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2015 DIGILAW 1382 (GAU)

Amila Khatun v. Union of India

2015-11-04

B.K.SHARMA

body2015
JUDGMENT : B.K. Sharma, J. The petitioner is aggrieved by order dated 4.6.2014 of the Foreigners Tribunal, Goalpara passed in F.T. Case No. 4814/G/11 (Ref. ERO's Case No. 55-32/39) (Union of India v. Amila Khatun). By the said order, the learned Tribunal has opined that the petitioner is a foreigner of post 25.3.1971. 2. As will be evident from the impugned order itself, the petitioner after filing of written statement on 23.9.2013 kept on taking time to adduce evidence. Situated thus, the learned Tribunal passed the impugned order ex-parte having regard to the amended provisions of Foreigner (Tribunal) Order, 1964. 3. On perusal of the records received from the Tribunal, it is revealed that the petitioner first appeared before the Tribunal on 5.9.2013 and prayed for time till 13.9.2013 for written statement. The ground assigned in the adjournment petition was "shortage of document". Allowing the prayer for adjournment, the matter was fixed on 13.9.2013, on which date also she prayed for time "due to lack of document". While allowing the prayer fixing the matter on 23.9.2013, the learned Tribunal recorded note of caution for the petitioner. On 23.9.2013, although the petitioner filed written statement and photocopies of two documents, but prayed for time to produce documents. The prayer was allowed and the matter was fixed on 15.11.2013, on which date, the engaged counsel of the petitioner again prayed for time to adduce evidence and the prayer was allowed fixing the matter on 9.1.2014 for evidence. On 9.1.2014 also, the petitioner prayed for time due to "shortage of document" and the prayer was allowed with caution and the matter was fixed on 19.3.2014. On 19.3.2014 also the petitioner again prayed for time due to "shortage of document" and the prayer was allowed as a last chance fixing the matter on 29.5.2014. 4. On 29.5.2014 also the petitioner again prayed for time. However, the learned Tribunal having regard to the earlier orders passed including the order passed on 19,3,2914 granting a last chance, rejected the prayer and fixed the matter on 4.6.2014. On the date of passing the impugned order, the petitioner did not appear and eventually the learned tribunal passed the impugned ex-parte order. 5. I have heard Mr. M.U. Mahmud, learned counsel for the petitioner. Also heard Ms. M. Goswami, learned State Counsel and Ms. G. Sarma, learned counsel appearing on behalf of Mr. S.C. Keyal, learned ASGI. On the date of passing the impugned order, the petitioner did not appear and eventually the learned tribunal passed the impugned ex-parte order. 5. I have heard Mr. M.U. Mahmud, learned counsel for the petitioner. Also heard Ms. M. Goswami, 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. 6. Mr. Mahmud, learned counsel for the petitioner, referring to the notice that was served on the petitioner submits that since the notice indicated/suspected the petitioner to be a foreigner within the stream of 1.1.1966 to 24.3.1971, the learned Tribunal could not have declared the petitioner to be a foreigner of post 25.3.1971. He further submits that even if the petitioner had failed to produce further document, the learned Tribunal ought to have allowed her to adduce evidence on the basis of the written statement and the two documents she had already submitted. 7. Countering the above argument, learned counsel representation the respondents submit that adequate opportunities having been provided to the petitioner to discharge her burden of proof and she having failed to avail the same, there is no question of any interference with the impugned order. 8. As recorded in the impugned order, in the Tribunal in question more than 10000 old cases were pending at the time of disposal of the reference, out of which about 2000 cases are of 1997. Needless to say that references relating to suspected foreigners is required to be disposed of immediately. Otherwise the very purpose of initiating the proceeding gets frustrated. In the event of prolonged stay of such suspected foreigners with eventual declaration as foreigners, the same would amount to external aggression with the possibility of internal disturbance, about which the Apex Court has discussed in detail in Sarbananda Sonowal v. Union of India reported in AIR 2005 SC 2920 . That apart during such prolonged stay, the suspected foreigners who are eventually declared to be foreigners also procure children either through already existing marital tie or by entering into the marital tie. There is always a possibility of claiming Indian citizenship by birth by such children of declared foreigners. In no other country such detail procedure is followed towards identifying foreigners. 9. There is always a possibility of claiming Indian citizenship by birth by such children of declared foreigners. In no other country such detail procedure is followed towards identifying foreigners. 9. When the matter was last taken up on 26.8.2015 and when it was found that the petitioner had contended that there was delay on the part of the Electoral Registration Officer, Dhubri to provide the petitioner with certified copies of the voter lists of 1970, 1977, 1979, 1985, 1993 and 1997, the said officer was directed to furnish clarification. 10. The Election Officer, Dhubri vide letter dated 15.10.2015 addressed to the learned Jr. Govt. Advocate, Assam has intimated that contrary to the stand of the petitioner that she had applied for certified copies of the voter lists on 18.9.2013, no such application was received from the petitioner on 18.9.2013. In this connection, the Election Officer has enclosed receipt register of application along with the written instruction. On perusal of the receipt register, it is found that no such application was submitted by the petitioner on 18.9.2013. Thus there is a false statement made in paragraph-6 of the writ petition. 11. Mr. Mahmud, learned counsel for the petitioner has produced the purported copy of the application dated 18.9.2013 (in original). On perusal of which, it appears that there is an endorsement as forwarded to the Election Officer, Dhubri. If the application was forwarded to the Election Officer, it is not understood how the original copy could be with the petitioner. Significantly, the application does not disclose any name of the applicant and also constituency etc. For a ready reference, the said application is reproduced below: "To The Election Officer, Dhubri Through the Election Office, Bilasipara Subdivision, Bilasipara Dated: 18/9/13 Sub: Prayer for certified copy of voter list of 1971 o 1980 Sir, With due respect and humble submission I beg to state that I have needed below noted namely certified copy of voter list of 1971 to 1980 for the special purposes. Therefore, I earnestly request you kindly issue me the same. Name F/H-Name Asimuddin H/No-71/72 Vill: Dhirerchar Pt-II Yours faithfully" 12. Coming to the argument that the notice was indicative of suspecting the petitioner to be foreigner within the stream of 1966-1971, suffice is to say that the notice also indicated the petitioner being a suspected foreigner of post 25.3.1971. Therefore, I earnestly request you kindly issue me the same. Name F/H-Name Asimuddin H/No-71/72 Vill: Dhirerchar Pt-II Yours faithfully" 12. Coming to the argument that the notice was indicative of suspecting the petitioner to be foreigner within the stream of 1966-1971, suffice is to say that the notice also indicated the petitioner being a suspected foreigner of post 25.3.1971. Records on the basis of which, reference was made against the petitioner also indicate that the petitioner was suspected to be foreigner of post 25.3.1971. In the written statement filed by the petitioner on 23.7.2013 she only stated that her parents are Ashimuddin Paramanik and Maloncho Bibi and that her father's name appeared in the voter list of 1966. It was also stated that the own name of the petitioner appeared in the voter list of 1997. With these two documents, the petitioner wanted to establish her Indian citizenship that too by birth. 13. Apart from the fact that both the documents are only photocopies and thus not admissible evidence, the petitioner also failed to prove the said two documents by adducing evidence as is required under the law of evidence. As has been held by the Apex Court in LIC of India v. Ram Pal Singh Bisen, reported in (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. 14. Coming to the Writ Court, the petitioner has placed reliance on certain documents in support of her claim. Writ Court exercising its jurisdiction under Article 226 of the Constitution of India cannot sit on appeal over the findings of fact recorded by the Trial Court re-appreciating the evidence on record. The Apex Court in the case of Rajkumar Dixit v. Vijay Kr. Writ Court exercising its jurisdiction under Article 226 of the Constitution of India cannot sit on appeal over the findings of fact recorded by the Trial Court re-appreciating the evidence on record. The Apex Court in the case of Rajkumar Dixit v. Vijay Kr. Gauri Shankar reported in (2015) 9 SCC 345 held that additional material produced before the High Court without producing the same before the Trial Court would be impermissible in law. In paragraph-24 of the judgment, it has been held thus: "24. The contention urged on behalf of the respondent-firm that the Award of compensation of Rs. 2 Lakhs in lieu of the reinstatement and 50% back wages by the High Court is on account of the alleged closure of the respondent establishment is neither supported by any pleading nor any evidence has been adduced before the Labour Court or this Court in that regard by the respondent-establishment. If any additional material is produced before the High Court, the same would be impermissible in law for the reason that the respondent-employer was required to plead with regard to the alleged closure and substantial evidence must be produced in support of the same before the Labour Court at the first instance, and no such plea has been taken before the Labour Court by them. In absence of such a plea, producing additional documents by the respondent-establishment before the High Court is totally impermissible in law for the reason that the High Court's jurisdiction is to examine the correctness of the Award passed by the Labour Court in exercise of its judicial review power under Article 227 http://indiankanoon.org/doc/1331149/ of the Constitution of India which is very limited." 15. For all the aforesaid reason, I see no reason to interfere with the impugned order. Accordingly, the writ petition is dismissed. The SP(B), Goalpara is directed to apprehend the petitioner immediately and keep her in detention camp till deportation to her country of origin. Her name shall also be deleted from the voter list, if any. 16. Let copies of this order be furnished to Ms. M. Goswami, learned State Counsel and SP (Border), Goalpara and Deputy Commissioner, Goalpara 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. 17. 16. Let copies of this order be furnished to Ms. M. Goswami, learned State Counsel and SP (Border), Goalpara and Deputy Commissioner, Goalpara 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. 17. Send down the LCR along with a copy of this order.