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2015 DIGILAW 705 (GAU)

Rahima Khatun @ Rahima Bibi v. Union of India

2015-06-09

B.K.SHARMA

body2015
ORDER 1. The petitioner is aggrieved by the judgment and order dated 05/01/2015 of the learned Member, Foreigners Tribunal, Goalpara in FT Case No. 5693/G/131 (Reference ERO’s Case No. 110-2/36) (Union of India vs. Rahima Khatun). By the said judgment passed ex-parte, the petitioner has been declared to be an illegal Bangladeshi migrant having entered into Indian territory after the cut-off date i.e. 25/03/1971. 2. While Mr. H.A. Sarkar, learned counsel for the petitioner, referring to the averments made in the writ petition, submits that the Tribunal committed manifest error of fact as well as on law in declaring the petitioner to be an illegal migrant, inasmuch as, in the written statement and the documents submitted, the petitioner could demonstrate that she is an Indian national. He has also referred to the documents annexed to the writ petition so as to contend that the petitioner is an Indian citizen. Mr. S.C. Keyal, learned ASGI representing the Union of India submits that the petitioner having failed to discharge the burden of proof towards establishing that she is an Indian citizen, there is nothing wrong in the impugned judgment. Mr. J. Handique, learned State Counsel submitting in the same line further submits that the documents on which the petitioner has now placed reliance were very much available before the impugned judgment was passed and yet she kept on taking time. Referring to the amended provisions of the Foreigners (Tribunal) Order, he submits that specific time limits having been laid down in the said time schedule, the petitioner ought to have responded to the proceeding by proving her Indian nationality, discharging the burden of proof as envisaged under Section 9 of the Foreigners Act, 1946. 3. I have considered the submissions made by the learned counsel for the parties and perused the entire materials on record including the records received from the Tribunal. On perusal of the impugned judgment dated 05/01/2015 and also on perusal of the records, it is found that notice was duly served on the procedee i.e. the writ petitioner and she appeared on 03/07/2014, the Tribunal having experienced the delay in disposal of the proceeding, cautioned her not to make any default with the advice to submit required documents to prove her nationality. On the basis of the prayer made by her, time was granted fixing the matter on 14/07/2014. On the basis of the prayer made by her, time was granted fixing the matter on 14/07/2014. However, the petitioner again prayed for time to file written statement and documents. Prayer was allowed with caution not to make any default fixing the matter on 24/07/2014. On 24/07/2014 also she prayed for further time to produce evidence of her Indian citizenship. However, she submitted her written statement and photocopies of some documents. Acceding the prayer made, the petitioner was granted further time to adduce evidence fixing the matter on 03/11/2014. On 03/11/2014, the petitioner again prayed for time and the same was allowed fixing 22/12/2014 for evidence. On 22/12/2014 also the petitioner did not adduce any evidence and consequently the Tribunal passed an order for ex-parte hearing and order on 05/01/2015. On 05/01/2015, the petitioner did not appear and also did not take any step and consequently, the Tribunal had no other option than to pass the impugned ex-parte judgment. 4. As discussed in the impugned judgment, as per the amended provisions of the Foreigners (Tribunals) Order, the Tribunal is to give reasonable opportunity to the procedee to produce evidence in support of her case. Ordinarily not more than 10 (ten) days time to produce such evidence should be given. However, reference is required to be disposed of within 60 (sixty) days of receipt of the reference from the competent authority. The amended provision further stipulates that power of granting adjournment should be sparingly exercised. 5. As regard the requirement of disposal of the matter within 60 days, it took around 6 (six) months to dispose of the reference from the date of 1st appearance of the petitioner on 03/07/2014. Needless to say that the issue relating to the nationality of a person is required to be disposed of at the earliest, otherwise the very purpose of making the reference to the Foreigners Tribunals gets frustrated. It is because of this, the Apex Court in its recent judgment in Assam Sanmilita Mahasangha & Others vs. Union of India and Others, (2015) 3 SCC 1 : 2015 (1) GLT (SC) 191 has emphasized establishment of Foreigners Tribunal to deal with the references expeditiously. 6. It is because of this, the Apex Court in its recent judgment in Assam Sanmilita Mahasangha & Others vs. Union of India and Others, (2015) 3 SCC 1 : 2015 (1) GLT (SC) 191 has emphasized establishment of Foreigners Tribunal to deal with the references expeditiously. 6. Although the petitioner was given reasonable opportunity to defend her case, but apart from filing her written statement and producing photocopies of some documents, she failed to discharge her burden of proof towards establishing her Indian citizenship as envisaged under Section 9 of the Foreigners Act. Along with the writ petition, the petitioner has enclosed the photocopy of the voter list of 1997 showing inclusion of her name. The reference emanated as she was identified as ‘D’ (Doubtful) voter in the said voter list pursuant to the extensive revision of electoral roll. In the said voter list, her age was recorded as 30 years and if that be so she had attained the age of voting right about 12 years back. However, she could not produce any voter list of pre 1997. Thus, it was only in 1997, her name was included in the voter list for the first time and a doubt arose as to whether she is an Indian citizen or not. 7. Both in the writ petition as well as in the written statement filed before the Tribunal, she projected her parents as Posha Sheikh and Hashimon Bibi and in support of that she has enclosed the photocopy of voter list of 1965. In the written statement, it was stated that their names also appeared in the voter list of 1979 and 1981. Mr. H.A. Sarkar, learned counsel for the petitioner has also produced photocopies (extract) only of the voter list of 1989 showing incorporation of the said names. On being asked as to how the petitioner would establish her linkage to those persons projected as parents, Mr. Sarkar, learned counsel for the petitioner has no answer. 8. As has been held by the Apex Court in LICI vs. Ram Pal Singh Bisen, (2010) 4 SCC 491 , mere production of photocopy of document does not lead to the discharge of burden of proof. In this connection para 31 of the said judgment is quoted below :- 31. Sarkar, learned counsel for the petitioner has no answer. 8. As has been held by the Apex Court in LICI vs. Ram Pal Singh Bisen, (2010) 4 SCC 491 , mere production of photocopy of document does not lead to the discharge of burden of proof. In this connection para 31 of the said judgment is quoted below :- 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 Curt. Contents of the document cannot be proved by merely filing in a court.” 9. Before the Tribunal, the petitioner produced photocopies of aforesaid voter list of 1965, 1979, 1987 and 1989. However, apart from the fact that the said documents are photocopies and is not proved by production of originals even production of the original cannot lead to a situation in which the contents of the said documents to discharged the burden of proof as envisaged under Section 9 of the Foreigners Act, 1946. 10. This Court exercising its jurisdiction under Article 229 of the Constitution of India is only to see whether there is any jurisdictional error in the order passed by the Foreigners Tribunal. It is only when the Tribunal acts without jurisdiction or fails to exercise it or if such Court or Tribunal acts illegally in exercise of its jurisdiction or there has been violation of the principles of natural justice. The writ Court can interfere. In this connection, paragraphs 112 and 113 of the Full Bench judgment reported in State of Assam vs. Moslem Mondal and Others, 2013 (1) GLT (FB) 809, may be referred to :- “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 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 2013 (1) GLT (FB) 809. 113. The Apex Court in Sant Lal Gupta vs. Modern Coop. Group Housing Society Limited, (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.” 11. In the aforesaid Full Bench judgment, it has also been held that setting aside of ex-parte order of the Tribunal should be only on showing sufficient cause and should not be in a routine manner. Otherwise, the very purpose of enacting the Foreigners Act, 1946 and the Foreigners Tribunal (Order) 1964 (as amended) would be frustrated. 12. In the instant case, the petitioner has only blamed the Tribunal with the statement like she was not given reasonable opportunity to adduce her evidence and that the Tribunal also did not consider her written statement and also not allowed her to submit evidence in chief. However, the fact of the matter is that she was given ample opportunity to establish her case, but she failed to discharge her burden of proof. 13. For all the aforesaid reasons, I do not find any merit in the writ petition and accordingly it is dismissed upholding the impugned judgment and order. Consequently, the Superintendent of Police (B), Goalpara shall apprehend the petitioner immediately and confine her in the detention camp till such time she is deported to her country of origin. 14. 13. For all the aforesaid reasons, I do not find any merit in the writ petition and accordingly it is dismissed upholding the impugned judgment and order. Consequently, the Superintendent of Police (B), Goalpara shall apprehend the petitioner immediately and confine her in the detention camp till such time she is deported to her country of origin. 14. Let the matter be listed again after one month so as to submit report by the Superintendent of Police (B) Goalpara and the Deputy Commissioner, Goalpara, about the action taken in the terms of this order. 15. The Deputy Commissioner, Goalpara shall ensure deletion of the name of the petitioner from the voter list, if any. 16. 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. J. Handique, learned State Counsel for his immediate necessary follow up action. Copies shall also be sent to the SP (B), Goalpara and Deputy Commissioner, Goalpara, for their immediate follow up action.