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2019 DIGILAW 454 (GAU)

Jatin Mandal v. Union of India

2019-04-09

SANJAY KUMAR MEDHI, SANJAY KUMAR MEDHI

body2019
JUDGMENT : 1. The extra-ordinary jurisdiction conferred on this Court under Article 226 of the Constitution of India has been sought to be invoked by filing the instant petition. The petitioner has put to challenge the opinion rendered by the learned Foreigners Tribunal No.2, Boko, Kamrup (R) vide Judgment & Order dated 12.03.2018 passed in B.F.T. Case No. 1000/2016. By the impugned judgment, the petitioner has been declared to be a foreigner and consequent directions have been passed. 2. The facts of the case may be narrated briefly as follows: 3. A reference was made by the Referral Authority to the learned Tribunal for an opinion on the status as to whether the petitioner was a foreigner or an Indian citizen. On registration of the reference, notices were issued and the petitioner who was the opposite-party had contested the reference by filing written statement and adducing evidence. 4. The pleaded case of the petitioner before the learned Tribunal was that he was an Indian citizen having born at village Basulla Danga in the Jalpaiguri district of West Bengal. He claims reliance upon the registration certificate in favour of his mother Suhagi Mandal made in the year 1965 and that his name is enlisted in the Voters list of the years 1997, 2005, 2010 and 2017 and was also issued of Voter ID Card. It is the case of the petitioner that after the death of his father he and his mother had shifted to Kahibari. 5. As stated above, the petitioner adduced evidence through himself and the Government Gaonburah as DW-2 from his side. Along with the evidence, 9 nos. of documents were exhibited. 6. We have heard heard Shri G. Sarma, learned counsel for the petitioner as well as Shri A. Kalita, learned Standing Counsel, Foreigners Tribunal for respondent nos. 2 to 6. None appears for respondent no.1. We have also carefully examined the records which were requisitioned vide an earlier order. 7. Coming to the merits of the case, this Court has to keep in mind that in exercise of power under Article 226 of the Constitution of India, it is the decision making process which would constitute the subject matter of scrutiny. This Court is not an appellant Court and would not make a roving enquiry and go into the details of the evidence recorded before the learned Tribunal. This Court is not an appellant Court and would not make a roving enquiry and go into the details of the evidence recorded before the learned Tribunal. Interference would generally be refused with the opinions of the Tribunal which are findings of facts unless i. The findings are perverse; ii. Relevant materials are ignored/over looked; iii. Irrelevant and extraneous materials are taken into consideration; iv. The findings are so unreasonable and arbitrary that no reasonable person of ordinary prudence would have arrived at the same. 8. Having reminded ourselves of the self imposed restrictions, the impugned Judgment & Order dated 12.03.2018 is sought to be scrutinised. It is also necessary to be kept in mind that under Section 9 of the Foreigners Act, 1946, the proceedee has a heavy burden to discharge and not only all the facts are required to be pleaded, the same are required to be proved by cogent evidence and in accordance with law. 9. Amongst the various documents brought on record, the petitioner has projected the link document to be the Registration Certificate issued under Rule 10 of the Citizenships Rules in the name of his mother which is of the year 1965. It appears from the various Voters list from the years 1997 onwards containing the name of the petitioner which were exhibited that the year of birth of the petitioner would be approximately 1953 and therefore when the Registration Certificate was issued, the petitioner was aged about 12 years. There is no explanation as to why similar Registration Certificate was not issued in the name of the petitioner or in the alternative why his name was not included in the said certificate of 1965. In any case, the said certificate though marked as exhibit-A has not been proved in accordance with law as no witness on behalf of the registering authority was produced. It is also failed to be understood as to why any Voters list prior to 1997 containing the name of the petitioner has not been exhibited so as to establish a link of the petitioner with Suhagi Mandal who has been projected to be his mother. In absence of any other credible evidence, it cannot be said that the opinion expressed by the learned Tribunal suffers from any material infirmity or illegality. 10. In absence of any other credible evidence, it cannot be said that the opinion expressed by the learned Tribunal suffers from any material infirmity or illegality. 10. In view of the above, we hold that the writ petitioner has failed to make out a case for interference and accordingly the writ petition is dismissed. Consequently, the interim order dated 18.06.2018 stands vacated. All consequent actions upon the opinion of the learned Foreigners Tribunal No. 2, Boko, Kamrup (R) be taken accordingly. 11. Registry is directed to send back the records to the concerned Tribunal forthwith.