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2012 DIGILAW 188 (GAU)

Sadek Ali (Md. ) v. State of Assam & Ors.

2012-02-10

B.K.SHARMA

body2012
B.K. Sharma, J.:- By means of this writ petition, the petitioner has challenged ex-parte judgment dated 17.03.2011 passed by the Foreigners Tribunal, Dibrugarh in FT Case No. 74/2010 by which the reference made against the petitioner that he is a Bangladeshi national and illegally entered into Assam, India after the cut off date, i.e. 25.03.1971, has been answered in the affirmative. 2. According to the petitioner, he is an India citizen by birth and is the son of Abdul Rezzak @ Rejak Miah, whose name appeared in the voter lists of 1966, 1970 and 1997. It is the claim of the petitioner that although in the voter list of 1966 and 1970, his father's name appeared as Rejak Miah, but in all subsequent documents it is as Abdul Rezzak. Thus, the petitioner has named his father by two names, namely Rejak Miah and Abdul Rezzak, in support of which he has referred to Annexure-4 affidavit dated 01.06.2011 purportedly sworn by his mother, Sajeda Khatun. 3. As regards the ex parte proceeding in the Tribunal the petitioner has stated that although he had received notice from the Tribunal, but being a illiterate man, he could not understand the contents of the same and resultantly did not appear before the Tribunal. Thereafter, the Tribunal passed the impugned judgment and order dated 17.03.2011. 4. According to the petitioner, his name appeared in the voter list of 2010. Anenxure-6 is the photo copy of the voter list of No. 43 Barpeta LAC in which under serial No. 502 name of one Md. Sadek Ali, son of Abdul Rezzak aged about 33 years appears. There is no explanation as to why his name did not appear in any one of the voter lists prior to 2010, although if we go by Annexure-6 documents, he had attained the voting right much ahead of 2010. Anenxure-8 certificate only certifies that he is a resident of the particular place. These are the documents on the basis of which the petitioner seeks establishment of Indian citizenship by birth. 5. I have heard Mr. M.U. Mahmud, learned counsel for the petitioner as well as Mr. H.K. Barman, learned State counsel. I have also heard Mr. N. Bhagawati, learned CGC. I have also perused the records of the Tribunal and I have given my anxious consideration to the same. 6. 5. I have heard Mr. M.U. Mahmud, learned counsel for the petitioner as well as Mr. H.K. Barman, learned State counsel. I have also heard Mr. N. Bhagawati, learned CGC. I have also perused the records of the Tribunal and I have given my anxious consideration to the same. 6. In the records of the Tribunal the name of the petitioner's father has been recorded as Abdul Rezzak Ali with further indication that the name of his mother is not known and that her name could not be disclosed by the petitioner. Nowhere in the documents of the Tribunal his father has been referred to as Rejak Miah. Even in the notice served on the petitioner, he was referred to as late Abdul Rezzak and so also in the statement made by the petitioner before the police on 30.11.2009. Even in the finger prints subscribed by the petitioner dated 26.12.2009 his father has been described as Abdul Rezzak Ali in the relevant column. In the notice issued from the Tribunal also, his father has been named as Late Abdul Rezzak Ali and the same was duly received by the petitioner. For the first time in the writ petition the petitioner seeks to refer the name of his father by another name, namely Rejak Miah which name appears in the voter lists of 1966 and 1970. 7. The petitioner has also placed reliance on 1997 voter list purportedly containing his father's name by another name Abdul Rezzak. In the said voter list Abdul Rezzak is shown to be aged about 55 years. On the other hand, in the voter list of 1970, Rejak Miah was shown to be of 27 years of age. Thus, if Rejak Miah and Abdul Rezzak is one and the same person, there is no explanation as to how the father of the petitioner who was 27 yeas of age in 1970 could be 5 5 years of age in 1997. That apart, and as discussed above, there is no explanation as to why the name of the petitioner does not appear in any one of the voter lists published prior to 2010. The petitioner claiming himself to be an Indian citizen by birth, has placed reliance only on 2010 voter list incorporating the name of one Md. Sadek Ali which the petitioner claims to be of his own. 8. Mr. The petitioner claiming himself to be an Indian citizen by birth, has placed reliance only on 2010 voter list incorporating the name of one Md. Sadek Ali which the petitioner claims to be of his own. 8. Mr. Mahmud, learned counsel for the petitioner referring to the proceeding before the Tribunal, submits that although the petitioner did not appear on the first two dates fixed on22.02.2011 and 02.03.2011,but he ought to have been given extension some more time. In the writ petition the only explanation furnished for nonappearance is that the petitioner being an illiterate person could not appear before the Tribunal. This is not an explanation at all and that too, in a proceeding of this nature whether the question of one's citizenship is involved. 9. After serving notice on the petitioner, the fist date was fixed on 02.02.2011 on which the petitioner did not appear. He was given another chance fixing the matter on 20.03.2011. On that date the Tribunal passed the following order without recording anything about absence of the petitioner although it is obvious that he remained absent on that day. The order reads as follows: "02.03.2011-Fixing 17.03.2011 for ex parte order". 10. On 17.03.2011 the Tribunal passed the impugned judgment as quoted below: IN THE COURT OF THE FOREINGER TRIBUNAL, DIBRUGARH Judgment in Case No. FT 74/2010 (P.E. No. 99/09) State Vs. Md. Sadek Ali Date of Hearing and Judgment: 17.03.2011 Present for the State- P.I. Sri Khogen Konwar For the O.P.-None Reference registered against O.P. Md. Sadek AH, S/o. Lt. Abdul Rejiak Ali of Raj iendra Nagar, P.S. Tinsukia. The fact of the case is that at the order of SP(B) Tinsukia Dist. S.I. (B) Firoz Iqubal made an enquiry, submitted report to S.P. Tinsukia. Being satisfied at the enquiry report of E.G., S.P.(B) Tinsukia forwarded the case to this Tribunal to decide whether O.P. is a foreigner or not. Notice was given to O.P. to appear and to file W/S and to produce evidence in support of his citizenship. Notice served in a proper manner, O.P., did not appear, so case is heard ex parte. Points of decision - Whether O.P. is a Foreigner? E.O. Firoz Iqubal S.I. (B) duly enquired the case, recorded statement of O.P. and examined witness. Notice served in a proper manner, O.P., did not appear, so case is heard ex parte. Points of decision - Whether O.P. is a Foreigner? E.O. Firoz Iqubal S.I. (B) duly enquired the case, recorded statement of O.P. and examined witness. In the enquiry E.O. found that O.P. is a foreigner who entered India after 25.03.1971 from Banladesh and falsely stated that he is an Indian. Under Section 9 of the Foreigners Act the burden of proof lies on O.P. that he is an India Citizen. As O.P. absconded and avoided the process of the court it alone shown that he is not an Indian citizen. So, I opine that O.P. is a foreign National who entered India Illegally after 25.03.1971. As such I declared O.P. as foreigner. Ask S.P. Tinsukia to take steps for deportation of the O.P." 11. The above order will go to show how cryptic it is. While it is true that under Sec-tion-9 of the Foreigners Act, burden of proof lies on the suspended foreigner to establish that he is an Indian citizen, but at the same time it was proper on the part of the Tribunal at least to exhibit the enquiry report etc. in which the petitioner was held to be illegal Bangladeshi migrant to Assam. 12. It is in the aforesaid backdrop, the learned counsel for the petitioner strenuously argued for another chance to the petitioner to defend the reference before the Tribunal. Considering the matter in its entirety, while setting aside the impugned judgment, the matter/reference is remanded back for fresh adjudication in accordance with law. 12. It is in the aforesaid backdrop, the learned counsel for the petitioner strenuously argued for another chance to the petitioner to defend the reference before the Tribunal. Considering the matter in its entirety, while setting aside the impugned judgment, the matter/reference is remanded back for fresh adjudication in accordance with law. Let the adjudication be completed as expeditiously as possible preferably within 31.03.2012 facilitating which the jurisdictional Superintendent of Police shall cause production of the petitioner before the Tribunal on 27.02.2012 and thereafter the petitioner may be afforded with all reasonable opportunity to defend the reference by producing such evidence as he may like to and in accordance with law and the provision contained in the order dated 04.07.1979 issued by the Chief Secretary of the State which is quoted below: "GOVERNMENT OF ASSAM POLITICAL (B) DEPARTMENT ORDERBYTHE GOVERNOR Dated Dispur the 4th July, 1979 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-(11)/(111) 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 regard 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 regard 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-un-der, 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 and 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 and 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 quashi-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" 13. Once the reference is decided afresh by the Tribunal, the report shall be placed before this Court for further adjudication of the matter. Thereafter, the matter shall be listed in the 1st week of April, 2012 before this Court for further hearing. In the meantime, the name of the petitioner shall be deleted from the voter list. As per the letter dated 28.10.2011 addressed to the Sr. Govt. Advocate, Assam by the Deputy Commissioner, Barpeta the name of the petitioner would be deleted from the final electoral roll after the process of Special Summary Revision of the electoral roll to be published on 05.01.2012. 14. Bring this order to the notice of the Deputy Registrar (Judicial).