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2019 Supreme(Gau) 183
IN THE HIGH COURT OF GAUHATI (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
ACHINTYA MALLA BUJOR BARUA, AJIT BORTHAKUR, JJ.
MD. MAJIBAR RAHMAN S/O. LT. ABED ALI - Appellant
VERSUS
THE UNION OF INDIA and 3 ORS - Respondent
WP(C) 4182 of 2017
Decided on : 22-01-2019
Advocate Appeared:
For the Petitioner: MS U. DAS
Failure to consider evidence on record warrants interference under the certiorari jurisdiction under Article 226 of the Constitution of India.
Headnote:
Foreigners Tribunal - Linkage with Abed Ali - IM(D)T Act, 1983 - FT(4th) Case No. 133/2015 - Certiorari jurisdiction under Article 226 of the Constitution of India
Fact of the Case:
The petitioner was referred to the Foreigners Tribunal to determine whether he is a foreigner who entered India from East Pakistan to Assam after 25.03.1971. The petitioner claimed linkage with Abed Ali through voter lists and a Jamabandi mutation order. The Tribunal rejected the petitioner's case based on voter list discrepancies.
Finding of the Court:
The court found that the Tribunal failed to consider the evidence of the petitioner's linkage with Abed Ali, which warranted interference under the certiorari jurisdiction under Article 226 of the Constitution of India. The court set aside the Tribunal's order and directed the Tribunal to reconsider the petitioner's claim.
Issues: Failure of the Tribunal to consider evidence of the petitioner's linkage with Abed Ali, certiorari jurisdiction under Article 226 of the Constitution of India
Ratio Decidendi: The court held that if evidence is available on record and not considered by the Tribunal, it warrants interference under the certiorari jurisdiction under Article 226 of the Constitution of India.
Final Decision: The order of the Foreigners Tribunal was set aside, and the petitioner was directed to appear before the Tribunal for reconsideration of his claim.
Heard Ms. U. Das, learned counsel for the petitioner, Mr. UK Nair, learned senior counsel for the State of Assam, appearing for the Foreigners’ Tribunal and Border Areas, Ms. V. Verma, learned Standing Counsel for the authorities under the NRC, Ms. G. Sarma, learned counsel for the authorities under the Union of India.
2. The petitioner was referred by the Superintendent of Police, Borders, Darrang, Mangaldoi for adjudication as to whether he is foreigner, who had entered in the territory of India from the erstwhile East Pakistan to Assam after 25.03.1971, which resulted IM (D)T Case No. 8863/1998 before the Illegal Migrants (Determination) Tribunal, Mangaldoi. Upon the IM(D)T Act, 1983 being declared ultra vires by the Supreme Court of India, the reference made against the petitioner was transferred to the Foreigners Tribunal No. 4, Darrang, Mangaldoi and renumbered as FT(4th) Case No. 133/2015.
3. Before the Tribunal, the petitioner appeared and took stand in the written statement that the name of his grandmother appeared in the voter list of 1966 pertaining to village -Ojhagaon under No. 72 Mangaldoi Legislative Assembly Constituency at Sl No. 591, Block No. 9 and House No. 132. Further stand was taken by the petitioner was that the name of the father of the petitioner appeared in the voter list of 1970 pertaining to said Ojhagaon village under No. 72 Mangaldoi Legislative Assembly Constituency at Sl. No. 667, Block No. 97, House No. 162. In order to establish his linkage with Abed Ali whose name appeared in the voter list of 1970 to be his father, the petitioner also exhibits copy of Jamabandi mutation order in respect of land of his grandfather Umaruddin. The voter lsit of 1966 shows that Bhadejan Bewa was the wife of Umaruddin and voter list of 1970 shows Abed Ali to be the son of Umaruddin.
4. The Jamabandi which had been exhibited before the Tribunal contains the order of mutation dated 30.12.1899 (sic) in Mutation Case No. 2669/2014-15 FMUT, wherein it is stated that 03 khatas of land covered by Dag No. 154 was mutated in favour of, amongst others, Mujibar Rahman, son of Abed Ali. The petitioner claimed that the said mutation order contained in Ext. 2, Jamabandi establishes a linkage that the father of the petitioner was as Abed Ali, whose name appears in voter list of 1971. We have gone through the order of the Tribunal, dated 28.07.2016 and noticed that the said aspect of the matter that the petitioner claims his linkage with Abed Ali whose name appears in 1970 voter list through the Ex. 2 , Jamabandi order of mutation have not taken into consideration by the Tribunal. The Tribunal, on the other hand, rejects the case of the petitioner on the ground that the stand taken on behalf of the petitioner that the father of the petitioner had voted in 1966, but his name did not appear in the voter list of 1966.
5. The law as regards the certiorari jurisdiction in the matter related to the Foreigners Tribunal has been provided by the judgment of State of Assam and Ors Vs. Moslem Mondal and Ors, reported in 2013 (1) GLT 809 which reads as follows:
“(113) The Apex Court in Sant Lal Gupta Vs. Modern Corporation 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 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
