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2016 DIGILAW 1011 (GAU)

ASAN ALI SK. v. UNION OF INDIA

2016-11-17

RUMI KUMARI PHUKAN, UJJAL BHUYAN

body2016
JUDGMENT : Rumi Kumari Phukan, J. Heard Mr. M.U. Mahmud, learned counsel for the appellant, Mr. S.C. Keyal, learned Assistant Solicitor General of India and Mr. R. Dhar, learned Govt. Advocate, Assam. 2. The appellant herein has challenged the impugned judgment and order dated 6.10.2015 passed by the learned Single Judge in W.P. (C) No.6649/2014, whereby the learned Single Judge upheld the ex parte order dated 5.11.2014 passed by the learned Foreigners Tribunal Goalpara in F.T. Case No. 6142/G/13(ERO's Case No./Dist Case No.7-59/38) (union of India v. Asan Ali. By the said order the appellant has been declared to be a foreigner of post 25.3.1971 stream. 3. The case of the appellant so far appear from his pleadings that he has all the necessary documents and papers that the name of his parents as well as grand parents were reflected in the relevant voter lists of 1966 onwards and the NRC of 1951 but in spite of having all such documents he was served with a notice dated 7.3.2014 by the learned Member Foreigners Tribunal, Goalpara whereby he was informed that he is a foreigner and a case has been registered against him vide FT 6142/G/13. 4. In response to the notice he appeared before the Tribunal and submitted the written statement and contested the case. In his written statement he has narrated all detailed about his family tree along with relevant voter list. According to the appellant he made an attempt on 24.10.2014 to file his evidence on oath along with additional documents but the learned tribunal did not allow him to adduce the evidence and refuse to accept the statements of his witnesses and passed an order on 5.11.2014 without considering the documents annexed with the written statement and has declared the petitioner as illegal migrant of post 1971 stream and liable to be push back. 5. The impugned order was challenged before the learned Single Judge which was registered as writ petition (civil) No.6649/2014 wherein the learned Single Judge has refused to interfere with the impugned order of the Tribunal by its order dated 6.10.2015. Hence the present appeal has been preferred with a prayer to set aside the impugned order dated 6.10.2015 passed by the learned Single Judge as well as the order dated 5.11.2014 passed by the learned Foreigners Tribunal. 6. Hence the present appeal has been preferred with a prayer to set aside the impugned order dated 6.10.2015 passed by the learned Single Judge as well as the order dated 5.11.2014 passed by the learned Foreigners Tribunal. 6. Considered the submission of the learned counsel for the appellant as well learned counsels for the respondents. A categorical submission has been made by the learned counsel for the appellant that he could not file the evidence prior to 24.10.2014 due to the threatening on the part of the Tribunal that he has to produce the voter's list of 1966 otherwise his case would not be considered and it has also been submitted that refusal of the learned Tribunal to accept the evidence so prepared through Notary as on 24.10.2014 has occasioned a great prejudice to him and the aforesaid aspect was also not considered by the learned Single Judge. 7. In pursuance of the submission so made by the learned counsel for the appellant, we have given our anxious consideration to the impugned order of the learned Tribunal as well as the learned Single Judge. It would be evident from the order of the learned Tribunal that the appellant made his appearance before the Tribunal on 24.3.2014 and on 3.4.2014 he filed his written statement and since thereafter he repeatedly filed petitions praying time for adducing evidence on the ground that he could not collect his essential documents and also on account of illness of witnesses. The above prayer of the appellant was allowed by the learned Tribunal but however, in view of mandate of law to dispose such matter within 60 days from date of receipt of the case, the learned Tribunal gave a last chance to the appellant fixing 24.10.2014 for submitting evidence. The order also reflects that on 24.10.2014 (on last chance), the appellant filed a petition praying time for filing affidavit on the ground that he could not collect the certified copy of voter list of 1966 and such a prayer on the part of appellant was rejected by the learned Tribunal on the ground that already seven months period have elapsed for adducing evidence and has finally disposed of the case by order dated 5.11.2014. Such an observation and finding on the part of the Tribunal is found inconfonnity with the statutory requirement and it suffers from no infirmity. 8. Such an observation and finding on the part of the Tribunal is found inconfonnity with the statutory requirement and it suffers from no infirmity. 8. It is further evident that the learned Single Judge has scrutinized the above aspect and by referring to the petition dated 24.10.2014 by the appellant before the Tribunal it has been held that the appellant has resorted to falsehood while filing the writ petition that the appellant was prevented from filing his evidence for the refusal by the learned Tribunal, which was otherwise ready for filing as on 24.10.2014. Such a finding by the learned Single Judge is also found to be proper because a matter on record before the Tribunal, clearly reflect that on 24.10.2014 the appellant made an application for adjournment of hearing on the ground that he could not collect the certified copy of voter list of 1966 so evidence could not be filed. That being so, the submissions of the appellant at subsequent stage while preferring the writ petition that his evidence was ready on 24.10.2014 notorized before the Competent Authority, can certainly be found to be a false statement, in order to make up a case, which however cannot be accepted by a Court of law. It is apparent that the findings of the learned Single Judge based on cogent reason and proper appreciation, hence needs no interference. 9. Needless to say that the appellant miserably failed to discharge the burden to prove his nationality as envisaged under Section 9 of the Foreigners Act, 1964 in spite of getting ample opportunity and the learned Tribunal cannot indefinitely allow the appellant to adduce his evidence beyond the mandate of law. In view of matters on record, we found no substance at all in the submission of the learned counsel for the appellant that the appellant could not file evidence prior to 24.10.2014 due to threatening by the learned Tribunal. It can be found that the learned Tribunal has cautioned the appellant that he has to file the voters list of 1966 to prove his case and for that purpose the learned Tribunal granted several months to the appellant to produce relevant documents as prayed for and only after giving a last chance to the appellant evidence was closed. Such an observation made by the Court cannot be treated as threatening as has been alleged. 10. Such an observation made by the Court cannot be treated as threatening as has been alleged. 10. On consideration of the entire matter we find no any error, illegality or irregularity in the impugned finding arrived at by the learned Single Judge as well as the learned Tribunal. Resultantly, the appeal is devoid of any merit and dismissed. No costs. 11. Registry to inform the concerned Deputy Commissioner & Superintendent of Police (Border) and engaged counsels for the respondents accordingly.