Research › Search › Judgment

Gauhati High Court · body

2020 DIGILAW 70 (GAU)

Jalal Uddin v. Union Of India

2020-01-23

MANOJIT BHUYAN, PARTHIVJYOTI SAIKIA

body2020
JUDGMENT Pj. Saikia, J. - Heard the learned counsel, Mr. A. R. Sikdar, appearing for the petitioner. Also heard Mr. A. Kalita, learned Standing Counsel, Foreigners' Tribunal. 2. In this writ petition, the petitioner has challenged the legality of the order dated 20.11.2018, passed by the learned Member, Foreigners' Tribunal- (2nd), Kamrup (M), Guwahati, in F.T. Case No. FT 27/2018, declaring him to be a foreigner. 3. On a reference made by the Deputy Commissioner of Police (B), Guwahati, alleging the petitioner, Jalal Uddin, to be a foreigner from Bangladesh, who entered Assam after 24.03.1971, the learned Tribunal issued notice to the petitioner. 4. The petitioner, accordingly, entered appearance and on 08.08.2018 and filed his written statement along with documents in order to contest the proceeding. The petitioner also adduced the evidence of 4 (four) witnesses and exhibited 9 (nine) numbers of documents in order to substantiate his claim. The documents are - (i) Exhibit 1 : Land Sale Deed dated 01.11.1958 in the name of Adu Sheikh S/o Lt. Baktu Sheikh. (ii) Exhibit 2 : Certified voter list of 1961 of 31 Goalpara L.A., H/No. 35, Sl. No. 126, 127 contains name of Adu Sheikh S/o Boktu Sheikh 40 yrs, Sahela Khatun W/o Adu Sheikh 38 yrs. (iii) Exhibit 3 : Certified Volter list of 1997 of 39 Jaleswar L.A.C., P/No. 92, H/No. 63, Sl. No. 632, 633 contains name of Sadem Ali S/o Adu Sheikh 31 yrs, Ana Khatun W/o Sadem Ali 27 yrs. (iv) Exhibit 4 : Certified Voter list of 2005 of 39 Jalswar L.A. C., P/No. 101, H/No. 63, Sl. No. 1042, 1043 contains name of Sadem Ali S/o Adu Sheikh 39 yrs, Anna Khatun W/o Sadem Ali 35 yrs. (v) Exhibit 5 : Certified Voter list of 2011 of 39 Jaleswar L.A. C., P/No. 120, H/No. 63, Sl. No. 251, 252 contains name of Sadem Ali S/o Adu Sheikh 46 yrs, Anna Khatun W/o Sadem Ali 42 yrs. (vi) Exhibit 6 : Certified Voter list of 2015 of 39 Jaleswar L.A. C., P/No. 137, H/No. 63, Sl. No. 283, 284 contains name of Sadem ali S/o Adu Sheikh 49 yrs, Anna Khatun W/o Sadem Ali 45 yrs. (vii) Exhibit 7 : Certified Voter list of 2017 of 39 Jaleswar L.A. C., P/No. 142, H/No. 63, Sl. (vi) Exhibit 6 : Certified Voter list of 2015 of 39 Jaleswar L.A. C., P/No. 137, H/No. 63, Sl. No. 283, 284 contains name of Sadem ali S/o Adu Sheikh 49 yrs, Anna Khatun W/o Sadem Ali 45 yrs. (vii) Exhibit 7 : Certified Voter list of 2017 of 39 Jaleswar L.A. C., P/No. 142, H/No. 63, Sl. No. 304, 305 contains name of Sadem Ali S/o Adu Sheikh 51 yrs, Anna Khatun W/o Sadem Ali 47 yrs. (viii) Exhibit 8 : Certified Voter list of 2018 of 39 Jaleswar L.A. C., P/No. 162, H/No. 63 Additional, Sl. No. 906 contains name of Jalal Uddin S/o Sadem Ali 19 yrs. (ix) Exhibit 9 : Resident Certificate dated 02.11.2015 issued by Goanbura of Rev. Vill. Kursha Pt-I Gaon to Jalal Uddin S/o Sadem Ali, village Kolabari, Dist. Goalpara. 5. The relevant portion of the judgment passed by the learned Tribunal on 20.11.2018 is as under "From the exhibits it is not possible to ascertain that person named as Adu Sheikh S/o Baktu Sheikh in the voter list of 1961 is the same person named as Adu Sheikh father of Sadem Ali in the voter list of 1997, 2005, 2011, 2015 and 2017." 6. We have gone through the impugned judgment. 7. In this case, Exhibit 2 is the certified copy of the Voter List containing the name of Adu Sheikh, the grandfather of the present petitioner. His place of residence is shown as Badung Doba in the District of Goalpara. There is evidence in this case to the effect that Adu Sheikh had shifted his residence to Kolabari in the District of Goalpara. Thereafter, in the Voter List of 1997, the name of Sadem Ali, the father of the present petitioner appears as the son of Adu Sheikh. In the subsequent Voter Lists of 2005, 2011, 2015 & 2017, the name of Sadem Ali, the son of Adu Sheikh, appears. In the Voter List of 2018, the name of the present petitioner, Jalal Uddin, appears as the son of Sadem Ali. In the Voter List of 2018, i.e. Exhibit 8, the age of the present petitioner Jalal Uddin is shown as 19 years. 8. In the Voter List of 2018, the name of the present petitioner, Jalal Uddin, appears as the son of Sadem Ali. In the Voter List of 2018, i.e. Exhibit 8, the age of the present petitioner Jalal Uddin is shown as 19 years. 8. Now, the learned Tribunal has held that it could not be ascertained that the person named as Adu Sheikh, son of Baktu Sheikh, appearing in the Voter List of 1961, is the same person named as Adu Sheikh, the father of Sadem Ali, appearing in the Voter Lists of 1997, 2005, 2011, 2015 & 2017. The learned Tribunal has declared the petitioner, Jalal Uddin, to be a foreigner on the ground that he and his father had failed to link their legacy with their grandfather. 9. A Writ Court exercising jurisdiction under Article 226 of the Constitution of India is supervisory and not appellate. Ordinarily, a Writ Court would not delve into the evidence recorded by a judicial or quashi-judicial authority. We find that the finding arrived at by the learned Tribunal is absolutely perverse. In fact, the learned Tribunal did not show any reason as to why it disbelieved the documents produced by the petitioner before it. Reasons are the heart beat of every judicial conclusion. Recording reasons indicates application of mind. Reasons substitute subjectivity by objectivity. Recording reasons while giving judicial decisions gives convenience to the superior Courts to exercise the power of judicial review. Thus, giving reasons for a decision is an essential attribute of natural justice. The impugned judgment lacks reasons, therefore, it is perverse. 10. In view of the matter, we set aside the order/opinion dated 20.11.2018, passed by the learned Member, Foreigners' Tribunal- (2nd), Kamrup (M), Guwahati, in F.T. Case No. FT 27/2018. We also direct the petitioner to appear before the said Tribunal on 12.02.2020 along with a certified copy of this order. 11. It is stated that the petitioner is presently lodged in the detention centre at Goalpara, in this situation, we direct the Deputy Commissioner of Police (B), Guwahati, to make necessary arrangement to produce the petitioner, Jalal Uddin, before the learned Foreigners' Tribunal- (2nd), Kamrup (M), Guwahati, on 12.02.2020. 11. It is stated that the petitioner is presently lodged in the detention centre at Goalpara, in this situation, we direct the Deputy Commissioner of Police (B), Guwahati, to make necessary arrangement to produce the petitioner, Jalal Uddin, before the learned Foreigners' Tribunal- (2nd), Kamrup (M), Guwahati, on 12.02.2020. On such production, the petitioner may make application for bail along with documents in his support, which shall be considered by the learned Tribunal and necessary order shall be passed on terms and conditions that may be set down by the learned Tribunal. We make it clear that the proceeding before the learned Tribunal shall be concluded within a period of 45 days, w.e.f. 12.02.2020, within which time, fresh opinion shall be rendered by the learned Tribunal by making fresh appreciation of the documents, namely, the Exhibits 2 to 8. We also make it clear that the learned Tribunal shall not entertain fresh evidence if the petitioner seeks to introduce. 12. In the event the bail is granted and thereafter, the petitioner defaults in appearing before the learned Tribunal on the dates to be fixed in the case and also fails to take required steps, it shall be open to the learned Tribunal to pass such order or orders as may be deemed fit and proper and in accordance with law. 13. To the extent, the writ petition stands allowed. 14. For the purpose of concluding the reference case within the period as specified above, the learned Tribunal shall act upon the certified copy of this order, which the petitioner is permitted to furnish before the learned Tribunal on the date of appearance, i.e. 12.02.2020. The petitioner is also permitted to supply a copy of this order to the Deputy Commissioner of Police (B), Guwahati, for doing the needful in terms of the above.