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2014 DIGILAW 245 (GAU)

MD. BABUR ALI @ BABBOR ALI v. UNION OF INDIA

2014-02-28

UJJAL BHUYAN

body2014
Judgment & Order (CAV) By way of this petition, under Article 226 of the Constitution of India, petitioner has challenged the legality and correctness of the judgment and order of the Foreigners Tribunal, Kamrup (Metro), Guwahati, dated 02.09.2010, passed in FT Kamrup (Metro) Case No. 336/2007, opining that the petitioner is a foreigner of post 1971 stream. 02. Case of the petitioner as projected in the writ petition, is that he was born in the year 1978 to Samatulya Sheikh and Kariman Bibi at Village 2 No. Tokeyamari under Gossaigaon Police Station in the district of Kokrajhar, Assam. Parents of the petitioner were permanent residents of the aforesaid address and were Indian citizens by birth. Their names appeared in the voters list of 1966 in respect of No. 37 Gossaigaon Legislative Assembly Constituency (LAC) at Sl. Nos.111 and 112 of House No. 63. Petitioner’s name appeared in the voters list for the first time in the year 1997. His name appeared at Sl. No.815 of House No. 147 in No. 29 Kokrajhar West (ST) LAC. In the year 2004, his name appeared in the voters list of the said constituency at Sl. No. 551 of House No. 147. 03. Petitioner received a notice from the Foreigners Tribunal, Kamrup (Metro), Guwahati (Tribunal) in connection with Foreigners Tribunal Case No. 336/2007 asking him to appear before the Tribunal. On receipt of the said notice, petitioner could come to know that on a reference made by the Superintendent of Police (Border), Kamrup (Metro), the above case was registered and the Tribunal had passed an order on 31.08.2007, fixing 01.11.2007 for appearance of the petitioner. Thereafter, petitioner appeared and examined himself as a witness. Though petitioner had engaged a lawyer and handed over all documents to him, written statement was not filed. 04. Tribunal passed the impugned judgment and order dated 02.09.2010, opining that the petitioner is a foreigner of post 1971 stream. 05. Aggrieved, petitioner has filed the present writ petition assailing the legality and correctness of the impugned judgment and order of the Tribunal. 06. Contention of the petitioner is that because of lapse of his engaged counsel, written statement could not be submitted and the case could not be properly defended. 05. Aggrieved, petitioner has filed the present writ petition assailing the legality and correctness of the impugned judgment and order of the Tribunal. 06. Contention of the petitioner is that because of lapse of his engaged counsel, written statement could not be submitted and the case could not be properly defended. Petitioner had submitted documents to show that he is the son of Samatulya Sheikh and Kariman Bibi and that he was born as an Indian citizen, but the Tribunal did not accept such documents and erred in opining that he is a foreigner. Disbelieving of the certificates produced by the petitioner in support of his citizenship by the Tribunal was not justified. 07. This Court by order dated 26.09.2012 issued notice and directed, as an interim measure, that the petitioner, who was detained following the impugned judgment and order and currently lodged at Goalpara Detention Camp, should not be deported from India. 08. An affidavit-in-opposition has been filed by Sri Kalyan Kumar Nag, Member of the Tribunal, who had authored the impugned judgment and order. In his affidavit, he has justified his decision. 09. Respondent No. 4 has also filed affidavit. He has stated that during inquiry, the petitioner could not produce any documentary evidence regarding his date and place of birth. He stated his name as Md. Babur Ali and his father’s name as Samed Ali. He also stated that he did not have any documentary evidence to support his nationality. Petitioner was given sufficient time from February, 2003 to October, 2003 for producing documentary evidence in support of his nationality, but he failed to produce any such evidence. Tribunal rightly declared the petitioner to be a foreigner. Thereafter, petitioner was apprehended on 18.09.12 and kept in the detention camp at Goalpara. 10. Heard Mr. A Matin, learned counsel for the petitioner and Mr. M Bhagabati, learned Central Government Counsel. Also heard Mr. JU Laskar, learned Govt. Advocate, Assam. 11. Learned counsel for the petitioner argued that the Tribunal was not justified in discarding the certificates exhibited by the petitioner in support of his stand that he was a permanent resident of Village 2 No. Tokeyamari under Gossaigaon Police Station and that he is the son of Samatulya Sheikh, who was also known as Samed Ali. Advocate, Assam. 11. Learned counsel for the petitioner argued that the Tribunal was not justified in discarding the certificates exhibited by the petitioner in support of his stand that he was a permanent resident of Village 2 No. Tokeyamari under Gossaigaon Police Station and that he is the son of Samatulya Sheikh, who was also known as Samed Ali. Petitioner had discharged the burden which was on him as per section 9 of the Foreigners Act, 1946 and, therefore, the Tribunal was not justified in declaring the petitioner to be a foreigner. Perversity of the Tribunal’s order can also gauged from the fact that the Tribunal did not belief Ext. 4, which is the voters list of the year 2004 in respect of No. 29 Kokrajhar West (ST) LAC wherein, petitioner’s name appeared and shown as son of Samatulya, on the ground that instead of Babbor Ali, his name is shown as Babur Ali. Learned counsel for the petitioner submits that it is a common phenomenon in rural areas, more particularly, among people of Muslim community to have more than one name, such as, father’s name being Samatulya Sheikh as well as Samed Ali and petitioner’s name being Babur Ali and as well as Babbor Ali. On the ground of there being discrepancy in the names of the petitioner and his father, petitioner could not have been declared as a foreigner. He, therefore, seeks quashing of the impugned judgment and order. 12. Learned Central Government Counsel as well as learned State Govt. Counsel, on the other hand, support the impugned judgment and order passed by the Tribunal and contends that the impugned judgment does not suffer from infirmity of such magnitude, which may require interference by this Court in exercise of its powers under article 226 of the Constitution of India. 13. Submissions made have been considered. I have also perused the record. 14. Before proceeding further, this Court would like to observe that it was not at all necessary on the part of the Member of the Tribunal to have filed affidavit and offer justification in support of the impugned judgment and order. The Tribunal being a quasi-judicial body, the Member who had authored the impugned judgment and order was not required to file any affidavit and justify his decision when a challenge is made to it by the aggrieved party. The Tribunal being a quasi-judicial body, the Member who had authored the impugned judgment and order was not required to file any affidavit and justify his decision when a challenge is made to it by the aggrieved party. It is for the State and/or for the Central Government as the case may be to defend his decision. The Member of the Tribunal should keep this aspect in mind and desist from filing any affidavit in future to defend his judgment, unless specifically directed by the Court on any particular point. 15. Coming back to the impugned judgment, it is seen that though he did not submit written statement, petitioner had exhibited five documents before the Tribunal, which are as follows: - i) Ext. 1 – Certified copy of the voters list of the year 1966 in respect of No. 37 Gossaigaon LAC Part-II Tokeyamari village in which the name Samatulya Sheikh, son of Moti Sheikh appeared at Sl. No. 111 and House No. 63, ii) Ext.2 – Katcha Myadi Patta in respect of land measuring 15 lechas standing in the name of the petitioner, wherein, the name of his father is shown as Samatulya Sheikh, iii) Ext. 3 – Certificate issued by the Gaon Bura of No. 2 Tokeyamari village, wherein it is stated that petitioner is the son of Late Samatulya Sheikh an inhabitant of No. 2 Tokeyamari village under Gossaigaon Police Station. iv) Ext. 4 – Voters list of Kokrajhar West (ST) LAC for the year 2004 wherein the name of the petitioner appears at Sl. No. 551 and house No. 147 and shown as son of Samatulya. v) Ext. 5 – A certificate issued by the Chairman of the Village Development Committee. 16. Petitioner also adduced evidence as a witness and stated that he was the son of Samatulya Sheikh, who was also known as Samed Ali. 17. The Inquiry Officer was also examined by the Tribunal. 18. Though the Tribunal stated that Ext. 2 is admissible in law, there was no discussion on it, particularly on the impact of Ext. 2 on the claim of the petitioner to be an Indian citizen. It was discarded on the ground that it did not mention the year of issue. On the other hand, the Tribunal held that Ext. 1 did not establish that Samatulya Sheikh was the father of the petitioner. Ext. 2 on the claim of the petitioner to be an Indian citizen. It was discarded on the ground that it did not mention the year of issue. On the other hand, the Tribunal held that Ext. 1 did not establish that Samatulya Sheikh was the father of the petitioner. Ext. 4 was not accepted as Babur Ali and not Babbor Ali was shown as son of Samatulya. Relevant portion of the order of the Tribunal reads as under: - “However, since the case has been converted into one under the Foreigners Act, the burden of prove of one’s nationality lies on the person against whom the case is filed. In the present case, it appears that both in form-I and form-II, the E.O. has written the address of the country of origin as village Lalitabari, P.S. – Lalitabari, Dist – Maimonsingh of Bangladesh. In this regard how and why the EO has mentioned the name of his country of origin has not been cross-examined by the learned counsel for the O.P. It means that without the statement of the OP in this regard, the E.O. cannot record the place of origin in those forms. That apart, there is no evidence on record of the OP as to how and when he came to Guwahati. Because against column No. 4 of the reference of the SP(B) City, Guwahati, the present address of the OP has been written as C/o. Md. A. Ali, Hedayatpur, if we take out the contents of Ext. 1, the OP has no legs to stand on, in order to prove that he is an Indian national. Ext. 1 shows the name of one Samatulya Sheikh who may or may not be the father of the OP. It would have been proved by the OP by any witness who knows the OP to be the son of Samatulya Sheikh, or for that matter he could have submitted a sworn affidavit showing that the name of his father was Samatulya Sheikh and not Samed Ali as recorded in the reference of the SP(B) City, Guwahati. So far as Ext. 2 is concerned which is a Katcha Miyadi Patta, the same appears to contain no year. Therefore, the interpretation does not favour in the line of the evidence of the OP. So far, Ext. 3 is concerned the same is also not admissible as the same is a private document. So far as Ext. 2 is concerned which is a Katcha Miyadi Patta, the same appears to contain no year. Therefore, the interpretation does not favour in the line of the evidence of the OP. So far, Ext. 3 is concerned the same is also not admissible as the same is a private document. So far Ext. 4 is concerned instead of the name of Babbor Ali the name of Babur Ali appears being the S/o. Samatulya. So far the Ext. 5 is concerned the same also does not hold any water as because the same is also a private document. ORDER In the view expressed by the Tribunal, after careful consideration of all documents, it appears at Ext. 1, does not pertain to the father of the OP. Unless the OP expresses his place of country of origin it is next to impossible on the part of the Enquiry Officer to write the name of the village, PS and the district of Bangladesh in respect of the OP. In this view of the matter, this Tribunal is of the following opinion: 1. that the OP is a foreigner 2. that the OP is a foreigner of Post 1971 stream.” 19. Section 9 of the Foreigners Act, 1946, provides that when a question arises as to whether a person is a foreigner or is not a foreigner, the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall lie upon such person notwithstanding anything contained in the Indian Evidence Act, 1872. 20. In the instant case, the petitioner did exhibit some documents to support his case. Therefore, the finding of the Tribunal that petitioner could not produce any evidence to show that he is the son of Samatulya Sheikh appears to be not justified. The view of the Tribunal that there is confusion regarding name of the petitioner as Babbor Ali or Babur Ali also seems a bit trivial to warrant coming to a conclusion, holding the petitioner to be a foreigner. The Tribunal must reach a conclusion that having regard to the mandate of Section 9 of the Foreigners Act, 1946, petitioner failed to prove that he is not a foreigner. Such conclusion must be based on sound logic and cogent reason. 21. The Tribunal must reach a conclusion that having regard to the mandate of Section 9 of the Foreigners Act, 1946, petitioner failed to prove that he is not a foreigner. Such conclusion must be based on sound logic and cogent reason. 21. In the circumstances and as noticed above, I am of the view that the finding recorded by the Tribunal does not appear to be based on sound logic and cogent reason. This is not to say that petitioner has successfully established his claim to be an Indian citizen. All that is required is for the Tribunal to consider the evidence on record in a reasonable manner and thereafter to record a finding one way or the other. However, looking to the facts of the case, since petitioner could not file written statement though 22 dates were given, he shall not be allowed to file written statement or any further documents. 22. Having regard to the above, impugned judgment and order dated 02.09.2010 is hereby set aside and quashed. Matter is remanded back to the Tribunal for a fresh decision in accordance with law from the stage of advancing arguments by the parties afresh within a period of 3 months from the date when the record of the case is received back from this Court by the Tribunal. To enable the petitioner to contest the proceeding before the Tribunal on merit, let him be released from the detention camp at Goalpara on furnishing such surety to the satisfaction of the Superintendent of Police (B), Kamrup (Metro). On such release, petitioner shall appear before the Tribunal within 7 days thereafter. It is however made clear that this Court has not expressed any opinion on merits of the petitioner’s claim to be an Indian citizen. 23. Writ petition is allowed to the extent indicated above. 24. Registry to send down the LCR forthwith.