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2012 DIGILAW 185 (GAU)

Md. Jamal Uddin v. Union of India

2012-02-10

BIPLAB KUMAR SHARMA

body2012
JUDGMENT B.K. Sharma, J. 1. This writ petition filed by a declared Bangladeshi national is against the judgment dated 21.12.2010 passed by the Foreigner's Tribunal (2nd) Morigaon in FT (D) Case No. 88/2009 (Police Reference D/N Case No. 3267 dated 08.07.1998) by which the petitioner has been so declared. As discussed in the writ petition, in the year 1997 during the course of correction of the voter list of No. 83 LAC, the petitioner was asked to submit documents in support of his Indian citizenship. According to the petitioner, on being so asked, he had submitted certain documents, but the same were not considered by the Officer engaged in the task. The exercise was preceded by registration of a case against the petitioner being DN Case No. 3267 dated 08.07.1988 registered by the Superintendent of Police (Border), Morigaon alleging that the petitioner is a foreigner and entered into India, Assam after the cut off date, i.e. 25.03.1971. 2. In paragraph 4 of the writ petition, the petitioner has stated that on receipt of notice from the learned Tribunal, he had appeared before it on 08.02.2010 alongwith his engaged counsel. On such appearance, he took time till 29.04.2010 to submit written statement. According to the petitioner, he had handed over the copies of the voter lists of 1965, 1970, land documents of 1969 relating to his father, voter list of 1989, an affidavit, Gaon Panchayat certificate etc. to his engaged counsel for filing written statement towards denial of the Reference that he was a foreigner entering into Assam after the said cut off date. Although the petitioner purportedly handed over amongst others the Gaon Panchayat certificate to his engaged counsel before 29.04.2010, i.e. the date fixed for filing written statement, but interestingly the said certificate is dated 25.02.2011 and has been enclosed to the writ petition as Annexure-6. 3. Admittedly, the petitioner did not appear before the Tribunal after the first date and naturally resulted in ex-parte proceeding and hearing against him and eventually vide impugned judgment and order dated 21.12.2010 he was declared to be a foreigner (Bangladeshi national) making him liable to be deported from India (Assam). 3. Admittedly, the petitioner did not appear before the Tribunal after the first date and naturally resulted in ex-parte proceeding and hearing against him and eventually vide impugned judgment and order dated 21.12.2010 he was declared to be a foreigner (Bangladeshi national) making him liable to be deported from India (Assam). No ground has been assigned in the writ petition as to why petitioner did not appear before the Tribunal, but a statement has been made in paragraph-5 of the writ petition that it was impossible for him to regularly attend the Tribunal since he has to earn his livelihood by engaging himself in daily works. Now coming to the writ Court the petitioner has claimed that he is an Indian citizen by birth. He has enclosed certain documents in support of such claim. 4. The documents annexed to the writ petition are voter lists of 1965, 1970, a deed of agreement of sale of land dated 03.04.1969, voter list of 1969, an affidavit dated 17.01.2010 and the aforementioned Gaon Panchayat certificate dated 22.02.2011. 5. According to the petitioner, he is the son of late Abdul Ajit, whose name appeared in the voter lists of 1965 and 1970. A deed of agreement dated 03.04.1969 also contains the name of one Md. Abdul Ajit. The 1989 voter list contains the name of one Jamaluddin. The name of the petitioner is also Jamal Uddin. Annexure-5 is the self sworn affidavit by Md. Jamal Uddin through which the petitioner claims that he is an Indian citizen. Annexure-6 is the certificate dated 15.02.2011 purportedly issued by the Gaon Panchayat certifying inclusion of the name of Md. Jamal Uddin in the voter list of 1989. 6. Above are the documents based on which the petitioner claims to be an Indian citizen by birth. I have heard Mr. A. Rashid, Learned Counsel for the petitioner as well as Mr. H.K. Barman, learned State counsel. I have also heard Mr. M. Bhagawati, learned CGC appeared for the Union of India. I have also perused the records of the FT (D) Case No. 88/2009. Giving my anxious consideration to the submission advanced by the Learned Counsel for the parties and the records of the Tribunal, my findings are as follows : 7. I have also heard Mr. M. Bhagawati, learned CGC appeared for the Union of India. I have also perused the records of the FT (D) Case No. 88/2009. Giving my anxious consideration to the submission advanced by the Learned Counsel for the parties and the records of the Tribunal, my findings are as follows : 7. The records of the Tribunal have revealed that the petitioner on receipt of notice from the Tribunal appeared on 08.02.2010 and prayed for time to file written statement. Accordingly, granting the prayer so made, the Tribunal fixed the matter on 29.04.2010 on which date the petitioner did not appear. However, the Tribunal granted time till 21.06.2010 on which date also he remained absent. Situated thus, the Tribunal fixed the matter on 27.08.2010 for ex parte hearing. On 27.08.2010 also the petitioner remained absent and the Tribunal while issuing summons to the State witness fixed the matter on 18.10.2010. On all the next dates fixed thereafter, the petitioner remained absent and consequently ex parte judgment was delivered on 21.12.2010 after recording evidence of State witness who proved Exhts. 1 and 2, i.e. verification reports establishing the petitioner as Bangladeshi national who entered into Assam, India after the cut off date, i.e. 25.03.1971. Consequently, the Tribunal declared the petitioner to be a Bangladeshi national making him liable for deportation from India. 8. As noted above, there is no explanation whatsoever as to why the petitioner after his first appearance before the Tribunal on 08.02.2010 did not appear on all subsequent dates fixed by the Tribunal which are 29.04.2010, 21.06.2010, 27.08.2010, 21.11.2010, 14.12.2010 and finally 21.12.2010. In such a situation, this Court exercising the power of judicial review under Article 226 of the Constitution of India cannot find any fault with the Tribunal in passing the impugned ex parte judgment. Section 9 of the Foreigners Act, 1946 requires the proceedee to prove his Indian citizenship. Burden of proof being on the petitioner as per the said provision, it was incumbent on his part to discharge the same. He having failed to do so, there is no escape from the operation of the said provision against him. 9. Section 9 of the Foreigners Act, 1946 requires the proceedee to prove his Indian citizenship. Burden of proof being on the petitioner as per the said provision, it was incumbent on his part to discharge the same. He having failed to do so, there is no escape from the operation of the said provision against him. 9. The petitioner has filed an additional affidavit on 24.6.2011 stating therein that on receipt of notice from the Tribunal he had engaged the respondent No. 7 to defend him in the case and thereafter handed over the documents mentioned above for preparation of written statement. It has been stated that he was under the impression that the said engaged Advocate had filed the written statement. According to the petitioner there was failure on the part of the said engaged counsel to defend him in the Tribunal. 10. In response to the said affidavit, his engaged counsel in the Tribunal, i.e. the respondent No. 7, has filed his objection wherein it has been stated that on his engagement as counsel to represent the petitioner in the Tribunal, he had asked him (the petitioner) to produce the relevant documents for preparation of written statement, but he did not turn up after the first appearance. It has also been stated that he had repeatedly called the petitioner over phone, but he never turned up nor he took any step to defend his case. Thus, the respondent No. 7 has denied that the petitioner had handed over the documents to him to file the written statement. 11. The aforesaid plea of the petitioner that he had handed over the aforementioned documents to his engaged counsel i.e. the respondent No. 7, is not at all believable. Even if the story of the petitioner that he had handed over the aforementioned documents to the respondent No. 7 is accepted, then also there is no explanation as to why he did not come forward to sign the written statement and prove the same and also as to how the said documents could include the Gaon Panchayat certificate dated 15.02.2011 which is after the impugned order dated 21.12.2010. Thus, falsity of the plea of petitioner is writ at large on the face of it. 12. In the writ petition filed on 26.05.2011 with a sworn affidavit dated 25.05.2011, the petitioner has declared his age as 51 years. Thus, falsity of the plea of petitioner is writ at large on the face of it. 12. In the writ petition filed on 26.05.2011 with a sworn affidavit dated 25.05.2011, the petitioner has declared his age as 51 years. If that be so, his year of birth will be around 1960. On that basis, although he had attained his voting right much earlier, but the voter list by which he has claimed his voting right is of 1989 which is after 29 years of his birth. There is no other voter list incorporating his name and there is also no explanation as to why his name is not there in any other voter list before and after the said year. 13. A self sworn affidavit declaring the declarant to be an Indian citizen is of no use. Such a document cannot establish Indian citizenship. As noted above, Annexure-6 Gaon Panchayat certificate dated 15.02.2011 which certifies inclusion of name of one Jamal Uddin in the voter list of 1989. Same also cannot establish Indian citizenship, that too, by birth of the petitioner. 14. In the supporting affidavit to the writ petition, the petitioner has named his father as Late Abdul Ajit. The said name appears in the voter lists of 1965 and 1970. Apart from the fact that there is no proof that said Abdul Ajit is the father of the petitioner, there is also no explanation as to why his name did not appear in any other voter list before and after 1965 and 1970 respectively. In the proceeding before the Tribunal, the petitioner has been referred to as Jamaluddin as the son of Ajit Ali and not as Abdul Ajit as has been claimed by the petitioner in the writ petition. The petitioner also received notice in the said name of his father, i.e. Ajit Ali. In the vakalatnama filed in the Tribunal also he named his father as Ajit Ali and now coming to the writ Court he named his father as Abdul Ajit so as to suit his purpose inasmuch as the documents on which he has placed reliance in this proceeding refer the name of one Abdul Ajit and not Ajit Ali. It is also not the case of the petitioner that Ajit Ali and Abdul Ajit is the one and the same person. It is also not the case of the petitioner that Ajit Ali and Abdul Ajit is the one and the same person. There is also no proof that the said person is the father of the petitioner. That apart, the documents to the writ petition are all photo copies. 15. As has been held by the Apex Court in Life Insurance Corporation of India v. Rampal Singh Bisen, reported in (2010) 4 SCC 419, merely filing or exhibiting of a document in Court does not amount to prove of its contents. Even admission of a document in the Court may amount to admission of its contents, but not its truth. A document not produced and marked as required under the Evidence Act cannot be relied upon by the Court. 16. In Sarbananda Sonowal v. Union of India and Anr., reported in AIR 2005 SC 2920 , the Apex Court while striking down the Illegal Migrants (Determination by Tribunals) Act, 1983 observed that influx of Bangladeshi nationals who have illegally migrated into Assam pose a threat to the integrity and security of north-eastern region. Their presence has changed the demographic character of the region and the local people of Assam have been reduced to a status of minority in certain districts. In the said decision the Apex Court reminding the Central Government about the duty to defend the border of the Country, to prevent any trespass and making the lives of the citizens safe and secure, made the following observations in respect of burden of proof in order to establish one's citizenship : 16. It needs to be emphasized that the general rule in the leading democracies of the world is that where a person claims to be a citizen of a particular country, the burden is upon him to prove that he is a citizen of that country. 17. There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country. In order to establish one's citizenship, normally he may be required to give evidence of (i) his date of birth, (ii) place of birth, (iii) name of his parents, (iv) their place of birth and citizenship. Sometimes the place of birth of his grand parents may also be relevant like under Section 6A(1) (d) of the Citizenship Act. In order to establish one's citizenship, normally he may be required to give evidence of (i) his date of birth, (ii) place of birth, (iii) name of his parents, (iv) their place of birth and citizenship. Sometimes the place of birth of his grand parents may also be relevant like under Section 6A(1) (d) of the Citizenship Act. All these facts would necessarily be within the personal knowledge of the person concerned and not of the authorities of the State. After he has given evidence on these points, the State authorities can verify the facts and can then lead evidence in rebuttal, if necessary. If the State authorities dispute the claim of citizenship by a person and assert that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the aforesaid points. This is in accordance with the underlying policy of Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving the fact is upon him. 19. Section 9 of the Foreigners Act regarding burden of proof is basically on the same lines as the corresponding provision is in U.K. and some other Western nations and is based upon sound legal principle that the fact which are peculiarly within the knowledge of a person should prove it and not the party who avers the negative. 17. In the instant case, the petitioner having failed to discharge his burden of proof to establish his Indian Citizenship by birth, there is also no escape from the liability of deportation from India. Apart from that, he has taken recourse to falsehood in making statement that he had handed over the aforementioned documents to his counsel including the Gaon Panchayat certificate dated 15.02.2011 which is much after the impugned judgment. As against his failure to discharge his burden of proof, the State having established its case of proving the relevant exhibits, the petitioner cannot be permitted to assail the judgment on untenable and ill founded pleas. There is also no sustainable plea against ex-parte proceeding because of his non appearance. 18. The instant case has its origin to 1988 as will be evident from date of registration of the case No. 3267 dated 08.07.1988 by the Superintendent of Police (Border), Morigaon. There is also no sustainable plea against ex-parte proceeding because of his non appearance. 18. The instant case has its origin to 1988 as will be evident from date of registration of the case No. 3267 dated 08.07.1988 by the Superintendent of Police (Border), Morigaon. It took 11 years to make a reference to the Tribunal in 2009. On the other hand, as per the policy decision of the Government of Assam as laid down in the order dated 04.07.1979 issued by the Government of Assam in the Political (B) Department, the cases of foreign nationals are required to be disposed of as far as practicable within a period of 30 (thirty) days. For a ready reference, the said order issued by the Chief Secretary to the Government of Assam is quoted below : GOVERNMENT OF ASSAM POLITICAL (B) DEPARTMENT ORDER BY THE GOVERNOR Dated Dispur the 4th July, 1.979 No. PLB./64/77/99 : With reference to the State Government notification No. PLB 64/77/98 dated 04.07.79 constituting the Foreigners Tribunals the following note is prepared to serve as guideline as to how the Tribunal may regulate its own procedure to achieve speedy disposal of the cases in a fair and just manner. In case of dispute, the State Government entrusted vide Central Government's notification No. 1/1/64-(I)-F- III dated 3rd October, 1964 or the Superintendent of Police entrusted vide Central Government notification No. 1/1/64-(II)(III) dated 03.10.64 may refer the question as to whether a person is or is not a foreigner to a Tribunal. However, the cases of the following three categories of foreigners shall not be so referred :- 1. Cases of re-infiltrators (those who where deported) in the past. 2. Cases of fresh infiltrators who are detected either at the border at the time of infiltrating or during their journey from the border to the interior places. 3. Cases of those foreign nationals who entered Assam legally on the strength of valid passport/travel document but continued to stay in Assam illegally beyond the period authorised by such passport/documents. As regards burden of proof, Section 9 of the Foreigners Act; 1946 may be referred to which reads as under. 9. 3. Cases of those foreign nationals who entered Assam legally on the strength of valid passport/travel document but continued to stay in Assam illegally beyond the period authorised by such passport/documents. As regards burden of proof, Section 9 of the Foreigners Act; 1946 may be referred to which reads as under. 9. If in any case not falling under Section 8 any question arises with reference to this Act or any order made or direction given there-under, whether any person is or is not a foreigner or is or is not a foreigner of particular class or description the onus of proof that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act; 1872, lie upon such person. An identical provision is incorporated in Section 4 of the Registration of Foreigners Act; 1939. As regards the procedure for disposal of the cases and the power of the Tribunals, clauses 3 and 4 of the Foreigners Tribunal Orders, 1964 may be referred to which read as under : 3(1) The Tribunals shall serve on the person to whom the question relates a copy of the main grounds on which he is alleged to be a foreigner and give him a reasonable opportunity of making a representation and producing evidence in support of his case and after considering such evidence as may be produced after hearing such persons as may deserve to be heard, the Tribunal shall submit its opinion to the officer or authority specified in this behalf in the order of reference. (2) Subject to the provisions of this Order, the Tribunal shall have power to regulate its own procedure. 4. The Tribunal shall have the powers of a Civil Court while trying a suit under the Civil Procedure Code, 1908 in respect to the following matters, viz.- (a) Summoning and enforcing the attendance of any person and examining him on oath; (b) Requiring the discovery and production of any document; (c) Issuing Commissions for the examination of any witness. 4. The Tribunal shall have the powers of a Civil Court while trying a suit under the Civil Procedure Code, 1908 in respect to the following matters, viz.- (a) Summoning and enforcing the attendance of any person and examining him on oath; (b) Requiring the discovery and production of any document; (c) Issuing Commissions for the examination of any witness. In exercise of the powers conferred on it under clause 3(2) of the Foreigners Tribunal Order, 1964, the Tribunal may regulate its own procedure as follows : (1) The Tribunal shall serve on the person to whom the question relates a show cause notice with a copy of the main grounds on which he is alleged to be a foreigner. This notice should be served as expeditiously as possible. (2) The Tribunal shall give him a reasonable opportunity to show cause by filing a representation. Ordinarily, not more than 7 days' time from the date of service of the notice as aforesaid should be given to file such a representation. (3) The Tribunal shall give him a reasonable opportunity to produce evidence in support of his case. Ordinarily, not more than 7 days' time should be given to produce such evidence. (4) Prayer for examination of witness in Court or on Commission and production of documents shall be refused if in the opinion of the Tribunal such prayer is made for the purpose of vexation or delay or such other purpose. (5) The Tribunal shall take such evidence as may be produced by the Superintendent of Police concerned. (6) The Tribunal shall hear such persons as may deserve to be heard. (7) After the case has been heard, the Tribunal shall submit its opinion as soon as thereafter as may be practicable. (8) The Tribunal's final order containing its opinion need not be lengthy as it is not a judgment; a concise statement will suffice. (9) The power of grating adjournment on any plea should be very sparingly exercised, and every case should be disposal of, as far as practicable within a period of 30 days from the date receipt of the reference. (9) The power of grating adjournment on any plea should be very sparingly exercised, and every case should be disposal of, as far as practicable within a period of 30 days from the date receipt of the reference. (10) Since the proceeding before the Tribunal shall be of quasi-judicial nature, and since after hearing the case the Tribunal shall submit its opinion (as distinguished from judgment) only, at no stage of the proceeding will a Legal Practitioner or Pleader's Clerk be allowed to appear to plead or act on behalf of a party to the proceeding before the Tribunal. However, a party to the proceeding may be allowed to appear before the Tribunal either in person or by such other person or relation authorised by him in writing as the Tribunal may admit as fit person to represent the party. Sd/- Chief Secretary to the Govt. of Assam 19. In the instant case, in spite of getting adequate opportunity, the petitioner failed to discharge the burden of proof as envisage/under Section 9 of the Foreigners' Act, 1946, on which the Apex Court has also emphasised in Sarbananda Sonowal (supra). It need not be overemphasized that those at the helm of affairs including the foreign nationals, cannot be permitted to take recourse to lengthen the proceeding giving indulgence to the suspended Bangladeshi nationals who illegally migrated to Assam and that the proceedings before the Tribunals are required to be finalised at the earliest. 20. For all the aforesaid reasons I do not find any merit in the writ petition so as to interfere with the impugned judgment and order dated 21.12.2010 passed by the Foreigners' Tribunal (2nd), Morigaon in FT(D) Case No. 88/2009 and consequently, I confirm the said judgment. 21. The writ petition is dismissed. List the matter after one month enabling the Superintendent of Police (B), Morigaon and the Deputy Commissioner, Morigaon to furnish reports regarding the action taken towards deportation of the petitioner from India to Bangladesh and deletion of his name from the voter list. Let the copies of this judgment and order be sent to the Union of India, Home Department and the Superintendent of Police (B), Morigaon and the Deputy Commissioner, Morigaon. A copy of the judgment and order shall also be furnished to Mr. H.K. Barman, learned State counsel for his necessary follow up action towards compliance of the aforesaid direction.