Gauhati High Court
Md. Sahid Ali Fakir And Ors. vs Union Of India (Uoi) And Anr. on 21 January, 1992
Equivalent citations: AIR1993GAU9, AIR 1993 GAUHATI 9, (1992) 1 GAU LR 431
ORDER S.K. Homchaudhuri, J.
1. This petition has been filed under Section 17 of the Illegal Migrants (Determination) Tribunal Act, 1983, (hereinafter referred to as IMDT Act). However, during the pendency of the petition the IMDT Act, 1983 was amended by Act 24 of 1988 and the Section 17 conferring revisional jurisdiction to the High Court has been deleted. However, in appropriate case this Court can exercise jurisdiction under Article 227 of the Constitution of India and this petition is treated as a petition under Article 227 of the Constitution.
2. Proceedings under the provisions of Foreigners Act in F.T. Case No. 13/80 was initiated against the petitioners before the Foreigners' Tribunal, Sonitpur. After enactment of the I.M.D.T. Act, 1983, the case was transferred to the learned I.M.D. Tribunal, Sonitpur, hereinafter mentioned as the Tribunal. The case was renumbered as I.M.D.T. Case No. 8/85. In the proceeding before the tribunal, the State examined one witness i.e. the police officer, on the basis of whose report the proceeding was initiated. The petitioner examined 3 witnesses and filed and proved some documents. The learned tribunal by the judgment and order dated 17-2-86 passed in the I.M.D.T. Case No. 8 of 1985, held that the petitioners migrated to India (Assam) from Bangladesh in the year 1973 and therefore were foreign nationality. The petitioners preferred Appeal Case No. 10/ 86 impugning the order of the tribunal. The learned appellate tribunal by the impugned judgment dated 22-10-86 dismissed the appeal and affirmed the decision of the learned tribunal.
3. I have heard Mr. H.R.A. Choudhury, learned counsel for the petitioner and Mr. R. P. Sharma, learned Govt. Advocate, Assam. Mr. Choudhury submits that the learned tribunal committed manifest error of law in placing entire burden on the petitioners to establish that they are citizens of India although it was for the State to discharge initial burden by leading cogent evidence that petitioners are not citizens of India and that the petitioners migrated in 1973 from Bangladesh. No evidence is adduced in support of the allegation except the hearsay evidence of the sole witness of the Inquiry Officer who deposed that he came to know from one Lihi Nath and Kinaram Nath of the locality that the petitioners migrated into India( Assam) in 1973. But, neither Lohit nor Kinaram has been examined.
4. Mr. R. P. Sharma, learned Govt. Advocate submits that beyond the records he has nothing to submit and he cannot controvert the submissions of the learned counsel for the petitioner that only sole witness i.e. one police officer was examined as witness and his evidence is also based on information received from one Lohit Nath and one Kinaram Nath and neither Lohit nor Kinaram has been examined.
5. I have considered the submissions made on behalf of petitioners and on behalf of the opposite party and have perused the materials on records. I find sufficient force in the submissions made on behalf of the petitioners. I find that both the learned tribunal and appellate tribunal have committed manifest errors of law apparent on the face of the record in placing burden on the petitioners to establish that they are citizens of India. When the State came with the complaint that the petitioners migrated into India in 1973, onus was on the complainant to prove the allegation.
6. It is needless to point out that when millions of people of a particular race/community and of mother tongue are citizens of India and permanent resident in Assam, persons of that race/community and of mother tongue, who are residing permanently are to be taken as citizen of India unless contrary is proved. The burden is on the State to rebut the presumption by adducing cogent evidence and placing materials. Determination of such persons as foreign national and consequent deportation from his permanent residence with the members of his family and throwing them to unknown destination would naturally entail immense suffering. Before adjudging the person permanantly residing in India (Assam) as foreign national, the Tribunal should be cautious, slow, retrospect and should make close scrutiny of the materials on records to see as to whether the State has been able to establish the case against such person with cogent, consistent and convincing evidence. Summary enquiry by the Tribunal is fraught with every possibility of adjudging a citizen as foreign national and subjecting him to deprivation of his fundamental right guaranteed under Article 21 and the right under Article 300A of the Constitution, without any authority of law. It is unsafe to adjudge a person residing permanently in India (Assam) as foreigner on the sole testimony of the Enquiry Officer. In the instant case, the learned tribunal solely on the basis of the hearsay evidence of one witness examined on behalf of the State held that the petitioners migrated into India (Assam) in the year 1973. It is apparent from the evidence of the said witness examined on behalf of the State that he came to know that the petitioners migrated in 1973 and settled in Basimari village from one Lohit Nath and one Kinaram Nath. But none of them has been examined to corroborate the hearsay evidence of the sole witness.
For the reasons stated above, I have no hesitation to hold that the impugned judgments and orders passed by the learned Tribunal as well as the learned Appellate Tribunal cannot be sustained and are liable to be set aside.
Petition is, therefore, allowed and impugned judgments and orders are set aside. I make no order to costs.