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2018 DIGILAW 593 (GAU)

Halim Khan v. Union of India

2018-04-04

NELSON SAILO, UJJAL BHUYAN

body2018
JUDGMENT : Ujjal Bhuyan, J. 1. This case was heard on 06.03.2018, and today is fixed for delivery of order. Heard Mr. B.P. Sinha counsel for the petitioner and Mr. J. Kalita, learned Special Counsel, Foreigners Tribunal (FT). 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 14.09.2016, passed by the Foreigners Tribunal No. 1, Dhubri in Case No. 2338/D/2010 (Union of India v. Halim Khan), declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from Bangladesh after 25.03.1971. 3. This Court by order dated 24.01.2017 had issued notice while requisitioning the case record and passed an interim order to the effect that petitioner should be allowed to remain on bail subject to his appearance before the Superintendent of Police (Border), Dhubri and furnishing of adequate surety. 4. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record, including the record requisitioned from the Tribunal. 5. Record discloses that Election Commission of India had ordered intensive revision of electoral roll of Dhubri Constituency in the State of Assam with reference to 01.01.1997 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, Electoral Registration Officer for the said constituency expressed 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 the petitioner was not a citizen of India. 6. Thereafter the matter was forwarded to the Superintendent of Police (Border), Dhubri. who after completing the necessary formalities, made a reference to the Illegal Migrants (Determination) Tribunal, Dhubri under Section 8(1) of the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act). suspecting the petitioner to be an illegal migrant. 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 reference was registered as IMDT Case No. 21500/D/2004. 7. It is distressing to note that since the registration of the aforesaid reference, no steps were taken by the IMDT Tribunal, Dhubri till 28.07.2005. 8. The reference was registered as IMDT Case No. 21500/D/2004. 7. It is distressing to note that since the registration of the aforesaid reference, no steps were taken by the IMDT Tribunal, Dhubri till 28.07.2005. 8. At this stage, it may be mentioned that IMDT Act was declared unconstitutional by the Supreme Court in Sarbananda Sonowal v. Union of India, reported in (2005) 5 SCC 665 with the further direction that references which were pending before the Tribunals constituted under the IMDT Act should be transferred to the Foreigners Tribunals constituted under the Foreigners Act, 1946 read with the Foreigners (Tribunals) Order, 1964. Even then, there was no progress at all in the reference from 28.07.2005 to 27.04.2011. It appears that after long six years, the reference was assigned to the Foreigners Tribunal No.1, Dhubri, where it was re-registered as FT Case No. 2338/D/2010. Here also, on the point of service of notice, despite occasional appearance by the petitioner once in a while, Tribunal continued to issue notices after notices till 11.11.2015 i.e., for more than 4 years whereafter, finally petitioner entered appearance with adjournment petition to file written statement. Thereafter, petitioner again started seeking adjournments, which were readily granted by the Tribunal. Finally, the written statement was filed on 08.03.2016. 9. The above sequence of events is a poor reflection in the way the Tribunal had conducted the reference. Even if we overlook the complete standstill before the IMDT Tribunal, for the Foreigners Tribunal to take more than five years to accept written statement by a procedee who was suspected to be an illegal migrant by the State speaks volumes about the efficiency of the Tribunal. Had the petitioner not filed written statement, Tribunal might have continued to grant adjournments ad infinitum. It is time that the Foreigners Tribunals should take up the references in all seriousness so that references can be disposed of expeditiously having regard to the mandate of the Foreigners (Tribunals) Order, 1964. Once notice is served upon a procedee, there is no necessity for issuing fresh notice to a procedee by the same Tribunal for the subsequent default of the procedee. 10. Having said that, we find that in his written statement, petitioner mentioned the name of his father as Hazarat Ali. Once notice is served upon a procedee, there is no necessity for issuing fresh notice to a procedee by the same Tribunal for the subsequent default of the procedee. 10. Having said that, we find that in his written statement, petitioner mentioned the name of his father as Hazarat Ali. Father was a voter of 1966 in respect of Goalpara West Constituency whereafter, petitioner became a voter of Dhubri Constituency in 1997, 2010, 2013, 2014 and 2015. Petitioner was residing at Jhagrarpar Part-I under Dhubri Police Station. In the supporting affidavit, petitioner disclosed his age as 46 years. 11. From this written statement what is discernible is that according to the petitioner, his father Hazarat Ali was a citizen of India, since he was a voter in 1966. Being his son, he was therefore a citizen of India. Though the petitioner did not mention the date or year of his birth, from the disclosure of age in the affidavit i.e., 46 years, it would mean that petitioner was born sometime in the year 1970. In his evidence-in-chief filed by way of affidavit, petitioner not only developed his case, but made contradictory statements about his age and the name of his father. This affidavit was filed on 05.05.2016. In this affidavit, petitioner mentioned his age as 61 years, which would mean that he was born sometime in the year 1955. While from the written statement, we find that petitioner was bom in 1970, but from his evidence-in-chief, we find that he was born in 1955; both being declarations on oath having significant deviation. Pausing here for a moment, we find that in the affidavit sworn by the petitioner on 10.01.2017 in support of the writ petition, he declared his age as 67 years, which would mean that he was born sometime in the year 1950. This declaration of age was also on oath. Therefore, till this point of time, we have three years of birth of the petitioner, all declared on oath, viz - (a) in the written statement, it is 1970; (b) in the evidence-in-chief, it is 1955; and (c) in the writ petition, it is 1950. 12. Petitioner could not have been born in 1970, 1955 and 1950 at one and the same time. Such material inconsistencies right at the threshold renders the version of the petitioner highly suspect. 13. 12. Petitioner could not have been born in 1970, 1955 and 1950 at one and the same time. Such material inconsistencies right at the threshold renders the version of the petitioner highly suspect. 13. At this stage, we may also point out one crucial aspect which we have noticed. Both in the written statement and in the evidence-in-chief, petitioner had put his left thumb impression, meaning thereby that he was an illiterate person, which was identified by the filing Advocate. But in the affidavit sworn in support of the writ petition, he had sworn the same by scribing his signature. This itself again cast a serious shadow of doubt about the veracity of the narration presented by the petitioner. According to the evidence-in-chief, father was born and brought up at village-Garojan under Lakhipur Police Station in the district of Goalpara. His name appeared in the voters lists of 1966 and 1970. Petitioner was a resident of village-Jhagrarpar Pt-1 under Dhubri Police Station. He became a voter in 1985 in respect of Jaleswar Constituency and again in 1997 in respect of Dhubri Constituency. In 2010, he along with his wife Monowara Bibi were voters of Dhubri Constituency. 14. Proceeding to the exhibits, we find that Ext-1 is a certified copy of the voters list of 1966 in respect of Goalpara West Constituency. Here the sole voter was Hazarat Ali, son of Jarif Kha, aged 35 years. He was a resident of village-Garojan under Lakhipur Police Station. This position continued in Ext-2, which is an extract of the voters list of 1970 with corresponding increase in age of Hazarat Ali. 15. Ext-3 is a certificate dated 13.03.2016, issued by the President, Jhagrarpar Gaon Panchayat, certifying that Halim Khan was the son of Hajarat Khan of village-Jhagrarpar Pt-I under Dhubri Police Station. Interestingly, in this certificate, the President referred to the certificate holder i.e., petitioner as a D voter, meaning thereby doubtful (D) voter. This certificate cannot be accepted as a valid piece of evidence for more than one reason. Firstly, we had seen registration of the initial reference against the petitioner in the year 2004. This certificate was issued 12 years thereafter in 2016 which would naturally cast serious aspirations on the bonafides of such a belated certificate. This certificate cannot be accepted as a valid piece of evidence for more than one reason. Firstly, we had seen registration of the initial reference against the petitioner in the year 2004. This certificate was issued 12 years thereafter in 2016 which would naturally cast serious aspirations on the bonafides of such a belated certificate. That apart, in Exts-1 and 2, name of voter was Hazarat Ali and he was shown as a resident of village-Garojan under Lakhipur Police Station whereas, in Ext-3 Halim Khan was certified to be the son of Hajarat Khan (not Hazarat Ali) of village-Jhagrarpar Pt-I under Dhubri Police Station. Therefore, Hazarat Ali of Exts-1 and 2 and Hajarat Khan of Ext-3 could not have been one and the same person. Thirdly, the author of the certificate did not testify before the Tribunal on the basis of contemporaneous record to not only prove the said certificate, but also the contents thereof, including clarification of the discrepancies noticed above. 16. Lastly, in Rupjan Begum v. Union of India, reported in (2018) 1 SCC 579 , Supreme Court has clarified that Gaon Panchayat Certificate is basically for married woman and is used as a linkage document of such married woman. It has been clarified that such a certificate by no means is proof of citizenship. Such certificate has to be verified at two stages i.e., verification of the genuineness of the document and secondly, verification of the contents. There is nothing on record to show that such verification had taken place. Therefore, no reliance can be placed on Ext-3. 17. Exts-4 and 5 are certified copies of voters lists of Dhubri Constituency for the years 1997 and 2010. In Ext-4, the sole voter was Halim Khan, son of Hazarat Khan, aged 40 years. If we take his age i.e., 40 years in 1997, it would mean that he was born in 1957. This would be the fourth year of birth of the petitioner. That apart, Halim Khan was a voter of Dhubri Constituency. Similarly in Ext-5 (2010), Halim Khan was 41 years of age, which would mean his year of birth is 1969 which would be the fifth year of birth of the petitioner. The two other voters were Monowara Bibi, stated to be his wife and Rejia Bewa, stated to be his sister. Similarly in Ext-5 (2010), Halim Khan was 41 years of age, which would mean his year of birth is 1969 which would be the fifth year of birth of the petitioner. The two other voters were Monowara Bibi, stated to be his wife and Rejia Bewa, stated to be his sister. But in the written statement, petitioner never mentioned that his wife was Monowara Bibi and that he had a sister by the name of Rejia Bewa. However. the crucial fact is that Halim Khan, son of Hazarat Khan of Exts-4 and 5 was a voter of Dhubri Constituency whereas, Hazarat Ali of Exts-1 and 2 was a voter of Goalpara West Constituency; two different constituencies altogether. 18. Ext-6 is an elector photo identity card in the name of Halim Khan, where his relation's name was mentioned as Hajarat Khan. In this identity card, Halim Khan was shown as a resident of village-Jhagrarpar under Dhubri Police Station. This document also does not establish any linkage of Halim Khan with Hazarat Ali of Exts-1 and 2. 19. Ext-7 is a land document (final khatian) in the name of Hajar Ali Sheikh. But here, he was shown as resident of village-Mespara under South Salmara Police Station in the then district of Goalpara; a totally different address altogether. This document also does not help the petitioner in any manner in establishing linkage with Hazarat Ali of Exts-1 and 2. 20. Thus, net result of the above discussion is that petitioner had failed to establish his linkage with Hazarat Ali whom he claimed to be his father and a citizen of India relatable to a period prior to 25.03.1971, which is the cutoff date for identification of foreigners in the State of Assam as per Section 6 A of the Citizenship Act, 1955, as amended. A mere bald statement that his father was Hazarat Ali @ Hazarat Ali Sk. @ Hazarat Khan, in the absence of any supporting evidence, would not be an acceptable explanation of such material discrepancies. Thus petitioner failed to discharge his burden under Section 9 of the Foreigners Act, 1946 to prove that he was not a foreigner but a citizen of India. 21. Resultantly, we do not find any merit in the writ petition to warrant interference. 22. Consequently, the writ petition is dismissed. 23. Interim order passed earlier stands vacated. 24. Thus petitioner failed to discharge his burden under Section 9 of the Foreigners Act, 1946 to prove that he was not a foreigner but a citizen of India. 21. Resultantly, we do not find any merit in the writ petition to warrant interference. 22. Consequently, the writ petition is dismissed. 23. Interim order passed earlier stands vacated. 24. Registry to send down the LCR and inform the concerned Foreigners Tribunal, Deputy Commissioner and Superintendent of Police (Border) for necessary follow-up steps. A copy of this order be furnished to learned Standing Counsel, Election Commission of India and State Co-ordinator, NRC.