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2015 DIGILAW 1535 (GAU)

Abu Taleb v. Union of India

2015-12-16

B.K.SHARMA, MANOJIT BHUYAN

body2015
JUDGMENT : Monojit Bhuyan, J. Heard Mr. AR Sikdar, learned counsel representing the petitioner. Also heard Ms. P Baruah Bordoloi, learned Govt. Advocate, Assam and Ms. G Sarma, learned counsel appearing on behalf of Mr. SC Keyal, learned ASGI, representing Respondent No.1. 2. Challenge is made to the judgment and order dated 2.7.2013 passed by the Member, Foreigners Tribunal, Kamrup (Rural), Guwahati, under GFT (R) Case No.1466/2009/488 whereby the petitioner i.e. Abu Taleb was declared as foreigner of post 25.3.1971 stream. 3. The genesis of the case relates to the reference made by the Superintendent of Police (Guwahati) under Section 8(1) of the Illegal Migrants (Determination) by Tribunal {IM(D)T} Act, 1983, on the basis of which Case No.1055/2003 was registered before the then IM(D)T, Kamrup. In course of time and in view of the decision in the case ofSarbananda Sonowal v. Union of India reported in (2005) 5 SCC 665 , the case stood transferred to the Foreigners Tribunal, Kamrup for adjudication and to ascertain as to whether the petitioner is an illegal migrant or not. 4. Pursuant to the Notice issued by the Tribunal, the petitioner had duly appeared and also filed written statement in his defence. The case proceeded as per procedure and the oral and documentary evidence adduced by the respective parties was duly appreciated by the Tribunal. 5. On behalf of the State, one Munindra Kumar Nath, SI(B), Kamrup, was examined and the Enquiry Reports pertaining to the case were exhibited as Exts-1, 2 and 3 respectively. The signatures at Exts-2 and 3 of one Sarudhan Bora, SI(B) was also duly proved by said Munindra Kumar Nath stating that the signatures and handwriting are known to him as they had worked together. 6. In so far as the case of the petitioner is concerned, apart from filing the written statement on 9.8.2012, four documents were exhibited in his defence. Ext-'A' is the Voters List of 1966 which, according to him, showed the name of his father Jainal Ali. Ext-'B' is the Jamabandi showing that his father had landed property at Borakhat which had been mutated on 7.7.1973. The said Ext-'B', however, showed the name of his father as Jainal Seikh. Ext-'C' is the certificate issued by the Sarkari Gaonburah, Abdul Alim in support of his identity as the son of Jainal. Ext-'B' is the Jamabandi showing that his father had landed property at Borakhat which had been mutated on 7.7.1973. The said Ext-'B', however, showed the name of his father as Jainal Seikh. Ext-'C' is the certificate issued by the Sarkari Gaonburah, Abdul Alim in support of his identity as the son of Jainal. Lastly, the petitioner had also exhibited Ext-'D' which is an affidavit dated 4.10.2012 in support of his contention that the actual name of his father is Jainal Ali and the reference made in some other documents as Jainal Ali, Jainal Abedin and Jainal are one and the same person. 7. Two witnesses were examined on behalf of the petitioner/opposite party, including himself whereas the State examined the Enquiry Officer, as alluded to above. In the deposition of DW-1 i.e. Abdul Alim, it was recorded that he had been working as Sarkari Gaonburah since the year 2006 and in his capacity as the Gaonburah he knew almost all the people residing under the area including the petitioner, his father Jainal Ali, paternal grandfather Komoruddin and mother Suraton. According to Abdul Alim, the petitioner was born at Borakhat and his father died about 10/15 years back. He deposed that his father was known as Jainal Abedin and the same was reiterated on a query made by the Tribunal. He also deposed that he was the author of the certificate at Ext-'C'. The petitioner in his examination-in-chief exhibited the aforesaid four documents and also stated that his father had suffered demise while he was a child. Also, in view of the fact that his father's name appeared as Jainal Seikh in the Jamabandi copy and Jainal in the Voters List of 1989, this led to swearing of the affidavit (Ext-'D') to the effect that Jainal Ali, Jainal Seikh and Jainal are one and the same person. In cross-examination, he deposed that the police had neither visited his residence nor had asked him to produce any document in support of his Indian Nationality. 8. Considering the entire evidence on record, both oral and documentary, the learned Tribunal arrived at the finding and decision that the petitioner is a foreigner as he had failed to establish that he and his family had been living in Assam prior to 25.3.1971. 8. Considering the entire evidence on record, both oral and documentary, the learned Tribunal arrived at the finding and decision that the petitioner is a foreigner as he had failed to establish that he and his family had been living in Assam prior to 25.3.1971. The reason assigned by the learned Tribunal is reproduced hereunder: "On going through the oral evidence of opposite party it is seen that he was born at Borakhat and still staying at the same place. His father Jainal Ali was a registered voter and his name appears in voters list of 1966 which has been exhibited and marked as Ext-'A'. On examination of Ext-'A' the name of Jainal Ali is found against Sl. No.280 as son of Komoruddin. As per evidence of opposite party his father died while he was tender aged boy but the evidence of Sarkari Gaonburah who knows the father and paternal grandfather of opposite party shows the death of his father about 10/15 years back. The age of the opposite party on the date of hearing is about 48 years. If his father died about 10/15 years back the approximate age of the opposite party would be 35 years at the time of death of his father. Therefore it cannot be assumed that he was a child at the time of death of his father. The name of his father would have been enlisted in the voters list 1970 and in subsequent voters list. The Electoral Roll of 1966 alone is found not sufficient and relevant for establishing the Indian Nationality of opposite party. It is evident from the testimony of Sarkari Gaonburah that his father died about 10/15 years back. His evidence that his father died while he was a child is not reliable. Further his evidence supported by an Affidavit Ext-'D' that his father is known by three names Jainal Ali, Jainal Seikh and Jainal in different documents is found not reliable as the evidence of Sarkari Gaonburah has not supported the same. According to Sakari Gaonburah his father is known as Jainal Abedin which was not uttered by opposite party in evidence as well as in Affidavit Ext-'D'. Therefore it appears that opposite party has taken the help of some false and manipulated documents to prove himself as an Indian National. According to Sakari Gaonburah his father is known as Jainal Abedin which was not uttered by opposite party in evidence as well as in Affidavit Ext-'D'. Therefore it appears that opposite party has taken the help of some false and manipulated documents to prove himself as an Indian National. Opposite party has utterly failed to establish that his family has been living in Assam prior to 25th march 1971." 9. From the original records of the case, as requisitioned from the Tribunal, it is revealed that the petitioner's father is Jainal Abedin. This is the clear evidence adduced by the Sarkari Gaonburah, Abdul Alim. Although the certificate at Ext-'C' issued by Abdul Alim refers to Jainal Ali as the father of the petitioner, there is yet another certificate issued by the same person with photograph and the seal of the authority clearly showing that the petitioner is the son of Late Jainal Abedin. The Voters List of 1966, relied upon by the petitioner, goes to show that Jainal Ali was the son of Komoruddin Ali. To show the linkage to Jainal Ali, the petitioner has annexed the copies of the Voters List of 2005 and that of 2009 and 2010 as additional documents to the writ petition. In all these Voters Lists, the name of the petitioner's father has been shown as Jainal Abedin and not Jainal Ali. In other words, the petitioner has not been able to establish his linkage to Jainal Ali as his father. 10. Be that as it may, the findings and decisions of the learned Tribunal had been arrived at upon appreciation of the entire evidence on record i.e. oral and documentary. The scope and ambit of this Court to appreciate/re-appreciate evidence under Article 226 of the Constitution of India has been clearly laid down in paragraphs 112 and 113 of the Full Bench decision of this Court in State of Assam v. Moslem Mondal reported in 2013 (1) GLT 809. For ready reference, the said paragraphs are reproduced hereunder: "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. For ready reference, the said paragraphs are reproduced hereunder: "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 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. 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." 11. Ms. P Baruah Bordoloi, learned counsel representing the State and Ms. G Sarma, learned counsel representing the Union of India have in one voice contended that from the available records it cannot be appreciated that Jainal Ali was the father of the petitioner Abu Taleb. By referring to the written statement filed by the petitioner before the learned Tribunal, it is contended that the petitioner had suppressed material facts by not mentioning that Jainal Abedin as his father. By referring to the written statement filed by the petitioner before the learned Tribunal, it is contended that the petitioner had suppressed material facts by not mentioning that Jainal Abedin as his father. Rather, reference made to Jainal Ali as his father had been done contrary to the documentary evidence. 12. On a conspectus of the case in hand, it is not the case of the petitioner that the Tribunal had acted on evidence which is clearly inadmissible or that the Tribunal had refused to admit admissible evidence or that the finding of the Tribunal was not supported by any evidence at all. Having regard to the findings and decisions arrived at by the Tribunal and the law laid down by this Court in the case of Moslem Mondal (supra) limiting the scope of interference of this Court, there is no reason to interfere with the judgment of the Tribunal dated 2.7.2013. This Court holds that the judgment of the Tribunal, as referred to above, does not suffer from any infirmity. 13. In view of the above, this writ petition stands dismissed. Consequently, the direction of the Tribunal for deletion of the petitioner's name from the Voters List is reiterated. The jurisdictional Superintendent of Police (B) shall now take all steps for apprehending the petitioner with further direction to the Deputy Commissioner, Kamrup (R) to ensure that the name of the petitioner is not updated in the proposed National Register of Citizens (NRC), a process which is now being taken up in right earnest in terms of the directions of the Hon'ble Supreme Court of India. 14. Registry to send down the records to the concerned Tribunal along with a copy of this order. Copies of this order be also sent to SP(B), Kamrup (R) as well as to the Deputy Commissioner, Kamrup (R). Ms. P Baruah Bordoloi be also furnished with a copy of this order.