Gauhati High Court
Md Saha Ali @ Sah Ali vs The Union Of India & 3 Ors on 6 October, 2015
Author: P.K.Saikia
Bench: P. K. Saikia, Rumi Kumari Phukan
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WRIT APPEAL NO. 237 OF 2015
Md. Shah Ali @ Sah Ali,
Son of -Jasim Uddin @ Mumo Dewani,
Village- Gamariguri,
P.O.--Gobardhana,
P.S.--Barpeta Road,
District- Barpeta, Assam.
.....Appellant
--Versus--
1. The Union of India,
Represented by the
Secretary to the Govt. of India,
Ministry of Home Affairs,
New Delhi--110001.
2. The State of Assam,
Represented by the Commissioner
And Secretary to the Govt. of Assam,
Home Department, Dispur, Guwahati-6.
3. The Superintendent of Police (B),
Barpeta, Assam.
4. The Officer-in-charge, Barpeta Road
Police Station, Barpeta Road,
District--Barpeta.
..... Respondents
WA No. 237 of 2015
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BEFORE HON'BLE MR. JUSTICE P. K. SAIKIA AND HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN For the Appellant : Mr. J. Ahmed.
For the Respondents : Mr. S. C. Keyal, Asstt. S.G.I.
Date of hearing : 26.08.2015
Date of judgment : 06.10.2015
JUDGMENT AND ORDER (CAV)
(P.K.Saikia,J)
This appeal is directed against the judgment dated 15.07.2015, rendered by the learned Single Judge in WP(C) No. 2449/2014, refusing to interfere with the judgment and order dated 06.02.2014, passed by the Foreigners Tribunal (IInd), Barpeta in F.T. (IInd) Tribunal Case No. 1118/2011 (Union of India Vs. Shah Ali).
2. Under the judgment and order dated 06.02.2014, the Foreigners Tribunal, Barpeta opined that the appellant herein to be foreigner within the meaning of Section 2(a) of the Foreigners Act, 1946, who entered into India after the cut-off date i.e., 25.03.1971.
3. We have heard Mr. J. Ahmed, learned counsel appearing for the appellant and also heard Mr. S.C. Keyal, learned A.S.G.I. appearing for the Union of India. However, none appears for the State respondents who are arraigned as respondent No. 2, 3 and 4 in this appeal.
4. The facts, necessary for disposal of the present appeal, in short, are that originally a reference was made by SP (B), Barpeta suspecting the appellant herein to be illegal migrant vide reference case No. 10722/1998 dated 06.02.2014. On receipt of the same, a reference case was registered WA No. 237 of 2015 3 and notice was sent to O.P. / 2nd party (who is appellant in this preceding and who would be referred to as appellant hereinafter).
5. However, during the pendency of aforesaid proceeding, Hon'ble Apex Court of the country declared the IMDT Act 1983 null and void and illegal and as such, all the cases including the case of the present appellant stood transferred to the concerned Foreigners Tribunals.
6. Notice in connection with said case, vide F.T. (IInd) Tribunal Case No.1118/2011 was served on the appellant, he entered appearance and having filed W.S. contested the proceeding. In course of time, he adduced the evidence of 4 witnesses in support of his case that he is Indian Citizen by birth, his father being one Jasimuddin @ Mamo Dewani, resident of Gamariguri, P.S--Sorbhog.
7. Learned Tribunal on conclusion of inquiry came to the finding that the appellant could not establish that he is Indian Citizen by birth and as such, under the judgment and order dated 06.02.2014, he was declared as foreign nationals and ordered his deportation.
8. Being aggrieved, the appellant as petitioner questioned the decision of the learned Tribunal having preferred a writ proceeding under Article 226 of the Constitution of India. On the basis of such a petition, WP(C) No. 2449/2014 was registered and notice thereof was served on the respondents. The respondents have entered appearance and contested the proceeding stating that there was no infirmity in the judgment and order rendered by the learned Tribunal.
9. The learned Single Judge accepted such contention of the respondents and resultantly dismissed the writ proceeding vide judgment dated 15.07.2015 rendered in WP(C) No. 2449/2014. Still being aggrieved, the appellant preferred the present appeal on the allegation that the judgment rendered by the learned Single Judge was not based on facts on record.
10. In that connection, it has been submitted that present appellant is an Indian Citizen by birth and in support of such claim, he had adduced WA No. 237 of 2015 4 indisputable documents. But those documents were overlooked by learned Tribunal as well as by learned Single Judge in holding the appellant herein as foreigner.
11. Before proceeding further, we find it necessary to have a look at the judgment under challenge. On perusal of the judgments in question in the light of materials on record, it is found that the appellant claims that he is the son of Mamo Dewani @ Jasimuddin. However, learned Single Judge had found such plea to be without any substance since in the voters list of 1970, Mamo Dewani and Jasimuddin had been shown as two different persons.
12. It is worth noting that in the voters list of 1970, Sambra Bhanu, Shar Bhanu, Nur Mohammad were shown connected with aforesaid Mamo Dewani, one Soleman Sheikh is connected with Jasimuddin. Said Soleman Sheikh was projected to be the uterine brother of the appellant herein vide his affidavit dated 27.07.1993
13. Learned Single Judge, therefore, held that if Jasimuddin and Mamo Dewani are one and same person, then Election Commission could not have any reason to show Jasimuddin and Mamo Dewani as two different persons in the same voters list. Therefore, according to learned Single Judge, Jasimuddin and Mamo Dewani cannot be one and same person.
14. The relevant part of the judgment of the learned Single Judge in reproduced below: ----
"5. Coming to the case in hand, it is the projection made by the petitioner that his father is known as Mamo Dewani and so also as Jasimuddin. On the other hand, the documents which the petitioner has placed reliance including the voter list of 1965 and 1970, apart from reflection of the name of one Mamo Dewani, there is reflection of one Jasimuddin also. Interestingly, in the voter list of 1970, Mamo Dewani was shown separately and so also Jasimuddin. Had it been a case of Mamo Dewani and Jasim Uddin being one and the same person, their names would not have been shown separately under different columns. This aspect of the matter has been discussed by the Tribunal in its impugned order dated 06/02/2014.
6. Above apart, in the voter list of 1989 containing the name of the petitioner, his father is shown as Jasimuddin. Thus, it is the convenience of the petitioner to identify his father either as Mamo Dewani or Jasimuddin according to the demand of the situation. For a ready reference, the relevant portion of the impugned judgment is quoted below :-WA No. 237 of 2015 5
"Now, let me consider the voter list of 1970 (Ext. B) which has been submitted by the O.P./2nd party Sah Ali.
In the voter list of 1970 (Ext.B) for 47 No. Sarbhog L.A.C. vill- Garaiguri in house No. 60, the name of Mamo Dewani has been shown in serial Nos. 190, 191, 192 and 193. In the same voter list of 1970 (Ext.B) in serial No. 226, the name of Jasimuddin has also been shown as another person. Perusal of the voter list of 1970 (Ext.B), it appears that the persons namely Jasimuddin and Mamo Dewani are shown individually as two separate persons.
Under the evidence Act, contents of the documents are required to be proved either by the primary and secondary evidence.
Sec. 9 of the Foreigners' Act 1946 casts the burden upon the O.P/2nd party or alleged person to establish his or her Indian citizenship.
But here in this case in hand, O.P./2nd party Sah Ali has failed to show any reasonable cause in his evidence as to why the names of Jasimuddin and Mamo Dewani were shown as separate two individual persons in the voter list of 1970 (Ext.B).
It appears that the O.P./2nd party Sah Ali made a false statement regarding the name of his father."
9. For all the aforesaid reasons I do not find any merit in the writ petition and accordingly it is dismissed.
10. Consequent upon dismissal of the writ petition, now the Superintendent of Police (B), Barpeta shall ensure that the petitioner is arrested and detained in the detention camp till his deportation to his country of origin i.e. Bangladesh. The Deputy Commissioner, Barpeta shall ensure deletion of the name of the petitioner from the voter list, if any.
11. 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.
12. 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 as well as Mr. Y. Doloi, learned CGC, for their 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."
15. On considering the judgments under challenge vis-à-vis the plea of appellant that Jasimuddin and Mamo Dewani are one and same person, we have found that such plea remains far from being established and therefore, there cannot be any doubt that the decision of the learned Single Judge on the question aforesaid does not suffer from any infirmity whatsoever. The WA No. 237 of 2015 6 fact that Jasimuddin and Mamo Dewani were shown as heads of two different families makes such a conclusion inevitable.
16. It is worth noting that there is nothing on record to show that said voters lists, relied on by the appellant, were ever corrected to show that Jasimuddin and Mamo Dewani, who were shown as the heads of two different families was one and same person. This makes it more and more inevitable to conclude that Jasimuddin and Mamo Dewani are not one and same person as claimed by appellant herein.
17. We have also found that in his certificate, vide Ext D, the Gaon Bura of the concerned village certified that the appellant is the son of Jasimuddin. But then, he never certified that Jasimuddin and Mamo Dewani were one and same person. The absence of such a certification, in the facts and circumstances of the case in hand, speaks clearly that the claim of the appellant that Jasimuddin and Mamo Dewani were one and same person is far from the truth.
18. It is worth noting here that the appellant heavily relies on an affidavit allegedly sworn in by his brother Md. Suleman on 27/07/1993 (Annexure-5) so as to contend that Jasimuddin and Mamo Dewani is one and the same person. However, learned Single Judge refused to place any reliance on the same quite rightly. It is equally worth noting that the proceeding in question was initiated in 1998. But said affidavit was reportedly sworn as back as 1993 when there was no shown apprehension of appellant being suspected as illegal Migrant
19. This again shows that not only the affidavit aforesaid is false but his plea that Jasimuddin and Mamo Dewani were one and same person and that he was the son of said Jasimuddin @ Mamo Dewani is equally false. The relevant part of the judgment is also reproduced below:-
"7. The petitioner has placed reliance on an affidavit allegedly sworn in by his brother Md. Suleman on 27/07/1993 (Annexure-5) so as to contend that Jasimuddin and Mamo Dewani is one and the same person. I am afraid, on the basis of such an affidavit, there cannot be projection of two names contending that both the persons and for that matter names are that of one and the same person. While the petitioner has placed reliance on the said purported affidavit, but there is no explanation as against the name of Mamo Dewani appearing in the WA No. 237 of 2015 7 voter list of 1969 and 1970, the petitioner's father is shown as Jasimuddin in the voter list of 1989 containing the name of the petitioner. The petitioner also did not take the plea before the learned Tribunal that Jasimuddin and Mamo Dewani is one and the same person.."
20. The learned Single Judge held that the jurisdiction of the writ court is very limited. Such jurisdiction can be invoked sparingly and only on special occasions to prevent miscarriage of justice or situation . Relevant part of the judgment is reproduced below:---
"8. The Tribunal having answered the reference in appreciation of the evidence on record, this Court cannot sit on appeal over such decision exercising writ jurisdiction. The scope, ambit and jurisdiction of the writ Court in such matter has been discussed in the Full Bench decision in Moslem Mondal (Supra) as follows :-
"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 juris-diction, 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.WA No. 237 of 2015 8
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"
21. In view of our foregoing discussion, we have found no infirmity in the judgment under challenge and as such, present appeal being found devoid of merit is dismissed.
22. The respondents are directed to take necessary action against the appellant as indicated in the Paragraph--10 and Paragraph--11 of the judgment rendered in WP(C) No. 2449/2014.
JUDGE JUDGE Rupam WA No. 237 of 2015 9
Yet another fact that court had got out attention is that the affidavit submitted by Soleman Sheikh, son of late Jasimuddin @ Mamo Dewani was sworn on 27.07.1993 at Barpeta. As state above, such affidavit was sworn to show that Jasimuddin @ Mamo Dewani is one and same person.
However, the case against the present appellant was initiated in 1998 only and for what purpose the said affidavit which was sworn as back as 1993 whereas the case against the present appellant was actually initiated in the year 1993 has not at all been explained.
Being so, it needs to be concluded that such an affidavit has been fabricated for the purpose of proceeding in question.
Judgment of the learned Single Judge
1. By means of this writ petition, the petitioner has challenged the order dated 06/02/2014 of the Foreigners Tribunal (IInd) Barpeta passed in FT (IInd) Tribunal Case No. 1118/11 (Union of India Vs. Sah Ali). By the said judgement, the petitioner WA No. 237 of 2015 10 has been declared to be a foreigners within the meaning of Section 2(a) of the Foreigners Act, 1946, who entered into India after the cut-off date i.e. 25/03/1971.
2. In the counter affidavit filed by the Superintendent of Police (B), Barpeta filed on 10/06/2014, it has been stated thus :-
"6. That as regards to the statements made in paragraph 11 of the writ petition, the deponent begs to state that on receipt of the judgement and order dtd. 06.02.2014 in FT Case No. 1118/2011 police made attempt to apprehend the petitioner but found not available in his locality. He is avoiding police arrest till date."
3. It will be pertinent to mention here that although the writ petition was entertained by order dated 16/05/2014, no interim order was passed suspending the impugned judgement and/or directing the respondents not to apprehend the petitioner, a declared foreigner.
4. The aforesaid stand of the Superintendent of Police (B) Barpeta in the affidavit filed on 10/06/2014 has not been denied by the petitioner filing any affidavit-in- reply. This aspect of the matter will have a bearing having regard to the fact that in the recently published list on declared foreigners who have done the act of vanishing, there are altogether 2832 such declared foreigners. The list has been published in the recently published issues of The Sentinel by the Additional Director General of Police (B) and the list pertain to Sivasagar district (Refer issue dated 14/07/2015). If this is the situation in respect of the declared foreigners and the State Administration is not in a position to apprehend them, as to what is in store for the indigenous people of Assam can well be imagined.
5. Coming to the case in hand, it is the projection made by the petitioner that his father is known as Mamo Dewani and so also as Jasimuddin. On the other hand, the documents which the petitioner has placed reliance including the voter list of 1965 and 1970, apart from reflection of the name of one Mamo Dewani, there is reflection of one Jasimuddin also. Interestingly, in the voter list of 1970, Mamo Dewani was shown separately and so also Jasimuddin. Had it been a case of Mamo Dewani and Jasim Uddin being one and the same person, their names would not have been shown separately under different columns. This aspect of the matter has been discussed by the Tribunal in its impugned order dated 06/02/2014.
6. Above apart, in the voter list of 1989 containing the name of the petitioner, his father is shown as Jasimuddin. Thus, it is the convenience of the petitioner to identify his father either as Mamo Dewani or Jasimuddin according to the demand of the situation. For a ready reference, the relevant portion of the impugned judgement is quoted below :-
"Now, let me consider the voter list of 1970 (Ext. B) which has been submitted by the O.P./2nd party Sah Ali.
In the voter list of 1970 (Ext.B) for 47 No. Sarbhog L.A.C. vill- Garaiguri in house No. 60, the name of Mamo Dewani has been shown in serial Nos. 190, 191, 192 and 193. In the same voter list of 1970 (Ext.B) in serial No. 226, the name of Jasimuddin has also been shown as another person. Perusal of the voter list of 1970 (Ext.B), it appears that the persons namely Jasimuddin and Mamo Dewani are shown individually as two separate persons.
Under the evidence Act, contents of the documents are required to be proved either by the primary and secondary evidence.WA No. 237 of 2015 11
Sec. 9 of the Foreigners' Act 1946 casts the burden upon the O.P/2nd party or alleged person to establish his or her Indian citizenship.
But here in this case in hand, O.P./2nd party Sah Ali has failed to show any reasonable cause in his evidence as to why the names of Jasimuddin and Mamo Dewani were shown as separate two individual persons in the voter list of 1970 (Ext.B).
It appears that the O.P./2nd party Sah Ali made a false statement regarding the name of his father."
7. The petitioner has placed reliance on an affidavit allegedly sworn in by his brother Md. Suleman on 27/07/1993 (Annexure-5) so as to contend that Jasimuddin and Mamo Dewani is one and the same person. I am afraid, on the basis of such an affidavit, there cannot be projection of two names contending that both the persons and for that matter names are that of one and the same person. While the petitioner has placed reliance on the said purported affidavit, but there is no explanation as against the name of Mamo Dewani appearing in the voter list of 1969 and 1970, the petitioner's father is shown as Jasimuddin in the voter list of 1989 containing the name of the petitioner. The petitioner also did not take the plea before the learned Tribunal that Jasimuddin and Mamo Dewani is one and the same person.
8. The Tribunal having answered the reference in appreciation of the evidence on record, this Court cannot sit on appeal over such decision exercising writ jurisdiction. The scope, ambit and jurisdiction of the writ Court in such matter has been discussed in the Full Bench decision in Moslem Mondal (Supra) as follows :-
"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 juris- diction, 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.WA No. 237 of 2015 12
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."
9. For all the aforesaid reasons I do not find any merit in the writ petition and accordingly it is dismissed.
10. Consequent upon dismissal of the writ petition, now the Superintendent of Police (B), Barpeta shall ensure that the petitioner is arrested and detained in the detention camp till his deportation to his country of origin i.e. Bangladesh. The Deputy Commissioner, Barpeta shall ensure deletion of the name of the petitioner from the voter list, if any.
11. 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.
12. 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 as well as Mr. Y. Doloi, learned CGC, for their 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.
WA No. 237 of 2015