari and Goroimari are two different and distinct villages with a big river in between them coupled with the fact that DW 2 is not a village mate of the petitioner, his evidence is unbelievable. Further, DW 2 also stated that he had seen the petitioner during fishing operation. If the petitioner was born in 1971, it is unbelievable that he could engage himself in fishing operation in 1971 itself. 13. As against the said evidence of DW 2, DW 3 in his deposition supporting the case of the petitioner stated that he was born at Khowang and had seen him at village Goroimari since 1970 which is contrary to the own statement of the petitioner as per which he was born in 1971. DW 3 further stated that the petitioner's father did not cast vote and he heard that he had come from Kolkata. Thus, the DW 2 and DW 3 did not support the case of the petitioner that his parents had migrated to West Bengal from Bangladesh in the year 1970. 14. Mr. Bhowmik, learned Counsel for the petitioner submitted that the petition dated 18.8.2008 filed by the petitioner with a prayer for calling the report regarding the aforesaid Ext. "Ka" document having not been considered by the Tribunal, the findings arrived at without the said report is not tenable. Such statement on the part of the learned Counsel for the petitioner is not based on record. The said petition was duly entertained by the Tribunal and it was found that the particular Khatian was in the name of Ghatak Haider, purported father of the petitioner. For ends of justice the report was called for from the Govt. of West Bengal as desired by the petitioner. As recorded by the Tribunal and also revealed from the records of the Tribunal, the particular document is of 1990 (8.6.1990) and not 1970 (7.8.1970) as was claimed by the petitioner. For ends of justice the report was called for from the Govt. of West Bengal as desired by the petitioner. As recorded by the Tribunal and also revealed from the records of the Tribunal, the particular document is of 1990 (8.6.1990) and not 1970 (7.8.1970) as was claimed by the petitioner. It has also been recorded that the digit "9" as it originally stood was altered to "7" by overwriting. If the petitioner wanted to rely upon the said document, it was his duty to produce the authentic and certified copy of the same. He cannot shift the burden of proof to the State. As per the requirement of Section 9of the Foreigner's Act, 1946, the burden of proof lies on the person concerned and the petitioner failed to do so. 15. From the materials on record and also as recorded by the Tribunal, the report which was called for, was received on 5.11.2008 by registered post. The District Magistrate of Dakshin Binajpur, Balurghat, West Bengal in his report sent under No. 724/c/2008 dated 15.10.2008 made the following observations : The report as submitted by Block Land & Land Reforms Officer, Balurghat, Dakshin Dinajpur is enclosed alongwith copies of other documents for your kind perusal and taking necessary action. From the report of the BL & LRO Balurghat it appears that the copy of Khatian produced by Mahadev Haider is not proper. 16. The Tribunal duly considered the report and the enclosed documents therewith. The authority of West Bengal Govt. had enclosed total 5 certified copies of the land records under the particular Khatian being Khatian No. 508, GL No. 89. In the said documents names of some other persons were included as "Dakhalkar" of the land. The name of Ghatak Haider, supposedly the father of the petitioner did not appear in the said land records of 1970 as was claimed by the petitioner. The said documents were compared, verified and certified on 3.10.2008. The original Khatian was issued on 2.3.1956 in the name of one Ananta Bihari Saki. In view of the above, it has rightly been observed by the Tribunal that the petitioner had exhibited false and manipulated documents and thereby committed criminal offence. 17. As recorded above, except Ext. "Ka" the petitioner could not produce any other materials in support of his case that he was an Indian citizen by birth. In view of the above, it has rightly been observed by the Tribunal that the petitioner had exhibited false and manipulated documents and thereby committed criminal offence. 17. As recorded above, except Ext. "Ka" the petitioner could not produce any other materials in support of his case that he was an Indian citizen by birth. In the above referred petition dated 18.8.2008 praying for producing the records relating to said Khatian, it was stated as follows : ...and the Govt. of West Bengal in 1970 issued Khatian No. 508, T(G)L No. 89 under the Mouza Khidirpur in the name of Shri Ghatak Haider. 18. Further in paragraph-4 of the petition that statement made was : The documents aforesaid have been lost and in spite of best efforts, the said document could not be found/traced out by the opposite party, except the revenue receipt of 1970 in the name of Ghatak Haider. 19. The above statement made by the petitioner himself in the petition and in consideration of the same alongwith the report and the documents submitted by the authorities of the West Bengal Govt. clearly revealed the false case of the petitioner. This aspect of the matter has been mentioned by the Tribunal in the impugned order. 20. Above being the position, I do not find any merit in the writ petition and accordingly, it is dismissed. 21. The Superintendent of Police, Dibrugarh is directed to take the petitioner into custody and detain him in jail/detention camp till such time he is deported/pushed back to Bangladesh. The Deputy Commissioner, Dibrugarh is also directed to ensure deletion of the name of the petitioner from voter list, if any. 22. Aforesaid two authorities shall furnish compliance report on or before 23.2.2010. Let the copies of this judgment be furnished to the Union of India, Home Ministry; Superintendent of Police, Dibrugarh and Deputy Commissioner, Dibrugarh. Another copy of the same also be furnished to Ms. R. Chokraborty, learned Addl. Sr. Govt. Advocate. 23. Let the LCR be sent down to the Tribunal immediately alongwith a copy of this judgment.