Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 1284 (GAU)

Karim Ali @ Karim Khalifa v. Union of India

2015-10-05

B.K.SHARMA

body2015
JUDGMENT : B.K. Sharma, J. 1. The challenge in the writ petition is the order dated 31st December, 2012 of the Foreigners' Tribunal No. III, Barpeta, Assam passed in F.T. Case No. 137(III)/2011 IM(D)T Doubtful Reference Case No. 7184/B/1998, State of Assam vs. Karim Ali, by which the petitioner has been declared to be a foreigner of post 25th March, 1971 stream. 2. I have heard Mr. M.H. Ahmed, learned counsel for the petitioner. Also heard Ms. G. Sarma, learned counsel appearing on behalf of Mr. S.C. Keyal, learned Assistant Solicitor General of India and so also Mrs. M. Goswami, learned State counsel. 3. I have considered the submissions advanced by the learned counsel appearing for the parties and have also perused the entire materials on record including the LCR received from the Tribunal. 4. Mr. Ahmed, learned counsel for the petitioner referring to the impugned order and the materials submits that based on the said materials, no reference could have been made. Referring to the Full Bench decision in State of Assam and Another vs. Moslem Mondal and Others, 2013 (1) GLT 809, he also submits that there being no rebuttal evidence on behalf of the State, the Tribunal ought not to have disbelieved the evidence led by the petitioner. 5. Opposing the aforesaid submission, both Ms. G. Sarma and Ms. M. Goswami, learned counsel appearing for the respondents submit that the petitioner having participated in the proceeding, cannot now turn around the reference itself so as to contend that the reference was ill-founded. They also submit that the finding of fact arrived at by the learned Tribunal on the basis of the evidence on record cannot be lightly interfered with exercising writ jurisdiction. 6. In the proceeding before the Tribunal, the petitioner filed written statement and also certain documents about which the learned Tribunal has made detail discussions in the impugned order. In the written statement, the petitioner projected his father as Kayed Ali whose name was included in the voter lists of 1966 and 1970 pertaining to village Dokhin Chitoli under Baghbar Police Station in the district of Kamrup and under 51 No. Jania LAC. It was also contended that his own name appeared in the 1989 in the village Karagari Non Ke, 12 No. Block under 46 No. Sarukhetri LAC. It was also contended that his own name appeared in the 1989 in the village Karagari Non Ke, 12 No. Block under 46 No. Sarukhetri LAC. According to the petitioner, his correct name is Karim Ali and to that extent he had sworn an affidavit. As discussed in the impugned order, the petitioner leading evidence stated that he was born in 1951 and brought up at village Kahikuch of Barpeta Police Station in the then district of Kamrup. He also projected his father as Kayed Ali, Son of Waju and his mother as Baharjan Nessa. According to him, their names were recorded in the NRC of 1951 and so also in the voter lists of 1966 and 1970. He projected his grandfather and uncle as Waju and Wajuddin and his grandmother as Genda Nessa, whose names were included in the voter list of 1966 and 1970. 7. The purported NRC, on which the petitioner placed reliance, is on a plain piece of paper and issued by the President/Secretary of Barpeta District Congress Committee. The date of issue and the signature of the issuing authority are not legible. Under no circumstances, this document can be said to be a document of NRC, a fact which the learned counsel for the petitioner has fairly admitted. Discussing the NRC, the learned Tribunal has recorded that in the said document name of one Kayedali, aged 27 years of Kahikuchi village (and not Dokhin Chitoli village) appears as the son of one Surpan (and not as Waju as stated in paragraph 2 of the affidavit filed by the petitioner). The next name shown in the purported NRC is that of Suburjan, wife of Kayedali (and not Baharjan, wife of Kayad Ali, as stated in the affidavit). 8. Although in paragraph 3 of the affidavit filed by the petitioner, he projected his grandfather as Waju alongwith his grandmother as Genda Nessa and uncle Wajuddin to the claim regarding appearing their names in 1966 and 1970 voter lists but on perusal of the said lists, their names are not to be found. It has rightly been held by the leaned Tribunal that based on such evidence it was not possible to hold that Kayed Ali is the son of Surpan and Waju and that Kayed Ali's wife is Baharjan Nessa or Suburjan. It has rightly been held by the leaned Tribunal that based on such evidence it was not possible to hold that Kayed Ali is the son of Surpan and Waju and that Kayed Ali's wife is Baharjan Nessa or Suburjan. Consequently, the petitioner has failed to establish the linkage with Kayed Ali as son and father. 9. The petitioner claimed before the Tribunal that his name was enlisted in the voter lists of 1989 and 1993 (Annexures-D & E). However, in Annexure-D, name of one Karim Khalifa, son of Kayad is found recorded alongwith Kasiron Nessa, wife of Karim. However, on perusal of the entire materials on record, the Tribunal did not find anything either in the written statement or in the affidavit filed by the petitioner that Kasiron Nessa was his wife and that her name was also recorded in the voter list of 1989 alongwith him. Significantly in another affidavit filed by the petitioner (Annexure-G) although he claimed that his name was correctly recorded in the PAN card, ration card, land documents and educational documents but his name wrongly appeared in the cheque of Axis Bank Limited by cheque No. 030109 as Karim Khalifa but he did not produce anyone of the said documents, i.e. PAN card, ration card, land documents and educational documents. It is in such circumstances, the learned Tribunal has held that his own identity is doubtful. 10. As discussed in the impugned order, the petitioner specifically contended in his affidavit that his grandfather has landed property at village Dokhin Chitoli but he failed to produce any document to support his plea. Significantly although the petitioner claimed to have born in 1951 and was 61 years of age as on 7th September, 2012 but he failed to produce any voter lists, except the 1989 and 1993 voter lists containing the name of one Karim Khalifa. The Annexure-F certificate of the Gaonburah was not proved by examining the said Gaonburah. Another linkage certificate dated 1st August, 2011 was also produced and the author of the said certificate was also not examined. That apart, both the certificates were found contradictory by the learned Tribunal. 11. During the course of hearing of the writ petition, Mr. The Annexure-F certificate of the Gaonburah was not proved by examining the said Gaonburah. Another linkage certificate dated 1st August, 2011 was also produced and the author of the said certificate was also not examined. That apart, both the certificates were found contradictory by the learned Tribunal. 11. During the course of hearing of the writ petition, Mr. Ahmed, learned counsel for the petitioner produced an affidavit dated 23rd November, 2009 so as to contend that the actual name of the grandfather of the petitioner is Sorpan Ali and not Waju and that his name was wrongly recorded as Waju in the voter list instead of Sorpan. This plea was never taken before the learned Tribunal. This affidavit has brought further contradictions/discrepancies in the claim of the petitioner that he is an Indian citizen by birth. 12. The learned Tribunal having appreciated entire evidence on record towards arriving at the finding recorded in the impugned order, this Court exercising writ jurisdiction cannot sit on appeal over such finding. The scope, ambit and jurisdiction of the writ Court is well settled about which discussions have been made by a Full Bench of this Court in Moslem Mondal (supra). For a ready reference, paragraphs 112 and 113 of the said judgment are quoted 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. 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 vs. Modern Coop. Group Housing Society Ltd. (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." 13. The Full Bench decision, on which Mr. Ahmed, learned counsel for the petitioner has placed reliance is of no help to the case of the petitioner inasmuch as the reference to which the Full Bench was concerned with was altogether on a different footing. Needless to say that the ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it. Ambica Quarry Works vs. State of Gujarat and Others, AIR 1987 SC 1073 . 14. As regards the plea of the petitioner that the notice did not contain the grounds of reference, same is rejected as the petitioner duly appeared before the Tribunal and contested the reference by adducing evidence but never pleaded that he was unaware of the ground on which he was suspected to be a foreigner of post 25th March, 1971. His such plea is barred by the principle of estoppel. That apart, the notice specifically pointed out that he was suspected to be a foreigner. 15. His such plea is barred by the principle of estoppel. That apart, the notice specifically pointed out that he was suspected to be a foreigner. 15. Above being the position, I see no reason to interfere with the impugned order 31st December, 2012 of the Foreigners' Tribunal No. III, Barpeta, Assam passed in F.T. Case No. 137(III)/2011, IM(D)T Doubtful Reference Case No. 7184/B/1998 and accordingly, the writ petition is dismissed. Consequently, the Superintendent of Police (B), Barpeta shall take the petitioner into custody and detain him in the detention camp forthwith till such time he is deported to his country of origin, i.e. Bangladesh. Simultaneously, the Deputy Commissioner, Barpeta shall ensure deletion of the name of the petitioner from the voter list, if found. 16. The Registry shall transmit the case records to the Foreigners' Tribunal No. III, Barpeta, Assam alongwith a copy of this judgment and order. 17. Copies of this judgment and order shall also be sent to the Superintendent of Police (B), Barpeta and the Deputy Commissioner, Barpeta. Another copy of this order shall also be furnished to Mrs. M. Goswami, learned State counsel, for her necessary follow up action. 18. List the matter after 1(one) month for submission of report by the Superintendent of Police (B) and the Deputy Commissioner, Barpeta.