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2013 DIGILAW 516 (GAU)

Bilat Khan @ Bilayet Khan v. Union of India

2013-08-02

BIPLAB KUMAR SHARMA

body2013
JUDGMENT Biplab Kumar Sharma, J. 1. Both the writ petitions involving two brothers, who had been declared to be foreigners (illegal Bangladeshi migrants) vide judgment delivered on the same day (11.2.2013) by the Foreigners Tribunal (III) Barpeta (Assam) in F.T. Case No. 145(III)/2011 and F.T. Case No. 157(III)/2011 have been heard together and are being disposed of by this common judgment and order. Learned counsel for the petitioners having extensively argued in reference to WP(C) No. 1121/2013, the said case has been discussed as the base case towards answering both the writ petitions. Be it stated here that the evidence adduced in both the cases are more or less the same with minor variations here that there. 2. The petitioner involved in WP(C) No. 1121/2013 claims to be the son of Zumo Khan @ Jashu Khan @ Md. Jashma. However, before the Tribunal, it was never his case that his father is also know as Md. Jashma. 3. In the writ petition, the petitioner claims to be a citizen of India by birth and son of Zumo Khan-@ Jashu Khan @ Md. Jashma. He also claims to be grand-son of one Hussain Khan, whose name appeared in voter lists of 1966 and 1970. According to the petitioner his father's name appeared in the voter list of 1989, 1993, 1997 and 2010 as Md. Jashma and Jashu Khan respectively. It is the further case of the petitioner that his name appeared in the voter list of 1989 followed by 1993 and 1997. He has also referred to the certificate dated 10.2.2010 purportedly issued by the local Gaonburha. Referring to the said documents, the petitioner has contended that the learned Foreigners Tribunal could not have declared him to be a foreign national. 4. I have heard Mr. M.U. Mahmud, learned counsel for the petitioners and Mr. M. Bhagawati, learned CGC/State Counsel. I have also perused the entire materials on record including the records received from the Tribunal. 5. The original reference was registered under the then IM(D)T Act as Reference Case No. 7141/B/98. Ever since the case was registered in 1998, long 15 years have gone by to finally determine the issue as to whether the petitioner is a foreigner or not. 5. The original reference was registered under the then IM(D)T Act as Reference Case No. 7141/B/98. Ever since the case was registered in 1998, long 15 years have gone by to finally determine the issue as to whether the petitioner is a foreigner or not. On perusal of the records received from the Tribunal, it appears that on the basis of the house to house enumeration during the period from 16.1.1997 to 15.4.1997 upon inclusion of the name of the petitioner in the draft electoral roll, that was prepared on 24.7.1997, a doubt arose as to whether he is a citizen of India or not. Upon enquiry etc., the local verification officer submitted a report. The petitioner could not produce any document in support of his Indian citizenship. Hence, the reference was made to the then IM(D)T, which eventually came to be registered as F.T. Case No. 145(III)/2011. 6. In the written statement filed by the petitioner on 28.9.2011, it was contended that the petitioner is a citizen of India by birth and that his father's name appeared in the voter list of 1970. It was also pleaded that his grand father's name appeared in 1966 voter list. It was further contended that his father's name appeared in the voter list of 1997 and his (petitioner) name also appeared in the voter list of 1993. However, in the written statement, the petitioner did not mention the names of his father and grand father. If we go by the name Bilat Khan stated to have appeared in the voter list of 1993 then his father's name is Jashu Khan. Similarly, Jashu Khan's father's name in the voter list of 1997 is Hussain. In support of the said written statement, the petitioner submitted a self-sworn affidavit declaring his age as 41 years, S/o Jashu Khan as of 28.9.2011. However, now coming to the Writ Court, he has declared his age as of 5.3.2013 as 48 years, S/o Zumo Khan @ Jashu Khan @ Md. Jashma. 7. The petitioner also submitted before the tribunal an affidavit as evidence-in-chief of DW-1 sworn on 29.9.2012 declaring his age as 38 years, son of Jashu Khan. In the said typed affidavit, there is insertion of names without any authentication. The said names are Hussain Khan, Manik Jan Bibi, Bilayet Khan, Mustt Bewla Khatun etc. Jashma. 7. The petitioner also submitted before the tribunal an affidavit as evidence-in-chief of DW-1 sworn on 29.9.2012 declaring his age as 38 years, son of Jashu Khan. In the said typed affidavit, there is insertion of names without any authentication. The said names are Hussain Khan, Manik Jan Bibi, Bilayet Khan, Mustt Bewla Khatun etc. The petitioner also submitted another affidavit on 29.9.2012 as evidence-in-chief of DW-2 namely Jashu Khan, aged about 62 years (over written). DW-2 submitted another affidavit dated 28.9.2011 describing his age as 72 years and stating there in that in the voter list of 1970, his name was wrongly recorded as Habidat Khan instead of Jashu Khan. In the first affidavit of DW-2 dated 29.9.2012, the voter list of 1966, 1970, 1989, 1997 and 1993 have been referred to so as to claim that the name of the petitioners' father appeared therein along with the petitioner. It was also contended that his parents name appeared in the voter list of 1970. Along with affidavit, photocopies of some voter lists had been enclosed. 8. The learned Tribunal upon discussion of the entire evidence on record has answered the reference in favour of the State and against the petitioner. As per the Provision of Section 9 of the Foreigners Act, 1946. The burden of proof is on the proceedee to prove that he is not a foreigner. 9. The learned Tribunal referring to the evidence and upon a threadbare discussion of the same has held that the evidence adduced by the petitioner did not discharge his burden of proof as envisaged under Section 9 of the said Act. In paragraph-3 of the written statement, the petitioner has stated that his father's name appeared in the voter list of 1970 of Village-Rangiya Nadir Pam under 53 No. Sarukhetri LAC, which is absolutely false statement as on perusal of Annexure-B, it is found that the name of the petitioners' projected father is not recorded therein and that the said voter list is of Village-Tatikuchi under 54 No. Chenga LAC and not of Village-Rangiya Nadir Pam under 53 No. Sarukhetri LAC. 10. Although the petitioner had contended before the Tribunal that the names of his parents namely Md. Jashu and Mustt Bewala Khatun had been included in the voter list of 1989 (Annexure-C), but the said document reflects the name of Md. 10. Although the petitioner had contended before the Tribunal that the names of his parents namely Md. Jashu and Mustt Bewala Khatun had been included in the voter list of 1989 (Annexure-C), but the said document reflects the name of Md. Jashma and not Jashu as mentioned in the affidavit. In the affidavit, the petitioner named his brother as Bilayet Khan, but his brother is not Bilayet, he is Alom Khan involved in the other writ petition being WP(C) No. 1132/2013. In the writ petition, the petitioner has named himself as Bilat Khan @ Bilayet Khan. 11. It has rightly been held by the learned Tribunal that even if Jashma and Jashu are taken to be one and the same name, but there was no explanation as to how he could be aged 56 years in 1989 and after four years in 1993, could be 45 years of age. Again he became 52 years of age in 1997. The learned Tribunal has rightly held that if the said respective ages of the purported father of the petitioner are taken into account then his father was born either in 1933 or in 1945 or in 1948. 12. In the affidavit of DW-2, the projected father's age of the petitioner was shown as 62 years (on 29.9.2012 i.e. the date of swearing of the affidavit), which would go to show that he was born in or about 1950. As noted above, there is overwriting in the age coupled with wide variation of age from 62 years to 72 years as recorded in the other affidavit sworn on 28.9.2011. 13. While placing reliance on the aforesaid voter lists, the petitioner could not furnish any explanation as to why he could not produce any voter list pertaining to the year 1971, 1985, 1986, 1987, 1988, 1990, 1991, 1992 and 1994 and therefore it has rightly been held by the learned Tribunal that if the projected father of the petitioner was born on or before 1948 or even in 1950, his name would have been recorded in the NRC of 1951, but nothing could be produced in this regard. It has also rightly been held that a certificate issued by the Gaonburha cannot be of any help to the case of the petitioner to prove his Indian citizenship. 14. It has also rightly been held that a certificate issued by the Gaonburha cannot be of any help to the case of the petitioner to prove his Indian citizenship. 14. The learned Tribunal has elaborately discussed the voter lists, which were produced by the petitioner in support of his case, which includes the voter lists of 1966 and 1970 mentioning therein the name of one Sajeran Nessa, whose name was recorded along with the names of the projected grandfather of the petitioner. However, the petitioner did not explain as to who is that Sajeran Nessa. As regards the claim of the petitioner that in the voter list of 1970, the name of one Habidat Khan appeared instead of Jashu Khan, apart from the fact that there cannot be such wide variation in the names and that the petitioner cannot go on changing his father's name to suit the purpose, on perusal of the voter list of 1970 (Annexure-B), no name of any Habidat Khan or Jashu Khan is discernible. Therefore, as recorded by the learned Tribunal the statement made in the affidavit dated 28.9.2011 is apparently not true statement and thus cannot be relied upon. 15. It is needless to say that this Court exercising writ jurisdiction cannot sit on appeal over the findings recorded by the Foreigners Tribunal by re-appreciating the evidence that has already been gone into with reasonable care and caution with sound finding. In the impugned judgment, there is nothing to correct the errors so glaring on the face of the record. There is absolutely no error in the judgment of the learned Tribunal and this Court exercising writ jurisdiction will not sit on appeal over the appreciation of evidence and findings of fact arrived at by the learned Tribunal. 16. Above apart, merely by producing some photocopies of voter lists without proving the contents thereof with the linkage to the petitioner, the petitioner cannot claim Indian citizenship by birth towards discharging the burden of proof under section 9 of the Foreigners Act 1946. As has been held by the Apex Court in (2010) 4 SCC 491 (LICI Vs. Ram Pal Singh Bisen) mere filing or exhibiting of a document in Court does not amount to proof of its contents. Admission of document in Court may amount to admission of its contents but not their truth. 17. The writ petition is dismissed. WP(C) No. 1132/2013 18. Ram Pal Singh Bisen) mere filing or exhibiting of a document in Court does not amount to proof of its contents. Admission of document in Court may amount to admission of its contents but not their truth. 17. The writ petition is dismissed. WP(C) No. 1132/2013 18. This now leads us to the second writ petition being WP(C) No. 1132/2013 filed by the brother of the first petitioner namely Alom Khan. Like that of his brother Bilat Khan @ Bilayet Khan involved in WP(C) No. 1121/2013, in this writ petition also the petitioner has placed reliance on the same documents and the learned Tribunal by its impugned judgment and order has answered the reference in favour of the State and against the petitioner. Independent of the same, I have gone through the entire materials on record including the records received from the Tribunal and it is found that the evidence adduced by both the petitioners are one and the same, about which discussions have been made above. This being the position, this writ petition is also merits dismissal, which I accordingly do. 19. The Deputy Commissioner and S.P., Barpeta are directed to delete the names of the petitioners from the voter lists and to detain them in detention camp till they are deported to their country of origin. 20. Let a copy of this order be furnished to Mr. M. Bhagawati, learned CGC/State Counsel for necessary communication with Deputy Commissioner and S.P. Barpeta. Registry shall also furnish copies of this order to the Deputy Commissioner and S.P. Barpeta for their necessary follow up action. Another copy be sent to the union of India in the Home Department. List after one month for submission of compliance report by both the abovementioned authorities.