Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 1549 (GAU)

Rafiqul Islam v. Union of India

2017-12-18

NELSON SAILO, UJJAL BHUYAN

body2017
JUDGMENT : Ujjal Bhuyan, J. 1. Heard Mr. HRA Choudhury, learned Senior Counsel assisted by Mr. A. Matin, learned Counsel for the petitioners and Mr. N. Goswami, learned Government Advocate, Assam. By filing this petition under Article 226 of the Constitution of India, petitioners seek quashing of order dated 12.09.2013 passed by the Foreigners Tribunal (2nd), Morigaon in FT (C) Case No. 178/2009 (State of Assam v. Md. Rafiqul Islam and five others) declaring them to be foreigners under Section 2(a) of the Foreigners Act, 1946 who had illegally entered into India (Assam) for Bangladesh after 25.03.1971. 2. Six petitioners have joined together and have instituted the present common proceeding. Petitioner Nos. 1 and 2 are husband and wife whereas petitioner Nos. 3 to 6 are their sons and daughters, all proceedees in FT Case No. 178/2009. 3. It appears that Superintendent of Police (Border), Morigaon had made reference under the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) with the allegation that petitioners were illegal migrants as defined under the said Act. Be it stated that under Section 3(1) (c) of the IMDT Act, an illegal migrant was defined as a foreigner who had unauthorizedly entered into India after 25.03.1971. The said reference was registered as IM(D)T Case No. 343/2001 before the Tribunal constituted under the IMDT Act. 4. IMDT Act was declared unconstitutional by the Supreme Court in Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665 . All the references which were pending before the Tribunals constituted under the IMDT Act were directed to be transferred to the Tribunals constituted under the Foreigners Act, 1946 read with the Foreigners (Tribunals) Order, 1964. Accordingly, the related reference was transferred to the Foreigners Tribunal (2nd), Morigaon (Tribunal) for opinion where it was re-registered as FT (C) Case No. 178/2009. 5. Notice issued by the Tribunal was duly served upon the petitioners who thereafter entered appearance before the Tribunal and filed written statement denying the allegation made that they were foreigners by claiming to be citizens of India. Petitioners also adduced evidence, oral as well as documentary. State also adduced evidence. 6. After hearing the matter, Tribunal passed the order dated 12.09.2013 answering the reference in favour of the State in the above manner. 7. Aggrieved, present writ petition has been filed. 8. Petitioners also adduced evidence, oral as well as documentary. State also adduced evidence. 6. After hearing the matter, Tribunal passed the order dated 12.09.2013 answering the reference in favour of the State in the above manner. 7. Aggrieved, present writ petition has been filed. 8. This Court by order dated 19.06.2014 had issued notice while requisitioning the case record and passed an interim order to the effect that petitioners should not be detained and deported from India subject to their appearance before the Superintendent of Police (Border), Morigaon and furnishing of adequate surety. 9. Submissions made by learned Counsel for the parties have been duly considered. Also perused the record, including the record requisitioned from the Tribunal. 10. From a perusal of the Tribunal's order dated 12.09.2013, it is seen that Tribunal had appreciated whatever evidence were tendered by the petitioners whereafter it returned the finding that petitioners were foreigners who had illegally entered into India (Assam) from Bangladesh after 25.03.1971. This is a finding of fact based on appreciation of evidence. Ordinarily a writ Court would not interfere with such a finding of fact unless there is violation of the principles of natural justice, non-adherence to the procedure laid down, in this case the procedure laid down under the Foreigners (Tribunals) Order, 1964 or if it is a case of perversity, because the jurisdiction exercised under Article 226 of the Constitution of India is supervisory and not appellate. Notwithstanding the same, we have once again looked into the materials on record to re-assure ourselves about the correctness or otherwise of the finding recorded by the Tribunal. 11. Record discloses that an enquiry was conducted by the Superintendent of Police (Border), Morigaon regarding the citizenship status of the petitioners. As per report of the enquiry officer dated 06.06.2001, petitioner and his family members were found to have entered into India (Assam) from Puthimari village under Sailkupa Police Station in the district of Mymensing, Bangladesh for better livelihood after 25.03.1971 in an unauthorized manner. The said report was approved by the superior authorities whereafter the Superintendent of Police made the reference on 20.07.2002 under Section 8(1) of the IMDT Act with the allegation that petitioners were illegal migrants of post 25.03.1971 stream. 12. IMDT Act was declared unconstitutional by the Supreme Court in Sarbananda Sonowal (supra). The said report was approved by the superior authorities whereafter the Superintendent of Police made the reference on 20.07.2002 under Section 8(1) of the IMDT Act with the allegation that petitioners were illegal migrants of post 25.03.1971 stream. 12. IMDT Act was declared unconstitutional by the Supreme Court in Sarbananda Sonowal (supra). We have already noted transition of the reference from one under the IMDT Act to one under the Foreigners Act, 1946 read with the Foreigners (Tribunals) Order, 1964. 13. In their joint written statement filed before the Tribunal on 27.09.2010 petitioners stated that they were permanent residents of Karatipam village in Morigaon district. Name of petitioner No. 1 was enlisted as a voter in 1989 from Jagiroad constituency. In that election, parents of petitioner No. 1 Rasomuddin Sarkar and Alekjan Bibi were also voters. Rasomuddin Sarkar had cast his vote in 1966 election also. Petitioner Nos. 1 and 2 are husband and wife and they have been casting their votes since 1989. Prior to marriage, petitioner No. 2 was residing at father's Md. Hussain Ali's residence at village Bhuyanbari Pathar under Laharighat police station. Md. Hussain Ali was a voter of Laharighat constituency in the year 1966. 14. This was all that the petitioners stated in the written statement which by any account was wholly inadequate to establish the identity of the petitioners as citizens of India having regard to the mandate of Section 9 of the Foreigners Act, 1946 as explained by the Supreme Court in paragraph 26 of Sarbananda Sonowal (supra). All that is discernible from the written statement is that father of petitioner No. 1 was Rasomuddin Sarkar and mother Alekjan Bibi. On the other hand, father of petitioner No. 2 was Md. Hussain Ali. Petitioner No. 2 was a resident of village Bhuyanbari Pathar under Laharighat police station in the district of Morigaon and after her marriage with petitioner No. 1, she is residing at Karatipam village. Md. Hussain Ali was a voter of Laharighat constituency in 1966 whereas Rasomuddin Sarkar and Alekjan Bibi were voters of Jagiroad constituency in 1966. Since 1989, petitioner Nos. 1 and 2 have been voters of Jagiroad constituency. 15. Petitioner No. 1 deposed as witness No. 1 on 04.07.2012 disclosing his age for the first time as 40 years. Md. Hussain Ali was a voter of Laharighat constituency in 1966 whereas Rasomuddin Sarkar and Alekjan Bibi were voters of Jagiroad constituency in 1966. Since 1989, petitioner Nos. 1 and 2 have been voters of Jagiroad constituency. 15. Petitioner No. 1 deposed as witness No. 1 on 04.07.2012 disclosing his age for the first time as 40 years. If petitioner No. 1 was 40 years of age in 2012, it would mean that he was born sometime in the year 1972. In his cross examination, he stated that his father had expired about 10 years ago i.e. in the year 2002. 16. One Md. Atab Uddin deposed as witness No. 2 in support of the petitioners. He stated that petitioner No. 1 was his brother. In his cross examination, he stated that he did not know when petitioner No. 1 got married. He also did not remember when he had cast his vote. 17. At this stage, it may be mentioned that in the written statement, petitioners did not mention that petitioner No. 1 had any brother by the name of Md. Atab Uddin. Going by the evidence of witness No. 2 Md. Atab Uddin, which does not at all inspire confidence, it cannot be said for sure that he was indeed the brother of petitioner No. 1. 18. One Shri Ananda Chandra Biswas, a cultivator of village Satgouijan under Mayong police station, deposed as witness No. 3 on behalf of the petitioners. Though he stated that he knew the petitioners and according to him they had purchased land only in 1990 but he could not say from whom it was purchased or the quantum of sale consideration. Neither the particulars of land purchased nor the details of the sale deed were mentioned. 19. Thus the testimony of witness No. 2 and witness No. 3 were wholly unreliable and could be of no assistance to the petitioners. 20. Proceeding to the exhibits tendered by the petitioners, we find that exhibits 1 (ka), 2 (kha), 3 (ga) and 4 (gha) are photocopies of extracts of voters lists of 1989, 1966, 1966 and 2010. These exhibits are photocopies of certified copies. No doubt certified copies are secondary evidence and are therefore admissible in evidence. But the absence of primary evidence necessitating tendering of secondary evidence would have to be explained by the concerned person relying upon such secondary evidence. These exhibits are photocopies of certified copies. No doubt certified copies are secondary evidence and are therefore admissible in evidence. But the absence of primary evidence necessitating tendering of secondary evidence would have to be explained by the concerned person relying upon such secondary evidence. That apart, admissibility of a document is one aspect but at the same time proof of contents including truthfulness of the contents and relevancy are equally important There is no explanation by the petitioners as to why primary evidence could not be tendered and recourse had to be taken to secondary evidence. As explained above, the contents of exhibits 1, 2, 3 and 4 were not proved and truthfulness could not be established by having the custodian of the electoral rolls alongwith the record of the original electoral rolls to testify before the Tribunal and to prove the exhibits. In the absence of proof, exhibits 1 to 4 would have no evidentiary value. 21. In so far relevance is concerned, we find that in exhibit 2 (voters list of 1966), one of the two voters is Rasmuddin, son of Jumun, aged 60 years. But his wife Alekjan Bibi is conspicuous by her absence. In exhibit 1 (voters list of 1989), the name is not Rasmuddin but Rasomuddin Sarkar and he is shown aged about 75 years. If Rasmuddin of exhibit 2 is the same person as Rasomuddin Sarkar of exhibit 1, then he would have been 83 years of age in 1989 but the age of Rasomuddin Sarkar in 1989 was 75 years. That apart, Alekjan Bibi was 70 years of age in 1989. As such, she would have been 47 years of age in 1966. Therefore, her omission in exhibit 2 (voters list of 1966) is quite significant. That apart, in exhibit 1, Rafiqul was 24 years of age meaning thereby that he was born in 1965 which is contrary to his declaration of age and consequently year of birth in his oral testimony (1972). Both cannot be true at one and the same time. 22. In exhibit 3, which is an extract of the voters list of 1966 in respect of Lahorighat Constituency, the name of one of the voters is Hussain Ali, son of Nur Mohammad, aged 36 years. Both cannot be true at one and the same time. 22. In exhibit 3, which is an extract of the voters list of 1966 in respect of Lahorighat Constituency, the name of one of the voters is Hussain Ali, son of Nur Mohammad, aged 36 years. Petitioner No. 2 claims that Hussain Ali was her father but till this point of time there is no linkage document between petitioner No. 2 and Hussain Ali. 23. In so far exhibit 4 is concerned, it is an extract of the voters list of 2010 in respect of Jagiroad constituency containing the names of Rafiqul Islam (petitioner No. 1) and Mustafa Khatoon (petitioner No. 2). If an analysis is made between exhibit 1(1989) and exhibit 4 (2010), it is seen that in 1989 Rafiqul was 24 years of age but in 2010 he becomes only 37 years old whereas he ought to have been 45 years of age. Likewise, Mustafa Khatoon was 20 years of age in 1989 and therefore in 2010, she ought to have been 41 years of age and not 32 years as projected in exhibit 4. 24. Therefore, exhibits 1 to 4 were not only not proved in accordance with law, a comparative analysis of the said exhibits clearly reveals wide discrepancies in the description of the concerned parties, denting the relevancy of the exhibits. 25. It is trite that mere filing of documents or marking of documents as exhibits is not enough. The contents of the documents would have to be proved and relevancy established; petitioners failed on both counts. Therefore, no reliance can be placed on exhibits 1 to 4 as having any evidentiary value. 26. Exhibit 5 (unga) is a certificate dated 20.09.2010 issued by the President, Ghagua Gaon Panchayat certifying that Rafiqul Islam is the son of Rasmuddin Sarkar of Karatipam village under Morigaon Police Station in the district of Morigaon. This certificate would be of no assistance to the petitioners for more than one reason. Firstly, it was mentioned in the certificate itself that the same may be used for the purpose of opening bank account, obtaining loan, sim card and electricity connection; therefore, this certificate cannot be put to use as proof of citizenship. This certificate would be of no assistance to the petitioners for more than one reason. Firstly, it was mentioned in the certificate itself that the same may be used for the purpose of opening bank account, obtaining loan, sim card and electricity connection; therefore, this certificate cannot be put to use as proof of citizenship. Secondly and most importantly, the author of the said certificate did not depose before the Tribunal to prove the contents thereof and consequently the contents of the certificate as well as the truthfulness thereof were not proved. 27. Similar would be the position in respect of exhibit 6 (sa), which is a certificate dated 19.09.2010 issued by the Gaonburah, certifying that Rafiqul Islam is the son of Rasamuddin as well as exhibit 7 (cha) dated 24.09.2010 certifying that Mustt. Mustafa Khatoon is the daughter of Md. Hussain Ali. 28. Exhibit 8 (niya) is a transfer certificate dated 18.09.2010 issued by the Headmaster of Karatipam ME School certifying that Md. Rafiqul Islam is the son of late Rasamudin Sarkar and that his date of birth as per admission register was 01.01.1983. As per this certificate, petitioner had left the school on 31.12.1997 on his promotion to class VIII. This certificate was issued 13 years thereafter on 18.09.2010 which naturally cast aspersions on the bonafides of the certificate which suspicion is further fortified by the fact that there was no mention in the written statement that petitioner No. 1 had studied in Karatipam ME School. Besides, if 1.1.1983 is the date of birth of petitioner No. 1, this should have been mentioned in the written statement. Moreover, this date of birth i.e., 01.01.1983 is at wide variance with his year of birth as per his oral testimony (1972) and as per exhibit 1(1965). That apart, the Headmaster of the school who had issued that certificate, did not testify before the Tribunal alongwith the admission register to prove the contents of the certificate as well as the truthfulness thereof. Therefore, this certificate having no probative value, would be of no assistance to the petitioners. It is the settled position in law that date of birth recorded in school certificate or school register would have no evidentiary value unless the person who made the entry or who gave the information relating to the date of birth is examined. Therefore, this certificate having no probative value, would be of no assistance to the petitioners. It is the settled position in law that date of birth recorded in school certificate or school register would have no evidentiary value unless the person who made the entry or who gave the information relating to the date of birth is examined. (Please see Birad Mal Singhvi v. Anand Purohit, 1988 (Supp) SCC 604). 29. Exhibit 9 (ta) and exhibit 10 (dha) are photocopies of sale deed and jamabandi respectively. The sale deed is dated 26.02.1990 and the parties were Ananda Chandra Biswas and Rasumuddin. The jamabandi is dated 24.06.2006 in the name of Hussain Ali. As discussed above, these two documents were not proved in accordance with law and therefore had little or no evidentiary value. That apart, the documents being dated 26.12.1990 and 24.06.2006 are post 25.03.1971 documents and therefore would be of no assistance to the petitioners. Similar is the position in respect of exhibit 11 (ja), a land document dated 02.09.2002. 30. Net result of the above discussion is that the narrative presented by the petitioners was completely vitiated by multiple material contradictions and omissions. Evidence tendered by the petitioners were not proved in accordance with law. As a result, petitioners failed to discharge their burden under Section 9 of the Foreigners Act, 1946 to prove that they were not foreigners but citizens of India. In such circumstances, we do not find any good ground to interfere with the impugned order passed by the Tribunal dated 12.9.13. 31. As such, writ petition is dismissed. Interim order passed earlier stands vacated. 32. Registry to send down the LCR forthwith and inform the concerned Foreigners Tribunal, Superintendent of Police (Border) and Deputy Commissioner for doing the needful. A copy of this order may also be furnished to learned Standing Counsel, Election Commission of India and State Coordinator, NRC.