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2017 Supreme(Gau) 828
IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM, AND ARUNACHAL PRADESH)
UJJAL BHUYAN, PARAN KUMAR PHUKAN, JJ.
Sri Mahadev Haldar, Son of Late Ghatak Haldar - Appellant
Versus
State of Assam - Respondents
W.A. NO.78 OF 2010
Decided on : 10-03-2017
Advocate Appeared:
For the Appellant : Mr. G. P. Bhowmik, Sr. Adv., Mr. R. Hazarika, Adv.
For the Respondents:Ms. P. Baruah, Advocate
For the Central Government : Mr. G. Pegu, G.A., Assam.
Headnote:
Foreigners Act, 1946 – Appeal is directed against the judgment and order, passed by the learned Single Judge dismissing the writ petition being WP(C) filed by the appellant as the writ petitioner against the order of the Foreigners Tribunal, Dibrugarh in F.T. Case declaring the appellant to be a foreigner who had illegally entered into India (Assam) – Initially a reference was made by the State against the appellant under the Illegal Migrants (Determination by Tribunals) Act, 1983 with the allegation that appellant was an illegal migrant as defined under the said Act – Reference was registered as DDT before the Tribunal constituted under the said Act –Held, Writ court certainly has the jurisdiction to interfere with an order of the Tribunal in exercise of its certiorari jurisdiction, the width of such jurisdiction is limited – Full Bench of this court in State vs. Moslem Mondol, (2013) 1 GLT 809, has held that only in the event of a finding of the Tribunal being based on inadmissible evidence or when admissible evidence were not taken into consideration or when the finding was based on no evidence, the Writ court would examine such finding of fact returned by the Tribunal because in such an event, it would be an error apparent on the face of the record – Notwithstanding the same, as noticed above, learned Single Judge had minutely examined the materials on record and thereafter, came to the conclusion as above – Appeal, which is accordingly dismissed.
(U. Bhuyan, J)
This case was heard on 02.03.2017 and today is fixed for delivery of order.
2. Accordingly, order is being dictated in the open court.
3. We have heard Mr. G.P. Bhowmik, learned senior counsel for the appellant, Ms. P. Baruah, learned Central Government Counsel and Mr. G. Pegu, learned Government Advocate, Assam.
4. This appeal is directed against the judgment and order dated 05.02.2010, passed by the learned Single Judge dismissing the writ petition being WP(C) No.450/2009 filed by the appellant as the writ petitioner against the order of the Foreigners Tribunal, Dibrugarh dated 07.11.2008 in F.T. Case No.21/2006 declaring the appellant to be a foreigner who had illegally entered into India (Assam) after 25.03.1971.
5. Initially a reference was made by the State against the appellant under the Illegal Migrants (Determination by Tribunals) Act, 1983 with the allegation that appellant was an illegal migrant as defined under the said Act. The reference was registered as DDT 1442/2001 before the Tribunal constituted under the said Act. The said Tribunal vide order dated 16.03.2002 declared the appellant as illegal migrant. Appellant preferred appeal before the Appellate Tribunal constituted under the said Act but the Appellate Tribunal dismissed the appeal. Against such dismissal of appeal, appellant preferred a writ petition before this court which was registered as WP(C) No.6988/2002. Learned Single Judge dismissed the writ petition vide order dated 12.11.2002.
6. Against the aforesaid order dated 12.11.2002, appellant preferred a writ appeal before the Division Bench which was registered as WA No.27/2003. By the judgment and order dated 06.08.2003 the said appeal was allowed by taking the view that adequate opportunity was not granted to the appellant to adduced evidence. Order of the Tribunal dated 16.03.2002 was set aside and the matter was remanded back for decision afresh after giving opportunity to the appellant for adducing evidence.
7. In the meanwhile, the Illegal Migrants (Determination by Tribunals) Act, 1983 was declared unconstitutional by the Supreme Court in Sarbananda Sonowal vs Union of India (2005) 5 SCC 665. Consequently, the reference was re-registered under the Foreigners Act, 1946 and the Foreigners (Tribunal) Order, 1964 as F.T. Case No.21/2006 which was assigned to the Foreigners Tribunal, Dibrugarh (Tribunal) for opinion.
8. Appellant examined 3 witnesses including himself and exhibited one document. After hearing the matter, Tribunal passed the order dated 07.11.2008 declaring the appellant to be a foreigner who had illegally entered into India (Assam) after 25.03.1971.
9. Appellant then preferred a writ petition before this court challenging the legality, validity of the aforesaid order dated 07.11.2008 which was registered as WP(C) No. 450/2009. By the judgment and order dated 05.02.2010, learned Single Judge upheld the decision of the Tribunal and dismissed the writ petition.
10. Hence this appeal.
11. This court by order dated 28.05.2010 had admitted the appeal for hearing, and passed an interim order to the effect that if the appellant had already been taken into custody, then till disposal of the appeal he should not be deported to any place outside India.
12. Learned counsel for the appellant submits that appellant had adduced adequate evidence in discharge of his burden under Section 9 of the Foreigners Act, 1946 to prove that he is not a foreigner but a citizen of India. Tribunal on an erroneous appreciation of the materials on record came to an unjust conclusion holding the petitioner to be an illegal migrant. Learned Single Judge also did not consider the evidence on record in the correct perspective and committed a manifest error in upholding the finding of the Tribunal thereby causing injustice to the appellant. He, therefore, submits that both the orders under appeal should be set aside. In support of his submission, learned counsel for the appellant has placed
