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2017 DIGILAW 601 (GAU)

Asiruddin v. Union of India

2017-05-17

PARAN KUMAR PHUKAN, UJJAL BHUYAN

body2017
JUDGMENT AND ORDER : Ujjal Bhuyan, J. Heard Mr. M.U. Mahmud, learned counsel for the petitioner and Mr. T.C. Chutia, learned Government Advocate, Assam. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 16.06.2016 passed by the Foreigners Tribunal, Bongaigaon No. 2, Abhayapuri in BNGN/FT/Case No. 1082/2007 declaring the petitioner to be a foreigner who had illegally entered into India from the specified territory, i.e., Bangladesh after 25.03.1971. 3. It is seen that initially a reference was made by the Superintendent of Police (Border), Bongaigaon under the Illegal Migrants (Determination by Tribunals) Act, 1983 with the allegation that petitioner was an illegal migrant as defined under the said Act. The reference was registered as IM (D) T Case No. 620/2005 before the Tribunal constituted under the said Act. 4. After the aforesaid Act was declared unconstitutional by the Supreme Court, the reference was registered under the Foreigners Act, 1946 as BNGN/FT/Case No. 1082/2007 and after creation of additional Tribunals was assigned to the Foreigners Tribunal, Bongaigaon No. 2 at Abhayapuri (Tribunal) for opinion. 5. Notice issued by the Tribunal was served upon the petitioner, where after, he had entered appearance and filed written statement along with copies of certain documents denying the allegation made and claimed to be a citizen of India by birth. Petitioner also adduced evidence by testifying as his witness and exhibited five documents. Thereafter, he filed an additional affidavit (written statement) and exhibited three more documents. 6. After hearing the matter, Tribunal passed the order dated 16.06.2016 answering the reference in favour of the State as above. 7. Aggrieved, present writ petition has been filed. 8. When the writ petition was moved on 05.09.2016 it was submitted that following order passed by the Tribunal petitioner was taken into custody. This Court, while issuing notice and requisitioning the case record, passed an interim order to the effect that the petitioner should not be deported from India. 9. Mr. Mahmud, learned counsel for the petitioner vehemently argued that petitioner had produced more than the required documents and firmly established his claim that he was a citizen of India by birth. However, the Tribunal misreading the evidence on record arrived at an erroneous finding causing serious prejudice to the petitioner. Writ court should interfere in the matter and set aside the order of the Tribunal, he submits. 10. However, the Tribunal misreading the evidence on record arrived at an erroneous finding causing serious prejudice to the petitioner. Writ court should interfere in the matter and set aside the order of the Tribunal, he submits. 10. Per contra, Mr. Chutia, learned Government Advocate submits that Tribunal had considered all aspects of the matter and after appreciation of evidence had returned a finding of fact which does not suffer from any infirmity. Therefore, no case for interference is made out, he submits. 11. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record. 12. As already noticed above, proceeding against the petitioner was initiated under the Illegal Migrants (Determination by Tribunals) Act, 1983 where unlike Section 9 of the Foreigners Act, 1946 burden was on the State to prove that the person concerned was an illegal migrant. In the enquiry report submitted by the Enquiry Officer to the Superintendent of Police (Border) on 22.06.2005 it was mentioned that after causing enquiry including recording of statement of the petitioner and other witnesses it was found that original address of the petitioner was at village Kadamtol under Mirzapur Police Station in the district of Mymensingh, Bangladesh. On account of poverty petitioner had illegally migrated to India (Assam) after the cut-off date 25.03.1971. Report of the Enquiry Officer was scrutinised by the superior authorities and thereafter, by the screening committee constituted under the Illegal Migrants (Determination by Tribunals) Rules, 1984 as it was the procedure followed when the Illegal Migrants (Determination by Tribunals) Act, 1983 was in force. After the screening committee recommended the matter, Superintendent of Police (Border), Bongaigaon made the reference. 13. Petitioner filed his written statement on 17.08.2011. In his written statement he stated that he was a citizen of India by birth and was the son of late Rohim Baskha @ Lt. Rohim Baskha Sk. His father's name was enrolled as a voter in the voters list of 1966 in respect of 52 No. Baghbor Legislative Assembly Constituency where his residence was mentioned as House No. 19, village Dhakaliapara under Baghbor Police Station. Petitioner's name appeared in the voters list of 1977 in respect of 35 No. Abhayapuri South (SC) Legislative Assembly Constituency where his address was shown as House No. 24, village-Dubachuri Part-II under Abhayapuri Police Station. Petitioner's name appeared in the voters list of 1977 in respect of 35 No. Abhayapuri South (SC) Legislative Assembly Constituency where his address was shown as House No. 24, village-Dubachuri Part-II under Abhayapuri Police Station. It was also stated that a certificate was issued by the Mererchar Gaon Panchayat in favour of the petitioner. 14. From the above, it is evident that petitioner did not disclose either his date of birth or the year of birth. He did not even disclose the place of his birth. Identity of his mother, brothers and sisters were not disclosed. Neither his educational status nor his avocation were disclosed. These were material facts which were required to be disclosed by the petitioner in his written statement as these facts were especially within his knowledge and relevant for the purpose of determining his citizenship status. That apart, whatever was disclosed turned out to be contradictory. While his father was a resident of village Dhakaliapara under Baghbor Police Station in 1966, petitioner came to be a resident of village Dubachuri Part-II under Abhayapuri Police Station in 1977, thereby being voters of two different constituencies, father of Baghbor and son of Abhayapuri South. These discrepancies remained unexplained. 15. Four years thereafter, petitioner filed 2nd written statement on 22.09.2015 reiterating the same thing but this time he furnished an explanation regarding the deviation in his address from that of his father. It was stated that because of erosion of the river Manas many families were rendered homeless including the family of Rohim Baskha. Therefore, Rohim Baskha and his family came to the village Dubachuri under Abhayapuri Police Station and started living there. Even though the aforesaid explanation came after four years, the explanation itself was inadequate inasmuch as it was not mentioned as to when the family shifted from village Dhakaliapara under Bagbor Police Station to village Dubachuri Part-II under Abhayapuri Police Station. Nothing was stated or no document was annexed to show that the village Dhakaliapara was situated near the river Manas and was no longer in existence after being eroded by the said river. 16. Petitioner submitted his evidence-in-chief by way of affidavit on 23.02.2016. For the first time he disclosed his age as 56 years. If the petitioner was 56 years of age as on 2016, it would mean that he was born sometime in the year 1960. 16. Petitioner submitted his evidence-in-chief by way of affidavit on 23.02.2016. For the first time he disclosed his age as 56 years. If the petitioner was 56 years of age as on 2016, it would mean that he was born sometime in the year 1960. This would contradict petitioner's claim in the written statement that he was a voter in 1977; if he was born in 1960, he could not have become a voter in 1977. In this affidavit petitioner stated that his father late Rohim Baskha @ Rohim Baskha Sk. was a resident of village Kismat Moyenbori (Dhakaliapara) and after the said village was eroded by river Manas they became homeless and shifted to village Dubachuri Part-II under Abhayapuri Police Station. In both the written statements, as noticed above, the stand taken was that residence of petitioner's father was at village Dhakaliapara. Subsequently, it was thereafter, projected that the name of the village was Kismat Moyenbori (Dhakaliapara). 17. Be that as it may, we may now proceed to the five exhibits exhibited by the petitioner at the initial stage. Ext. 1 is an extract of the voters list of 1966 in respect of Baghbor constituency. Here the names of Rohim Baskha Sk., son of Parash Ullah, aged about 50 years and Anowara Khatun, wife of Rohim Baskha aged about 40 years appear. Their residences are shown as K.M. (Dokoliapara) under Baghbor Police Station. If Rohim Baskha Sk.was 50 years of age in 1966, it would mean that he ought to have been 60 years in 1976; he was born sometime in the year 1916. If that be the case, his name ought to have appeared in each of the voters list of independent India. No explanation has been furnished as to why only the voters list of 1966 was relied upon. 18. Ext. 2 is an extract of the voters list of 1989. Here the name of Asir Uddin (petitioner) appears as son of Rohim Baskha, aged about 32 years. If this is accepted, it would mean that petitioner was born sometime in the year 1957, in which event, he became eligible to exercise his right of franchise in the year 1978 but it was the voters list of 1989 that was relied upon by the petitioner. In Ext. 2 the address of the petitioner was shown as House No. 299, village 202 Dubachuri Part-II under Abhayapuri Police Station. In Ext. 2 the address of the petitioner was shown as House No. 299, village 202 Dubachuri Part-II under Abhayapuri Police Station. In the written statement the house number of the petitioner was mentioned as 24 and not 299 as reflected in Ext. 2. That apart, what happened to the father and mother? Why their names did not figure in the said voters list? Were they alive or they had expired? There were no explanations in this regard. Moving ahead, in Ext. 3 we find the names of petitioner and one Sahera Khatun, wife of Asir Uddin. This is an extract of the voters list of 1997 in respect of Abhayapuri South Constituency. Here the house number of the petitioner is shown as 24 and not 299. That apart, from a bare perusal of this document what is noticeable is the difference in the type font used, while typing the names of Asir Uddin and Sahera Khatun, which is distinctly different from the type font used in the other portion of this exhibit. That apart, out of three court fee stamps affixed, only one was struck off and no entry was made as to when the certified copy was applied for, when the date was fixed for delivery of requisite stamp and folios and when the certified copy was ready for delivery. Even in respect of his age, 58 was struck off to 38 without any initial. Therefore, this document is highly suspect and cannot be relied upon. Overlooking these discrepancies, let us proceed to Ext. 4 which is an extract of the voters list of 2010 where names of the petitioner, Sahera Khatun and Sakir Uddin appear. Here the names of the voters and their particulars are written by hand, whereas, the other portions are typed out. The details like when the certified copy was applied for, when it was ready for delivery etc have not been filled up. Like the previous document, this document is also highly -- suspect and cannot be relied upon. 19. Ext. 5 is a certificate issued by the Secretary of Mererchar Gaon Panchayat, Kushbari certifying that petitioner is the son of Lt. Rahim Baxo of village Dubachuri Part II under Mererchar Police Station and that his father's name was enrolled in the 1966 voters list. This document cannot be accepted for more than one reason. 19. Ext. 5 is a certificate issued by the Secretary of Mererchar Gaon Panchayat, Kushbari certifying that petitioner is the son of Lt. Rahim Baxo of village Dubachuri Part II under Mererchar Police Station and that his father's name was enrolled in the 1966 voters list. This document cannot be accepted for more than one reason. Firstly, it was issued belatedly on 18.04.2015, much after the proceeding against the petitioner had commenced and much after the written statement was filed on 17.08.2011. Four years after the written statement was filed this document was issued. Secondly and more importantly, this Court has already held that such a document has got no statutory sanctity and at best can only be treated as a private document, in which event, the author of the document would have to vouchsafe the truthfulness of the contents of the document by giving evidence before the Tribunal. Having issued that certificate, it was the duty of the Gaon Panchayat Secretary to have stood in the witness box in the Tribunal and proved the truthfulness of the contents of the document. In the absence thereof, this certificate has no evidentiary value. 20. After all these were over, on 15.06.2016 petitioner filed an additional affidavit and exhibited three more documents. Ext. 6 is a family identity card issued by Dumuria Merarchar Samabai Samitee Ltd. It is an identity card issued by a co-operative society. Certainly it is not a public document. Therefore, the competent official of the co-operative society was required to testify before the Tribunal about the truthfulness of the contents of the said document but that was not done. Therefore, the said document cannot be taken into consideration, that too, for the purpose of establishing one's citizenship. 21. Ext. 7 is the main document, i.e., Periodic Khiraj Patta. No date is mentioned in this document, though three names are mentioned, i.e., Md. Fazar Ali, son of Kalimuddin, Amir Ali Sk., son of Jilu Sk. and Md. Asiruddin, son of Rahim Baskha (petitioner). What is the relationship between Md. Fazar Ali, Amir Ali Sk. and the petitioner has neither been disclosed nor mentioned. Apparently, all of them are sons of different fathers. How they could be co-pattadars of the same plot of land has not been explained. In the absence thereof, this document is highly suspect. Therefore, Tribunal had rightly discarded such a document. 22. Fazar Ali, Amir Ali Sk. and the petitioner has neither been disclosed nor mentioned. Apparently, all of them are sons of different fathers. How they could be co-pattadars of the same plot of land has not been explained. In the absence thereof, this document is highly suspect. Therefore, Tribunal had rightly discarded such a document. 22. The last of the exhibits, i.e., Ext. 8 is an extract of draft voters list of Abhayapuri South Constituency dated 06.05.1993. Here the names of Rohim Baksh, Anowara Khatun, Asir Uddin and Sahera Khatun appeared. If this document is believed, it would mean that Rahim Baksh was alive in the year 1993. So also Anowara Khatun. But they are conspicuous by their absence in Ext. 2 which is an extract of voters list of 1989. Be that as it may, Ext. 8 being a draft voters list, can no way come to the aid of the petitioner. 23. It is settled proposition that enrolment in the voters list is no proof of citizenship. Having said so, we have carefully analysed and re-appreciated the evidence on record and after a thorough scrutiny we have no hesitation to come to the conclusion that the narrative presented by the petitioner is totally untenable and the Tribunal had rightly disbelieved the version of the petitioner. It is not the quantity of evidence but the quality of evidence which is material. Merely because petitioner had submitted two written statements and eight documents does not mean that he had discharged his burden under Section 9 of the Foreigners Act, 1946. 24. Net result of the above discussion is that the challenge made to the order passed by the Tribunal fails. Consequently, writ petition is dismissed. Interim order stands vacated. 25. Registry to send down the LCR forthwith and inform the concerned Foreigners Tribunal, Superintendent of Police (Border) and Deputy Commissioner for doing the needful.