WP(C) 4190/2009 BEFORE THE HON’BLE MR JUSTICE B.K. SHARMA This writ petition is directed against the order dated 01.01.2009 passed by the Foreigners’ Tribunal (Fast), Morigaon in case No. FT (C) 151/07 followed by further order dated 08.02.2010 answering the particular reference in favour of the State and holding that the petitioners are illegal migrants from Banglade sh who have entered into Assam after the cut off date, i.e. 25.03.1971. The firs t order of the Tribunal, i.e. one dated 01.01.2009 was an ex parte one as inspti e of receipt of notice, the petitioners did not respond to the proceeding before the Tribunal. The Tribunal on the basis of the materials on record and the stat ements made by two prosecution witnesses and the documents proved and exhibited by them, answered the reference against the petitioners holding them to be ille gal migrants. 2. After the filing of the writ petition on 22.09.09, the petitioners filed an additional affidavit on 22.10.2009. The additional affidavit was filed to ex plain the circumstances leading to non-appearance of the petitioners before the Tribunal. While in the writ petition the plea taken was that no notice from the Tribunal was served on them, but in the additional affidavit the plea taken was that one Shri Sukumar Biswas, brother of the petitioner No. 1 who has been livin g independently and not in good terms with the petitioners was served with the n otice from the Tribunal who in turn did not inform the petitioners about the sai d notice and resultantly the petitioners could not appear before the Tribunal wh ich resulted in ex parte proceeding and the order. 3. Considering the aforesaid stand of the petitioners in the additional aff idavit, this Court by order dated 01.12.2009 provided another opportunity to the petitioners to appear before the Tribunal to establish their case that they are Indian Citizens by birth. While the instant proceeding was kept pending, learne d Tribunal was directed to allow the petitioners to adduce evidence and to decid e the reference afresh taking into the said evidence. 4. Pursuant to the aforesaid order dated 01.12.2009, the petitioners appear ed before the Tribunal and adduced evidence on the basis of which the Tribunal h as passed the impugned order dated 08.02.2010 once again answering the reference against the petitioners holding them to be illegal migrants who have entered in to Assam after the said cut off date. The petitioners have filed an affidavit ch allenging the said order and accordingly the matter has been heard afresh. 5. I have heard Mr. P.K. Roy, learned counsel for the petitioners as well a s Ms. R. Chokraborty, learned Addl. Sr. Govt. Advocate. I have also heard Mr. P. Das, learned C.G.S.C. I have also gone through the entire materials on record. 6. While Mr. P.K. Roy, learned counsel for the petitioners taking me throug h the entire evidence on record, argued that the Tribunal has recorded an errone ous finding in the impugned order dated 08.02.2010, Ms. R. Chokraborty, learned Addl. Sr. Govt. Advocate argued that the findings of fact arrived at by the Trib unal on the basis of the evidence on record cannot be interfered with exercising the writ jurisdiction. Referring to the particular finding of the Tribunal rela ting to suppression of material fact, she submitted that the matter would not ha ve been remanded back to the Tribunal, but for the false statement made by the p etitioners. Mr. P. Das, learned CGSC also argued in tune with the arguments adva nced by Ms. R. Chokraborty. 7. I have considered the submissions made by the learned counsel for the pa rties and the materials on record including the records of the Tribunal which al so includes the one pertaining to the impugned order dated 08.02.2010. 8. According to Mr. Roy, learned counsel for the petitioner, the Triubnal h aving not recorded any independent finding, and the impugned order dated 08.02. 2010 being based on the submissions made on behalf of the prosecution, the said order is not tenable in law. This aspect of the matter will be dealt with at app ropriate stage. 9. The order of remand dated 01.12.2009 was passed in view of the statement made in the additional affidavit referred to above that no notice from the Trib unal was received by the petitioners and the notice received by Shri Sukumar Bis was was not brought to their notice and that he has been living separately from the petitioner No. 1. However, as recorded by the Tribunal in its subsequent ord er dated 08.02.2010, the evidence reveals otherwise. In the fresh proceeding bef ore the Tribunal, the petitioner No. 1 examined himself as OPW No. 1 and in the cross examination he has categorically stated that said Shri Sukumar Biswas and the petitioners stay in one and the same house. Thus there was suppression of ma terial fact and/or misleading statement in the additional affidavit that said Sh ri Sukumar Biswas is living separately from the petitioners due to some family c onflict. Had there been no such suppression of material fact, perhaps the order of remand would not have been passed. This being the position, the petitioners are guilty of suppression of material fact. Be that as it may, since the Tribuna l has tried the matter on merit, I now proceed to deal with the merit of the cas e of the petitioners vis-à-vis the respondents. 10. After the remand of the matter to the Tribunal for a fresh decision, the petitioners submitted their joint written statement claiming themselves to be I ndian Citizens by birth. In their written statement, their stand is that no repr esentative of the prosecution had ever visited them and asked for documents etc . before making reference. According to the petitioners, they are all born and b rought up in Assam. 11. In paragraph-6 of the written statement, the petitioner No. 1 has descri bed his father as Shri Banabashi Biswas, uncles as Shri Mohan Biswas and Shri Si bashi Biswas. According to the written statement, their forefather had land at N o. 2 Barunguri under Patta No. 19, but due to erosion of land they shifted to vi llage Hiloikhunda in the District of Darrang and thereafter to village No. 2 Mur kata. 12. Further stand in the written statement is that the name of the grandfat her of the petitioner No. 1 is Kartik Biswas. It has been stated in the written statement that the names of the petitioner No. 1’s parents appeared in the voter list of 1966 and 1970 and that prior to their stay in Barunguri village they ha d lived in the village called Laharighat. 13. As regards the petitioner No. 2, it has been stated that her father is S hri Suresh @ Surendra @ Suren and that his and his parents’ name appeared in the voter list of 1966 and 1970. According to her, her grandfather is Late Arjun Sa rkar and he took a loan of Rs. 50/- in the year 1954-55 and a notice was issued to him when he could not return the loan. According to her, his name was include d in the voter list of 1966-70. 14. Alongwith the written statement, the petitioners also enclosed certain d ocuments which are purportedly the voter list of 1966 (copy only) and two undate d land pattas showing the name of one Shri Kartik Biswas, purported Jamabandi of village Barunguri dated 11.12.09; copy of voter list of 1970 containing name of one Shri Banabashi Biswas; copy of the voter list of 1997 containing the name o f Dilip Biswas, father Banabasi, aged about 37 years; certificate dated 18.09.09 issued by Puthumari Gaon Panchayat certifying the petitioner to be an inhabitan t of the said Gaon Panchayat. 15. Further, the photo copies of the voter list of 1966 and 1970 (Ext. ’Ka’ and Ext. ’Kha’) showing the name of Shri Arjun Sarkar and the photo copy of 1975 voter list (Ext. ’Ga’) showing the name of one Shri Surendra Chandra Sarkar, so n of Arjun Sarkar were also annexed. The particular page of 1991 Panchayat voter list (Ext. ’Gha’) showing the name of one Shri Suren Sarkar, son of Arjun Sarka r was also annexed. An illegible copy of the notice pertaining to loan purported ly obtained in 1954-55 by one Shri Arjun Sarkar, a caste certificate in the nam e of Suresh Chandra Sarkar and a certificate dated 27.09.09 issued by the Gaonbu rha of Valukajari village certifying that Smt. Ramoni Bala Sarkar to be the wif e of Shri Dilip Biswas (petitioner No. 1) and that the petitioner No. 1 has been residing at No. 2 Murkata village were also enclosed. 16. As recorded in the Tribunal’s order dated 08.02.2010, none of the docume nts have been proved by the petitioners as required under the provisions of the Evidence Act. The said documents being primary documents, it was the duty of the petitioners to prove the same as per the provisions of the Evidence Act. 17. As per Section 61 of the Evidence Act, the contents of the documents may be proved either by primary or by secondary evidence. Certified copies are only secondary evidence and unless they are proved with the originals, same cannot b e accepted in evidence. As per Section 64 of the Evidence Act, the documents mus t be proved by the primary evidence except in the cases specified in Section 65. It is not the case of the petitioner that the documents produced by them are wi thin the exception of Section 65. No prayer was made before the Tribunal to prov e the documents. This is precisely the reason as to why the Tribunal in its find ing dated 08.02.2010 has rightly recorded that the petitioners did not prove the documents as required under the provisions of the Evidence Act. 18. As recorded above, the petitioners did not exhibit and/or duly proved 19 66 voter list and so also the two undated pattas and the Jamabandi. They also di d not exhibit and/or proved 1970 and 1997 voter list and so also the certificat e dated 18.09.07. Only documents exhibited are Exts. ’Ka’, ’Kha’, ’Ga’ and ’Gha’ (copies of the voter list of 1966, 1970 and 1975 and 1991 respectively). Other documents have not been exhibited. Even the exhibited documents have not been pr oved as required under the aforesaid provision of the Evidence Act. Thus, no rel iance can be placed on the said documents. However, the Tribunal has discussed t he said documents in its impugned judgment and order dated 08.02.2010 and has co me to the opinion that the said documents did not establish the Indian citizensh ip of the petitioners by birth. 19. The prosecution has examined two witnesses. PW 2 who had conducted the e nquiry pertaining to the reference deposed that he enquired about the nationalit y of OPs. as per the direction of the Superintendent of Police (B), Morigaon vid e Ext 1 in presence of local Gaonburha Shri Padmeswar Bishaya, PW 1. On being as ked, the petitioners failed to produce any documents in support of their Indian nationality. He in his deposition further stated that the petitioner No. 1 discl osed that the petitioners illegally came from the village and P.S. Kaidachar, Di strict Moimansing of Bangladesh after March, 1971 and settled at village Kachase lla in Mayong P.S. in Govt. land. PW No. 1 duly proved his enquiry reports vide Exts. 2 and 3. On receipt of the reports of Superintendent of Police (B), Moriga on, referred the case to the Foreigners’ Tribunal for trial with his comments vi de Ext. 3 (iii). 20. The aforesaid testimony of PW 2 was fully supported by the local Gaonbur ha Shri Padmeswar Bishaya, PW 1 who had accompanied the I.O. at the time of the enquiry. According to PW 1, he found the petitioner No. 1 and his family at Kach aseela village about 4/5 years back from where they shifted to another place abo ut a year back. No material contradiction can be elicited by the petitioners fro m these two PWs. 21. As against the aforesaid evidence of prosecution, the petitioners examin ed three witnesses. The petitioner No. 1 examined herself as OPW No. 1. OPW No. 2 is Suresh Sarkar stated to be the father of the petitioner No. 2. OPW No. 3 is one Shri Hare Krishna Biswas. 22. Interestingly OPW No. 1, i.e. the petitioner No. 1, in his deposition st ated that the village Hiloikhunda is under P.S. Mayang which is in the district of Morigaon. But in paragraph -6 of the written statement, it has been stated th at the village Hiloikhunda is in the district of Darrang, It is in this connecti on, learned Tribunal has observed that the petitioner No. 1 has no knowledge whe re the village Hiloikhunda is situated. 23. As regards OPW No. 2 Shri Suresh Ch. Sarkar, he had exhibited ’Ka’ , ’K ha’ , ’Ga’ and ’Gha’ referred to above. The two pattas and the jamabandi do not indicate any year of issuance of the same. Coupled with this the said documents have also not been proved by any witness and/or in the manner as required to be proved as per the provisions of Evidence Act. 24. In the voter list of 1997, the age of the petitioner has been shown as 3 7 years, but as per the evidence given on oath on 01.02.2010, his age was 36 yea rs. Per contra in the affidavit filed in support of the writ petition, the peti tioner has declared his age as 42 years as on 22.09.09. On the other hand, in th e affidavit filed after fresh order passed by the Tribunal the column relating t o the age is blank. 25. The Tribunal has also found that in Ext. ’Ka’ voter list Shri Arjun Sark ar, purported grandfather of the petitioner No. 2 was shown as 64 years of age a nd as son of Narakanta, but in Ext. ’Kha’ voter list of 1970 his age remained st atic, i.e. 64 years and his father’s name was shown as Nabakanta. Similar discre pancies have also been found in the voter lists of 1970, 1975 and 1991 in respe ct of the name and age of the father of the petitioner No. 2. 26. Although in the written statement it is the claim of the petitioners tha t the father of the petitioner No. 2 is Shri Suresh @ Surendra @ Suren Sarkar, b ut Shri Suresh Ch. Sarkar, i.e. OPW 2 himself never stated that he is also known as Surendra and Suren. Thus, it is a matter of convenience for the petitioners to refer any documents by any name resembling that of Shri Suresh Ch. Sarkar. N o reliance can be placed on such documents in establishing one’s nationality. 27. If the petitioners are Indians citizen by birth they could have produced cogent and specific evidence instead of placing reliance on such unproved docu ments. If the petitioners, more particularly the petitioner Nos. 1 and 2 are Ind ian citizens by birth, it is not understood as to why their names do not appear in any of the voter lists except the one pertaining to the year 1997. In fact, i n the said voter list also only the name of the petitioner No. 1 appeared showin g his age as 37 years and not that of the petitioner No. 2. Thus, the petitioner No. 2 who is the mother of the petitioner No. 3 claims herself to be an Indian citizen by birth, without, however, her name being included in any of the voter lists. Interestingly, she also did not come forward to depose before the Tribuna l to prove the documents pertaining to her family, purported father and grandfa ther. OPW No. 3 in his statement stated that he has been working as Govt. Gaonbu rha of village called Barunguri and that about 16/17 years back the petitioners had shifted from that village. In his cross examination he has stated that he di d not bring any proof of being Gaonburha and that when the petitioners left Baru nguri village he was a small child. This witness does not help the case of the p etitioners. 28. Apart from the above, the stand of the petitioners in their written stat ement is not supported by any affidavit. Interestingly, in the verification of t he written statement also there is no signature of the verifiers, i.e. the petit ioners. The petitioners have also not named their mother, particularly the petit ioner No. 1. 29. There is also no explanation from the petitioners as to why the names of Banabashi Biswas and Kartik Biswas did not appear in any other voter list excep t 1966 and 1970. While the name of Banabashi Biswas appears in 1966-1970 voter l ist, the name of Kartik Biswas appears only in 1966 voter list. 30. I now deal with the submissions made by Mr. Roy, learned counsel for the petitioners that the Tribunal has not recorded any independent finding, but has recorded only the submissions made on behalf of the State. On a bare perusal o f the impugned order dated 08.02.2010 will go to show that there is clear and in dependent finding of the Tribunal. Merely because in the said finding a referenc e has been made to the submissions made on behalf of the State, it cannot be sai d that there is no independent finding. The Tribunal has recorded its categorica l finding after dealing with the entire evidence on record. Merely because of th e observations that in view of the materials on record, the statements of PSI, i .e. PW 2, must be accepted, it cannot be said that there is no independent findi ng of the Tribunal. The finding of the Tribunal is well discernible from the imp ugned order itself. The order of the Tribunal will have to be understood not on the basis of the language employed, but on the basis of the findings recorded in the order. independent of such finding, I have also gone through the entire evi dence on record to satisfy myself that it is not a case of no evidence and/or perverse finding . 31. The Tribunal having recorded its finding on the basis of the materials o n record and there being nothing to show that the said finding is not based on evidence and/or is perverse finding, the power of judicial review under Article 226 of the Constitution cannot extend to sit on appeal over such finding of fact and/or to re-appreciate the evidence on record. However, as stated above, I hav e gone through the entire materials to satisfy myself that the impugned order is not the product of perverse finding and/or based on no evidence at all. 32. As per the provision of Section 9 of the Foreigners’ Act, 1946, it is fo r the suspected foreigner to establish his Indian citizenship and the burden of proof lies on him. At the first instance, the matter was remanded back to the Tr ibunal believing the statement of the petitioner that the recipient of the notic e has been living separately from that of the petitioners, but in the fresh proc eeding it has come to the light that said recipient has been living with the pet itioners. Thus, to that extent, there was suppression of material fact. On merit , my findings are recorded above. 33. For all the aforesaid reasons, I do not find any merit in the writ petit ion and accordingly, it is dismissed. 34. Upon, dismissal of the writ petition upholding the impugned order of the Tribunal, the Superintendent of Police (B), Morigaon and the Deputy Commission er, Morigaon shall now ensure apprehension and deportation/push back of the peti tioners to Bangladesh and deletion of their names from the voter list, if any. L et the compliance report be furnished on or before 07.06.2010. 35. Registry shall send down the LCR to the learned Tribunal alongwith the c opy of this judgment and order. Registry shall also send a copy of this judgment and order to the Superintendent of Police (B), Morigaon and the Deputy Commiss ioner, Morigaon and another copy to the Union Govt. in the Ministry of Home. Ano ther copy of this judgment be furnished to Ms. R. Chokraborty, learned Addl. Sr. Govt. Advocate for her necessary follow up action.