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2015 DIGILAW 1296 (GAU)

Md. Faizuddin @ Maizuddin v. State of Assam

2015-10-06

B.K.SHARMA

body2015
JUDGMENT : B.K. Sharma, J. 1. I have heard Mr. M.A. Sheikh, learned counsel for the petitioners. Also heard Mr. N. Mohammed, learned State Counsel and Ms. G. Sarma, learned counsel appearing on behalf of Mr. S.C. Keyal, learned ASGI. I have also considered the entire materials on record including the records received from the Tribunal. 2. The petitioners, namely, 1. Md. Faizuddin @ Maizuddin, 2. Must. Hasen Banu, 3. Ms. Rupia Begum and 4. Ms. Afiya Begum are aggrieved by order dated 8.7.2010 of the Foreigners Tribunal (1st), Morigaon passed in F.T. Case No. 119/07 (Police Ref. FT Case No. 89/06) State of Assam vs. Md. Faizuddin and Others. By the said order, the petitioners have been declared to be foreigners of post 25.3.1971. 3. As will be evident from the impugned judgment itself, the petitioners after filing of the written statement and photocopies of some documents did not adduce any evidence towards discharging the burden of proof as envisaged under Section 9 of the Foreigners Act, 1964. Mr. M.A. Sheikh, learned counsel for the petitioners referring to the documents annexed to the writ petition submits that the Tribunal committed manifest error of law and declared the petitioners to be foreign nationals. On the other hand, both Mr. N. Mohammed, learned State Counsel and Ms. G. Sarma, learned counsel representing Union of India submit that the petitioners having failed to discharge their burden of proof, the learned Tribunal rightly passed the impugned order. 4. I have considered the rival submissions made by the learned counsel for the parties and have considered the entire materials on record including the records received from the learned Tribunal. 5. On receipt of notice from the Tribunal, the petitioners appeared and filed written statement. English translation of which has been annexed to the writ petition as Annexure- 10. In the said written statement, the petitioners contended that they are citizens of India and that the name of the petitioner No. 1 Md. Faizuddin entered in the voter list of 1989. It was also contended that his parents name appeared in the voter list of 1965 as Md. Ali (father) and Kad Banu (mother). As regards the petitioners No. 2, 3 and 4, it was contended that they are the wife and children of the petitioner No. 1. For a ready reference, the relevant paragraphs (paragraphs-5, 6 and 7) are quoted below: "5. Ali (father) and Kad Banu (mother). As regards the petitioners No. 2, 3 and 4, it was contended that they are the wife and children of the petitioner No. 1. For a ready reference, the relevant paragraphs (paragraphs-5, 6 and 7) are quoted below: "5. That it is fact that the accused persons are citizen of India and a permanent residents of Assam. The name of the above stated accused no. 1 Md. Faijuddin entered into the voter list of 1989 of Assam legislative Assembly 84 No. Batadrava Constituency of Village- Katahguri, Mouza Batadrava, P.S. Dhing, District-Nagaon, against serial no. 83, house no. 14, Part-44. The name of his father entered against serial no. 13 of aforesaid address. 6. That the name of the parents of Md. Faijuddin the accused no. 1 of aforesaid case entered into the voter list of 1965 of Assam Legislative Assembly of 86 No. Dhing Constituency for village Roumari, Mouza Batadrava, district Nagaon against serial no. 529, house no. 98, Mahammad Ali (father) and against serial no. 530 the name of his mother Kad Banu entered. 7. That Must. Hasen Banu the accused no. 2 of the aforesaid case is the married wife of Md. Faizuddin the accused no. 1 of the said case the names of both the two persons entered into the voter list of 1997 of Assam Legislative assembly for 84 no. Batadrava constituency against ward no. 44 serial no. 192 and 193, house no. 65 prepared for the address mentioned in foregoing paragraph no. 6. At present residing at the in-laws house the accused no. 1 and father's house of the petitioner no. 2 i.e. village Charaihagi, P.S. Dharamtul, district Morigaon (Assam) have been maintaining heir family by doing cultivation. Those persons did not illegally entered into India, they are permanent inhabitants of Assam and in this respect they have got certificates from Gaonburha." 6. Now coming to the Writ Court, the petitioners have contended as follows: (a) The father of the petitioner No. 1 is Md. Mohammad Ali @ Moku Sk S/o Late Noimuddin, Gaoburha @ Noinuddin. (b) The grandmother of the petitioner No. 1 is Musstt Niljan Bibi. Now coming to the Writ Court, the petitioners have contended as follows: (a) The father of the petitioner No. 1 is Md. Mohammad Ali @ Moku Sk S/o Late Noimuddin, Gaoburha @ Noinuddin. (b) The grandmother of the petitioner No. 1 is Musstt Niljan Bibi. (c) The names of their grandparents appeared in the voter list of 1966 (d) The name of the petitioner No. 1 entered in the voter list of 1979 and also that of his father wrongly recording as Moku Sheikh instead Mahammed Ali. Unmindful of the earlier statement that the name of the petitioner No. 1 entered in the voter list of 1979, it has been stated that his name came to be included for the first time in the voter list of 1989. (e) The name of the father of the petitioner No. 2 is Hafizuddin S/o Aman Ali Fakir. 7. The above stand of the petitioner in the writ petition is wide variation with that of the stand in the written statement filed before the Tribunal. As has been held by the Division Bench of this Court in Moslem Mondal vs. State of Assam, 2010 (2) GLT 1, it is not for the Writ Court to appreciate documents annexed to the writ petition. It can only refer to the documents produced before the Tribunal. That apart from production of the documents and exhibition of the same cannot lead to proving the contents of the same unless the originals were produced and proved. In the instant case, the petitioners produced only photocopies of the documents. Further as has been held by the Apex Court in LIC of India vs. Ram Pal Singh Bisen, (2010) 4 SCC 491 , mere filing of some documents does not amount to its proof. In the said case, the Apex Court has held thus: 31. Under the Law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the Evidence Act cannot be relied upon by the Court. Contents of the document cannot be proved by merely filing in a court. 8. As to what was the plea of the petitioners before the Tribunal has been noted above. Documents having not been produced and marked as required under the Evidence Act cannot be relied upon by the Court. Contents of the document cannot be proved by merely filing in a court. 8. As to what was the plea of the petitioners before the Tribunal has been noted above. Along with the written statement, they produced photocopies of the following documents. (a) A certificate on a plain paper dated 29.8.2007 of the Gaonbura certifying incorporation of the name of the petitioner No. 1 in the voter list of 1989. (b) Voter list of 1989 showing the name of one Md. Mahammed Ali, S/o Noim and Faizuddin S/o Mahammad, agd 45 and 18 years respectively. Another certificate of Gaobura dated 16.4.2005 certifying inclusion of the name of one Maizuddin (not Faizuddin) in the voter list of 1997. (c) Voter list of 1997 showing the name of Maizuddin (not Faizuddin). (d) Certificate dated 21.7.2005 of Gaobura certifying incorporation of the name of Kat Van Bewa, W/o Aman in the voter list of 1965. (e) Voter list of 1965 showing the names of Ahmad Ali, S/o Aman and Kad Ban Bewa at serial No. 529 and 530, aged 41 and 71 years respectively. Significantly, one Surajjan Bibi is shown to be wife of Ahamad Ali. (f) A sale deed of 1967 executed by one Md. Hafizuddin along with another in favour of one Tuta Mia. (g) One jamabandi copy (not legible). (h) One certificate certifying that Ms. Abeda Begum is a student of the particular school. (i) One certificate dated 11.7.2007 certifying that one Ms. Rufia Begum was a student of the particular school and passed Class-IV in 2006. 9. Above are the documents, on the basis of which the petitioners projected themselves as Indian citizen, that too by birth. Under the law of evidence and even otherwise also having regard to the mandate of Section 9 of the Foreigners Act, 1946, it was bounden duty of the petitioners to prove the documents by leading evidence. However, they did not discharge the said burden and now coming to the Writ Court has projected altogether a different story. 10. In the writ petition, the petitioners have annexed the Annexure-5 affidavit sowrn in by the petitioner No. 1, in which it has been contended that his name was wrongly entered as Moizuddin in the voter list of 1997 instead of Faizuddin. 10. In the writ petition, the petitioners have annexed the Annexure-5 affidavit sowrn in by the petitioner No. 1, in which it has been contended that his name was wrongly entered as Moizuddin in the voter list of 1997 instead of Faizuddin. Similarly, his father's name was wrongly recorded as Moku Sheikh in the voter list of 1979 instead of Mahammad Ali. Such affidavit is no evidentiary value inasmuch as by swearing such affidavit one can twist the thing as per demand of the situation. Under somewhat similarly circumstance, this Court in State of Assam vs. Moslem Mondal, 2013 (1) GLT (FB) 809 has upheld the order of the learned Tribunal. For a ready reference, paragraph-127.1 of the said judgment is quoted below: "127.1. It appears from the judgment passed by the learned Single Judge that there is no explanation in the writ petition filed by the appellant that why he did not file the written statement and documents despite the opportunity given, except stating that he was endeavouring to obtain the documents. The appellant in support of his contention has enclosed a copy of the application dated 17th December, 2009 seeking copy of the electoral role, which application, however, was not filed by the appellant but by one Naziruddin Ahmed. As held above, the burden under Section 9 of the 1946 Act is on the proceeding to prove that he is not a foreigner but an Indian national, which burden the appellant has failed to discharge. The Tribunal, because of non participation by the appellant in the subsequent stages of the proceeding, had no alternative but to proceed against him and had opined the appellant as foreigner. In the absence of any justification to set aside the ex-parte order passed by the Tribunal and to remit the case for fresh trial, the writ Court would definitely not interfere with such an order passed by the Tribunal, when admittedly sufficient opportunities were given to the appellant to discharge his burden of proving that he is not a foreigner. The documents, which the appellant has annexed to the writ petition, cannot also be looked into by the writ Court, those having not been proved before the Tribunal, despite being given the opportunity for doing so." 11. The documents, which the appellant has annexed to the writ petition, cannot also be looked into by the writ Court, those having not been proved before the Tribunal, despite being given the opportunity for doing so." 11. Above being the position, coupled with the fact that the petitioner failed to discharge the burden of proof as envisaged under Section 9 of the Foreigners Act, 1964, about which detail discussions have been made in Sarbananda Sonowal vs. Union of India, AIR 2005 SC 2920 , I see no reason to interfere with the impugned order dated 8.7.2010 of the Foreigners Tribunal (1st), Morigaon passed in F.T. Case No. 119/07. 12. The writ petition is dismissed. The SP(B), Morigaon is directed to apprehend the petitioners immediately and keep them in detention camp till deportation to their country of origin. Their name shall also be deleted from the voter list, if any. 13. Let copies of this order be furnished to Ms. N. Mohammed, learned State Counsel and SP (Border), Morigaon and Deputy Commissioner, Morigaon for necessary follow up action. Copies may also be sent to the Government of Assam in the Home Department and Union of India in the Home Department for appraisal and necessary action. 14. Send down the LCR along with a copy of this order.