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2018 DIGILAW 185 (GAU)

Mazor Ali v. Union of India

2018-01-31

AJIT BORTHAKUR, UJJAL BHUYAN

body2018
JUDGMENT : Ujjal Bhuyan, J. 1. Heard Mr. M.U. Mahmud, learned counsel for the petitioner and Mr. H.K. Hazarika, learned Government Advocate, Assam. 2. By filing this petition, under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 17.02.2017, passed by the Foreigners' Tribunal 9th, Barpeta, in FT Case No. 298/2015 (State Vs. Mazor Ali), declaring the petitioner to be a foreigner, who had illegally entered in India (Assam), from Bangladesh after 25.03.1971. 3. It is seen that initially reference was made by the Superintendent of Police (Border), Barpeta under the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act), which was registered as IMDT Case No. 2650/1998, with the allegation that petitioner was an illegal migrant 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. 4. IMDT Act was declared unconstitutional by the Supreme Court in Sarbananda Sonowal Vs. Union of India, (2005) 5 SCC 665 , whereafter the references which were pending before the Tribunals constituted under the IMDT Act were transferred to the Foreigners' Tribunals constituted under the Foreigners' Act, 1946 read with the Foreigners' (Tribunals) Order, 1964. 5. Accordingly, the related reference was also re-registered under the Foreigners' Act, 1946, read with the Foreigners' (Tribunals) Order, 1964, as FT Case No. 298/2015 and after creation of additional Tribunals, was assigned to the Foreigners' Tribunal No. 9, Barpeta (Tribunal), for opinion. 6. Notice issued by the Tribunal was duly served upon the petitioner, whereafter he had entered appearance before the Tribunal and filed written statement, denying the allegation made that he was a foreigner by claiming to be a citizen of India by birth. Petitioner also adduced evidence, oral as well as documentary. 7. After hearing the matter, Tribunal passed the order dated 17.02.2017, answering the reference in favour of the State in the above manner. 8. Following the aforesaid order, passed by the Tribunal, petitioner was taken into custody. 9. Petitioner filed an application to review the order dated 17.02.2017, which was registered as Misc. Case No. 8/2017. By order dated 22.06.2017, the review petition was dismissed. 10. Aggrieved, present writ petition has been filed. 11. 8. Following the aforesaid order, passed by the Tribunal, petitioner was taken into custody. 9. Petitioner filed an application to review the order dated 17.02.2017, which was registered as Misc. Case No. 8/2017. By order dated 22.06.2017, the review petition was dismissed. 10. Aggrieved, present writ petition has been filed. 11. This Court, by order dated 28.07.2017, issued notice while requisitioning the case record and passed an interim order to the effect that petitioner should not be deported from India in the interregnum. 12. Mr. Mahmud, learned counsel for the petitioner submits that in the notice issued by the Tribunal to the petitioner, it was not mentioned as to what was the allegation against the petitioner, i.e., whether he was a foreigner belonging to the 01.01.1966 to 25.03.1971 stream or whether he was a foreigner of post 25.03.1971 stream. Therefore, the very foundation of the reference was irregular. He also submits that evidence of the petitioner was not challenged by the State. Therefore, his evidence ought to have been accepted by the Tribunal in its entirety. He further submits that petitioner wanted to adduce the evidence of another witness, namely, Moniruddin. Referring to the ordersheet of the Tribunal, he submits that orders dated 21.09.2016 and 08.11.2016 would disclose that evidence-in-chief of Moniruddin was accepted by the Tribunal, but he was not put to cross-examination, whereafter, further evidence on behalf of the petitioner was closed. In such circumstances, learned counsel submits that petitioner had discharged his burden under Section 9 of the Foreigners' Act, 1946 and therefore the impugned finding of the Tribunal is liable to be set aside. In support of his submission, learned counsel for the petitioner has referred to the decision of the Supreme Court in Standard Chartered Bank Vs. Andhra Bank Financial Services Limited, (2006) 6 SCC 94 to contend that when a party actually leads evidence, any rule of burden of proof becomes irrelevant. Reliance has also been placed in the case of Abdul Khalique Vs. Union of India, 2013 (1) GLT 941, in support of his contention that in the absence of rebuttal, evidence of the proceedee has to be accepted. 13. On the other hand, learned Government Advocate strongly supports the order passed by the Tribunal and contends that there is no error or infirmity in the impugned order to warrant interference. Therefore, writ petition should be dismissed. 14. 13. On the other hand, learned Government Advocate strongly supports the order passed by the Tribunal and contends that there is no error or infirmity in the impugned order to warrant interference. Therefore, writ petition should be dismissed. 14. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record including the record requisitioned from the Tribunal. 15. Before examining the record, it would be apposite to advert to the impugned order of the Tribunal dated 17.02.2017, relevant portion of which is extracted hereunder:- "After perusal of evidence DW-1, it is seen that proceedee has tried to prove that he is the son of one Umed Ali, resident of Village-Nichuka, Mouza-Damka Chaka Baushi, PS-Barpeta Road, District-Barpeta, Assam and his mother's name is Mayuri Bewa. During evidence he has exhibited voter list 1970 as Exhibit-A proposing to prove that his father's name appeared in the said voter list. He has also furnished a certificate dated 05.08.2016, issued by Gaonburah of Village-Nichuka, Charge No. 25. On scrutiny of voters' list, Exhibit-'A' of 1970, it is seen that the proposed father Umed Ali whose name appeared in the said voter list was the resident of Village-Uttar Athiabari, Mouza-Gobardhana, PS-Sorbhog, House No. 295 Part No. 98, so it appears that residence of so called father Umed Ali whose name appeared in the voters' list 1970, is found to be different to that of the residence shown in the written statement as well as in the evidence of OP/2nd Party. Further voter list 1970 Exhibit-'A' shows the name of wife of Umed Ali as Jamila Khatun it does not show the name of Mayuri Bewa as wife of Umed Ali. It is seen that during evidence DW-1 stated that his mother Mayuri Bewa is the second wife of Umed Ali. But there is no cogent reliable evidence to prove that Mayuri Bewa whose name appeared in voters' list 1989 (Exhibit-B) is the wife of Umed Ali, the same person whose name appeared in the voters' list of 1970 furthermore the residential certificate issued by the Gaonburah of Village-Nichuka does not show the name of Mayuri Bewa as the mother of OP/2nd Party or wife of Umed Ali. So, in my view simple self declaration of OP/2nd Party claiming a person named Umed Ali whose name appeared in the voters' list on 1970 was his father is not enough, OP has to prove it by corroborative and reliable evidence thereon. Proceedee cannot be allowed to project any name so as to claim the said name to be that of his father. That apart, OP has failed to examine the Gaonburah to prove the content of the certificate exhibit-'C' as per provision of Evidence Act. OP did not try to produce the Gaonburah to prove the certificate. So the certificate Exhibit-'C' remains unproved. As per provision of Section 9 of the Foreigners' Act, 1946, burden is on the proceedee to prove by adducing cogent and reliable evidence that he is a citizen of India and not a foreigner. Here in this case after perusal of evidence on record it cannot be said that proceedee has been able to discharge his statutory burden under Section 9 of the Foreigners' Act, 1946. In the result, it is held that OP/2nd party is not a citizen of India and he is a foreigner, an illegal migrant of post 1971 stream." 16. A careful analysis of the impugned order of the Tribunal as extracted above would indicate that Tribunal had appreciated whatever evidence were tendered by the petitioner and, thereafter, had returned the finding that petitioner was a foreigner, who had illegally entered into India (Assam) from Bangladesh after 25.03.1971. Such a finding is a finding of fact based on appreciation of evidence. Ordinarily, a writ Court would not interfere with such a finding of fact unless it is a case of violation of the principles of natural justice or 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, to re-assure ourselves about the correctness or otherwise of the finding recorded by the Tribunal, we have once again looked into the materials on record. 17. The record discloses that Election Commission of India had ordered intensive revision of electoral roll for the No. 40 Sorbhog Assembly Constituency in the State of Assam with reference to 1.1.1997 as the qualifying date. 17. The record discloses that Election Commission of India had ordered intensive revision of electoral roll for the No. 40 Sorbhog Assembly Constituency in the State of Assam with reference to 1.1.1997 as the qualifying date. In this connection, a house to house enumeration was carried out during the period from 16.01.1997 to 15.04.1997. Though the name of the petitioner was included in the draft electoral roll published on 24.07.1997, the Electoral Registration Officer of the said constituency had doubts about the citizenship of the petitioner and got the matter verified by an on the spot local verification. On consideration of the report of such verification, Electoral Registration Officer recorded reasonable doubt that petitioner was not a citizen of India. He, therefore, forwarded the matter to the Superintendent of Police (Border), Barpeta, who after completing the necessary formalities, made the reference under the IMDT Act. 18. We have already noticed transition of the reference from one under the IMDT Act to one under the Foreigners' Act, 1946. 19. In his written statement before the Tribunal, petitioner stated that he was born at village-Nichuka under Barpeta Road Police Station in the district of Barpeta. His father's name appeared in the voters' list of 1970 in respect of Sorbhog constituency. Petitioner's name appeared in the voters' list of Sorbhog constituency in 1989. Gaonburah had issued a certificate certifying the residentship of the petitioner at village-Nichuka under Barpeta Road Police Station. 20. Though petitioner did not mention the name of his father in the body of the written statement, in the verification and affidavit supporting the written statement, he disclosed his father's name as Umed Ali. He also disclosed his age as 54 years in the affidavit sworn on 06.08.2016. 21. This is all that the petitioner stated in his written statement, which by any account was wholly inadequate to establish the identity of the petitioner as a citizen 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). 22. Petitioner did not mention the names of his mother and paternal grandparents. He also did not disclose the particulars of his brothers and sisters, if any. 22. Petitioner did not mention the names of his mother and paternal grandparents. He also did not disclose the particulars of his brothers and sisters, if any. Besides remaining silent about his schooling and avocation, from the affidavit, it is seen that he had disclosed his age as 54 years in 2016, which would mean that he was born sometime in the year 1962 (2016-54 = 1962). 23. Petitioner stated more or less the same thing in his evidence-in-chief, which he filed by way of affidavit. Additionally, he stated that his father Umed Ali had married twice; first wife was Jamila Khatun and second wife was Mayuri Bewa, who was the petitioner's biological mother. 24. Certain questions were put by the Tribunal to the petitioner, to which he replied that he had one brother, who was marked as a doubtful (D) voter since 1997. He went to school only for one year. He also stated that he did not know as to why he was marked as a doubtful (D) voter. 25. Proceeding to the exhibits, we find that Exhibit-A is a photocopy of an extract of the voters' list of 1970 in respect of Sorbhog constituency. Though this document was compared with the certified copy, the contents of the exhibit were not proved by production of the primary evidence through the custodian of the electoral roll of Sorbhog constituency for the year 1970. While Exhibit-A would be admissible as secondary evidence, its contents and the truthfulness thereof would have to be proved which the petitioner failed to do. It is trite that mere filing of a document or marking of a document as exhibit is not enough. The contents of the document and the truthfulness thereof would have to be proved. 26. Be that as it may, Exhibit-A discloses names of two voters, namely, Umed Ali, son of Isabuddin, aged 48 years; and Jamila Khatun, wife of Umed, aged 34 years. Both were shown as residents of Uttar Athiabari village under Sorbhog Police Station. As per written statement and so far oral testimony of the petitioner is concerned, he was born sometime in the year 1962 at village-Nichuka under Barpeta Road Police Station in the district of Barpeta. Both were shown as residents of Uttar Athiabari village under Sorbhog Police Station. As per written statement and so far oral testimony of the petitioner is concerned, he was born sometime in the year 1962 at village-Nichuka under Barpeta Road Police Station in the district of Barpeta. If that be so, it is not understood as to how Umed Ali, whom the petitioner claims to be his father, became a resident of a different village, namely, Uttar Athiabiri village in 1970. There is no explanation in this regard. 27. Exhibit-B is a photocopy of an extract of the voters' list of 1989 in respect of Sorbhog constituency. In addition to the deficiencies which marked Exhibit-A, which also vitiates Exhibit-B, we find that the three voters of Exhibit-B, namely, Mayuri Bewa, wife of Umed, aged 50 years; Mazor Ali, son of Umed, aged 30 years; and Kanchan Nessa, wife of Mazor aged 28 years are residents of village-Nichuka under Sorbhog Police Station. In this exhibit, Umed Ali is conspicuous by his absence. In Exhibit-A (1970), Umed Ali was 48 years of age. Therefore, in the ordinary course, he would have been 67 years of age in 1989 and, therefore, his name ought to have appeared in Exhibit-B (1989), but as noticed above, he was conspicuous by his absence. What happened to him? There is no answer. Petitioner claims Mayuri Bewa to be the second wife of Umed Ali and his biological mother. In 1989, Mayuri Bewa was 50 years of age, whereas, Mazor Ali was 30 years of age. This would mean that Mazor Ali was born when Mayuri Bewa was 20 years of age. If Mayuri Bewa was 50 years of age in 1989, she would have been 20 years of age in 1959 when she gave birth to Mazor Ali. That would ordinarily mean that Mayuri Bewa was the wife of Umed Ali, atleast in 1959 (if we go by the version of the petitioner) and, therefore, her name ought to have appeared in the voters' list of 1970 Exhibit -A) as wife of Umed Ali. But Mayuri Bewa was conspicuous by her absence in Exhibit-A. That apart, if Mazor Ali was 30 years of age in 1989, it would mean that he was born sometime in the year 1959 which is at variance with his own disclosure of age and year of birth, i.e., 1962. But Mayuri Bewa was conspicuous by her absence in Exhibit-A. That apart, if Mazor Ali was 30 years of age in 1989, it would mean that he was born sometime in the year 1959 which is at variance with his own disclosure of age and year of birth, i.e., 1962. But more crucially, in 1989, petitioner and Mayuri Bewa were residents of Nichuka village whereas in 1970 father Umed Ali was a resident of village-Uttar Athiabari, though petitioner claims to have been born at village-Nichuka in 1962. Thus, in 1962 the residence was at village Nichuka; in 1970 the residence was at village Uttar Athiabari; and again at village Nichuka in 1989. This apparent contradiction remained unexplained. 28. Exhibit-C is an identity card dated 05.08.2016 issued by the Gaonburah certifying that Mazor Ali, aged about 53 years, was the son of Late Umed Ali of village-Nichuka. Tribunal was justified in not accepting this document as a valid piece of evidence in the absence of the author of the certificate testifying before the Tribunal to prove the contents of the certificate as well as the truthfulness thereof. Moreover, this is only a residentship certificate and by no stretch can be put to use as a proof of citizenship. Moreover, declaration of petitioner's age in this certificate, i.e., 53 years in 2016, making his year of birth 1963, is contradictory to the year of birth as per petitioner's testimony (1962) and as per Exhibit-B (1959). 29. Net result of the above discussion is that petitioner had failed to discharge his burden under Section 9 of the Foreigners' Act, to prove that he is not a foreigner but a citizen of India by adducing cogent and reliable evidence. The narrative presented by the petitioner suffers from multiple material contradictions and omissions, thereby rendering the version of the petitioner highly improbable. 30. At this stage, we may briefly respond to the submissions made by learned counsel for the petitioner. Regarding the submission that the notice issued to the petitioner by the Tribunal did not mention the stream of foreigners to which the petitioner belonged, we find that in the notice dated 19.05.2016 the inapplicable portion, that is, whether the notice belonged to the post 25.03.1971 stream or between the 01.01.1966 to 24.03.1971 stream was not struck off by the Tribunal. Adverting to the written statement and evidence-in-chief of the petitioner, we find that at no point of time, petitioner had raised this issue before the Tribunal saying that non-specification of the stream of foreigners in the notice had caused prejudice to him by preventing him from putting up an effective defence. Such a ground has not even been taken in the writ petition and was only put forward as an oral submission at the time of hearing without any pleading. However, notwithstanding the same, we find from the record that the reference was made against the petitioner by suspecting him to be an illegal migrant under the IMDT Act. As already noticed above, 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. Therefore, it is more than evident that the allegation against the petitioner was that he was an illegal Bangladeshi national of post 25.03.1971 stream. That apart, the record clearly discloses that it was the specific case of the State that the petitioner was an illegal migrant, who had entered into India (Assam) from Bangladesh in an unauthorized manner after 25.03.1971. In Ananda Ghosh Vs. Union of India, 2017 (3) GLR 815, followed by Abiran Nessa Vs. Union of India, 2017 (4) GLR (NOC) 5, this Court has held that wrong mentioning of the stream of foreigners in the notice contrary to the reference made by the State would not vitiate the ultimate conclusion reached by the Foreigners' Tribunal that the proceedee is a foreigner of post-25.03.1971 stream. As a matter of fact, in the present case, there was no wrong mentioning of the stream of foreigners; only the inapplicable portion was not struck off in the notice. Therefore, this submission of the learned counsel for the petitioner has no substance and is accordingly rejected. 31. Regarding the second contention that evidence of the petitioner was not challenged by the State which also did not lead rebuttal evidence and, therefore, the evidence of the petitioner should have been accepted in its entirety, we are of the view that such contention runs counter to the mandate of Section 9 of the Foreigners' Act, 1946, where burden is placed on the proceedee to prove that he is not a foreigner but a citizen of India by adducing cogent and reliable evidence. As discussed above, petitioner had failed to discharge the onerous burden which was on him to establish that he was not a foreigner but a citizen of India. We also find from the materials on record that there was no Government Advocate for the State and in the absence of Government Advocate, Tribunal had put certain queries to the petitioner in the course of evidence being tendered to elicit necessary information. Merely exhibiting some documents without proving the same would not amount to discharge of burden under Section 9 of the Foreigners' Act, 1946. Therefore, this contention of the petitioner is also without substance. Reliance placed on the decisions in Standard Chartered Bank (supra) and Abdul Khalique (supra), would be of no assistance to the petitioner. 32. Having said so, we feel that absence of Government Pleader in the Foreigners' Tribunals would seriously hamper prosecution of the references before the Foreigners' Tribunals. This aspect of the matter should be looked into by the Government of Assam in the Home and Political Department and effective steps may be taken immediately for appointment of Government Pleaders in all the Foreigners' Tribunals of the State. 33. Coming to the last contention of the petitioner, that is, evidence of one Moniruddin was not examined by the Tribunal, we find that such a plea has not been taken in the writ petition. There is no averment in the writ petition regarding tendering of evidence by Moniruddin. As a matter of fact, there is no disclosure as to who this Moniruddin is. In the review petition filed before the Tribunal, all that the petitioner stated was that because of the fault of his lawyer he could not adduce further witness as DW-2 without mentioning as to who that further witness could be. We have also thoroughly gone through the record but we do not find any evidence-in-chief of any witness No. 2 on behalf of the petitioner, Moniruddin or otherwise. Copy of such evidence-in-chief has also not been annexed to the writ petition. Therefore, we are of the view that such a contention has been advanced as an afterthought only after noticing the entries dated 21.09.2016 and 08.11.2016 in the ordersheet which appear to have been entered inadvertently. 34. That being the position, we do not find any merit in the writ petition which is accordingly dismissed. Interim order passed earlier stands vacated. 35. 34. That being the position, we do not find any merit in the writ petition which is accordingly dismissed. Interim order passed earlier stands vacated. 35. Registry to inform the concerned Foreigners' Tribunal, Superintendent of Police (Border) and Deputy Commissioner for taking necessary follow-up steps. 36. A copy of this order may also be furnished to learned Standing Counsel, Election Commission of India and National Register of Citizens (NRC), for doing the needful. 37. Registrar (Judicial) may forward a copy of this order to the Principal Secretary, Home and Political Department, Government of Assam, having regard to the observations made in paragraphs-31 and 32 of this judgment.