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2010 Supreme(Gau) 8
IN THE HIGH COURT OF GAUHATI
Brojendra Prasad Katakey, J.
Md. Ashraf Ali and Ors.
Vs.
Union of India (UOI) and Ors.
WP (C) No. 2405 of 2009
Decided On: 08.01.2010
For Appellant/Petitioner/Plaintiff: A.M. Mazumdar, M.U. Mondal, B. Rahman and S. Haque, Advs.
For Respondents/Defendant: Asst. SGI and B.J. Ghosh, G.A.
Headnote:
Foreigners Act, 1946 - Section 2(a) - Illegal Migrants Act, 1983 - Section 8 - Constitution of India - Article226 - Challenging the order – Tribunal - Jurisdiction - Witnesses were duly cross-examined by respective parties - Learned Tribunal upon appreciation of materials available on record has passed order declaring petitioners as foreigners within meaning of Section 2(a) of 1946 Act and, hence present writ petition – Held, Scope of interference with order passed by learned Foreigners Tribunal, in exercise of jurisdiction conferred under Article 226 of Constitution of India is very limited - A writ of certiorari can be issued when tribunal acts without or in excess of its jurisdiction or in contravention of rules of natural justice or commits an error apparent on face of record - When evidences on record are not considered in its proper perspective writ court may interfere with order passed by the tribunal - Tribunal admittedly had jurisdiction to decide as to whether petitioners are foreigners or not - There is also no allegation of contravention of rules of natural justice as petitioners contested proceeding before learned tribunal by filing written statement and by adducing evidence - Petition dismissed
B.P. Katakey, J.
1. The petitioners have filed this petition seeking to invoke the jurisdiction of this Court under Article226 of the Constitution of India in challenging the order dated 28.5.2009 passed by the learned Member, Foreigners Tribunal (1st), Morigaon in Case No. FT(C) 652/2006 declaring them as foreigners within the meaning of Section 2(a) of the Foreigners Act, 1946. (the 1946 Act).
2. A reference under Section 8(1) of the Illegal Migrants (Determination by Tribunals) Act, 1983 was made by the Superintendent of Police (B), Morigaon, Assam to the Tribunal constituted under the provisions of the said Act for determination of the question as to whether the petitioners are illegal migrants within the meaning of Section 3(c) of the said Act, alleging that they entered into India on or after 25th day of March 1971. On the basis of such reference, IM(D)T Case No. 397/2001 was registered. The said proceeding, however, subsequently transferred to the Foreigners Tribunal, Morigaon, in view of declaration of the Illegal Migrants (Determination by Tribunals) Act, 1983 as unconstitutional by the Apex Court in Sarbananda Sonowal v. Union of India and Ors. AIR 2005 SC 2920, and consequent upon the issuance of notification by the Government of Assam dated 5.7.2006. Accordingly FT(C) 652/2006 had been registered and numbered in the Foreigners Tribunal (1st), Morigaon and notices were issued therein. The petitioners on receipt of the notices entered appearance and filed their joint written statement contending, inter alia, that they are Indian nationals by birth and the names of the parents of the petitioner Nos. 1 and 2 were enrolled in the electoral roll of Lahorighat LAC, Assam in the year 1966 and 1970 and Dhing LAC, Assam in the year 1965 and 1970, respectively, and out of their wedlock since the petitioner Nos. 3 to 8 were born, they are also Indian nationals by birth. In the written statement they have also denied that they illegally entered into India after 25.3.1971 as alleged.
3. Altogether 4(four) witnesses were examined in the proceeding before the tribunal, 2(two) from the side of the petitioners and 2(two) by the State. The petitioners though filed seven Nos. of documents in support of their claim that they are Indian nationals, none of those documents were proved and marked as exhibits. The respondent State, however, proved 3(three) documents, namely, Ext.-1 being the communication issued by the Superintendent of Police (B), Morigaon to the Sub-Inspector of Police (B), Dharamtul P.S. to make an enquiry, under the provisions of the Illegal Migrants (Determination by Tribunals) Act, 1983, as to whether the petitioners are illegal migrants within the meaning of the said Act and to submit the report; the Ext.-2 dated 30.11.2000 issued by the S.I. of Police (B) furnishing the particulars in Form No. 1 and Ext.-3 being the report submitted by the Sub-Inspector of Police (B), dated 30.12.2000, which also contains the recommendation of the Inspector of Police, Deputy Superintendent of Police and also the endorsement of the Superintendent of Police (B), dated 5.7.2002. The witnesses were duly cross-examined by the respective parties. The learned Tribunal upon appreciation of the materials available on record has passed the order declaring the petitioners as foreigners within the meaning of Section 2(a) of the 1946 Act, and, hence, the present writ petition.
4. I have heard Mr. A.M. Mazumdar, the Learned Senior Counsel for the petitioners and Mr. B.J. Ghosh, the Learned State Counsel appearing on behalf of respondent Nos. 2, 3 and 4. None appeared for the respondent No. 1.
5. Mr. Mazumder, the Learned Senior Counsel for the petitioners referring to the pleadings in the written statement filed and the documents produced before the learned Tribunal has submitted that it is evident from such materials available on record that the parents of the petitioner Nos. 1 and 2 are Indian nationals, as their names were entered in the el
