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2017 DIGILAW 456 (GAU)

Momin Ali v. Union of India

2017-04-18

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 counsel for the Central Government and Mr. G. Pegu, learned Govt. Advocate, Assam. 2. This case was heard on 06.04.2017 and today is fixed for delivery of order. Accordingly, order is being delivered. 3. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 18.07.2016 passed by the Foreigners Tribunal, Bongaigaon No.2, Abhayapuri in BNGN/FT/Case No.1033/2007 declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from the specified territory after 25.03.1971. 4. It is seen that initially, reference was made by the Superintendent of Police (Border), Bongaigaon under the Illegal Migrants (Determination by Tribunals) Act, 1983 suspecting the petitioner to be an illegal migrant as defined under the said Act. The reference was registered as IM(D)T Case No. BNGN/04/2005 before the Tribunal constituted under the said Act. After the aforesaid Act was declared unconstitutional by the Supreme Court in Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665 , the reference was re-registered under the Foreigners Act, 1946 as BNGN/FT/Case No.1033/2007 and following creation of additional Tribunals, the reference was assigned to the Foreigners Tribunal, Bongaigaon No.2, Abhayapuri (Tribunal) for its opinion. 5. Notice issued by the Tribunal was served upon the petitioner, who, thereafter, entered appearance before the Tribunal and filed written statement. Two witnesses deposed on behalf of the petitioner including the petitioner himself as DW-1. In addition to that, a number of documents were exhibited. After hearing the matter, Tribunal passed the order dated 18.07.2016 answering the reference in favour of the State in the above manner. 6. Aggrieved, present writ petition has been filed. 7. When this writ petition was moved before the Court on 06.09.2016, it was submitted that following order passed by the Tribunal, petitioner was taken into custody. Order dated 06.09.2016 was passed by this Court issuing notice and requisitioning the case record. An interim order was passed to the effect that petitioner should not be deported from India. 8. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record. 9. To appreciate the finding of the Tribunal, the record requisitioned may be perused. 10. An interim order was passed to the effect that petitioner should not be deported from India. 8. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record. 9. To appreciate the finding of the Tribunal, the record requisitioned may be perused. 10. On a perusal of the record, it is seen that as per enquiry report submitted by the Enquiry Officer before the Superintendent of Police, petitioner was found to be an original resident of village Lalkura under Sadilapur Police Station in the district of Mymansingh, Bangladesh. He had illegally migrated to India after 25.03.1971 in search of livelihood. This report was accepted by the Superintendent of Police who thereafter made the reference to the Tribunal. As per notice issued by the Tribunal to the petitioner, it was alleged that he had illegally entered into India from East Pakistan/Bangladesh and therefore was a foreigner under the Foreigners Act, 1946. 11. In response to this notice, petitioner entered appearance and filed written statement on 22.12.2014. In his written statement, petitioner stated that he was born and brought up at village Kokila Part-I under Abhayapuri Police Station in the district of Bongaigaon and since then he has been living there with his family members. He mentioned about 3 supporting documents in respect of his father Late Saheb Ali and 4 documents in respect of him. 12. This written statement of the petitioner was wholly inadequate and did not disclose any material facts. As noticed above, it was the allegation of the State that petitioner was a foreigner. Therefore, as per mandate of Section 9 of the Foreigners Act, 1946, it was the bounden duty of the petitioner to have disclosed all material facts which were specifically within his knowledge in the written statement but he did not do so. Petitioner neither mentioned his date of birth nor his age. He was silent regarding the name of his mother and identity of his grandparents - both paternal and maternal. He did not mention anything about his brothers and sisters or about his marital status. On the basis of such a written statement, it cannot be said that petitioner had stated anything substantial to show that he was not a foreigner but a citizen of India. 13. He did not mention anything about his brothers and sisters or about his marital status. On the basis of such a written statement, it cannot be said that petitioner had stated anything substantial to show that he was not a foreigner but a citizen of India. 13. It is a settled proposition of law that where a party fails to set up a case in his pleadings, he would be debarred from adducing evidence in his support at the stage of trial. As a matter of principle, variance between pleading and proof is not permissible. 14. In his evidence-in-chief by way of affidavit, petitioner disclosed his age as 58 years on the date of swearing the affidavit, i.e., on 04.03.2016. But before adverting to this aspect of the matter, from a perusal of the affidavit, what is noticeable is that petitioner had put his left thumb impression as his initial to the affidavit. This indicates that he is an illiterate person but the affidavit was typed out in English language. There is no explanatory note by the Notary Public that contents of the affidavit was read over and explained to the petitioner in a language which he understood and that he was identified by advocate Bilal Hussain who had signed the affidavit. In the absence of such an explanation, statements made in the said affidavit, stricto senso, cannot be said to be statements of the petitioner himself. On this technical ground itself, affidavit of the petitioner is liable to be rejected. 15. Notwithstanding the same, the affidavit is taken into consideration and from the disclosure of age, it can be said that petitioner was born sometime in the year 1958. If that be so, he had attained the age of voting in 1979. Ext.3 is an extract of the voters list of 1997 in respect of No.34 Abhayapuri North constituency. Here, petitioner is shown as aged about 43 years which would mean that he was born in the year 1966 giving rise to inconsistency in his age. Even if this inconsistency is overlooked, there is no explanation by the petitioner as to why his name did not figure in any of the voters lists between 1979 to 1997. Here, petitioner is shown as aged about 43 years which would mean that he was born in the year 1966 giving rise to inconsistency in his age. Even if this inconsistency is overlooked, there is no explanation by the petitioner as to why his name did not figure in any of the voters lists between 1979 to 1997. Petitioner also exhibited one land document (Ext.6) where his name appeared as one of the pattadars and shown as son of Saheb Ali but the Tribunal rightly did not place much reliance on this document as it was considered to be not sufficient to establish linkage with his father whose name he disclosed as Saheb Ali. Be it stated that petitioner did not say anything as to what happened to Saheb Ali after 1970 as his name stopped figuring in any of the exhibits thereafter. 16. One Omar Ali deposed before the Tribunal as witness of the petitioner and he stated that he was the brother of the petitioner and he produced four documents. 17. Reverting back to the written statement, it has already been noticed that there was not a whisper by the petitioner that he had any brothers or sisters, not to speak of disclosing their names and other particulars. Therefore, the sudden appearance of Omar Ali in the witness box as brother of the petitioner has to be looked with suspicion and this suspicion is further fortified by the fact that in the 1997 voters list (Ext.3), name of Omar Ali did not appear along with the petitioner. That apart, in Ext.6, i.e., land document (periodic Khiraj Patta), name of Omar Ali did not appear along with the petitioner as patta holder. Therefore, evidence of Omar Ali was rightly discarded by the Tribunal. 18. End result of the above discussion is that petitioner could not successfully discharge his statutory burden under Section 9 of the Foreigners Act, 1946 to establish his linkage to his parentage on Indian soil prior to 25.03.1971. In such circumstances, we do not find any good ground to interfere with the order passed by the Tribunal. Consequently, writ petition fails and is accordingly dismissed. Interim order stands vacated. 19. Registry to send down the LCR forthwith and also inform the concerned Foreigners Tribunal, Superintendent of Police (B) and Deputy Commissioner for taking immediate follow-up steps.