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2015 DIGILAW 1060 (GAU)

Shahera Khatun Bibi (Musstt. ) v. State of Assam

2015-08-20

B.K.SHARMA

body2015
JUDGMENT : B.K. Sharma, J. By means of this writ petition, the petitioner has assailed the order dated 30/04/2012 of the learned Member, Foreigners Tribunal-I, Duhbri in FT Case No. 1387/G/10 (Reference Case No. R/IMDT/2475/98) (State of Assam v. Musstt. Shahera Bibi), by which the petitioner has been declared to be a foreigner of post 25/03/1971. 2. I have heard Mr. I. Alam, learned counsel for the petitioner. Also heard Mr. Noor Mohammad, learned State Counsel and so also Ms. G. Sarma, learned counsel holding for Mr. S.C. Keyal, learned ASGI. I have also perused the entire materials on record including the records received from the Tribunal. The findings recorded by the learned Tribunal in para 7 of the impugned order which is divided into parts and is reproduced below :- "7. (i) The OP has stated in her evidence-in-chief that her father's original name was Awal Mazid and that subsequently her father was known as Abul Sk alias Abul Hussain whereas in her cross-examination, she has very specifically stated that her father's name is Abul Sheikh and that he does not have any other name or he is not known by any other name. She has further stated that she does not know as to whose name is Awal Mazid. This appears to be a self-contradictory statement made by the OP which casts a serious doubt in the trustworthiness of her evidence. (ii) On the other hand DW 2 (Abul Hussain) who projects himself to be the father of the OP has stated on oath that his actual name is Awal Mazid which he changed subsequently to Abul Hussain and that he has executed an affidavit regarding discrepancy in his name as Awal Mazid alias Abul Hussain. On perusal of the affidavit submitted in this case and sworn by one Abul Hussain on 27.10.1989 before learned Executive Magistrate, Dhubri, it is found that in the affidavit, he has stated that his actual name is Abul Hussain Sk and that through mistake his name was wrongly recorded as Awal Mazid in the NRC of 1951. This again is a self-contradictory statement made by DW 2. In his evidence on oath he says that his actual name is Awal Mazid whereas in his affidavit he says that his actual name of Abul Hussain Sk. This again is a self-contradictory statement made by DW 2. In his evidence on oath he says that his actual name is Awal Mazid whereas in his affidavit he says that his actual name of Abul Hussain Sk. (iii) In another affidavit submitted and sworn by the OP in this case, the OP has stated that her father's actual and correct name is Abul Hussain and that his name as such is enrolled in the voters' list of 1970. On perusal of the voters' list of 1970, submitted in this case, the name of one Abul Sk is found recorded and not the name of Abul Hussain. (iv) The OP has stated in her evidence that her father was subsequently known as Abul Sk alias Abul Hussain but DW 2 nowhere, either in his evidence on oath or in his aforesaid affidavit, has mentioned that he was also known as Abul Sk. The OP has submitted one linkage certificate issued by the President of Asharikandi Gaon Panchayat wherein it is certified that Abul Hussain s/o. late Naser Ali is inhabitant of village Dalsingeralga. (v) The OP has stated that her mother Maziran Bibi is the daughter of Major Ali Sk who has landed property in village Dalsingeralga. Buthere is no document or any other reliable evidence on record to show that Major Ali Sk is the maternal grandfather of the OP. One affidavit sworn by one Rasul Mamood, stated to be the maternal uncle of the OP, on 29.07.1994 before learned Judicial Magistrate, 2nd Class, Dhubri is submitted in this case by the OP. On careful perusal of the aforesaid affidavit, I find nothing to show that aforesaid Rasul Mamood is the material uncle of the OP or in any way related to the OP. In the affidavit it is only stated that his father's name is Major Uddin Sk but that in the NRC of 1951 his name was recorded as Maja Sk and in the voters' list of 1966 his name was recorded as Majoruddin Sk. By swearing the affidavit Md. Rasul Mamood want to clarify that Majoruddin Sk, Majo Sk and Major Sk is one and the same person. Whatever be the case as it may, the fact remains that there is no cogent evidence on record to show that Major Sk or Majoruddin Sk or Majo Sk is the father of the mother of the OP. Rasul Mamood want to clarify that Majoruddin Sk, Majo Sk and Major Sk is one and the same person. Whatever be the case as it may, the fact remains that there is no cogent evidence on record to show that Major Sk or Majoruddin Sk or Majo Sk is the father of the mother of the OP. (vi) On the other hand as already discussed above, I do not find any reliable evidence on record to show that Awal Mazid and Abul Hussain or Abul Sk is one and the same person. In the certificate issued by the President, Asharikandi Gaon Panchayat as well as in the Kabin-nama of the marriage of the OP, the name of the father of the OP is mentioned only as Abul Hussain. (vii) The OP got married as per Kabin-nama on 19.01.1996. The evidence of Abul Hussain (DW 2) regarding discrepancy in his name is found to be not trustworthy as already discussed. The voters' list of 1970 cannot be relied upon to come to the conclusion that Abul Sk, whose name appears in the voters' list of 1970 is the son of Naser whose name is found recorded in the NRC of 1951 because there is no mention of any person by the name of Abul Sk or Abul Hussain son of Naser in the NRC of 1951. Except the certified copy of voter's list of 1970, the OP could not produce any other voters' list except a printed copy (not certified copy) of voters' list of 2010 wherein the name of one Abul Hussain son of Naser is found recorded. In not a single voters' list of pre 2010 period, the name of Abul Hussain son of Naser is found recorded. (viii) In absence of any reliable and cogent evidence on record, it cannot be said for certain that aforesaid Abul Hussain son of Naser, stated to be the father of the OP was a genuine citizen of India and had entered the territory of India in between 01.01.1966 and 25.03.1971." 3. During the course of hearing, the learned counsel for the petitioner referring to Annexure-8 judgment dated 19.10.2000 of the then IM(D)T, Dhubri passed in IM(D)T case No. 176/D/98 (Reference Case No. GPR-51/98) (Union of India v. Ms. During the course of hearing, the learned counsel for the petitioner referring to Annexure-8 judgment dated 19.10.2000 of the then IM(D)T, Dhubri passed in IM(D)T case No. 176/D/98 (Reference Case No. GPR-51/98) (Union of India v. Ms. Maziran Bibi), submitted that the said Maziran Bibi is her mother, who was also suspected to be a foreigner but by the said judgment she was declared to be an Indian citizen. 4. On perusal of the said judgment, it is found that the then IM(D)T declared the suspect Ms. Maziran Bibi as Indian citizen solely on the basis of a voters' list of 1966, containing the name of one Mazar Sekh but on the other hand, as noticed above, the petitioner in her evidence stated that her mother Maziran Bibi is the daughter of Major Ali Sk. As recorded in the above noted finding of the Tribunal, there is nothing to show that Rasul Mamood is the maternal uncle of the petitioner or in any way related to her. In the affidavit, it was only stated that her father's name is Majoruddin Sk but in the NRC of 1951, his name was recorded as Major Sk. On the other hand, in the voters' list of 1966, his name was recorded as Majoruddin Sk. 5. Above apart, although the petitioner has placed reliance on the aforesaid Annexure-8 judgment dated 19/10/2000 passed in IM(D)T case No. 176/D/98 with the plea that the same pertains to her mother but it is found that the said judgment was only on the basis of a purported voters' list of 1966 containing the name of Mazar Ali but in the voters' list of 1966 (Photocopy only) but the petitioner had produced the name of Mazar Sk appears and not Major Ali. The petitioner also failed to produce any voters' list containing the name of her mother. It is also not understood as to why the petitioner could not produce the said judgment before the Tribunal, if the same is of any help to her. 6. As the records would reveal at the time of making the verification in 1988, the petitioner was 21 years of age but the document annexed to the writ petition show that in the self declaration made on 16/10/2004, the person Shahera Khatun Bibi is 25 years of age. 6. As the records would reveal at the time of making the verification in 1988, the petitioner was 21 years of age but the document annexed to the writ petition show that in the self declaration made on 16/10/2004, the person Shahera Khatun Bibi is 25 years of age. In the voters' list of 2008, her age became 28 years and in 2011, her age became 32 years. 7. Above are the discrepancies apart from the discrepancies noted by the Tribunal and discussed above. It is not for the writ Court to sit on appeal over the findings recorded by the learned tribunal like an appellate Court. Nothing could be shown that the findings arrived at by the learned Tribunal is perverse and/or based on no evidence. The scope, ambit, power and jurisdiction of the writ Court in such matters has been discussed in the Full Bench decision of this Court in State of Assam v. Moslem Mondal and others reported in 2013 (1) GLT (FB) 809. In this connection, para 112 and 113 of the said Full Bench decision in Moslem Mondal (Supra) is reproduced below :- "112. Article 226 of the Constitution confers on the High Court power to issue appropriate writ to any person or authority within its territorial jurisdiction. The Tribunal constituted under the 1946 Act read with the 1964 Order, as noticed above, 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 of interference with the Tribunal's order, in exercise of the jurisdiction under Article 226, however, is limited. The writ of certiorari can be issued for correcting errors of jurisdiction, as and when the inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it 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 certiorari jurisdiction of the writ Court being supervisory and not appellate jurisdiction, the Court cannot review the findings of facts reached by the inferior Court or Tribunal. The certiorari jurisdiction of the writ Court being supervisory and not appellate jurisdiction, the Court cannot review the findings of facts reached by the inferior Court or Tribunal. There is, however, an exception to the said general proposition, in as much as, the writ of certiorari can be issued and the decision of a Tribunal on a finding of fact can be interfered with, if in recording such a finding the Tribunal has acted on evidence which is legally inadmissible or has refused to admit admissible evidence or if the finding is not supported by any evidence at all, because in such cases such error would amount to an error of law apparent on the face of the record. The other errors of fact, however grave it may be, cannot be corrected by a writ court. As noticed above, the judicial review of the order passed by the inferior Court or the Tribunal, in exercise of the jurisdiction under Article 226 of the Constitution, is limited to correction of errors apparent on the face of the record, which also takes within its fold a case where a statutory authority exercising its discretionary jurisdiction did not take into consideration a relevant fact or renders its decision on wholly irrelevant factors. Hence, the failure of taking into account the relevant facts or consideration of irrelevant factors, which has a bearing on the decision of the inferior court or the Tribunal, can be a ground for interference of the Court or Tribunal's decision in exercise of the writ jurisdiction by the High Court. 113. The Apex Court in Sant Lal Gupta v. Modern Coop. Group Housing Society Ltd. reported in (2010)13 SCC 336 , reiterating the grounds on which a writ of certiorari can be issued, has opined that such a writ can be issued only when there is a failure of justice and cannot be issued merely because it may be legally permissible to do so. It is obligatory on the part of the petitioners to show that a jurisdictional error has been committed by the statutory authority. There must be an error apparent on the face of the record, as the High Court acts merely in a supervisory capacity and not as the appellate authority. It is obligatory on the part of the petitioners to show that a jurisdictional error has been committed by the statutory authority. There must be an error apparent on the face of the record, as the High Court acts merely in a supervisory capacity and not as the appellate authority. An error apparent on the face of the records means an error which strikes one on mere looking and does not need long drawn out process of reasoning on points where there may conceivably be two opinions. Such error should not require any extraneous matters to show its incorrectness. Such error may include giving reasons that are bad in law or inconsistent, unintelligible or inadequate. It may also include the application of a wrong legal test to the facts found, taking irrelevant consideration into account and failing to take relevant consideration into account, and wrongful admission or exclusion of evidence as well as arriving at a conclusion without any supporting evidence. Such a writ can also be issued when there is an error in jurisdiction or authority whose order is to be reviewed has acted without jurisdiction or in excess of its jurisdiction or has failed to exercise the jurisdiction vested in him by law." 8. Above being the position I see no reason to interfere with the impugned judgment and order dated 30/04/2012 of the learned Member, Foreigners Tribunal-I, Dhubri in FT Case No. 1387/G/10. Accordingly, the writ petition stands dismissed. Now, the Superintendent of Police (B), Dhubri shall ensure that the petitioner is arrested and detained in the detention camp till her deportation to her country of origin i.e. Bangladesh. 9. Let the matter be listed again after one month so as to submit report by the Superintendent of Police (B) Dhubri about the action taken in the terms of this order. 10. The Deputy Commissioner, Dhubri shall ensure deletion of the name of the petitioner from the voter list, if any. 11. Registry shall send down the case records to the learned court below along with a copy of this judgment and order. A copy of the judgment and order may also be furnished to Mr. Noor Mohammad, learned State Counsel for his immediate necessary follow up action. Copies shall also be sent to the SP(B), Dhubri and Deputy Commissioner, Dhubri, for their immediate follow up action.