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2016 DIGILAW 24 (GAU)

Abdul Sheikh (Md. ) v. Union of India

2016-01-19

B.K.SHARMA, MANOJIT BHUYAN

body2016
JUDGMENT : Manojit Bhuyan, J. Heard Mr. H. Das, learned counsel representing the petitioners. Also heard Mr. S.C. Keyal, learned ASGI, representing Respondent No.1 and Mr. M. Bhagabati, learned Govt. Advocate, Assam, representing Respondent Nos. 2 to 4. 2. The three petitioners herein belong to one family unit. Petitioner No. 2, Musstt. Phul Banu is the wife of the petitioner No. 1 i.e. Md. Abdul Seikh and the petitioner No.3, Musstt. Fatema Begum is the daughter of petitioner Nos. 1 and 2. Challenge is made to the order dated 17.1.2014/20.1.2014 passed by the Foreigners Tribunal (1st), Morigaon, Assam, in FT(C) Case No. 190/2008 whereby the reference filed against them was disposed of on contest in favour of the State. The petitioners were declared to be foreigners illegally entering into India (Assam) in the year 1973, i.e., after 25.3.1971 from village Ramaseel in the district of Maimansing of Bangladesh. 3. On a reference made by the concerned authority against the petitioners, a case was initially registered as IM(D)T Case No. 295/2002 and pursuant to Govt. Notification dated 5.7.2006 the case was transferred from Nagaon and registered before the Foreigners Tribunal (1st), Morigaon as FT(C) Case No. 190/2008. The Tribunal issued Notice to the petitioners along with one Md. Selam Ali, alleged to be son of the petitioner No.1. Pursuant to the Notice, the petitioners appeared before the Tribunal and a written statement was also filed on behalf of the petitioner No.1 on 22.10.2013. On the same day, a petition was also filed by the petitioner No.1 claiming that his actual name was Abdul Seikh and not Abdul Ali, as had been indicated in the Notice. The said petition was allowed by order dated 22.10.2013. In the written statement the petitioner No.1, besides stating that his name was Abdul Seikh and not Abdul Ali, also contended that he is a citizen of India by birth and his place of birth was at village Dongabari under Jagiroad Police Station but presently residing on the land registered in the name of his father at village Nakhola Grant (Indira Nagar). He claimed that his name was enlisted in the Voters List of 2008 and in so far as his wife i.e. petitioner No.2 is concerned, she had already been declared as an Indian citizen in FT(D) Case No. 962/2007. Evidence was laid and the petitioner No.1 deposed himself as OPW 1. He claimed that his name was enlisted in the Voters List of 2008 and in so far as his wife i.e. petitioner No.2 is concerned, she had already been declared as an Indian citizen in FT(D) Case No. 962/2007. Evidence was laid and the petitioner No.1 deposed himself as OPW 1. He claimed to be aged about 60 years and admitted that Musstt. Phul Banu is his wife and Musstt. Fatema Begum is his daughter. However, he denied any relation with Md. Selam Ali, who was impleaded as OP No.3 before the Tribunal. Documents marked as Ext-ka, kha, ga, gha, unga, cha, chha, ja, jha and niya were exhibited through OPW 2, Md. Mujamil Hoque, a co-villager of the petitioner. Petitioner No.1, in his deposition, deposed that he came to Indira Nagar from village Dongabari about 40 years back and his parents have already expired. However, he was unable to say the name of his grandfather. Although a copy of Voters List and Jamabandi standing in the name of petitioner No.1 was produced, no school certificate or birth certificate could be submitted, either in his own name or that of his daughter. 4. In so far as the documents submitted on behalf of the petitioners are concerned, the learned Tribunal took careful note of it and recorded as follows: "The documents submitted by the O.P. are proved and exhibited through O.P.W.-2, Md. Mujamil Hoque, a co-villager of the O.Ps. This witness also states that O.P. No.1, Abdul Seikh has no son. He proves the copy of the Order passed by this Tribunal in F.T.(D) Case No. 962/2007 as Ext. `Ka where Musstt Phulbanu (O.P. No.-2), W/o Abdul Seikh was declared as an Indian citizen. Ext. Kha is the voter list, 1966 of Bokani Legislative Assembly Constituency containing the name of Jahur Ali, S/o Jata as voter; Ext.Ga is the copy of Jamabandi, 1962/ 1963 standing in the name of Jahur Ali, S/o Jata; Ext. Gha is the voter list, 1997 where the name of Abdul Seikh (O.P. No.1), S/o Jahur appears as a voter. Exts. Onga and Cha, the voter lists, 1985 and 2004 contain the name of one, Md. Abdul, S/o Jahur. He states that in Ext. Cha, the name of the voter is mentioned as Abdul Seikh, S/o Johar Ali; Ext. Gha is the voter list, 1997 where the name of Abdul Seikh (O.P. No.1), S/o Jahur appears as a voter. Exts. Onga and Cha, the voter lists, 1985 and 2004 contain the name of one, Md. Abdul, S/o Jahur. He states that in Ext. Cha, the name of the voter is mentioned as Abdul Seikh, S/o Johar Ali; Ext. Chha is the residential certificate issued by the Gaonburha of Jagiroad Revenue Town in the name of Abdul Seikh, S/o Lt Johar Ali; Ext. Ja is the certificate in the name of Abdul Seikh, S/o Johar Ali issued by the Deosal Gaon Panchayat; Ext. Jha is the copy of Jamabandi, 2009 in the name of Abdul Ali Seikh, S/o Jahur Ali and Ext. Niya is the certificate issued by the Gaonburha of Jagiroad Revneu Town in the name of Fatema Begum, D/o Abdul Ali Seikh. It is elicited through him that no voter list or birth certificate has been submitted in the name of Fatema Begum, D/o Abdul Seikh, although she is 25 years old, it is also elicited in cross-examination that though Abdul Seikh was about 60 years old, no voter list prior to 1985 in his name has been produced." 5. On the basis of the records available and upon hearing arguments on both sides, the Tribunal recorded that in so far as Ext-ka was concerned, being the certified copy of the judgment and order dated 17.8.2008 passed in FT(D) Case No. 962/2007, the D voter indicated therein is one Musstt. Phulbanu, wife of Md. Abdul Ali of village Nakhola Grant, who was declared as an Indian citizen in the said case. But in the present case, the petitioner No.2 is the wife of petitioner No.1, Md. Abdul Seikh of village Indira Nagar under Jagiroad Police Station. The fact that the name of the petitioner No.1 is Md. Abdul Seikh has also been reinforced by the fact that before the Tribunal an application was made by him on 22.10.2013 stating that his actual name is Abdul Seikh and not Abdul Ali. 6. In so far as the rest of the documents so exhibited are concerned, the learned Tribunal discussed the contents of each one of them and recorded as under: "As per Ext. Kha, one, Jahur Ali, S/o Jata, aged 48 years was a voter in the year 1966 and as per Ext. 6. In so far as the rest of the documents so exhibited are concerned, the learned Tribunal discussed the contents of each one of them and recorded as under: "As per Ext. Kha, one, Jahur Ali, S/o Jata, aged 48 years was a voter in the year 1966 and as per Ext. Ga, the copy o Jamabandi, 1962/1963, one, Jahur Ali, S/o Jata is a holder of land. Ext. Ga, the certificate issued by the then Appellate Election Officer on 04.10.1988 in Appeal Case No. 2947/85 shows that in the voter list, 1985, the name of Md. Abdul Seikh (fathers name not mentioned) appears as a voter. As per Ext. Gha, one, Abdul Seikh, S/o Jauhar, aged 41 years is a voter against house No.464 and serial No.1085 at village-Nakhola Grant in the year 1997 and as per Ext. Onga, one, Md. Abdul, S/o Jahur, aged 36 years is a voter in the year 1985 against house No.67 and serial No. 428 at village-Nakhola Grant. These two documents can not be accepted as related to the same voter. The house No. and serial No., the name of the voter and his fathers name and also age of the voter does not correspond with each other. The copy of Jamabandi and also the copy of the Order, dated 04.10.1988 both have been marked as Ext.Ga. In the voter list, 2008, one, Abdul Seikh, S/o Juhar Ali, aged 56 years is a voter under house No.02 and serial No.06 at village Nakhola Grant (as per Ext.Cha). On scrutiny of these voter lists, it appears that the name of the voter (O.P. No.1) and his age and also the name of his purported father differ from one to one. So, it can not be said that these three voter lists relate to the person prosecuted, Md. Abdul Ali, S/o Lt. Gahur Ali, Ext.Jha the Jamabandi for surveyed villages stands in the name of Abdul Ali Seikh, S/o Lt Jahur Ali or Gahur Ali. Ext. Niya, the certificate issued by the Gaonburha of Jagiroad Revenue Town shows that Musstt. Fatima Begum is the daughter of Md. Abdul Ali Seikh." 7. Many discrepancies were noticed, particularly, in respect of the name and age of the petitioner No.1 as well as in the name of his father. The Tribunal noticed that as per the prosecution records, the proceedee is Md. Abdul Ali, son of Lt. Fatima Begum is the daughter of Md. Abdul Ali Seikh." 7. Many discrepancies were noticed, particularly, in respect of the name and age of the petitioner No.1 as well as in the name of his father. The Tribunal noticed that as per the prosecution records, the proceedee is Md. Abdul Ali, son of Lt. Gahur Ali. However, before the Tribunal, the petitioner No.1 tried to establish that the name of his father is Jahur Ali. The Tribunal further noticed the discrepancies in the name of his purported father who had been addressed variously as Jahur, Jauhar and Juhar Ali. In the same breath, the name of the petitioner had also been shown in the documents variously as Abdul Seikh, Md. Abdul and Abdul Ali Seikh. 8. The Tribunal having noted the discrepancies and as explicitly recorded in the orders dated 17.1.2014/20.1.2014, found that in the light of the discrepancies, the documents filed by the petitioner No.1 could not be taken as legal evidence to confer Indian citizenship. In that context, reference was made to a judgment of this Court in WP(C) 190/2009 (State v. Md. Abdul Kuddus). 9. Besides the discrepancies and contradiction emerging out of the documents and the written statement, the Tribunal also recorded that the petitioner No.1 was aged about 60 years and on the date of deposition i.e. 11.12.2013, no Voters List prior to the year 1985 had been filed. The Tribunal recorded that the petitioner No.1 had attained the age of voting in the year 1974 and there was no explanation with regard to absence of any Voters List prior to the year 1985. 10. On a totality of facts and after considering the evidence on record, the Tribunal held that the petitioner No.1 is not entitled to claim that he is a citizen of India and that too by birth. It was also recorded that not a single document had been submitted in the name of his wife (petitioner No.2) and further that the opposite party in FT(D) Case No. 962/2007 (Ext-Ka) namely Phulbanu could not be treated as the wife of the petitioner No.1. In other words, Musstt. Phulbanu in FT(D) Case No.962/2007 and Musstt. Phul Banu, wife of Abdul Seikh in the present case is not one and the same person. Accordingly, the petitioner No.3, Musstt. Fatema Begum was also declared to be foreigner. As regards Md. In other words, Musstt. Phulbanu in FT(D) Case No.962/2007 and Musstt. Phul Banu, wife of Abdul Seikh in the present case is not one and the same person. Accordingly, the petitioner No.3, Musstt. Fatema Begum was also declared to be foreigner. As regards Md. Selam Ali, he was held to be not related to the petitioners, for which a direction was made for filing a reference against him. The reference was accordingly disposed of on contest in favour of the State declaring the three petitioners to be foreigners having entered into India (Assam) after 25.3.1971. 11. We have heard the learned counsels on both sides. The records in original received from the Tribunal have also been perused. From the discussions and the findings of the Tribunal supported by evidence on record, it is abundantly clear that the petitioners failed to discharge the burden of proof as envisaged under Section 9 of the Foreigners Act, 1946, in that, the burden of proving that the petitioners/opposite parties are not foreigners was not discharged. In this connection it may also be observed that despite the clear prescription under the Foreigners Act, 1946, the documents exhibited before the Tribunal, for all its merits, had been produced by the OPW 2, who is a co-villager and not by the petitioners themselves. 12. On the power and scope of this Court to cause interference under Article 226 of the Constitution of India against an order passed by the Foreigners Tribunal, the law is too well settled by the Full Bench decision of this Court in State of Assam v. Moslem Mondal, reported in 2013 (1) GLT 809. In the said Full Bench decision it has been unambiguously held that the scope of interference under Article 226 is limited and a writ of certiorari can be issued only for correcting errors of jurisdiction or when the Tribunal decides without giving opportunity of hearing to the parties or in case of violation of the principles of natural justice. It has also been held that the certiorari jurisdiction of the Writ Court being supervisory, the Court cannot review the findings of facts reached by the Tribunal. Exceptions have been carved out only in case the Tribunal acts on evidence which is legally inadmissible or in case the Tribunal had refused to admit admissible evidence or if the finding of the Tribunal is not supported by any evidence at all. Exceptions have been carved out only in case the Tribunal acts on evidence which is legally inadmissible or in case the Tribunal had refused to admit admissible evidence or if the finding of the Tribunal is not supported by any evidence at all. In no uncertain terms, the Full Bench have held that other errors of facts, however grave it may be, cannot be corrected by a Writ Court. The scope of judicial review against an order passed by the Tribunal finds elaboration at paragraphs 112 and 113 of the Full Bench decision. For ready reference the same 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 Tribunals 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 of 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. 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 facts. 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 Tribunals 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 who its incorrectness. 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. 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. Question (i): whether the Civil Court has jurisdiction to entertain a suit for declaration that the plaintiff is not a foreigner?" 13. In the present case, the petitioners have not been able to make out a case falling under the Exception rule warranting interference of this Court. No case is made out to establish that the Tribunal had acted on legally inadmissible evidence or had either refused to admit admissible evidence or that the finding and decision of the Tribunal is not supported by any evidence at all. 14. In view of the unassailable findings and decisions of the Tribunal and having regard to the law laid down in the Full Bench decision in State of Assam v. Moslem Mondal, this Court is of the considered opinion that no interference can be made for which the present writ petition must invariably fail. Accordingly, the writ petition stands dismissed. Consequently, the Superintendent of Police (B), Morigaon, shall take the petitioners into custody and detain them in the detention camp forthwith till such time they are deported to their country of origin, i.e. Bangladesh. Simultaneously, the Deputy Commissioner, Morigaon, shall ensure deletion of the name of the petitioners from the Voters List, if found. 15. Registry to send down the records to the Foreigners Tribunal (1st), Morigaon, Assam, along with a copy of this order. Copies of this order be also sent to the Superintendent of Police (B), Morigaon as well as to the Deputy Commissioner, Morigaon, besides furnishing copies to Mr. M. Bhagabati, learned State counsel and Mr. S.C. Keyal, learned ASGI, for their necessary follow up action. 16. List the matter after 1 (one) month for submission of reports by the Superintendent of Police (B), Morigaon and the Deputy Commissioner, Morigaon.