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2016 DIGILAW 559 (GAU)

Samsharan Das v. Union of India

2016-06-16

RUMI KUMARI PHUKAN, UJJAL BHUYAN

body2016
JUDGMENT AND ORDER : Rumi Kumari Phukan, J. Petitioners herein have challenged the impugned judgment and order passed dated 17.5.2012 whereby they have been declared as foreigner in F.T. Case No. 834/2006. 2. The Superintendent of Police (Border), Morigaon has made a reference (IMDT) no. 544/1 against the petitioners suspecting them to be foreigners and forwarded same to the IMDT Tribunal for disposal and subsequently the same was transferred to the Foreigners' Tribunal, Morigaon in terms of the direction of the Hon'ble Supreme Court dated 12.7.2005 in WP(C) 131/2000. Resultantly the FT case 834/2006 was registered. 3. According to petitioners, on receipt of the notice from the Foreigners Tribunal, they appeared before the Tribunal and filed the written statement along with documents showing them as Indian citizens. The petitioners also adduced evidence in support of their case and the learned Tribunal by the impugned order declared them as foreigners by disbelieving the documents filed by the petitioners hence the present petition has been filed challenging the legality and validity of the aforesaid order. 4. In the aforesaid proceeding the petitioners in their written statement have asserted that they were Indian citizens by birth and late Ramdhan Das, father of the petitioner no.1, was enlisted as a voter in the voter list 1966 of 85-Raha Constituency at village Dalimbari in Nagaon district. After the death of his father the petitioner no. 1 went to the village Barkhal in the district Morigaon in search of livelihood and settled there permanently. The father of the petitioner no.2 was a voter in the voter list of 1971 of 85-Raha Constituency at village Khaliamari in Nagaon district. However, since the petitioner no.2 was minor at the time she could not cast her vote and the other petitioner no. 3 to 7, who were children of the petitioner no.1 and 2 were minor and all of them were born in the given address. 5. In support of the contention raised in the written statement the petitioner no. 1 examined himself and deposed that during his childhood he came from village Daulatpur of East Pakistan along with his parents and stayed in Anipur village in Cachar district. At the age of 19 years he came from Anipur to Khaniamari and thereafter to Amlighat along with his family after his marriage. 1 examined himself and deposed that during his childhood he came from village Daulatpur of East Pakistan along with his parents and stayed in Anipur village in Cachar district. At the age of 19 years he came from Anipur to Khaniamari and thereafter to Amlighat along with his family after his marriage. According to him, his elder son was born at Khaniamari and other children were born at Borkhal (petitioner no.3 to 7). The petitioner no.1 (as opposite party no.1) filed the following documents in support of his case. (i) Exhibit ka - Certificate from Anipur refugee camp. (ii) Exhibit kha - Voter list of 1975 82-Raha Constituency. (iii) Exhibit ga - Ration card issued by Silchang Samabai Samiti. (iv) Exhibit gha to ja - School certificate showing the date of birth of the children and their names as parents., and land revenue receipt. 6. The learned tribunal examined the evidence as well as the documents filed by the petitioner and came to the following finding in para 3 of its judgment. “(3) I have carefully perused the case records and heard argument from both sides. Also, I have carefully scanned the documents proved and exhibited. It appears from Ext.-'Ka'(the Duplicate identify card, No.8440) that it is issued by the Assistant Relief & Rehabilitation Officer, Karimganj by cancelling old identity card(number not mentioned) showing the head of the family as Shri Hiralal Das, S/o Shri Ramdhan Das. In the document, the Camp Registration No. Is also not mentioned. This Duplicate identity card was registered on 23.07.1964 and at that time, Shri Ramdhan Das was alive as evinced by the O.P. No.1 deposing as O.P.W. 1. No cause has been shown why the son of Ramdhan Das was shown as head of the family during his father's life time and also no cause has been assigned why the Duplicate Identify Card has to be obtained. In the Certificate(Ext.'Ka'), the age of O.P. No.1, Shyam charan Das was 19 years on the date of registration on 23.07.1964 as such, he obtained the right of voting in the year 1966 at the age of 21 years. But, no other voter list prior to the voter list, 1975(Ext. Kha) or thereafter was produced by the O.P. in the name of Shyam charan Das (O.P.No.1), S/o Ramdhan Das. In Ext. But, no other voter list prior to the voter list, 1975(Ext. Kha) or thereafter was produced by the O.P. in the name of Shyam charan Das (O.P.No.1), S/o Ramdhan Das. In Ext. 'Ka', the age of the voter Shyam charan Das (O.P.No.1), S/o Ramdhan Das was shown as 28 years but as per Ext. Ka(the Identity Card), his age ought to have been 30 years in 1975. That apart, Ext. Ka(the Duplicate Identify Card) is not the original one. It is a typed copy which was attested by the Development Officer, State Development Corporation, Morigaon Branch on 10.06.1965. It is not found admissible in evidence as it is not proved by producing the original one. The established cut off date is 25.03.1971, but O.P.No.1 could not produce any voter list in his name prior to 1971. The voter list, 1975(Ext. Kha) showing Shyam Charan, S/o Ramdhan, aged 28 years is found doubtful due to discrepancy in age as mentioned above. The family Identity Card was issued by Silchang Samabai Samittee, Nellie on 14.10.2011 which is much later than 1971. Ext. Chha (the revenue receipt, dated 05.01.2010) does not show that Shyam charan Das is the owner of the land. He pays the rent for somebody else. Although the Ops submitted in their W.S. that Man Mohan Das, father of O.P.No.2, Pratibha Das, was a voter as an Indian citizen, no voter list has been produced in support of this nor any voter list has been submitted in the name of O.P.No.2”. 7. We have considered the submissions of the learned counsel for the petitioner that the above findings of the learned tribunal is bad in law as the oral as well as documentary evidence adduced by the petitioner has not been appreciated by the learned tribunal. According to the learned counsel for the respondent there is no illegality whatsoever in the aforesaid judgment and one cannot assert his nationality by such documents which is not at all proved in proper manner. 8. We have accordingly gone through the records as well as documents produced by the petitioner before the learned tribunal. Obviously petitioner has produced and exhibited the documents from exhibit ka to gha are all photocopies and it is apparent that the learned tribunal appreciated that apart from one voter list of 1975, the petitioner no. 1 failed to produce any other voter list prior to or thereafter. Obviously petitioner has produced and exhibited the documents from exhibit ka to gha are all photocopies and it is apparent that the learned tribunal appreciated that apart from one voter list of 1975, the petitioner no. 1 failed to produce any other voter list prior to or thereafter. Similarly petitioner no.2 also failed to prove that her father had cast vote as stated by her. Similarly the other documents produced by the petitioner regarding the birth of their children deserve no consideration in view of the findings that the name of the mother of the children/petitioner no.2 is shown as Pratibha Das, whereas petitioner no.2 is Pratima Das. The tribunal cannot accept such document which is not supportive of their own pleaded case. Further, without producing any document about purchasing of land by producing the land revenue receipt which is again given in other name, petitioners attempt to prove ownership of such landed property, is noway acceptable, which is rightly rejected by the Tribunal. 9. In (2010) 4 SCC 419, LIC of India v. Ram Pal Singh Bisen, it is held that even admission of a document does not amount to its truth. In other words mere marking of exhibit of a document does not dispense with its proof. It is necessary that the content of documents to be proved either by primary or secondary evidence. 10. In the light of the aforesaid proposition of law and other facts and circumstances it can be held that the petitioner has not been able to prove the documents as required by law and failed to discharge his burden to prove his citizenship as mandated under Section 9 of the Foreigners' Tribunal Act, 1946. Content of documents cannot be proved by mere filing in a court/ tribunal/ any judicial forum. 11. The High Court in exercising its power of judicial review under Article 226 of the Constitution of India cannot sit in appeal over the finding of facts recorded by the tribunal. It is only then the tribunal exercises its jurisdiction without being empowered or in excess of it or fails to exercise the vested jurisdiction or acts illegally, the writ court by exercising its jurisdiction can interfere with the same. It is only then the tribunal exercises its jurisdiction without being empowered or in excess of it or fails to exercise the vested jurisdiction or acts illegally, the writ court by exercising its jurisdiction can interfere with the same. Such a finding of the tribunal can be interfered with by the writ jurisdiction if it is proved that it is a case of no evidence at all or there is error apparent on the face of record. 12. In the given case as discussed above we find no infirmity, illegality in the impugned judgment and order requiring interference of this court by exercising its power of judicial review under Section 226 of the Constitution of India. 13. For the reasons aforesaid we do not find any merit in the writ petition and accordingly it is dismissed. Consequently the Superintendent of Police (Border), Morigaon as well as the Deputy Commissioner, Morigaon are hereby directed to apprehend the petitioners and to confine them in the detention camp till they are deported to the country of their origin. 14. The Deputy Commissioner, Morigaon will ensure deletion of the names of the petitioners from the voter lists etc. 15. Registry shall send down the case record to the learned Tribunal along with a copy of this judgment and order. Copy of this order may also be furnished to the learned state counsel for its follow-up action and copies may also be sent to all concerned as indicated above.