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2018 DIGILAW 616 (GAU)

Falu Das v. Union of India

2018-04-09

AJIT BORTHAKUR, UJJAL BHUYAN

body2018
ORDER : 1. Heard Mr. R. Islam, learned counsel for the petitioner and Mr. J. Payeng, 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 28.07.2017 passed by the Foreigners Tribunal No. 2, Nalbari in FT (Nal.) M-2 Case No. 37/2017, State vs. Falu Das declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from Bangladesh after 25.03.2017. 3. Initially petitioner had filed WP (C) No. 6626/2017 assailing the legality and correctness of the aforesaid order of the Tribunal. Subsequently, learned counsel for the petitioner withdrew the writ petition on 19.2.2018 with liberty to file afresh. Thereafter, the present writ petition was filed. 4. Notice in this case was issued on 28.2.2018 with the observation that an endeavour would be made to dispose of the writ petition on the returnable date. 5. Mr. R. Islam, learned counsel for the petitioner besides assailing the legality and correctness of the impugned order dated 28.07.2017 has raised two other issues at the time of hearing. The first being an order dated 25.06.2014 passed by the then Foreigners Tribunal, Nalbari in F.T. (Nal.) Case No. (N) 3091/2006 whereby the proceedee Malati Bala Das was held to be not a foreigner. He submits that Malati Bala Das is the daughter of the petitioner and, therefore, benefit of this order be extended to the petitioner. Second contention of the petitioner is that since petitioner belongs to the Hindu community, benefit of the Central Government Notifications dated 07.09.2015 be extended to the petitioner in terms of the decision of this Court in Sandhya Rani Paul vs. State of Assam, 2015 (5) GLT 271. Therefore, present is a fit case for remand. 6. On the other hand, Mr. J. Payeng, learned Special Counsel submits that the pleadings and documents relied upon by the petitioner are a bundle of contradictions rendering the version of the petitioner totally unbelievable. He submits that though the petitioner tried to project Bhulu Rajbongshi as his father, he could not establish the relationship by adducing cogent, reliable and admissible evidence. He wondered as to how the surname Rajbongshi became Das. According to him, this was a desperate attempt by the petitioner to link up with the surname Rajbongshi as Rajbongshis are an indigenous community of Assam. He wondered as to how the surname Rajbongshi became Das. According to him, this was a desperate attempt by the petitioner to link up with the surname Rajbongshi as Rajbongshis are an indigenous community of Assam. Therefore, impugned order does not suffer from any infirmity to warrant interference. 7. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record. 8. Record discloses that an inquiry was conducted against the petitioner by the Superintendent of Police (Border), Nalbari under the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) and under the Illegal Migrants (Determination by Tribunals) Rules, 1984 (IMDT Rules). 9. As per report of the Inquiry Officer dated 07.12.2001, petitioner was prima facie suspected to be an illegal migrant. This inquiry report was examined by the higher authorities and thereafter, scrutinized by the screening committee which suspected the petitioner to be an illegal migrant and recommended making of reference. Thereafter, Superintendent of Police (Border), Nalbari made the reference on 28.01.2002 suspecting the petitioner to be an illegal migrant. 10. 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. 11. The reference was registered as IMDT Case No. 1052/2001 before the Tribunal constituted under the IMDT Act. 12. Be it stated that IMDT Act was declared unconstitutional by the Supreme Court in Sarbananda Sonowal vs. Union of India, (2005) 5 SCC 665 , with the further direction that the references which were pending before the Tribunals constituted under the IMDT Act should be transferred to the Tribunals constituted under the Foreigners Act, 1946 read with the Foreigners (Tribunals) Order, 1964. Accordingly, the related reference was transferred to the then Foreigners Tribunal, Nalbari and after creation of additional Tribunals, the reference was assigned to the Foreigners Tribunal No. 2, Nalbari at Mukalmua (Tribunal) were it was registered as F.T. (Nal.) M-2 Case No. 37/2017. 13. In his written statement filed before the Tribunal on 06.03.2017, petitioner stated that he was a citizen of India by birth and a permanent resident of village Chatemari under Mukalmua police station in the district of Nalbari. His father was Tepu Rajbongshi, son of Lt. Jay Singh and mother was Kiran Rajbongshi. 13. In his written statement filed before the Tribunal on 06.03.2017, petitioner stated that he was a citizen of India by birth and a permanent resident of village Chatemari under Mukalmua police station in the district of Nalbari. His father was Tepu Rajbongshi, son of Lt. Jay Singh and mother was Kiran Rajbongshi. They were permanent residents of village Mandia Gaon under Baghbar Police Station in the then district of Kamrup (now Barpeta district) at the time of birth of the petitioner. It was stated that petitioner subsequently shifted to village Chatemari under Mukalmua Police Station. At another place, petitioner mentioned that his father's name was Bhulu Rajbongshi and he was a voter in 1966 of Baghbar constituency. His name appeared in the NRC legacy data of 1970. Petitioner's name appeared in the voters list of 1993 and in subsequent years. 14. This was all that the petitioner stated in his written statement which was wholly inadequate to establish his identity 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). Petitioner did not mention his date or year of birth, consequently, his age at the time of filing the written statement remained undisclosed. He also did not mention the name of his mother and paternal grandmother, not to speak of his brothers and sisters, if any. Moreover, petitioner did not mention about his marital status, including the name of his wife and children. All that he stated was that his father and mother were residents of vilallage Mandia Gaon where they were voters but petitioner shifted to village Chatemari. However, even on the face of the written statement, there is material contradiction in the name of the father inasmuch as in paragraph 3, petitioner mentioned Tepu Rajbongshi as his father whereas in paragraph 5, he mentioned Bhulu Rajbongshi to be his father. There is no pleading to the effect that Tepu Rajbongshi and Bhulu Rajbongshi was one and the same person. There was also no explanation as to how and why petitioner's name was Falu Das and not Falu Rajbongshi, if indeed he belonged to the Rajbongshi community. On the basis of the pleadings, petitioner was required to prove that Tepu Rajbongshi and Bhulu Rajbongshi was one and the same person. There was also no explanation as to how and why petitioner's name was Falu Das and not Falu Rajbongshi, if indeed he belonged to the Rajbongshi community. On the basis of the pleadings, petitioner was required to prove that Tepu Rajbongshi and Bhulu Rajbongshi was one and the same person. He was also required to prove that Tepu Rajbongshi and Bhulu Rajbongshi was his father and finally he was also required to prove that Tepu Rajbongshi and Bhulu Rajbongshi were citizens of India. 15. Let us now examine the evidence tendered by the petitioner to see whether the above facts in issue could be proved by the petitioner. In his evidence-in-chief filed by way of affidavit on 23.03.2017, petitioner narrated more or less the same thing as stated in the written statement except that this time petitioner did not mention the name Tepu Rajbongshi. In addition, he disclosed his age as 69 years which would mean that he was born sometime in the year 1948 (2017-69 : 1948). Tribunal had put certain queries to the petitioner on 05.05.2017 for clarification. Here he tried to explain that his father was Bhulu Rajbongshi. He also stated that his grandfather's name was Kali Charan Rajbongshi. He further stated that the name of his wife was Karfula Das and he had six children, namely, Alo Bula Das, Malati Bala Das, Anamika Das, Tuni Bala Das, Bhagwan Das and Duryodhan. At the age of 10 years, he had migrated to village Chatemari along with Narayan Das whom he claimed to be a distant relative after the death of his parents. 16. Pausing here for a moment, we find that while the petitioner mentioned his grandfather's name as Jay Singh in the written statement, in his evidence he mentioned Kali Charan Rajbongshi as his grandfather. Here also he did not explain as to why his name was Falu Das and not Falu Rajbongshi. 17. Petitioner filed as many as 8 documents which were marked as Ext Nos. 1 to 8. 18. Ext. 1 is a certified copy extract of the voters list of 1966 in respect of Baghbar constituency. Here, the two voters were Bhulu Rajbongshi, son of Jay Singh, aged 42 years; and Kiran Rajbongshi, wife of Bhulu, aged 28 years. They were shown as residents of Mandia village. Ext. 1 to 8. 18. Ext. 1 is a certified copy extract of the voters list of 1966 in respect of Baghbar constituency. Here, the two voters were Bhulu Rajbongshi, son of Jay Singh, aged 42 years; and Kiran Rajbongshi, wife of Bhulu, aged 28 years. They were shown as residents of Mandia village. Ext. 2 is a voter detail statement stated to have been obtained from the office of the State Coordinator, National Register of Citizens (NRC). Here the name of the voter with respect to the voting year 1970 was mentioned as Bhulu Rajbongshi with father's name Jay Singh. 19. Pausing for a moment, we find that petitioner had stated before the Tribunal that his father was Bhulu Rajbongshi and grandfather's name was Kali Charan Rajbongshi. But in exhibits 1 and 2 it is Bhulu Rajbongshi, son of Jay Singh. 20. Ext. 3 is a certified copy extract of the voters list of 1993 in respect of Barkhetri Constituency. In this exhibit, the two voters were Falu Das, son of Bhulu, aged 46 years; and Karfula Das, wife of Falu, aged 35 years. They were shown as residents of Chatemari village. Similar is the position in respect of exhibit 4 which is a certified copy extract of the voters list of 1997 with one crucial contradiction inasmuch as age of Falu Das in 1997 was shown as 45 years whereas he was 46 years in 1993. Even if we overlook such discrepancy, what is discernible from exhibits 3 and 4 is that Falu Das is the son of Bhulu of village Chatemari under Mukalmua Police Station. In both the documents, the father is Bhulu, neither Bhulu Das nor Bhulu Rajbongshi. In 1993, he was 46 years of age which would make his year of birth 1947 which is more or less identical to the year of birth on the basis of petitioner's disclosure of age in his evidence-in-chief. According to the evidence of the petitioner, he had migrated from Mandia to Chatemari at the age of 10 years after his parents had expired. From the above, what is evident is that petitioner was born either in 1947 or in 1948. Either way, he would have been 10 years of age in 1958 when he had migrated from Mandia to Chatemari after the death of his parents. Therefore, as per his evidence, his parents had expired prior to 1958. From the above, what is evident is that petitioner was born either in 1947 or in 1948. Either way, he would have been 10 years of age in 1958 when he had migrated from Mandia to Chatemari after the death of his parents. Therefore, as per his evidence, his parents had expired prior to 1958. If that be so, then his father could not have been a voter in 1966 vide exhibit-1 and his name could not have been shown as a voter in 1970 vide exhibit-2. Therefore, Bhulu Rajbongshi of exhibits 1 and 2 is not the same person as Bhulu of exhibits 3 and 4. 21. Exhibit 5 is a certified copy extract of the voters list of 2005 containing the names of Falu Das and Karfula Das, so is exhibit 6 which is an extract copy of the voters list of 2014 of the aforesaid two persons. In both these exhibits, Falu Das was shown as son of Bhululike in exhibits 3 and 4. Exhibit 7 is an Elector Photo Identity Card of elector Falu Das, with the relations name as Bhulu. Therefore, till this point of time, there is no documentary evidence to show that Falu Das was the son of Bhulu Rajbongshi whose presence could be traced to a period prior to 25.3.1971 which is the cut-off date for identification of foreigners in the State of Assam as per Section 6A of the Citizenship Act, 1955, as amended. 22. It was at that point of time that exhibit 8 was introduced by the petitioner which is a certificate dated 27.02.2017 issued by Sri Debo Bala Das, Gaonburah of Chatemari village certifying that Falu Das was the son of Lt. Bhulu Das. This document cannot be accepted as a valid piece of evidence for more than one reason. Firstly, we have already seen that the reference against the petitioner was made as far back as on 28.01.2002. This document was obtained 15 years thereafter in the year 2017. Such belated issuance of exhibit 8 certainly casts serious doubts about the bona fides of such a certificate. That apart, the Gaonburah did not testify before the Tribunal on the basis of contemporaneous record to prove exhibit 8 and its contents, including the truthfulness thereof. However, even if we accept this certificate at its face value, it only says that Falu Das was the son of Lt. That apart, the Gaonburah did not testify before the Tribunal on the basis of contemporaneous record to prove exhibit 8 and its contents, including the truthfulness thereof. However, even if we accept this certificate at its face value, it only says that Falu Das was the son of Lt. Bhulu Das but as already noticed above, there is no document on record to show presence of Bhulu Das on Indian soil prior to 25.03.1971. It does not say that Falu Das was the son of Bhulu Rajbongshi. 23. Therefore, it is quite clear that petitioner made a deliberate attempt to project himself as the son of Bhulu Rajbonghi for obvious reasons but he failed to prove this linkage by adducing evidence, whether admissible or in-admissible. There is also nothing on record to suggest that people having the surname 'Das' belong to the Rajbongshi community. 24. Thus that petitioner had 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. 25. In such circumstances, we do not find any good ground to interfere with the impugned order passed by the Tribunal. Writ petition is devoid on merit and is accordingly dismissed. 26. Before parting with the record we may advert to the two submissions made by learned counsel for the petitioner. 27. In so far the order of the Foreigners Tribunal, Nalbari in FT (Nal.) Case No. (N) 3091/2006, State vs. Malati Bala Das, dated 25.06.2014 is concerned, in his written statement filed on 06.03.2017 petitioner did not mention that he had a daughter by the name of Malati Bala Das; that a proceeding was registered against her and that she got a favourable order 3 years earlier on 25.06.2014. Had Malati Bala Das indeed been the daughter of the petitioner, he would have certainly mentioned it in the written statement (filed later on 06.03.2017) as well as in his evidence-in-chief (filed later on 23.3.2017) that his daughter Malati Bala Das was declared to be not a foreigner by the Foreigners Tribunal. This is contrary to normal human conduct. That apart, if indeed Malati Bala Das was the daughter of the petitioner as is being claimed, she should have deposed before the Tribunal to prove the above. 28. This is contrary to normal human conduct. That apart, if indeed Malati Bala Das was the daughter of the petitioner as is being claimed, she should have deposed before the Tribunal to prove the above. 28. Having said that, we have looked into the order dated 25.06.2014 passed by the Foreigners Tribunal, Nalbari in the case of Malati Bala Das. Since this order is not under challenge before us, we are refraining from expressing any opinion in the questionable manner in which the opinion was rendered by the Tribunal. Beyond this, we would not like to comment more on this order as any adverse observation made by us may cause prejudice to Malati Bala Das who is not before us. 29. In so far reference to Sandhya Rani Paul (supra) is concerned and plea of the learned counsel for the petitioner to extend the benefit of the Central Government Notifications dated 07.09. 2015 to the petitioner is concerned, this Court has already held that as per the aforesaid Central Government Notifications, minority citizens of Pakistan and Bangladesh who have taken shelter in India on account of religious persecution or fear of religious persecution would be allowed to stay in India irrespective of validity or otherwise of their documents. Examining these two Central Government Notifications, this Court has already held in more than one case that sine qua non for invoking these two Central Government Notifications is that the applicant has to be a minority citizen of Pakistan and Bangladesh and because of religious persecution or fear of religious persecution he had taken shelter in India. It is only then the protection of these two Notifications would be available. 30. We have perused the written statement and the evidence-in-chief of the petitioner. Nowhere he stated that he or for that matter his parents had migrated to India from East Pakistan or present day Bangladesh because of religious persecution. His pleaded case was that he was born in 1947 or 1948 at Mandia village under Baghbar Police Station in the present district of Barpeta. In the first sentence of the writ petition, petitioner has stated that he is a citizen of India by birth which statement was also made in the written statement at paragraph 2. If that be so, benefit of the above two Central Government Notifications would not be available to the petitioner. 31. In the first sentence of the writ petition, petitioner has stated that he is a citizen of India by birth which statement was also made in the written statement at paragraph 2. If that be so, benefit of the above two Central Government Notifications would not be available to the petitioner. 31. Therefore, both the above contentions of the petitioner are wholly untenable and are accordingly rejected. 32. There is one more important aspect to which our attention has been drawn which we would like to mention. Petitioner has annexed a number of documents in the writ petition which are not part of the record. Two such documents are annexure 16 (page 64) and annexure 17 (page 66). Annexure 16 is a certificate issued by Gaonburah Debo Bala Das on 31.07.2017. The same Gaonburah had earlier issued exhibit 8 certificate dated 27.02.2017 which we have discussed above. This certificate (annexure-16) was issued after the impugned order was passed by the Tribunal on 28.07.2017. After the Tribunal had declared the petitioner to be a foreigner, the Gaonburah could not have issued annexure 16 document. This is a serious misconduct on the part of the Gaonburah, if indeed he had issued the said certificate. But more serious is annexure 17 which is a certificate issued by one Sri Luhit Das, Gaonburah of Mandia village dated 17.10.2017. In addition to being a post decision certificate what is striking about this document is the use of the State Emblem of India at the top of the certificate. Central Government had framed the State Emblem of India (Regulation of Use) Rules, 2007 in exercise of the powers conferred by Section 11 of the State Emblem of India (Prohibition of Improper Use) Act, 2005 regulating the use of the State Emblem of India in official seal and stationery. As per Rule 6(1), the use of the emblem on official stationery shall be restricted to the authorities specified in schedule 1. Schedule 1 contains the list of constitutional and statutory authorities authorized to use the state emblem. A Gaonburah is not included in the list of authorities as per schedule 1. As per Rule 10(1), no person other than those authorized shall use the emblem in any manner. 33. In such circumstances, annexure-17 does not appear to be a genuine document. Schedule 1 contains the list of constitutional and statutory authorities authorized to use the state emblem. A Gaonburah is not included in the list of authorities as per schedule 1. As per Rule 10(1), no person other than those authorized shall use the emblem in any manner. 33. In such circumstances, annexure-17 does not appear to be a genuine document. But we find that the filing advocate had certified this annexure to be certified to be true copy. 34. This is a matter of serious concern. Ordinarily we would have imposed cost on the petitioner or on the lawyer. But having regard to the nature of the litigation and the fact that petitioner is awaiting deportation, we refrain from imposing cost. However, we caution the filing advocate to be careful in future as reckless certifying of any document as true copy may entail serious consequences. 35. Subject to the above observations, writ petition is dismissed. 36. Registry to send down the LCR forthwith and inform the concerned Foreigners' Tribunal, Deputy Commissioner and Superintendent of Police (Border) for doing the needful. 37. Copy of this order shall be forwarded to learned Standing Counsel, Election Commission of India and State Coordinator, NRC.