Supreme Court - Daily Orders
Md. Ashraf Ali vs Union Of India on 22 August, 2017
Bench: Dipak Misra, Kurian Joseph, Amitava Roy
CA 10750/2017
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.10750 OF 2017
(Arising out of S.L.P.(C) No.27489 of 2016)
Md. Ashraf Ali Appellant(s)
Versus
Union of India and Others Respondent(s)
WITH
CIVIL APPEAL NO.10751 OF 2017
(Arising out of S.L.P.(C) No.28417 of 2016)
O R D E R
Leave granted.
Heard Mr. Sanjay R. Hegde, learned senior counsel for the appellants, Mr. P.K. Dey, learned counsel for the Central Bureau of Investigation, Mr. Shuvodeep Roy, learned counsel for the State of Assam and Mr. Rajiv Nanda, learned counsel for the Union of India.
On 19th May, 2017, this Court had passed the following order:-
“In pursuance of our earlier order dated 4 th Signature Not Verified January, 2017, an affidavit has been filed by Digitally signed by CHETAN KUMAR Date: 2017.08.26 the Union of India in S.L.P.(C) No.28417 of 12:10:52 IST Reason: 2016. It has been stated that:-
“State Govt of U.P., pursuant to above request, vide letter dated 24.4.2017, (received in Ministry on 25.4.2017 by CA 10750/2017 2 Special Messenger) has made available report submitted by Superintendent of Police, Deoria, Uttar Pradesh, vide which it has been informed that Mukhtar and Munshi (son of Rose), Kismat Ali (son of Mukhtar), Yusuf (son of Mukhtar) and Smt. Rajia Begum (wife of Mukhtar) who were inhabitants of Village Chipya, Police Station – Khampur, Deoria, had left the village around 35-40 years back for Assam by selling their house and property. Superintendent of Police, Deoria while making available the report has also made available the report submitted by In-charge of the Police Station concerned and undertaking given by Gram Pradhan and other inhabitants of the Village in this regard. Copy and its English translation of Govt. of Uttar Pradesh Letter dated 24.4.2017 is Annexure R-1.” In S.L.P.(C) No.27489 of 2016, the affidavit filed by the competent authority of the Central Government, reads as follows:-
“That the State of Bihar, pursuant to above request, made available two reports. The first report dated 29.3.2017, the Deputy Secretary of the Sate Govt. reported, on the basis of report from Bihar School Examination Board, while inter alia giving details of the name of the candidate, Roll Code, date of Birth, year, Total marks obtained and class obtained in examination etc. It is stated that prima facie details made available by the State Govt are in consonance with the details appearing in Annexure P-1 and P-2 of the SLP. It is further submitted that the State Govt intimated that this is an interim report and verification request in respect of documents submitted by the applicant, has been made to District Magistrate, Siwan. Full report will be submitted after receiving the report from the District Magistrate, Siwan.
That in its second report dated 30.3.2017, State Govt. of Bihar through its Deputy Secretary, made available the report of District Magistrate, Siwan, Bihar. In the report of District Magistrate, Siwan, the CA 10750/2017 3 headmaster of the School has certified that the old record pertaining to the subject in question is not available. Enquiry from locals were also conducted whereby it has been acknowledged that Hasnayan Ali, son of Aliman Hussain were the resident of village Shankerpur who left for Assam. Some registered document was also made available. Copy of report dated 30.3.2017 along with its English Translation is Annexure R-1.” Having heard Mr. Krishnan Venugopal, learned senior counsel for the petitioners, Ms. Pinky Anand, learned Additional Solicitor General for the Union of India and Mr. Shuvodeep Roy, learned counsel for the State of Assam, we think it appropriate that further details in the matter need to be collected. In course of hearing, the learned counsel for the respondents have submitted that the matter can be remanded to the tribunal so that fresh adjudication can take place. We do not think that to be an appropriate course to be adopted at this stage of the case, inasmuch as, we had already directed the authorities to file affidavits and pursuant thereto, affidavits have been filed.
As indicated earlier, as more details are required and there has to be comprehensive verification of the same, we think it appropriate to direct the Central Bureaus of Investigation (CBI) to submit a report on the basis of the documents filed before this Court and also the assertions made therein. Needless to say, the C.B.I. shall make comprehensive enquiry and not restrict its enquiry to the paragraphs quoted herein-above. We have said so as we want a complete picture before us.
Let the report by the C.B.I. be made available in both the cases within eight weeks hence. A copy of the order passed today be handed over to Mr. P.K. Dey, learned counsel, who ordinarily appears for the C.B.I. In case of non-availability of Mr. Dey, a copy of the order be served on Mr. M.K. Maroria, learned counsel for the Union of India. The Registry is directed to do the needful in the matter.CA 10750/2017 4
Mr. Anas Tanvir, learned counsel assisting Mr. Krishnan Venugopal, learned senior counsel for the petitioners is at liberty to hand over the documents relating to the petitioners herein to Mr. P.K. Dey or Mr. M.K. Maroria, who have been asked to receive copies on behalf of the C.B.I.“ In pursuance of the aforesaid order, a verification report has been filed by the Central Bureau of Investigation (CBI). Various documents have been annexed supporting the case of the appellants. Mr. P.K. Dey, learned counsel appearing for the CBI has drawn our attention to paragraph 1 of the report, which relates to Md. Kismat Ali, the appellant in Civil Appeal No.10751 of 2017. It reads as under:-
“That in compliance with the above observation and direction, following verification was done:-
(i) It was found that Mukhtar and Munshi are the children of Rose and Kismat Ali and Yusuf Ali are the sons of Mukhtar. Razia Begum is the wife of Mukhtar. The names of Mukhtar, Munshi and Razia were appearing in the Voter ID list of 1965 of Village Chapia Tehsil Salimepur District Deoria, Uttar Pradesh. The English translated copy of the above-referred Voter List is annexed hereto and marked as Annexre A to this Report.
(ii) It was found that the Land Revenue records (Khatauni) of Village Chhapia, Tehsil Salimepur of District Deoria, UP, the name of Mr. Mukhtar @ Sultan was mentioned and the same land was sold to Mr. Chander Sain, s/o Inder Sain on 7.6.94. The translated copy of the Khatauni along with copy of Nakal Khatauni is annexed hereto as Annexure B.
(iii) It was found that Mukhtar Ali s/o Late Rossai having a Driving Licence for the period 22.2.1956 to 20.5.1976 issued by the District Transport Officer, Darrang, District Tejpur, Assam. It was verified and found to be issued by the concerned authority. The said copy is marked as Annexure C. Mukhtar Ali son of Roj CA 10750/2017 5 Ali is no more and a Death Certificate was issued by the Department of Health, Udalgiri, Assam, on 30.8.2016, mentioning the date of death as 26.2.1999. This fact has been verified and it was found that the Death Certificate is genuine. The said Certificate is marked as Annexure D.
(iv) That regarding the verification of Munshi s/o Rose, the Voter ID List of the Village Chipia, Tehsil Salimpur, District Deoria, Uttar Pradesh was verified and found that their names were found in the Voters' List. The translated copy of the said Voters List is already marked as Annexure A.
(v) That regarding the verification of Kismat Ali s/o Mukhtar Ali, the School Transfer Certificate issued by Nehru Memorial High School in respect of Mohd. Kismat Ali s/o Mukhtar Ali bearing No.147 dated 16.11.2000 and showing Date of Birth as 05.05.1977 has been verified and found to be genuine. The said Certificate is annexed as Annexure E.
(vi) That regarding the verification of Yusuf Ali, son of Mukhtar Ali the School leaving Certificate of Mohd. Yusuf Ali, son of Mukhtar Ali issued from Sailabala High School Kharupetia, Darang, Assam dated 05.01.1998, issued on 05.08.2008 certifying him reading in Class – VIII (eight) in 1984 with date of birth as per Admission Register of school is 11.3.1968, has been verified and found to be issued by the issuing Authority. The said Certificate is annexed as Annexure F.
(vii) That regarding the verification of Razia Begum, wife of Mukhtar Ali, the Death Certificate of Mukhtar Ali issued by the Department of Health Services, Government of Assam and the same was confirmed by the Birth and Death Registrar, Paschimpatara, District Udalgiri, Assam. The said Death Certificate mentioning Razia Begum as the wife of Mukhtar Ali is already annexed as Annexure D overleaf.” As far as Md. Ashraf Ali, the appellant in Civil Appeal No.10750 of 2017 is concerned, the report is to the following effect:-CA 10750/2017 6
“That in compliance with the above observation and direction, following verification was done:-
(i) That regarding the verification of Hasnain Ali, it was found that Bihar School Examination Board issued a Certificate dated 23.9.1975 mentioning the marks obtained by Hasnain Ali, was verified and it was found that the details of the said Certificate are found in the original tabulation Register maintained in the Examination Board. Further, the Additional Secretary (Vigilence) has written a letter dated 3.8.2017 confirming this Certificate. The translated copy of the letter dated 3.8.2017 along with the Bihar School Examination Board Certificate are annexed as Annexure G. However, the Head Master of Sarvodya Uchch Vidyalaya, Bhagwanpur Haat, Siwan (Bihar) has confirmed that the document could not be verified due to the non-availability of the very old records back to the year 1975. The translated copy of the letter dated 4.8.2017 issued by the Head Master is annexed as Annexure H.
(ii) That regarding the verification of Asraf Ali, son of Hasnan Ali, the Sarpanch Smt. Mansa Devi of the Gram Kachahari, Village Shankarpur, Bhagwanpur Village Raj Shankarpur, Bhagwanpur Haat, District Siwan Bihar has confirmed in writing vide her letter dated 16.6.2017 that Shri Ashraf Ali s/o Hussain Ali was the inhabitant of that village. The said letter certified that around 15 years back, he disposed of his ancestral property and moved out of the village. A translated copy of letter dated 16.6.2017 is annexed hereto as Annexure I.
(iii) That regarding the verification of the fact that Hasnain Ali s/o Aliman Hussain, sold his property, in Bihar, during inquiry, the District Sub-Registrar, Siwan, Bihar issued a letter dated 4.8.2017 wherein it was found that the said Hasnain Ali has executed a Registered Sale Deed No.5911 dated 24.12.2002. The copy of the letter dated 4.8.17 issued by the Sub-Registrar, District Siwan is annexed hereto and marked as Annexure J.CA 10750/2017 7
Mr. Hasnanin Ali is dead. The Death Certificate of Hasnain Ali s/o Aliman Hussain bearing No.0019021 issued by Department of Health, Pachimpatlam, Dimakuchi, Udalguri, Assam, showing date of death as 12.01.2013 has been verified and found to be issued by the issuing authority. The copy of the Death Certificate is annexed as Annexure K.
(iv) That regarding the verification of Asraf Ali s/o Hasnain Ali is concerned, the School Leaving Certificate of Asraf Ali s/o Hasnain Ali from Sekhar Sankardev Mission School Dimakuchi, Udalguri, Assam, and Admission No.1321 dated 7.1.1990 Sl.No.545 issued on 12.8.2015 certifying that he was studying in Class IX, left the said school on 31.12.1991. His date of Birth is 01.01.1976, according to School Admission Register. It has been verified and found to be issued from the School. The Principal of the said School has confirmed this vide letter dated 17.07.2017. A true copy of letter dated 17.07.2017 and copy of transfer certificate is annexed as Annexure L.
(v) That as per the directions of the Hon'ble Court, CBI has conducted the verification, collected several documents, mentioned as Annexures and submitting the comprehensive Verification Report for consideration of this Hon'ble Court.” It is submitted by Mr. Dey that the CBI has verified the documents and is satisfied.
At this juncture, Mr. Shuvodeep Roy, learned counsel appearing for the State of Assam submits that these documents need to be verified by the State as well as by the Foreigners Tribunal (2nd), Mangaldai, Assam (for short, 'the tribunal'). Be it noted, the appellants in both the appeals had remained ex-parte before the tribunal. In our considered opinion, the tribunal is required to scrutinize the documents and adjudge the acceptability of the same. That apart, it is required to arrive at a definite conclusion that the appellants are entitled to stay back in India as per the Citizenship Act, 1955.
CA 10750/2017 8Mr. Sanjay R. Hegde, learned senior counsel appearing for the appellants would press hard for release of the appellants on the foundation that they are at detention camp since 12th August, 2015. Without expressing any opinion, we are of the considered opinion that the tribunal should take the documents produced by the CBI into consideration and pass a reasoned order. If any other document is in the custody of the appellants, they are at liberty to file the same before the tribunal. If the appellants are not able to engage an advocate, they can intimate the Member Secretary, Assam State Legal Services Authority or the District Legal Services Authority, Mangaldai, Assam, which shall engage an experienced lawyer to argue and put forth the cases of the appellants and canvass their cause before the Foreigners Tribunal.
In view of the aforesaid analysis, we allow the appeals and set aside the order passed by the High Court as well as that of the tribunal and remit the matter to the tribunal to consider the controversy keeping in view the observations and directions made herein-above. The tribunal shall positively dispose of the matter within three months hence. The tribunal shall decide the matter without being influenced by its earlier order or affirmation thereof by the High Court. That apart, it shall not weigh in the mind of the tribunal that this Court, despite the report from the CBI, has straight away not dealt with the matter. Though we have set aside the orders of the High Court and that of the tribunal, yet the appellants shall remain at the detention camp till the matter is decided by the tribunal. And that casts heavy responsibility on the tribunal to decide the matter with quite promptitude as directed herein-above. Mr. P.K. Dey, learned counsel shall intimate the competent authority of the CBI at Guwahati, who shall also assist the tribunal in the case, for it has filed a report before this CA 10750/2017 9 Court in support of the appellants on the basis of the documents brought on record.
The appeals are, accordingly, disposed of. There shall be no order as to costs.
....................J. [Dipak Misra] ....................J. [Kurian Joseph] ....................J. [Amitava Roy] New Delhi August 22, 2017.
CA 10750/2017 10ITEM NO.2 COURT NO.2 SECTION XIV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No.27489/2016 (Arising out of impugned final judgment and order dated 23-06-2016 in WPC No. 3727/2016 passed by the High Court of Gauhati) MD. ASHRAF ALI Petitioner(s) VERSUS UNION OF INDIA & ORS. Respondent(s) (With appln.(s) for exemption from filing O.T.) WITH S.L.P.(C) No.28417/2016 (XIV) (With appln.(s) for exemption from filing O.T.) Date : 22-08-2017 These petitions were called on for hearing today.
CORAM : HON'BLE MR. JUSTICE DIPAK MISRA HON'BLE MR. JUSTICE KURIAN JOSEPH HON'BLE MR. JUSTICE AMITAVA ROY For Petitioner(s) Mr. Sanjay R. Hegde, Sr. Adv.
Mr. Fuzail Ahmad Ayyubi, AOR For Respondent(s) Mr. P.K. Dey, Adv.
Mr. Rajiv Nanda, Adv.
Mr. Rohit Rao, Adv.
Mr. Shailender Saini, Adv.
Mr. Hemant Arya, Adv.
Mr. B. Krishna Prasad, AOR Mr. M.K. Maroria, AOR Mr. Shuvodeep Roy, AOR Mr. Sayooj Mohan Das, Adv.
UPON hearing the counsel the Court made the following O R D E R Leave granted.
The appeals are disposed of in terms of the signed order.
(Chetan Kumar) (H.S. Parasher)
Court Master Assistant Registrar
(Signed order is placed on the file)