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2016 DIGILAW 244 (GAU)

Bassu Ali @ Bassu SK. v. Union of India

2016-03-31

RUMI KUMARI PHUKAN, UJJAL BHUYAN

body2016
JUDGMENT AND ORDER (CAV) Rumi Phukan, J. - This writ petition has been filed under 226 of the Constitution of India praying for setting aside the order passed by the Foreigners Tribunal in FTC case No. 5265/12 dated 8.12.2015 whereby the petitioner has been declared as illegal migrant of post 1971 stream, from Bangladesh. 2. We have heard Mr. MU Mahmud, learned counsel for the petitioner, Mr. S.C. Keyal, learned Asstt. S.G. of India and Mr. M. Bhagawati learned Govt. Advocate of Assam. 3. The case of the petitioner which is necessary for disposal of the matter in hand in a nutshell is that the petitioner is a resident of Karbala ward No. 13 Goalpara district. Electoral registration officer at the time of preparation of the draft roll having doubt about the nationality and citizenship of the petitioner directed local verification and accordingly the local verification officer submitted a report raising doubt about the citizenship of the petitioner and the matter was accordingly referred to the IMDT, Goalpara for his opinion whether the petitioner is a doubtful illegal migrant or not. Thereafter on abolition of the IMDT the matter came up for disposal before the Foreigners Tribunal, Goalpara. Initially the said case was decided ex-parte on 4.12.2013. The request for setting aside the ex-parte order was dismissed by the Tribunal and the Hon'ble High Court being approached assailing the aforesaid order through WP(C) 827/2015, the said ex-parte order was vacated by this Court and remanded the case for fresh proceeding. Accordingly, the petitioner herein contested the case by filing written statement and also adduced evidence along with the documents to prove his citizenship. 4. The learned Tribunal after considering the evidence of the petitioner (oral as well as documentary) declared the petitioner as an illegal migrant of post 1971 stream from Bangladesh with an order for deportation from India within one month from the date of the order with other consequential direction. The aforesaid order dated 8.12.2015 has been put into challenge before this Court. 5. According to the petitioner he is a citizen of India by birth and born out of the wed lock of Saman Ali and Basiron Nessa. The aforesaid order dated 8.12.2015 has been put into challenge before this Court. 5. According to the petitioner he is a citizen of India by birth and born out of the wed lock of Saman Ali and Basiron Nessa. Thereafter, when the petitioner was only 6 months of age his father divorced his mother and his mother shifted to Karbala and married one Subhan Sheikh of Karbala and the petitioner had grown up with the identity of his father and as a result the name of the petitioner got recorded in the voters list of 1997 as Bassu Sheikh instead of Bassu Ali son of Subhan Shiekh, but he is in the biological son of Saman Ali. In the voters list of 2005, his name was marked as 'D' voter and his case was referred to the foreigners tribunal, Goalpara. It is the case of the petitioner that the name of his father is Saman Ali and the name of his grandfather is Alla Box and the name of his grand father appears in the voters list 1970 but his father's name did not appear in the said voters list as resident of Kathuri but the family members namely Abdul Aziz appears in the said voters list of 1966. It has also been contended that though in some places his name has been shown as Basu Shiekh and in other places he has been shown as Basu Ali but he is the one and same person. Contending that his father's name appears in the voters lists of 1979, 1985 and 1989 it has been urged that the petitioner cannot be declared as illegal migrant. 6. As his mother divorced his father Saman Ali and remarried another person namely Subhan Sk @ Subhan Ali so name of his mother was dropped in the voters list of 1979, 1985 and 1989 as she no longer remained in the said village Kathuri. As regards entry of his name in the voters list he has relied upon the voters list of 1997 wherein he has been named as Basu Shiekh along with his mother at village Karbala. Similarly his name also appears in the voters list of 2005. However, his father's name has been shown as Subhan Shiekh due to the fact that he was under care and custody of Subhan Sheikh after the marriage of his mother with Subhan Sk. Similarly his name also appears in the voters list of 2005. However, his father's name has been shown as Subhan Shiekh due to the fact that he was under care and custody of Subhan Sheikh after the marriage of his mother with Subhan Sk. Being conscious of the matter the petitioner enlisted his name in the voters list of 2013 as Basu Ali son of Saman Ali at village Karbala. Referring to certain other documents that he has patriarchal connection showing the name of his father as Saman Ali in his PAN Card, Voters photo Identity Card etc, it has been submitted that in spite of having so many relevant documents in his favour and instead of allowing him to adduce proper evidence before the learned Tribunal to substantiate his claim as Indian citizen the learned Tribunal has rejected his case by disbelieving his documentary and oral evidence which has rendered the decision of the tribunal as nullity and liable to be set aside. 7. The learned counsel for the petitioner has vehemently argued that the Tribunal has committed illegality by not considering the evidence on record. The veracity of the evidence of the petitioner was not put to challenge by the prosecution and there is no rebuttal evidence and the Tribunal has interpreted some document merely on the basis of discrepancies as regards the age of the person concerned in such document whereas these documents were not prepared by them. The minor discrepancies in the documents is not enough to discard the evidence of the petitioner so as to snatch away the precious right of citizenship of a person. 8. On the other hand the learned counsel for the State respondents Mr. M. Bhagawati and the learned Asstt. S.G. Mr. S.C. Keyal, have submitted that there is no infirmity in the aforesaid order of the Tribunal because the petitioner himself has failed to discharge his burden as required to substantiate his claim. It is also contended that this Court is not supposed to correct the discrepancies so recorded in the documents filed by the petitioner and also there is no connected document so as to ascertain the change of surname made by the petitioner. Remarriage of his mother and other linking evidence in support of entry in the documents/voters list etc. that Mr. Remarriage of his mother and other linking evidence in support of entry in the documents/voters list etc. that Mr. Saman Ali son of Alla Bakhs and Saman Ali son of Alab as mentioned in the voters list of 1979 and 1985 is the same person is not proved by adequate evidence. It has been urged by the learned counsel for the respondents that no interference is called for as against the impugned order. 9. We have considered the rival contentions of both the parties raised before us and perused the matters on record of learned Tribunal and documents produced before the Tribunal. 10. We have found that the petitioner came up with a peculiar fact where his name is changed three times. As per the version of the petitioner his name is Basu Ali, son of Saman Ali. Thereafter, his name was changed to Bassu Sheikh as his mother remarried another Suban Sheikh and by this time he is known as Basu Sheikh. Later on when he grew up he decided to take the name of his biological father, i.e., Saman Ali and accordingly he disclosed his name as Basu Ali, son of Saman Ali. However, he contends that his name has been wrongly shown as Basu Shiekh in the voter lists of 1997, 2005 and 2010. Thereafter, he has been shown as D-voter in the voters list of 2010 under the Goalpara East LAC constituency. The petitioner then enlisted his name as Basu Ali, son of Saman Ali in the voters list of 2013. A electoral photo identity card has been issued in his favour vide ID No. BYK 7240724 and a Pan Card has also been issued to him. 11. Such contention of the petitioner has been dealt with by the learned Tribunal while discussing the evidence so adduced by the petitioner vide para 10 and 11 in the judgment which are reproduced below : "10. Evidence of the respondent disclosed that Saman Ali was his father and he was born at Kathuri, P.S. Lakhipur. His mother is Basiran Nessa, who was divorced by his father Saman ali, while he was 5/6 months old. So, his mother Basiran Nessa came to village Karbala, P.S. Goalpara and resided there. His mother got married with Sobhan Seikh of Karbala. His mother is Basiran Nessa, who was divorced by his father Saman ali, while he was 5/6 months old. So, his mother Basiran Nessa came to village Karbala, P.S. Goalpara and resided there. His mother got married with Sobhan Seikh of Karbala. Name of the respondent enrolled in the voters list of 1997 as Bassu Seikh, son of Sobhan Seikh and it was marked as voter 'D'. DW- 2 mother of the respondent also supported this fact. On careful perusal of above evidence of DW- 1 and DW- 2, it appears that though they claimed that Bassiran Nessa was earlier married with Saman Ali and out of their wedlock, respondent was born, but no such documentary evidence has been furnished in support of said fact. It appears from the Ext. A that name of respondent's mother Bassiran Nessa was not enrolled in the voters list of 1966. Through name of Saman Ali appeared in Ext. A, but without any authentic document or evidence about the relation between Saman Ali, son of Ala Boksh and Basiran Nessa, it is difficult to accept that Saman Ali is the father of the respondent. Respondent neither submitted any Kabilnama in support of the marriage between Saman Ali and Basiran Nessa nor Talaknama about divorce between them. No any independent witness also examined in support of said facts. So, I am of the opinion that the respondent could not prove that Saman Ali is his father. 11. On perusal of the evidence of DW- 2, it is found that she has stated that her parents were Indian citizen, but in support of said fact no such authentic document or copy of voters list of 1996 is furnished to show that name of her parents enrolled in the voters list of 1966 and they were living prior to 1966. In absence of voters list of 1966 in respect of parent of DW-2 Basiran Nessa, it cannot be said that she is an Indian citizen or she or her parents entered India prior to 01.01.1966 or in between 1966 to 24.03.1971. rather fact arose that she might have entered India after 25.03.1971. In absence of voters list of 1966 in respect of parent of DW-2 Basiran Nessa, it cannot be said that she is an Indian citizen or she or her parents entered India prior to 01.01.1966 or in between 1966 to 24.03.1971. rather fact arose that she might have entered India after 25.03.1971. Non-submission of parents' voters list of Basiran Nessa, non-disclosure of their names and also enrolment of the name of Basiran Nessa in the voters list of 1985 extends support to the fact that she entered India after 25.03.1971 and somehow enrolled her name in the voters list of 1985. The extract copy of voters list of 1985 shows the name of Basiran Nessa at Sl. No. 448 and her husband's name has been shown as Saman Ali, son of Alob. In Ext. 1, name of Saman Ali is found at Sl. No. 214, but his father's name is enrolled as Lt. Ala Boksh. It is doubtful that Saman Ali, of Ext. A is the same person, whose name appeared in the extract copy of voters list of 1985. Because, father's name is found different and the village is also different. Ext. A relates to village Koraibari but extract copy of voters list of 1985 relates to village Kathuri. There is no such evidence in record that revenue village Kathuri and Koraibari is one and same. Respondent has admitted in his evidence that Saman Ali was living at village Koraibari and he was born at Kathuri. On this count also, facts submitted by the respondent is found no base." 12. The learned counsel for the petitioner has strenuously argued before the Court that the learned Tribunal has failed to exercise its judicial discretion by ignoring the case of the petitioner and the evidence so adduced by him. It has also been urged that burden of proving a fact especially within the knowledge as mandated by Section 106 of the Evidence Act does not relieve the prosecution to prove his case beyond all reasonable doubt. 13. Mr. M.U. Mahmud, learned counsel further submits that when the entire evidence is before the court, the burden of proof becomes immaterial. Judicial discretion cannot be guided by expediency. Judicial review is permissible if the impugned action is against the law or in violation of prescribed procedure or is unreasonable, irrational or mala fide. 13. Mr. M.U. Mahmud, learned counsel further submits that when the entire evidence is before the court, the burden of proof becomes immaterial. Judicial discretion cannot be guided by expediency. Judicial review is permissible if the impugned action is against the law or in violation of prescribed procedure or is unreasonable, irrational or mala fide. He contends that a discretion which encourages illegality or perpetuates illegality cannot be exercised. Further, assailing the judgment of the Tribunal it has been submitted that judicial review is to be reinforced by the Judges while discharging judicial functions so as to uphold the capability of the judicial system. It has been contended that the learned Tribunal has failed to discharge its judicial discretion as expected, so it is required to be interfered with by writ jurisdiction. 14. The learned counsel for the petitioner has referred the following citations in support of his above contention : (1) 2004 6 SCC 588 (M.C. Mehta v. Union of India) (2) 2006 (6) SCC 94 (Standard Chartered Bank v. Andhra Bank Financial Bank Ltd.) (3) 2006 (12) SCC 306 (Vikramjit Singh @ Vicky v. State of Punjab) (4) 2010 (2) GLT 1 (Moslem Mondal & Ors. v. Union of India & Ors.) (5) 2012 (8) SCC 58 (R.C. Chandel v. High Court of Madhya Pradesh and Ors.) (6) 2013 (1) GLT 941 (Abdul Kaleque v. Union of India & Ors.) 15. We have considered the submission of the learned counsel appearing on behalf of the petitioner and the decisions referred to. We have also considered the submission of the learned counsel for the respondents that there is no infirmity in the aforesaid judgment so rendered by the Tribunal, where the petitioner himself failed to discharge his burden by producing all necessary oral as well as documentary evidence to support all the facts by necessary linkage evidence. It has also been urged that there is no scope for judicial review by this Writ Court since there is no error apparent on the face of the record nor there is excess of jurisdiction on the part of the Tribunal to be interfered with. 16. It has also been urged that there is no scope for judicial review by this Writ Court since there is no error apparent on the face of the record nor there is excess of jurisdiction on the part of the Tribunal to be interfered with. 16. After careful examination of the entire materials on record, it is found that in support of the contention so raised by the petitioner no other person such as relative of any of the mother of the petitioner and/or relative of father like Abdul Aziz, (whose name is stated to have appeared in the voters list) has been examined by the petitioner to prove that the petitioner is the son of said Saman Ali. There is also no corroborative evidence either oral or documentary to prove that Bassu Ali and Basu Sheikh is the same person. Further the facts depicted by the petitioner that he is son of Basiran Nessa is also of no help to the case of the petitioner, as said Basiran Nessa herself failed to prove that she is married wife of Saman Ali or that she is also an Indian citizen. No linkage evidence is produced to prove her plea. Nor any voters list of relevant period is produced and proved to assert her claim. The Writ Court cannot decide such matters of fact which is not otherwise specifically proved. No evidence was led by petitioner to establish his long story that earlier he was Basu Ali, then turns to Basu Shiekh then thereafter he again became Basu Ali. The above aspect was not proved before the Tribunal and as such, the Tribunal has rightly come to the above finding. 17. Admittedly, name of mother of petitioner never entered in any of the voters lists of 1966, 1971, 1979 and 1996 with that of Saman Ali, which is the base period for assessing the nationality of a person. If the parents of the petitioner could not prove to be an Indian national then how the petitioner can claim the nationality, is a serious matter ! 18. Though the petitioner tries to rely upon the voter lists where the name of Saman Ali has been mentioned, but he failed to establish that said Saman Ali is his father and was the husband of PW 2. 18. Though the petitioner tries to rely upon the voter lists where the name of Saman Ali has been mentioned, but he failed to establish that said Saman Ali is his father and was the husband of PW 2. If the mother of petitioner had already been divorced by her earlier husband Saman Ali while the petitioner was 5/6 months baby, then how the name of the mother of the petitioner can be enrolled in the voters list of 1985 as wife of Saman Ali is a serious discrepancy and is not explained by the petitioner, which itself raises serious doubt upon the authenticity of a person so projected by the petitioner as his father. 19. In view of all above, it can be arrived at that the petitioner himself has failed to prove the documents and contents thereof as per law and the learned Tribunal has duly appreciated all such aspects in the aforesaid judgment. 20. The petitioner filed some photocopies of documents before the Tribunal and the contents of such document have not at all been proved. The Hon'ble Apex Court in (2010) 4 SCC 491 (LIC of India v. Ram Pal Singh Bisen), has held that even admission of a mere making of exhibit of a document does not dispense with its proof, which is required to be done in accordance with law. It was the duty of the petitioners to prove the documents in accordance with law. 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. Contents or the document cannot be proved by merely filing in a court. 21. On consideration of the entire matter in hand, we are unable to accept the contention raised by the learned counsel for the petitioner that the learned Tribunal has failed to exercise its jurisdiction or there is any scope of judicial review by the High Court to interfere with such decision of the learned Tribunal. 21. On consideration of the entire matter in hand, we are unable to accept the contention raised by the learned counsel for the petitioner that the learned Tribunal has failed to exercise its jurisdiction or there is any scope of judicial review by the High Court to interfere with such decision of the learned Tribunal. The High Court can interfere with the order of the Tribunal exercising its writ jurisdiction only if it is proved that it is a case of no evidence at all or there is error apparent on the face of the record or there is violation of the principles of natural justice. The power of judicial review under Article 226 of the Constitution is limited only to correction of errors apparent on the face of the records and where there is excess of jurisdiction by the Tribunal or in case of violation of the principles of natural justice. 22. In the given case the petitioner himself failed to prove his documents, as per requirement of law and we not find any infirmity in the impugned judgment and order requiring any interference of this court by exercising its power of judicial review under Article 226 of the Constitution of India. 23. We are also of the opinion that the case laws referred to by the learned counsel for the petitioner are not applicable to the present case. 24. The writ petition accordingly stands dismissed. 25. The impugned order passed by the Tribunal is hereby upheld with a direction to the petitioner to surrender the electoral photo identity card BYK 7240724 issued to him which shall be cancelled by the respondent authority as directed by the learned Tribunal. 26. Return the LCR.