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2013 DIGILAW 791 (GAU)

Abdul Matali v. Union of India

2013-11-08

ANIMA HAZARIKA, LANUSUNGKUM JAMIR

body2013
JUDGMENT Anima Hazarika, J. 1. This appeal by the proceedee under the provisions of Foreigners Act, 1946 is directed against the judgment and order dated 6.5.2013 passed by the learned Single Judge in WP(C) No. 1291/2013 dismissing the writ petition filed by the present appellant challenging the order dated 29.1.2013 passed by the learned Member, Foreigners Tribunal-III, Barpeta (Assam) in FT Case No. 232 (III)/2011 on the basis of the reference made by the Superintendent of Police ('SP' for short), Barpeta. The aforesaid FT case had been registered against the appellant. The appellant's case in brief is that a proceeding was initiated against the appellant under the provisions of the Illegal Migrants (Determination by Tribunals) Act, 1983 ('IMDT Act, 1983' for short), which was registered and numbered as IMDT Reference Case No. 2252/2001 before the Tribunal, alleging that the appellant is an illegal migrant. The said proceeding, however, had been transferred to the Foreigners' Tribunal, in view of the declaration made by the Apex Court in Sarbananda Sonowal (1) v. Union of India & Anr., reported in (2005) 5 SCC 665 that IMDT Act is ultra vires the Constitution and directing transfer of the proceeding from the IMDT to the Foreigners' Tribunal. The proceeding, thereafter, was registered as FT Case No. 232(III)/2011 in the FT No. (III), Barpeta. The appellant contested the said proceeding by filing written statement contending inter alia that he is an Indian national by birth and his parents' name were also enumerated in the voters list of 1965. It has also been pleaded that his father was issued with an Indian passport by the authority under the provisions of Passport Act way back on 7.9.1953 and the appellant's name has also been enumerated in the Voters list of 1997, 2005 and 2010 under the 42 No. Patacharkuchi Legislative Constituency. It has further been contended that his mother's name, namely, Sara Khatun Bibi, was also enumerated in the Voters list of 1970. 2. The appellant in support of his contentions has examined himself as witness and also proved nine (9) documents, being the passport dated 7.9.1953 issued in the name of Abdul Aziz Sheikh (Ext. 1); Certificate dated 1.1.2012 issued by the village Headman of Dumuria village certifying that the appellant is a resident of Dumuria (Ext. 2. The appellant in support of his contentions has examined himself as witness and also proved nine (9) documents, being the passport dated 7.9.1953 issued in the name of Abdul Aziz Sheikh (Ext. 1); Certificate dated 1.1.2012 issued by the village Headman of Dumuria village certifying that the appellant is a resident of Dumuria (Ext. 2); Voters list of 1965 containing the names of Abdul Aziz, Son of Osman Ali, Sara Khatun Bibi (wife of Aziz Ali), Abdul Mannaf, son of Aziz Ali as Ext. 3. The voters list of 1970 containing the names of Sara Khatun Bibi, wife of Abdul Aziz and Abdul Mannaf son of Aziz Ali (Ext. 4); Voters list of 1997 containing the name of Abdul Mannaf, son of Abdul (Ext. 5) Voters list of 1997 containing the name of Motaleb, son of Abdul as Ext. 6; Voters list of 2005 containing the name of Abdul Mannaf, son of Abdul Aziz, Ext. 7, Voters lists of 2005 and 2010 containing the name of the appellant as Exts 8 and 9 respectively. According to the appellant, Abdul Aziz Sheikh and Abdul Aziz is one and the same person and Sara Khatun Bibi is his mother. The Tribunal upon appreciation of the evidence on record, passed the order as indicated hereinabove opining that the appellant is a foreigner within the meaning of Foreigners Act coming to Assam, (India) from the specified territory after 25th March 1971. 3. Aggrieved by the order dated 29.1.2013 a writ petition being WP(C) No. 1291/2013 was filed by the appellant challenging the legality of the aforesaid order dated 29.1.2013. The learned Single Judge of this Court after hearing the counsel appearing for the parties and upon perusal of the materials on record, was not inclined to interfere with the impugned order passed by the learned Tribunal in exercise of power under Article 226 of the Constitution of India and dismissed the writ petition. Hence, the instant appeal challenging the judgment and order dated 6.5.2013 passed by the learned Single Judge. 4. Heard Mr. MU Mahmud, learned counsel appearing for the appellant. Also heard Mr. M Bhagabati, learned Central Govt. Counsel appearing for the respondent No. 1 and Mr. B.J. Dutta, learned State counsel appearing for the respondent Nos. 2 and 3. 5. It has been contended by Mr. 4. Heard Mr. MU Mahmud, learned counsel appearing for the appellant. Also heard Mr. M Bhagabati, learned Central Govt. Counsel appearing for the respondent No. 1 and Mr. B.J. Dutta, learned State counsel appearing for the respondent Nos. 2 and 3. 5. It has been contended by Mr. Mahmud that copies of the voters list issued in the name of his father were produced by the appellant before the learned Tribunal, as well as, copy of the passport dated 7.9.1953, which was issued in the name of his father, voters list of 1965 and 1970 containing the name of the father of the appellant as well as his mother; voters list of 1997, 2005 and 2010 where the appellant's name appeared; copies of the certificate issued by gaonburah stating about his residential status; copy of the affidavit sworn in by the appellant clarifying about the anomalies in the name and ages of the appellant as well as his parents and copy of the judgment and order dated 23.3.2010 passed by the learned Tribunal whereby the appellant's elder brother name was declared as an Indian citizen were produced before the Tribunal, which were duly exhibited as Ext. 1 to 9. But the learned Tribunal did not take into consideration the said documents/papers while passing the judgment declaring him as foreigner and hence, according to the learned counsel, the Tribunal ought not to have opined that the petitioner is not an Indian, more so when those documents as well as the statements made by the appellant have not been challenged by the State by way of adducing evidence. Though the appellant in his written statement filed on 21.1.2012 had produced almost all the documents and the learned Tribunal also marked those documents as exhibits, but the opposite party/State never filed counter against those documents nor challenged the veracity of the same in any way yet while passing the impugned judgment, learned Tribunal overlooked those documents which has caused serious miscarriage of justice. 6. 6. It has further been contended that the appellant filed written statement as well as evidence in chief as DW1 annexing all the necessary documents required to be proved as an Indian citizen, but the learned Tribunal did not rely upon the documents so submitted by the appellant and only on the ground of some anomalies regarding the names and ages of the appellant and his parents declared him as foreign national, pursuant to which the appellant has been arrested and kept in the detention camp at Goalpara since 22.3.2013. The anomalies of names and ages of the appellant, his parents and elder brother are mistakes not committed by the appellant nor by his parents and elder brother but were committed by the enumerator, Government official and competent authorities for which neither the appellant nor his parents and elder brother have any hand or/can be blamed. Even in this regard, the appellant has sworn an affidavit on 3.1.2012. Mr. Mahmud, learned counsel has submitted that in another proceeding, instituted before the Tribunal, namely, FT (3rd Tribunal) Case No. 112 (III)/2009; the same Tribunal has declared the petitioner's brother as Indian national. Mr. Mahmud, therefore, submits that the learned Member, Foreigners Tribunal has committed illegality in opining that the petitioner is a foreigner and such finding is perverse, being not based on the evidence adduced by the parties. 7. The learned State counsel as well as Central Govt. Counsel, on the other hand, supporting the opinion rendered by the Tribunal have submitted that there being anomalies in the names and ages of the appellant and his parents and elder brother and the appellant being not able to produce evidence to prove that he is the son of late Abdul Aziz Sheikh @ Abdul Azid @ Azid Ali @ Abdul Azid and younger brother of Abdul Mannas @ Abdul Mannaf, the Tribunal has rightly rendered the opinion that the appellant is a foreigner and not an Indian. Section 9 of the Foreigner's Act 1946 imposed the burden on proceedee to prove that he or she is not a foreigner but Indian national. To discharge the burden, the appellant had examined himself as witness and also proved nine documents mentioned hereinabove. 8. We have considered the submissions made by the learned counsel appearing for the parties. Section 9 of the Foreigner's Act 1946 imposed the burden on proceedee to prove that he or she is not a foreigner but Indian national. To discharge the burden, the appellant had examined himself as witness and also proved nine documents mentioned hereinabove. 8. We have considered the submissions made by the learned counsel appearing for the parties. Also perused the materials available on record, including the judgment rendered by the learned Single Judge as well as the Tribunal. 9. In view of the facts and circumstances narrated hereinabove, the question arises as to the scope of interference with the Tribunals order in a writ proceeding. Article 226 of the Constitution of India confers on the High Court, power to issue appropriate writ to any person or authority within its territorial jurisdiction. It has been held by this Court that the Tribunal constituted under the Foreigners Act 1946, ('1946 Act' for short) read with Foreigners (Tribunals) Order 1964, ('1964 Order' for short) is required to discharge the quasi judicial function. The High Court, therefore, has the power under Article 226 of the Constitution to issue writ of certiorari quashing the decision of the Tribunal in an appropriate case. The scope to interfere with the Tribunal's order in exercise of jurisdiction under Article 226, however, is limited, inasmuch as, the writ of certiorari can be issued for correcting errors of jurisdiction or failure to exercise jurisdiction or if such court or Tribunal acts illegally in exercise of its undoubted jurisdiction or when it decides without giving an opportunity to the parties to be heard or violates the principles of natural justice. The power of writ court under certiorari jurisdiction being supervisory and not appellate jurisdiction, the Court cannot review the findings of facts reached by the inferior court or Tribunal. However, writ of certiorari can be issued if prima facie found in Tribunal's order an error apparent on the face of the record, as noticed above has occurred. In the instant case at hand, the appellant had examined himself as a witness and had also exhibited as many as 9 (nine) exhibits, veracity of which are not put to challenge. On behalf of the prosecution no evidence was led per contra. It is true that under the scheme of Foreigners Act, the initial burden of proof lies on the appellant and he had successfully discharged the burden. On behalf of the prosecution no evidence was led per contra. It is true that under the scheme of Foreigners Act, the initial burden of proof lies on the appellant and he had successfully discharged the burden. Having done so the onus to prove the prosecution case shifts on the prosecution which was not discharged by the prosecution. The contents of the documents proved at trial and not contradicted by the prosecution has to be deciphered by the Tribunal judiciously. The doubt, if any, which might arise in the mind of the Tribunal must be answered not like a common man but like a prudent person who is trained in law. In the instant case, on the face of the evidence on record brought forward by the alleged foreign national was unduly interpreted against him merely on the basis of some discrepancies as regards the age of the person concerned recorded in such documents. It is to be noted that those persons concerned including the appellant were not the writer of those documents. The ages so recorded in those documents no doubt point out discrepancies but they are not so major so as to totally disbelieve, disregard and belie the evidence of the appellant/petitioner so as to disrobe the precious-most right of the citizen of a country. On the face of the failure of the prosecution to rebut the case of the appellant, the Tribunal cannot supplement the said rule and even the benefit of doubt, if any, be waived in favour of the appellant. 10. We have perused the record of the Tribunal. Various orders passed by the Tribunal in the proceeding are quoted hereinbelow, "07.01.2012 O. P/2nd Party has appeared and filed a petition praying to give another date for submission of written statement. Prayer is allowed. Fix 21.01.12 for submit w/s. 21.01.2012 O.P/2nd party has submitted written statement along with some documents. Issue summons to witness I/O for the 1st party. Fix 03.03.12 for evidence of the 1st party. 3.3.2012 O.P. side is present. Witness inquiry officer for the 1st party side is absent. Reissue summons to him. Fix 3.5.2012 for evidence of 1st party side. 03.05.2012 O.P/2nd party has filed a petition for absences his ld. counsel & give another date for evidence of the 1st party. Witness 1st party is absent. Issue fresh summon to the witness for the 1st party. Witness inquiry officer for the 1st party side is absent. Reissue summons to him. Fix 3.5.2012 for evidence of 1st party side. 03.05.2012 O.P/2nd party has filed a petition for absences his ld. counsel & give another date for evidence of the 1st party. Witness 1st party is absent. Issue fresh summon to the witness for the 1st party. Fix 23.05.2012 for evidence of the 1st party. 23.05.2012 Summons to witness I/O for the 1st party has not been returned. Witness I/O is absent. O.P side has filed a hajira. Issue fresh summon to the witness I/O for the 1st party. Fix 30.06.2012 for evidence of the 1st party. 30.06.2012 O.P/2nd party side is absent without step. Summons to witness I/O has not been returned. I/O is absent. Fix 23.072012 for documents & affidavit. 23.07.2012 O.P has filed a petition praying to give another date for submission of documents & affidavit. Prayer is Fix 06.08.2012 for documents & affidavit. 06.08.2012 O.P has submitted affidavit and documents. Fix 03.10.2012 for hearing of this case. 03.10.2012 Ld. Presiding Officer is on leave. Today is fixed for hearing of this case. O.P has filed a hajira. Fix 08.11.2012 for hearing of this case. 8.11.12 O.P is present alongwith ld. Adv. Ld. Asstt. GP is also present. O.P. has filed certified copy of voters' list of 1985 and 2005 today. He has already filed his evidence on Affidavit. Arguments of both sides is heard. Fix 30.11.2012 for order. 30.11.12 Ld. Adv. for the O.P is present. Detailed order could not be written today for want of time. Fix 08.12.2012 for order. 10.12.12 Case record is put up today as this office of the Tribunal was closed on 8.12.12 (the date fixed) due to holiday for 2nd Saturday. Fix 29.1.13 for order. FT Case No. 232(III) of 2011 (Reference IMDT Case No. 2252/01) State v. Abdul Matali Order 29.01.2013: OP is absent without step. Learned Asstt. GP. is present. Detailed order is separately type-written and attached to the case record. The OP Abdul Matali s/o Late Abdul Aziz of village Dumuria under Patacharkuchi PS in the District of Barpeta, is found to have entered into India without authority subsequent to 25.03.1971 and hence he is termed to be a foreigner of post 25.03.1971 stream. This case stands disposed of. Intimate SP(B), Barpeta, accordingly, for further necessary action. The OP Abdul Matali s/o Late Abdul Aziz of village Dumuria under Patacharkuchi PS in the District of Barpeta, is found to have entered into India without authority subsequent to 25.03.1971 and hence he is termed to be a foreigner of post 25.03.1971 stream. This case stands disposed of. Intimate SP(B), Barpeta, accordingly, for further necessary action. Member, Foreigners' Tribunal-III, Barpeta" The orders quoted hereinabove would reveal that the learned Tribunal after receipt of the reference from the Superintendent of Police, Barpeta on 5.12.2008 fixed 3.3.2012, 3.4.2012, 23.5.2012 and 30.6.2012 for the evidence of the first party, i.e. the Investigating Officer. The orders passed on various dates quoted from the original record of the Tribunal would show that though repeatedly dates were fixed for evidence by the 1st party, but there was no recording of any evidence from the prosecution side. 11. Learned Single Judge did not examine the legality of the judgment passed by the learned Tribunal in the above context considering the various orders quoted hereinabove. We have, therefore, taken up of our own to scrutinize the record. Ignoring the fact that though several adjournments were granted for evidence of the first party/Investigating Officer, no evidence was recorded and the case was fixed for hearing. What was the material presented during argument by the learned counsel for the parties is not discernable. But the facts noted above which are apparent on the face of the record have apparently been missed by the learned Single Judge. 12. In the above premises, the view taken by the learned Single Judge as well as by the Tribunal that the appellant is a foreigner is not correct. 13. The question of determination of citizenship of a person in a country strikes upon the very root of right of such person emanating from the Constitution and other laws in force in the country. Any doubt cast upon a person regarding his/her citizenship status stigmatizes him/her and causes the potential to affect his/her fundamental rights. As such, determination of citizenship status of a person is of immense consequence and has to be proceeded strictly in accordance with law so as to afford all opportunity to such a person to prove his/her citizenship credential, because the law in vogue mandates that the burden of proof of citizenship lies on the person against whom, he/she being a foreigner is alleged. 14. 14. Hence, considering the facts and circumstances of the case and in view of the discussion made hereinabove, the orders dated 29.1.2013 and 6.5.2013 passed by the Foreigners' Tribunal and the learned Single Judge respectively are liable to be set aside and quashed, which we hereby do. Accordingly, the matter is remitted to the learned Foreigners Tribunal-III, Barpeta, Assam. The Tribunal after hearing the parties and on the basis of the evidence on record shall pass necessary order afresh determining the issues before it within a period of 3 (three) months from the date of appearance of the appellant. 15. The appellant having full knowledge of the proceedings before him shall now appear before the learned Foreigners Tribunal-III, Barpeta on 04.12.2013. 16. Mr. Mahmud, learned counsel appearing for the appellant has submitted that the appellant has been taken into custody and presently he is in the detention camp at Goalpara. The Superintendent of Police, Barpeta as well as the Officer-in-Charge of the detention camp at Goalpara, are, therefore, directed to release the appellant from custody forthwith, making it clear that during the pendency of the proceeding before the learned Tribunal, the appellant shall not leave the State of Assam without obtaining written permission from the learned Member, Foreigners Tribunal-III, Barpeta. The appellant is further directed to appear before the Officer-in-Charge of the jurisdictional Police Station fortnightly. 17. The Registry is directed to send down the records to the learned Member, Foreigners Tribunal, Barpeta-III, Barpeta, Assam forthwith. In the result, the appeal is allowed in terms of the aforesaid directions. However, there shall be no order as to costs.