WP(C) 1959/2011 - Gauhati High Court

IN THE GAUHATI HIGH COURT(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA,MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH)WP(C) No. 1959/2011Sahabul Hussain,S/o. Late Mojimuddin Ahmed,R/o. Vill. : Bahati,P.S.- Dubhnoi,District – Goalpara (Assam).-Versus-…………Petitioner.1. Union of India, represented by theSecretary of the Ministry of Home Affairs,Govt. of India, New Delhi, PIN-110001.2. The State of Assam, represented by theCommissioner and Secretary to the Govt.of Assam, Home Department, Dispur,Guwahati, PIN – 781006.3. Director General of Police (Admin),Assam, Ulubari, Ghy-781007.4. The S.P.(B), Goalpara, P.O. & P.S.-Goalpara, Dist – Goalpara, Assam.5. The Foreigner’s Tribunal, Goalpara, P.S. &Dist.- Goalpara, Assam.6. The Election Officer, Goalpara, P.O. &Dist. : Goalpara, Assam.………..Respondents.WP(C) 1959 of 2011 Page 1 of 7

BEFORETHE HON’BLE MR. JUSTICE B.K. SHARMAFor the Petitioners :Mr. D.P. Chaliha, Sr. Adv.Mr. M. Rana, Adv.For the Respondents : Ms. R. Chakraborty, Sr.GA.Mr. M. Bhagabati, CGCDate of hearing &Judgement : 04.05.2011.JUDGEMENT AND ORDER (ORAL)Heard Mr. D.P. Chaliha, learned senior counselassisted by Mr. M. Rana, learned counsel for thepetitioner. I have also heard Ms. R. Chakraborty,learned Addl. Senior Govt. Advocate as well as Mr. M.Bhagabati, learned CGC.2. This writ petition has been filed against theorder dated 4.10.2010 passed by the learned Member,Foreigner’s Tribunal, Goalpara in FT Case No.197/G/2006 (Union of India Vs. Sahabul Islam), bywhich it has been held that the person concerned i.e.Sahabul Islam is an illegal migrant and accordinglyliable to be deported from India.3. The instant writ petition has been filed by oneShri Sahabul Hussain, although the proceedingbefore the Tribunal in respect of the aforesaidreference was against one Shri Sahabul Islam. ThisWP(C) 1959 of 2011 Page 2 of 7

thereafter notice was again issued on 4.9.2009. On4.9.2009, the petitioner’s engaged counsel appearedand filed petition seeking adjournment to file WrittenStatement and affidavit. Accordingly, the prayer wasallowed fixing the matter on 23.10.2009.7. The order sheet reveals that the petitionermerrily kept on taking time by filling adjournmentpetitions enabling him to file Written Statement andaffidavit. The dates on which such prayer was madeare 23.10.2009, 15.12.2009, 27.1.2010, 4.3.2010,5.4.2010, 29.5.2010 and 21.7.2010. On 21.7.2010, theTribunal made it clear in its order that there wouldbe no further chance for filling Written Statement.8. On 31.8.2010 i.e. the next date fixed, thepetitioner again remained absent and filed petitionfor adjournment enabling him to file WrittenStatement. Although, as per the earlier order dated21.7.2010, the petitioner was not entitled to anyfurther adjournment but the learned Tribunal grantedhim another chance fixing the matter on 13.9.2010.On 13.9.2010 also, the petitioner repeated the samestory by filing an application seeking adjournment.Situated thus, the engaged counsel had no otheroption than to withdraw from the case. Thereafterthe Tribunal passed the impugned judgement andorder dated 4.10.2010 with the clear declaration thatWP(C) 1959 of 2011 Page 4 of 7

the petitioner is an illegal Bangladeshi migrant andliable to be deported from Assam.9. In the impugned judgement and order, theaforesaid aspect of the matter has been elaboratelydiscussed. As per the provisions of the Foreigner’sAct, the burden lies on the foreigner to establish thathe is an Indian citizen. In the instant case, inspite ofgranting several opportunities, the petitioner did notdischarge the said burden and now has approachedthis Court by filling the instant writ petition towardsassailing the impugned judgement and order with theaforementioned contradictory documents.10. In the writ petition, there is no explanation asto why the petitioner all along remained absent in allthe dates fixed by the Tribunal. Only ground urged isthat the petitioner was endeavouring to obtaindocuments. In this connection, he has enclosedAnnexure C/2 dated 17.12.2009 so as to contend thatthe documents were sought for from the authority byfilling the application and Annexure-C/2 is the tokenof receipt of the said application on 17.12.2009. Onperusal of Annexure-C/2 document, it is seen that thename of the applicant is one Nazir Uddin Ahmed andnot the petitioner. The purpose for which theapplication was filed was indicated as “Certifiedcopy of electoral roll”, however, which electoralroll was prayed for, there was no indication.WP(C) 1959 of 2011 Page 5 of 7

11. merely showing the aforesaid receipt dated17.12.2009, the petitioner cannot explain his nonappearancein the proceedings before the Tribunal.12. As has been observed in the impugnedjudgement and order, based on the report ofElectoral Registration Officer of 36, Dubhnoi ST LACand the report of the local Verification Officer andthe orders passed thereon, the Chairman of theScreening Committee i.e. the Superintendent ofPolice (B) had forwarded the reference to theTribunal and the Tribunal answered the saidreference by the impugned judgement and order.There was no denial of the said documents by thepetitioner.13. Above being the conduct of the petitioner andbecause of what has been stated above, I have nohesitation to hold that the petitioner is an illegalBangladeshi migrant leaving in Assam without anyvalid document and thus liable to be deported toBangladesh.14. In terms of the order passed on 4.4.2011, thepetitioner was to surrender before theSuperintendent of Police, Goalpara and thereafter hewas to be detained in the detention camp. Mr.Chaliha, learned counsel appearing for the petitionerWP(C) 1959 of 2011 Page 6 of 7

submits that in terms of the said order, the petitionerupon his surrender before the S.P, Goalpara, has beendetained in the detention camp.15. In view of the above, the writ petition isdismissed. The Superintendent of Police (B), Goalparashall ensure deportation of the petitioner toBangladesh. Simultaneously the DeputyCommissioner, Goalpara, shall also ensure deletion ofthe name of the petitioner from the voter lists.Appropriate action in this regard shall be takenforthwith and compliance report be submitted on orbefore 06.06.2011.16. Let a copy of this judgement and order befurnished to Ms. R. Chakraborty, learned StateCounsel. Copies of the judgement and order shall alsobe sent to Superintendent of Police(B) and the DeputyCommissioner, Goalpara, for their necessary followup action. Another copy of this order be sent to theUnion Government in the Home Department, forappraisal.17. There is no order as to costs.JUDGESukhamayWP(C) 1959 of 2011 Page 7 of 7