IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) WP (C) No. 238 of 2010

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1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) WP (C) No. 238 of 2010 Quadir Md. Kader Khan, S/O Md. Faruk Khan, R/O Bessakopi Line No. 10, P.O. Rupai Siding, P.S. Diimdooma, Dist. Tinsukia, Assam...Petitioner -Versus- 1. The State of Assam, represented by the Commissioner & Secretary to the Govt. of Assam, Home Department, Dispur, Guwahati The Superintendent of Police, Tinsukia. 3. The Superintendent of Police(B), Tinsukia. 4. The Sub-Inspector (Border), Doomdooma Police Station. 5. The Member, Foreigners Tribunal, Dibrugarh, Assam. 6. Union of India, represented by the Secretary of Home Affairs, New Delhi..Respondents For the petitioners : Mr. M.H. Choudhury. Adv. For the Respondents : Mr. S.C. Keyal, ASGI. Mr. Noor Mohammad, GA, Assam. WP(C) 238 /10 oral dated 24/08/15 Page 1 of 9

2 BEFORE THE HON BLE MR. JUSTICE B.K. SHARMA Date of hearing & Judgement: 24/08/2015 JUDGEMENT AND ORDER (ORAL) 1. This writ petition is against the order dated 08/12/2009 of the learned Member, Foreigners Tribunal, Dibrugarh passed in Case No. FT 82/07 (P.E. No. 407/02) (State Vs. Md. Kader Khan). By the said order, the petitioner has been declared to be a foreigners. 2. I have heard Mr. M.H. Choudhury, learned counsel for the petitioner. Also heard Mr. Noor Mohammad, learned State Counsel and so also Mr. S.C. Keyal, learned ASGI. I have also perused the entire materials on record along with the LCR received from the learned Tribunal. 3. As recorded in the impugned order, the petitioner could not produce any relevant document in support of his claim of Indian citizenship. The Tribunal upon a threadbare discussion of the evidence on record, found the following discrepancies :- i) In the written statement filed by the petitioner, he categorically stated that he was born in Assam Medical College, Dibrugarh on 02/02/1983. However, while deposing before the Tribunal he stated that he was born at Ketetong PHC under Margherita. On the other hand, his father i.e. DW-6 in his statement stated that his son i.e. the petitioner was born at Margherita. WP(C) 238 /10 oral dated 24/08/15 Page 2 of 9

3 ii) iii) Although it was the stand of the petitioner that his father i.e. DW-6 had married one Smt. Mustri Begum in 1980 but could not lead any evidence to show that Smt. Mustri Begum was his mother. In the written statement, the petitioner did not deny the following paragraphs of the enquiry report based on which he was suspected to be a foreigner. The written statement filed by him did not deal with the said paragraphs, which are quoted below :_ (10) Does the person hold any passport issued by any foreign country. No. (11) What are the reasons for living the persons country of origin?. For his livelihood. (13) If the person has entered in to India without a passport, how the person entered India?. Without valid Travel Documents. Name of the village/district from which the person entered?.. Vill- Putina, P.S. Rupganj, Dist.- Dacca, Bangladesh. Date of entry?.. after 25 th March, That apart, in para 12 of the written statement, referring to para 14 to 22 of the enquiry report, the petitioner simply stated that the same were matters of record, unmindful of the fact that under Section 9 of the Foreigners Act, 1946, the burden was on him to prove that he is an Indian citizen. iv) When the Tribunal by way of clarification put some question to the petitioner, he clarified that the place Ketetong is under Margherita PS and the place of his residence, namely, Bessakopi is under Doomdooma Police Station. He admitted that he did not know in which village of Ketetong he was born. In the written statement, he did not state that his grandfather s originally was from U.P. He also admitted that Ketetong and Margherita are two different places. WP(C) 238 /10 oral dated 24/08/15 Page 3 of 9

4 4. As regards the evidence led by DW-3, Smt. Tutumoni Moran, President of Mankhowa Gaon Panchayat, who had issued the residential certificate in favour of the petitioner, admitted that the certificate was issued on the basis of the letter addressed to her by the jurisdictional MLA. The Tribunal perused the Ext. 1 letter of the MLA and on perusal of the same evidence that instruction was issued to DW-3 to issue the residential certificate to the petitioner. 5. DW-4 Smt. Saruja Das, Head Mistress of Jawahar Hindi High English School, who had issued the certificate of admission stated that the petitioner was a student of her school. The certificate so issued showed that the petitioner was admitted in 1996 only. Thus, the certificate is of no help to the case of the petitioner, the cut-off date being 25/03/ DW-6 i.e. the father of the petitioner deposed that he belongs to U.P. and come to the present place of living in 1964 along with his mother. He identified him as the son of Jainuddin Khan. He also stated that his son i.e. the petitioner was born in Margherita twon in According to him, since last 45 years they had been living at Bisakopie. According to him, he got himself admitted in Hindi L.P. School, Doomdooma and studied up to Class-III. He also stated that he used to cast vote since However, as per the deposition of DW-5, the Head Mistress of Hindi L.P. School, Doomdooma, the DW-6 was admitted in 1972 and as per the certificate he was 10 years 5 months and 5 days as on 31/12/1972. Thus, he was only 8 years old in 1970 and as such the learned Tribunal rightly has held that the petitioner s father could not have been a voter in Evidence of PW-6 also failed to prove the plea of the petitioner that he was born either at Assam Medical College Hospital or Ketetong PHC, inasmuch as, as per the deposition his original house was at U.P. On the other hand, this witness in his deposition stated that he used to visit his Maternal Uncle and Nana/Nani (maternal grand parents) in U.P. WP(C) 238 /10 oral dated 24/08/15 Page 4 of 9

5 8. The medical certificate on which the petitioner placed reliance made shocking revelation of issuance of such forged and false certificate. The relevant portion of the discussion made by the Tribunal is quoted below : DW7 is the register of death & Birth of Ketetong P.H.C. under Margherita subdivision. This witness deposed that since 25 years he has been serving in different capacity at Ketetong P.H.C. and he issued death and birth certificates. He used to issue birth certificate on the basis of P.R.C., Gaonbura and Hospital s certificates. After 21 days of birth, for a birth registration certificate one have to be paid Rs. 15 through Treasury Challan as late fine along with SDO(Civil) s permission. Ext. Ja is the birth certificate issued by him. Ex. Ja(1) is his signature. Ex-Ja was issued in the name of one Quadir Khan, S/O. Md. Faruk Khan, Mother Smt. Mustari Begum. Regarding issuing of birth certificate the Hospital used to kep record on it but the record of the instanht certificate could not be produced by him, as on Ketetong hospital including its records were destroyed in a devastating fire. The face of DW/7 Dr. Jiten Saikia was seen to be very familiar and to that effect questions were put by the Court to DW7 for few clarification. To such questions Dr. Jiten Saikia admitted that earlier also he came to this court to prove birth certificates issued by him and at that time also he could not produce any official record in the court. As such it is an admitted fact that, before damaging the Hospital records by fire on Dr. Saikia could not produce official records. WP(C) 238 /10 oral dated 24/08/15 Page 5 of 9

6 In cross DW7 admitted that, the so called birth certificates was issued after 24 years of birth. Date of registration of the certificate was and issued it after 10 months. Place of birth and place of original address mentioned as Bisakopie, P.S., dist, State of Bisakopie not mentioned. It is also not mentioned whether o.p. was born in hospital or in own house. He further clarified that Margherita C.H.C. and Ketetong P.H.C. are the authority of issuing birth certificate of Margherita subdivision. Bisakopie is under Doomdooma P.S. not under Margherita subdivision. Birth certificate of Bisakopie was to be issued by the Doomdooma P.H.C. not by Ketetong. As per the statement of o.p. he issued the certificate showing the place of birth at Bisakopie not at Margherita town or at Ketetong. DW7 further admitted that Bisakopie is not under Margherita. From the evidence of DW7 it appears that Ex-Ja the birth certificate is a false and foreged one. 9. As per the petitioner s version, he was born at Assam Medical College, Dibrugarh but on the other hand as per the father s (DW-6) version, he was born at Margherita. Again the petitioner in his deposition before the Tribunal stated that he was born at Ketetong PHC. 10. Above being the position coupled with the detailed discussion made by the learned Member, Foreigners Tribunal in reference to the evidence on record and also the written argument submitted by the petitioner, I see no reason to interfere with the findings arrived at by the learned Tribunal sitting on appeal over the findings like an appellate authority. The Full Bench of this Court in State of Assam Vs. Moslem Mondal and others reported in 2013 (1) GLT 809 while discussing the scope, ambit and jurisdiction of the Writ Court in such matter has observed thus :- WP(C) 238 /10 oral dated 24/08/15 Page 6 of 9

7 112. Article 226 of the Constitution confers on the High Court power to issue appropriate writ to any person or authority within its territorial jurisdiction. The Tribunal constituted under the 1946 Act read with the 1964 Order, as noticed above, is required to discharge the quasi-judicial function. The High Court, therefore, has the power under Article 226 of the Constitution to issue writ of certiorari quashing the decision of the Tribunal in an appropriate case. The scope of interference with the Tribunal's order, in exercise of the jurisdiction under Article 226, however, is limited. The writ of certiorari can be issued for correcting errors of jurisdiction, as and when the inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it or if such Court or Tribunal acts illegally in exercise of its undoubted jurisdiction, or when it decides without giving an opportunity to the parties to be heard or violates the principles of natural justice. The certiorari jurisdiction of the writ Court being supervisory and not appellate jurisdiction, the Court cannot review the findings of facts reached by the inferior Court or Tribunal. There is, however, an exception to the said general proposition, in as much as, the writ of certiorari can be issued and the decision of a Tribunal on a finding of fact can be interfered with, if in recording such a finding the Tribunal has acted on evidence which is legally inadmissible or has refused to admit admissible evidence or if the finding is not supported by any evidence at all, because in such cases such error would amount to an error of law apparent on the face of the record. The other errors of fact, however grave it may be, cannot be corrected by a writ court. As noticed above, the judicial review of the order passed by the inferior Court or the Tribunal, in exercise of the jurisdiction under Article 226 of the Constitution, is limited to correction of errors apparent on the face of the record, which also takes within its fold a case where a statutory authority exercising its discretionary jurisdiction did not WP(C) 238 /10 oral dated 24/08/15 Page 7 of 9

8 take into consideration a relevant fact or renders its decision on wholly irrelevant factors. Hence, the failure of taking into account the relevant facts or consideration of irrelevant factors, which has a bearing on the decision of the inferior court or the Tribunal, can be a ground for interference of the Court or Tribunal's decision in exercise of the writ jurisdiction by the High Court The Apex Court in Sant Lal Gupta Vs. Modern Coop. Group Housing Society Ltd. reported in (2010)13 SCC 336, reiterating the grounds on which a writ of certiorari can be issued, has opined that such a writ can be issued only when there is a failure of justice and cannot be issued merely because it may be legally permissible to do so. It is obligatory on the part of the petitioners to show that a jurisdictional error has been committed by the statutory authority. There must be an error apparent on the face of the record, as the High Court acts merely in a supervisory capacity and not as the appellate authority. An error apparent on the face of the records means an error which strikes one on mere looking and does not need long drawn out process of reasoning on points where there may conceivably be two opinions. Such error should not require any extraneous matters to show its incorrectness. Such error may include giving reasons that are bad in law or inconsistent, unintelligible or inadequate. It may also include the application of a wrong legal test to the facts found, taking irrelevant consideration into account and failing to take relevant consideration into account, and wrongful admission or exclusion of evidence as well as arriving at a conclusion without any supporting evidence. Such a writ can also be issued when there is an error in jurisdiction or authority whose order is to be reviewed has acted without jurisdiction or in excess of its jurisdiction or has failed to exercise the jurisdiction vested in him by law. WP(C) 238 /10 oral dated 24/08/15 Page 8 of 9

9 6. In view of the above, the writ petition is dismissed. Now, the Superintendent of Police (B), Dibrugarh shall ensure that the petitioner is arrested and detained in the detention camp till his deportation to his country of origin i.e. Bangladesh. 7. Let the matter be listed again after one month so as to submit report by the Superintendent of Police (B) Dibrugarh about the action taken in the terms of this order. 8. The Deputy Commissioner, Dibrugarh shall ensure deletion of the name of the petitioner from the voter list, if any. 9. Registry shall send down the case records to the learned court below along with a copy of this judgement and order. A copy of the judgement and order may also be furnished to Mr. Noor Mohammad, learned State Counsel for his immediate necessary follow up action. Copies shall also be sent to the SP(B), Dibrugarh and Deputy Commissioner, Dibrugarh, for their immediate follow up action. JUDGE Sukhamay WP(C) 238 /10 oral dated 24/08/15 Page 9 of 9