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2017 DIGILAW 425 (GAU)

Ananda Ghosh v. Union of India

2017-04-04

PARAN KUMAR PHUKAN, UJJAL BHUYAN

body2017
JUDGMENT Ujjal Bhuyan, J. Heard Mr. H.R.A. Choudhury, learned Senior counsel for the petitioner, Ms. P. Baruah, learned Central Government Counsel and Mr. G. Pegu, learned Govt. Advocate, Assam. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 21.03.2016 passed by the Foreigners Tribunal-5, Tezpur at Biswanath Chariali (Tribunal) in FT Case No.132/2015 declaring the petitioner to be a foreigner who had illegally entered into India (Assam) after 25.03.1971. 3. This Court by order dated 29.04.2016 had issued notice and requisitioned the case record. It was submitted before the Court that following the above order passed by the Tribunal, petitioner was taken into custody. 4. One of the contentions advanced by the learned Senior counsel for the petitioner is that in the notice issued by the Tribunal to the petitioner, it was mentioned that petitioner was a foreigner belonging to the 1966-1971 stream. Therefore, Tribunal had exceeded its jurisdiction by declaring the petitioner to be a foreigner of post 25.03.1971 stream. Additionally, it is the submission that Tribunal had failed to appreciate the evidence adduced by the petitioner in the correct perspective and thereafter had recorded an erroneous finding which is required to be interfered with by this Court. 5. On the other hand, learned counsel for the respondents submit that reference against the petitioner was registered with the allegation that he was a foreigner who had illegally entered into India (Assam) after 25.03.1971. Therefore, Tribunal did not commit any mistake in answering the reference in the above manner. Further submission is that finding of the Tribunal is a finding of fact based on appreciation of evidence. Such a finding of fact may not be interfered with by the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India. 6. Submissions made by learned counsel for the parties have received the due consideration of the Court. Also perused the record requisitioned from the Tribunal. 7. From the record, it is seen that in the report of the Enquiry Officer dated 03.04.2001, it was mentioned in Column 4(b) that petitioner's nationality was Bangladeshi and that he had left his country of origin on account of poverty. In Column 12, it was mentioned that petitioner had entered into India after 25.03.1971. 7. From the record, it is seen that in the report of the Enquiry Officer dated 03.04.2001, it was mentioned in Column 4(b) that petitioner's nationality was Bangladeshi and that he had left his country of origin on account of poverty. In Column 12, it was mentioned that petitioner had entered into India after 25.03.1971. Therefore, the Enquiry Officer observed that petitioner was an illegal migrant who had entered into India (Assam) after 25.03.1971. Accordingly, case was sent to the Screening Committee for screening. Be it stated that at that point of time, Illegal Migrants (Determination by Tribunals) Act, 1983 was in force and the said Act provided for constitution of a Screening Committee to screen the references before being forwarded to the Tribunals constituted under the said Act. Thereafter, the Screening Committee on 03.03.2004, observed that it was a fit case to be forwarded to the Tribunal at Tezpur. 8. Following the same, Superintendent of Police, Sonitpur made a reference to the Illegal Migrants (Determination) Tribunal, Sonitpur at Tezpur on 14.06.2004 under Section 8(1) of the said Act for opinion as to whether the proceedee (petitioner herein) was an illegal migrant or not. In the statement of facts and allegation, it was clearly stated that the proceedee (petitioner herein) was a Bangladeshi national who had entered into India through unauthorised routes and without valid documents after 25.03.1971. 9. In the notice issued by the Tribunal to the petitioner on 20.01.2015, it was stated that allegation made against him by the Superintendent of Police was that he had illegally entered into Assam between 01.01.1966 to 25.03.1971. In the second notice issued to the petitioner on 28.09.2015, which was in printed form, it contained two categories of foreigners, i.e., those who had illegally entered Assam after 25.03.1971 and those between 01.01.1966 to 24.03.1971. However, Tribunal did not strike off the inapplicable portion. However, while passing the final order dated 21.03.2016, Tribunal answered the reference in favour of the State and declared the petitioner to be a foreigner who had illegally entered into India (Assam) after 25.03.1971. 10. Question for consideration is whether such a finding of the Tribunal would stand vitiated by non-mentioning in the two notices issued to the petitioner that the allegation against him was of being a foreigner who had illegally entered into India (Assam) after 25.03.1971? 11. 10. Question for consideration is whether such a finding of the Tribunal would stand vitiated by non-mentioning in the two notices issued to the petitioner that the allegation against him was of being a foreigner who had illegally entered into India (Assam) after 25.03.1971? 11. As already noticed above, the reference made by the Superintendent of Police to the Tribunal was specific. Petitioner was a Bangladeshi national who had illegally entered into India (Assam) after 25.03.1971. Prima facie, it was the mistake of the Tribunal not to have specifically mentioned this in the two notices issued to the petitioner. However, from the materials on record, Tribunal came to the conclusion and thereafter rendered its opinion that petitioner was a foreigner who had illegally entered into India (Assam) after 25.03.1971. The reference was answered accordingly. 12. In a recent decision of this Court in the case of Mustt. Abiran Nessa v. Union of India (WA 200/2016), decided on 27.03.2017, it has been held that wrong mentioning of the foreigners stream as classified under Section 6A of the Citizenship Act, 1955 to which the noticee belongs would not vitiate the proceeding before the Tribunal or consequential order passed by the Tribunal if the materials on record discloses that the noticee actually belongs to the stream of foreigners which has been ultimately held to be so by the Tribunal. Wrong mentioning of the stream of foreigners to which the noticee belongs contrary to the reference made by the State would not vitiate the order passed by the Tribunal and would not confer any undue advantage to a proceedee or enable a proceedee to improve his status. It was held as follows:- "10. Thus, materials on record, as found by the learned Single Judge, disclosed that appellant was a foreigner who had illegally entered into India (Assam) from the specified territory after 25.03.1971. The reference was also made accordingly. 11. It is trite that non-mentioning or wrong mentioning of a provision would not invalidate an order if such an order can be traced to a valid source. In such a situation, Court would examine whether the order in question has any legal sanctity and whether it can be traced to a valid source of power. If it can be traced to a valid source of law, wrong mentioning of the provision of law in the order impugned would be immaterial. 12. In such a situation, Court would examine whether the order in question has any legal sanctity and whether it can be traced to a valid source of power. If it can be traced to a valid source of law, wrong mentioning of the provision of law in the order impugned would be immaterial. 12. By applying the same analogy, it can also be said that wrong mentioning of the foreigners stream as classified under Section 6A of the Citizenship Act, 1955, as amended, to which the noticee belongs would not vitiate the proceeding or the consequential order passed by the Tribunal if materials on record disclose that the noticee actually belongs to the stream of foreigners, which has been ultimately held to be so by the Tribunal. Such wrong mentioning contrary to the materials on record or contrary to the reference made would not confer any undue advantage to a proceedee or enable a proceedee to improve his/her status. Therefore, on this count, we cannot condemn the order passed by the Tribunal which has been rightly affirmed by the learned Single Judge." 13. Having regard to the above, we have no hesitation to hold that when the reference was as to whether petitioner was a foreigner belonging to the post 25.03.1971 stream, non-mentioning of the same or wrong-mentioning of the stream of foreigners to which the petitioner belongs in the notices would not vitiate the ultimate conclusion reached by the Tribunal that petitioner was a foreigner of post 25.03.1971 stream. Since the reference was answered in favour of the State, it ought to be and has rightly been answered in the above manner. As a matter of fact, this issue was not even raised by the petitioner in his written statement possibly because he was fully aware that the allegation against him was of being a foreigner belonging to the post 25.03.1971 stream. Therefore, this ground urged on behalf of the petitioner stands rejected. However, before moving on to the next ground, we would like to observe that the Tribunal ought to have been careful while issuing the notices. We hope and expect that such mistakes would not be repeated in future. 14. Therefore, this ground urged on behalf of the petitioner stands rejected. However, before moving on to the next ground, we would like to observe that the Tribunal ought to have been careful while issuing the notices. We hope and expect that such mistakes would not be repeated in future. 14. In so far challenge to the order of the Tribunal on merit is concerned, we find that petitioner tried to project in his written statement that name of his father was Sachindra Ghosh @ Sachindra @ Sachindra Gope, son of late Judhisthir. He had come to India from the then East Pakistan prior to 1954 along with his elder brother Digendra Nath Gope and had settled down at Gorajan village under Rupahihat Police Station in the district of Nagaon. His name appeared in the voters list of 1971. 15. Petitioner did not mention in his written statement when he was born or where he was born. He did not even indicate his age in the verification column as well as in the affidavit sworn in support of the written statement. He did not mention the name of his mother or about his brothers and sisters except stating that he along with his elder brother Matanga Ghosh had migrated to Baludona village under Biswanath Chariali Police Station in the district of Sonitpur about 25 years ago. It is seen that petitioner had put his signature on each page of the written statement as well as in the affidavit which reflects a certain level of literacy but he did not disclose his educational status or particulars, such as the school in which he had studied etc in the written statement. These were material facts which were specifically within the knowledge of the petitioner. But he did not disclose these facts creating serious doubt about the veracity of the version put up by the petitioner. That apart, another serious discrepancy to be noticed is that petitioner tried to project Sachindra Ghosh @ Sachindra @ Sachindra Gope, son of late Judhisthir as his father. While Sachindra Ghosh and Sachindra can be one and the same person, it cannot be said with such certainty that Sachindra Ghosh and Sachindra Gope could be one and the same person. 16. While Sachindra Ghosh and Sachindra can be one and the same person, it cannot be said with such certainty that Sachindra Ghosh and Sachindra Gope could be one and the same person. 16. In his evidence-in-chief by way of affidavit, petitioner more or less stated the same thing except that he disclosed his age as 37 years on the date of swearing the affidavit which was 15.12.2015. 17. In so far Exhibits are concerned, in Ext.1, an extract of National Register of Citizens (NRC), name of one Sachindra, son of Judhisthir appears. In Ext.2, which was an extract of the voters list of 1971 in respect of Rupahihat constituency, name of one Sachindra Gope, son of Judhisthir, appears. 18. There is no document on record to show that Sachindra Gope is the father of Ananda Ghosh, the petitioner. Even in Ext.5, which is an Elector Photo Identity Card issued on 01.10.2013, Ananda Ghosh, i.e., petitioner was shown as related to Sachindra Ghosh which is also the position in respect of Ext.6, which is a certificate dated 06.10.2015 issued by the Gaonburah. Again, there is no document to show Sachindra Gope to be the same person as Sachindra Ghosh. 19. In such circumstances, there is great deal of doubt about the version of the petitioner. Petitioner could not establish that he is the son of Sachindra Gope whose name appears in Ext.2, voters list of 1971. None of petitioner's relatives, such as, brothers, sisters etc or neighbours came forward to depose in favour of the petitioner. Therefore, it cannot be said that petitioner had discharged his burden under Section 9 of the Foreigners Act, 1946. Consequently, we do not find any error or infirmity in the view taken by the Tribunal. 20. There is thus no merit in the writ petition, which is accordingly dismissed. 21. Registry to send down the LCR forthwith and inform the concerned Foreigners Tribunal, Deputy Commissioner & Superintendent of Police (Border) for taking immediate follow-up steps.