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2012 DIGILAW 754 (GAU)

Samad Ali @ Samat Ali v. Union of India

2012-06-18

ADARSH KUMAR GOEL, C.R.SARMA

body2012
JUDGMENT C.R. Sarma, J. 1. By this appeal the appellant, who was the ' writ petitioner in WP(C) No. 3907/2009 has challenged the order, dated 16.09.2009, passed by a learned Single Judge of this Court in WP (C) No. 3907/2009 and the order, dated 19.05.2008, passed by the learned Member, Foreigners Tribunal, Kamrup (M) in FTC No. 518/2005. The appellant/writ petitioner's case is that he is a citizen of India and permanent resident of Teklarbala, P.O. Pohumara, P.S. Barpeta, in the district of Barpeta, Assam. The Azara police in connection with Azara P.S. Case No. 665/06 made a reference to the Illegal Migrants Determination Tribunal (in short IMDT), as it was then, by registering a case, being case No. 518/05 alleging that the petitioner, being a Bangladeshi National entered India (Assam) after 25.03.1971 and illegally resided in Assam without due permission from the Government of India. The said reference was converted into a proceeding under the Foreigners Act and accordingly FTC No. 443/07 was registered. The Foreigners Tribunal, Kamrup, Guwahati, issued notice to the petitioner and accordingly he appeared and submitted some documents in support of his claim regarding Indian citizenship. However, subsequently, the petitioner failed to appear before the Tribunal and substantiate his claim by adducing any evidence.. Accordingly, the learned Member of the Foreigners Tribunal, by the impugned order dated 19.5.08, ex-parte, disposed of the case declaring the petitioner as Foreigners observing that he entered Assam after 25.03.1971. 2. According to the petitioner, after receipt of notice from the Foreigners Tribunal, Kamrup (M) he submitted necessary documents, in support of his claim regarding citizenship, with the office clerk of the tribunal, who also assured him that those documents, being genuine, would be placed with the case record and that the proceeding would be closed, very soon. Therefore, as pleaded by the petitioner, he being a poor illiterate and ignorant person, under bonafide believe that his documents would be accepted in his favour, did not appear before the tribunal. But, the Tribunal decided the case, ex-parte, without taking into account the said document placed before it. He has also pleaded that his non-appearance was due to his ignorance and lack of knowledge and information about the legal proceedings. But, the Tribunal decided the case, ex-parte, without taking into account the said document placed before it. He has also pleaded that his non-appearance was due to his ignorance and lack of knowledge and information about the legal proceedings. He further stated that he had no knowledge or information about the order passed in the said reference and that he came to know about the said ex-parte order only after receipt of notice, sent by ERO of 43 Barpeta LAC. According to the petitioner he submitted voters list of 1997 and 1993 and NRC, certificates from the Gaon Burah and the Panchayat Secretary in support of his claim of citizenship, but due to his ignorance he tailed to prove the said documents, for which the learned Member, Foreigners Tribunal decided the case against him. 3. Aggrieved by the said ex-parte order the appellant, as writ petitioner, challenged the said order by filing the writ petition aforesaid and a learned Single Judge of this Court dismissed the same observing that, as the tribunal was required to deliver its judgment in accordance with provisions of law, on the basis of documents, submitted before him, the tribunal committed no error by refusing to accept the petitioner's claim, on the ground that petitioner's name was not included in the NRC, wherein the name of Kadam Ali and Asik Ali, who were grand father and the father respectively of the writ petitioner were recorded and that the said documents were not proved. 4. Aggrieved by the said order, passed in the writ petition, the writ petitioner, as appellant, has come up with this appeal on the ground that due to his ignorance, illiteracy he could not prove the documents, submitted by him and that an opportunity should be given to him to substantiate his claim by proving the documents submitted by him. It has also been stated, by the appellant, that mere technicality, which was the ground for rejecting his prayer can not be sufficient to take away his valuable right of citizenship and that, he should be given an opportunity to substantiate his claim regarding citizenship. It is also pleaded that, in all the documents submitted by the petitioner, Mr. Asak Ali son of Kadam Ali has been shown as his father and that the name of Asak Ali and Kadam Ali were shown in the NRC 1951 and the voter's lists. It is also pleaded that, in all the documents submitted by the petitioner, Mr. Asak Ali son of Kadam Ali has been shown as his father and that the name of Asak Ali and Kadam Ali were shown in the NRC 1951 and the voter's lists. It has also been stated that the voters lists of 1997 and 1993 contained the names of the petitioner and his father. In view of the above, it is submitted that all the said documents, submitted by the petitioner, were sufficient to substantiate his claim regarding citizenship and that, in view of the said documents, the declaration made by the foreigners tribunal, which has been upheld by the learned Single Judge, was bad in law. In view of the above, the appellant has prayed for setting aside the impugned orders and grant him adequate relief. 5. We have heard Mr. A.R. Sikdar, learned counsel appearing for the appellant and Mr. M. Bhagawati, learned Central Government Standing Counsel and Ms. Sunita Sarma, learned Government Advocate, Assam. The learned counsel, appearing for the appellant, has contested that though the appellant submitted documents in support of his claim of citizenship, he being a village rustic and illiterate person also, due to ignorance failed to appear before the tribunal to substantiate his claim by proving his said documents. It is also submitted that the right of citizenship is a valuable right and that for the ends of justice, another opportunity should be given to the petitioner to substantiate his claim regarding citizenship, so that he does not loose his citizenship. Controverting the said arguments, advanced by the learned counsel, appearing for the appellant, Mr. M. Bhagawati, learned CGC, has submitted that, under the Foreigners Tribunal Act, it is the burden of the respondent to prove his claim regarding citizenship and that, in the present case, he failed to substantiate his claim by adducing sufficient evidence. Therefore, it is submitted, by the learned CGC, that the learned Member, Foreigners Tribunal, committed no error by declaring the appellant as foreigners for want of sufficient proof. In view of the above, it is submitted that the learned Single Judge rightly upheld the impugned order, passed by the learned Member, Foreigners Tribunal and as such the same does not warrant any interference. In tune with the said argument, advanced by the learned CGC, Ms. S. Sarma, learned Govt. In view of the above, it is submitted that the learned Single Judge rightly upheld the impugned order, passed by the learned Member, Foreigners Tribunal and as such the same does not warrant any interference. In tune with the said argument, advanced by the learned CGC, Ms. S. Sarma, learned Govt. Advocate, has also submitted that mere production or submission of documents, by the party concerned, cannot be treated as sufficient evidence in support of the claim. Therefore, it is submitted that the petitioner, by failing to prove the documents, by adducing cogent evidence, failed to substantiate that he entered Assam prior to 1971 and also that he was a citizen of India. Therefore, the learned Govt. Advocate has submitted that the learned Single Judge rightly upheld the order, passed by the learned Member, Foreigners Tribunal aforesaid. 6. Having heard the learned counsel appearing for both the parties, we find, from the record, as well as pleadings, that, initially, on receipt of the notice, in connection with the FTC No. 443/07, the appellant appeared before the learned Tribunal and submitted a certificate from the Gaon Burah, a certificate from the Secretary of the Gaon Panchayat, copy of the NRC 1951, copies of the electoral rolls of 1997 and 1993. Even after submission of the said documents, the petitioner failed to appear before the learned Tribunal, on the subsequent dates, to prove the claim made by him. At paragraph 5 of the writ appeal, the appellant has, stated that he, being a poor man, was unable to engage lawyer and, as such, submitted the documents aforesaid in support of his claim. He also stated that the office clerk of the said office, while receiving the said documents, had assured that he would place those documents in respective files of the case and that his documents being genuine, the proceeding would be closed very soon. According to the appellant, on being so assured, he did not appear on the subsequent dates. He also contended that, he, being a poor and illiterate person, was convinced with the said assurance and under bonafide belief he did not appear before the Court. In the writ petition also the petitioner took the same plea with regard to his nonappearance before the tribunal on subsequent dates. The said contention, made by the petitioner, has been supported by an affidavit. In the writ petition also the petitioner took the same plea with regard to his nonappearance before the tribunal on subsequent dates. The said contention, made by the petitioner, has been supported by an affidavit. The learned counsel, appearing for the appellant, referring to the said averments, made by the appellant, has submitted that the appellant, being a poor village rustic and illiterate person had no knowledge or information about the procedure of Court proceedings and that due to his bonafide mistake the ex-parte order was passed, thereby depriving him from the right of citizenship. Therefore, it is submitted that, for ends of justice, another opportunity may be given to substantiate his said right. 7. Mr. Sikdar, learned counsel, has also submitted that since the petitioner has taken a stand in the writ petition, on oath, that the documents, which he had handed over to the clerk of the Court were accepted by the latter and assured him that the case would be closed, the petitioner was under bonafide belief that the matter would be decided in his favour. It is also submitted that due to illiteracy and poor economic and social background, the petitioner, who was a day labourer, had no knowledge about the prevailing system of Court proceedings and that, in fact, he did not know that he was required to prove the documents, submitted by him. 8. The learned Member, Foreigners Tribunal, while deciding the case against the petitioner, observed as follows:- I have carefully gone through the documents filed on his behalf. From this documents it appears that one Asak Ali was a Indian citizen. It was cleared by O.P. that he was the son of late Asak Ali. In support of this claim he filed one certificate from Gaonbura and one certificate from Panchayat Secretary. But the copy of the NRC submitted by him never disclosed that he was the son of Asak Ali. In absence of evidence I can not hold those documents as genuine. In the result I hold that the O.P. has failed to discharge the burden that he was not a foreigner as laid down under Sec. 9 of the foreigner Act. With the above observation, the learned Member, Foreigners Tribunal came to the findings that the petitioner was a foreigner under the Foreigners Act, 1946. In the result I hold that the O.P. has failed to discharge the burden that he was not a foreigner as laid down under Sec. 9 of the foreigner Act. With the above observation, the learned Member, Foreigners Tribunal came to the findings that the petitioner was a foreigner under the Foreigners Act, 1946. While upholding the said order, by order dated 16.09.2009, the learned Single Judge of this Court observed:- A careful scrutiny of the judgment and order of the Tribunal disclosed that the claim of the petitioner is not found to be genuine to the effect that he is the son of Asak Ali whose name appeared in the NRC of 1951.1 have also perused the extract of the NRC of 1951 which was issued in favour of one Kadamali, who is stated to be grand-father of the petitioner and NRC of 1951 also contained the name of Asak Ali. Learned Tribunal held that the name of the petitioner was not found in the said document. In absence of any other evidence in support of the claim of the petitioner, the learned Tribunal did not accept the contention of the petitioner that he is a citizen of India. The Tribunal is to deliver its judgment in accordance with the provision of law on the basis of the documents submitted before it. On consideration of the documents so furnished, the petitioner's name is found not included and it is held that petitioner is not a citizen of India. Being the aforesaid finding so arrived at by the Foreigners Tribunal, Nagaon, based on assessment of the documents so submitted by the petitioner before the Tribunal, I do not find any reason to interfere with the findings by exercising power under writ jurisdiction. 9. In view of the above, it is found that, by the impugned order the learned Single Judge upheld the order, impugned in the said writ petition, on the ground that petitioner's name was not found in the said document, more particularly in the NRC 1951 and that the findings of the Tribunal on the assessment of the documents aforesaid required no interference by writ Court. 10. 10. From the documents submitted by the petitioner we find that the concerned Gaon Burah as well as the Secretary of the Gaon Panchayat issued certificates indicating that the petitioner, who was the son of Asak Ali, was a permanent resident of their locality. The NRC J 951 includes the name of Kadam Ali, aged about 52 years and Asak Ali aged about 10 years. The petitioner has claimed to be the son of said Asak Ali. The Gaon Burah and the Secretary of the Gaon Panchayat have also certified that the petitioner was the son of said Asak Ali. As Asak ali was 10 years old at the relevant time of preparation of the said NRC, admittedly, the petitioner was not bom at that time and as such his name also, naturally, did not appear in the said NRC. Therefore, non inclusion of the name of the petitioner, in the said NRC, can not be a ground to hold that he was not a citizen of India. The voters' list of 1997 indicates that the age of Asak Ali was 58 years, while the petitioner was 24 years old. In the voters list of 1966 the father of Asak Ali has been shown as Kadam Ali, and Ashak Ali's age has been shown as 28 years. In view of the above, without entering into the question regarding correctness/genuineness of the said documents, we find no difficulty in holding that the petitioner had submitted some relevant documents in support of his claim. However, as pleaded by the appellant, due to his illiteracy and ignorance, he failed to prove the said documents, in support of his claim. Therefore, it is not a case that the appellant had no documents in support of his claim. Admittedly he failed to prove the Said documents. Considering the fact that the petitioner has stated that due to his illiteracy and ignorance and on bonafide belief he failed to prove the said documents, in support of his claim of citizenship, which is a valuable right of a person, we are of the considered opinion that for, ends of justice, an opportunity should be given to him to substantiate his claim. If such opportunity is given to the petitioner, no prejudice would be caused to the respondents, rather granting of such opportunity would meet the ends of justice and the appellant also will not feel that he has been deprived from establishing his valuable right with regard to citizenship. Therefore, this Court is of the considered opinion that to meet the interest of justice the impugned orders are required to be set aside and the appellant should be given an opportunity to substantiate his claim. In view of the above discussion,, the impugned orders dated 16.9.2009 and 19.05.2008 aforesaid, are hereby set aside and the proceeding is remanded to the learned Foreigners Tribunal, Kamrup, Guwahati (M), with the direction to dispose of the same in accordance with law. In order to avoid further delay in disposal of the proceeding, the appellant is hereby directed to appear before the learned Foreigners Tribunal, Kamrup, Guwahati (M) on 25.07.2012 in connection with the case aforementioned and, on his appearance, the learned Tribunal shall proceed with the case in accordance with law, allowing the appellant to contest the proceeding, if he so desires. Send back the LCR along with a copy of this order.