Judgement and Order (Oral)
1. This writ petition is directed against the order dated 29/08/2013 of the learned Member, Foreigners Tribunal (III), Barpeta, Assam passed in FT Case No. 150(III)/2011 (Ref IM(D)T Case No. 7155/B/98) (State of Assam Vs. Kurpan Ali). By the said order, the learned Tribunal has declared the petitioner to be a foreign national, who illegally migrated into Assam after the cut-off date i.e. 25/03/1971.
2. I have heard Mr. A.R. Sikdar, learned counsel for the petitioner. Also heard Mr. B.J. Ghosh, learned State Counsel and so also Ms. G. Sarma, learned counsel holding for Mr. S.C. Keyal, learned ASGI. I have also perused the entire materials on record including the records received from the Tribunal. As discussed in the impugned judgement, the petitioner, in the written statement, without naming his father, simply stated that his father s name appeared in the voter list of 1966. He also did not name his mother. He only stated that his father s name appeared not only in the 1966 voter list but also in the voter lists of 1970 and 1997. He further stated that on attaining majority, his name also appeared in the voter list of 1989. In the affidavit filed in support of the written statement he named his father as late Sadan Sali. However, the learned Tribunal has held that Sali is a typing mistake and it should be read as Ali.
3. After filing of the written statement, the petitioner filed an affidavit sworn before the Notary Public stating therein that his father s name appeared in the voter lists of 1966, 1970, 1989 and 1997. By the said affidavit sworn on 09/04/2013, during the proceeding before the Tribunal, the petitioner made a declaration that in the voter list of 1966 and 1970, his father s name was correctly recorded as Sadan Mia and so also correctly recorded his age as 33 years and 37 years respectively. According to the said affidavit, in the 1989 voter list, his father s name was wrongly recorded as Sadan Ali instead of Sadan Mia and so also his age was wrongly recorded as 45 years instead of 55 years. He went on to declare that in the voter list of 1997 also, name of his father was recorded as Sadan Ali and age as 74 years instead of 63 years.
4. The learned Tribunal on the basis of the materials and evidence adduced by the petitioner found that there are two sets of documents showing the name of the projected father of the petitioner. The first set being the voter lists of 1996 (Ext.1) and 1970 (Ext. 2), where the name of one Sadan Mia son of Jabbar, aged 33 years and 37 years respectively appears. The second set is the voter lists of 1989 and 1997 (Ext. 3 and Ext. 4) showing the name of one Sadhan Ali son of Jabbar, aged 45 years and Saden Ali, aged 74 years respectively.
5. As recorded in the impugned judgement, nowhere in the written statement, the petitioner specifically stated the name of his father. There is also no mention in the written statement that his father s name appeared in the voter list of 1989. The petitioner wanted to project that his father s name and age were wrongly recorded in Ext. 3 and 4 voter lists and that Sadhan Mia and Saden Ali is one and the same person. It has been rightly held by the Tribunal that had the petitioner s father s name been Sadan Mia, he would have definitely written his father s name as such in the affidavit filed in support of the written statement and not as Sadan Ali. Coupled with this, in the linkage certificate (Ext. 5) issued by the Gaonbura, the petitioner has been identified as Kurpan Ali son of Sadan Mia.
6. From the above discussions, it appears that the petitioner sought to project two persons as one and the same person. In the cross examination, he stated that his mother was still alive and was living with his younger brother Noumaz Ali. However, as noted above, nowhere in the written statement, the petitioner disclosed the said fact. Further, in Ext. 4 voter list of 1997, the name of subsequently projected mother Saleman Nessa is not found recorded, although, she is still alive. No explanation was forthcoming.
7. Above apart, the petitioner in his cross examination, admitted that he did not find a linkage certificate from the Gaonbura of village Kandapara to show that he is the son of Sadan Ali of the said village and that he was born there. In the linkage certificate (Ext. 5) relied upon by the petitioner, one Kurpan Ali was shown as the son of Sadhan Ali of village Karagari Nanke, 12 No. Block.
8. It is in these circumstances, the learned Tribunal has come to the conclusion that Sadan Mia or Sadhan Mia whose name appears in the first set of documents (Ext. 1 and 2) is not one and the same person, whose name appears in the second set of documents (Ext. 3 and 4) as Sadhan Ali and Sadan Ali respectively. Both these sets of documents are found to be of two different families.
9. As regards the sale deed (Ext. 7), it is found that the same is un-registered deed written on non-judicial stamp paper, a fact which the petitioner himself admitted in his cross examination. Thus, the said documents canot have any evidentiary value. As discussed in the impugned order, in para 9 of his written statement, the petitioner stated that there are other records and land documents to prove that he was born in Assam. However, in his cross examination he admitted that no document could be filed showing landed property in the name of his father. As has been held by the Apex Court in L.I.C. of India and Anr. Vs. Ram Pal Singh Bisen reported in 2010 (4) SCC 491, mere production of some documents or exhibiting the same without proving the contents thereof is not enough. In this connection, para 31 of the judgement is quoted below :-
31. Under the Law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the Evidence Act cannot be relied upon by the Curt. Contents of the document cannot be proved by merely filing in a court.
10. In para 10(i) of the impugned order, the Tribunal has observed thus :-
10(i) After door to door verification of the voters, extensive revisions of the electoral rolls of all the assembly constituencies were prepared in 1985 and 1997. The OP has not furnished any certified copy of the voters list of 1985 or any certified copy of the voters lists published in between 1985 and 1997 till date. The names of voters appearing in Ex-3 are not matching with the names of any of the voters appearing in Ex-1 and Ex-2. Likewise, the names of the voters appearing in Ex-3 are not matching with the names of the voters appearing in Ex-4.
11. Above being the position coupled with the fact that the writ Court exercising writ jurisdiction cannot re-appreciate the evidence already appreciated by the learned Tribunal. It cannot sit on appeal over the findings recorded by the Tribunal like an appellate authority. No perversity and / or error of jurisdiction on the part of the Tribunal could be shown by the learned counsel for the petitioner. The scope, ambit, power and jurisdiction of the writ Court in such matters has been discussed in the Full Bench decision of this Court in State of Assam Vs. Moslem Mondal and others reported in 2013 (1) GLT 809. In this connection, para 112 and 113 of the said Full Bench decision in Moslem Mondal (Supra) is reproduced below :-
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 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.
113. 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.
12. Above being the position I see no reason to interfere with the impugned judgement and order dated 29/08/2013 passed by the Foreigners Tribunal (III), Barpeta in FT Case No.150(III)/2011. Accordingly, the writ petition stands dismissed. Now, the Superintendent of Police (B), Barpeta shall ensure that the petitioner is arrested and detained in the detention camp till his deportation to her country of origin i.e. Bangladesh.
13. Let the matter be listed again after one month so as to submit report by the Superintendent of Police (B) Barpeta about the action taken in the terms of this order.
14. The Deputy Commissioner, Barpeta shall ensure deletion of the name of the petitioner from the voter list, if any.
15. 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. B.J. Ghosh, learned State Counsel for his immediate necessary follow up action. Copies shall also be sent to the SP(B), Barpeta and Deputy Commissioner, Barpeta, for their immediate follow up action.