WA 177/2011 BEFORE HON BLE MR JUSTICE AMITAVA ROY HON’BLE MR JUSTICE C.R.SARMA JUDDGMENT AND ORDER(ORAL) AMITAVA ROY,J :- Being aggrieved by the judgment and order dated 26.5.2011 passed by the learned Single Judge in WP(C) No.3236/2009 rejecting the writ appellant/writ pe titioner’s challenge to the decision dated 9.9.2008 rendered by the Foreigners Tribunal (Ist), Morigaon in FT(D) Case No.172/2006 adjudging him to be a foreig ner, he is in appeal for redress. 2. We have heard Mr MA Sheikh, learned counsel for the appellant, Mr R Adh ikari, learned State Counsel appearing for the Government of Assam and Mr M. Bha gawati, learned Central Govt. Standing Counsel for the Union of India. 3. The materials on record reveal that on the basis of a report of the Ver ification Officer, Morigaon to the effect that the writ appellant was a suspecte d Bangladeshi national, the Superintendent of Police (B), Mirogaon registered Ca se No.663/1997 on 22.11.1997 and forwarded the reference to the then IM (D) T, Morigaon for trial. Though, on the basis of such reference, IM(D) T Case No.211 7/2003 was registered, on the effacement of IM(D)T Act by the determination mad e by the Hon’ble Apex Court, the reference was transferred to the Foreigners Tri bunal, Morigaon and was renumbered as FT(D) Case No.172/2006. Notice of the said reference was issued to the appellant/writ petitioner whereafter he entered ap pearance and submitted his written statement claiming himself to be an Indian na tional. This was on 27.11.2006. Thereafter though the said reference was procee ded with by the learned Tribunal on various dates i.e. 9.1.2007, 22.2.2007, 10.4 .2007, 7.6.2007, 6.8.2007, 6.11.2007, 19.2.2008 and 23.5.2008, the appellant/wr it petitioner did not participate therein. Eventually, on the basis of the evide nce before it, the learned Tribunal passed the order dated 9.9.2008 declaring th e appellant/writ petitioner to be a foreigner. 4. Being aggrieved, he instituted WP( C) No.3236/2009. In the writ proceed ing, the Superintendent of Police(B), Morigaon, Respondent No.2, endorsed the fi ndings in the impugned order of the learned Tribunal contending that the same we re based on the materials on record which had been correctly evaluated by it. T he principal plea of the appellant/writ petitioner before the learned Single Jud ge was denial of an opportunity to him to prove his pleaded case before the lear ned Tribunal on the basis of the documents furnished with the written statement and also at his disposal to testify that he is an Indian national. The learned Single Judge on a consideration of the pleadings of the parties and the document s amongst others the documents laid before him in support of the appellant/writ petitioner’s claim, declined to interfere with the decision rendered by the lea rned Tribunal and thus, rejected the writ petition. 5. Mr Sheikh has emphatically argued that as the documents produced before the learned Single Judge as well as those at the disposal of the appellant/writ petitioner would amply prove his status of an Indian national, the impugned judg ment and order if allowed to stand, would result in the travesty of justice and therefore, interference is urgently warranted. To reinforce this plea, Mr S heikh has taken us in details to the documents available on records. He has fur ther urged that in compliance of the order dated 15.6.2011 of this Court, the a ppellant/writ petitioner has meanwhile surrendered before the Superintendent of Police (B), Morigaon. Mr Sheikh has relied on the decision of this Court in Mo slem Mondal & Ors vs. Union of India & Ors, 2010(2) GLT 1. 6. Mr Adhikari on the other hand ,has submitted that not only the appellan t/writ petitioner has by his conduct disentitled himself to any further opportu nity of proving his plea of being an Indian national, for his unexplained and pe rsistent default before the learned Tribunal, even the documents in support of his claim do not advance his case in any manner whatsoever. According to Mr Ad hikari, no interference with the impugned judgment and order is called for. Mr B hagawati has generally endorsed the arguments advanced on behalf of the State G overnment. 7. We have considered the pleadings on record as well as the arguments a dvanced on behalf of the parties. On being queried by us to analyze the documen ts proposed to be endorsed as evidence in support of the aforementioned plea of the appellant/writ petitioner, Mr Sheikh has taken us through the typed copy of the Electoral Rolls of 1966 and 1970 of 83 Bokoni (SC) constituency as well a s of the Electoral Rolls of 1993 for 79 Jagiroad (SC) Constituency of the Assam Legislative Assembly. He has also referred to a typed copy of Annual Khiraj patt a No.145 issued in the name of Mir Box on 1.1.1943 by the Deputy Commissioner/Se ttlement Officer, Nagaon. The learned counsel for the appellant/writ petitioner has also referred to us the copies of the periodic patta in the name of Mir Bo x whom he referred to be the grand father of the appellant/writ petitioner. Confronted with our query as to the availability of the school certificate, Mr Sheikh has submitted that Sanjukta Kuranbori Prathamik Bidyalaya, the instituti on in which the appellant/writ petitioner had studied during 1967-1971 had been washed away by floods in 1988 and 1996 resulting in the destruction of the re levant records for which it has been impossible to produce the said document. M r Sheikh however, has submitted that as per version of the classmates of the appellant/writ petitioner during the relevant time, he had left the aforemention ed institution in the year 1971 while he was in Class III. 8. The photocopies of the certified copies of the Electoral Rolls of 1966 and 1970 referred to hereinabove, have been produced before us. A certified copy of the Electoral Roll for 79 Jagiroad (SC) Constituency for the year 1985 has also been laid before us for our scrutiny. Noticeably, a plain reading of the El ectoral Rolls of 1966 and 1970 discloses that the age of the voters’ named th erein namely, Mohammad Ali and Safura Khatun claimed to be the parents of the appellant/writ petitioner have remained unchanged. Though evidently there had b een a gap of 4 years, they had been shown to be aged 37 and 28 years respectivel y in both the Electoral Rolls of 1966 and 1970. In the Electoral Roll of 1985 f or 79 Jagiroad (SC) Constituency, the names of the appellant/writ petitioner a nd his wife Halijan claimed to have been entered. They have been shown to be 25 and 21 years of age respectively. However, they had been shown to be 38 years an d 27 years respectively in the Electoral Roll of 1993 for the same constituency . This is apparently anomalous. Significantly, in the affidavit filed before thi s Court in the month of August,2009, the appellant/writ petitioner has declared his age be of 46 years which indicates his year of birth to be 1963. If that b e so, his age in 1993 Electoral Roll ought to have been reflected as 30 years. I n that view of the matter, even assuming that he had studied in the aforemention ed institution , he did so in Class III at the age of 18 years which by the nor mal standard, is unacceptable. Though Mr Sheikh has tried to impress upon us tha t the recording of age as noticeable from the aforementioned documents cannot be considered to be decisive factor against the tenability of the appellant’s pl ea of Indian nationality, having regard to the manner in which the enumeration i s done, we are left unconvinced with the contention. There is nothing on record to demonstrate the years in which the parents of the appellant/writ petitione r had died. This assumes relevance in view of the conspicuous silence on his part about their enrolment in the voters’ list after 1970. We are told that th e parents of the appellant/writ petitioner are still alive. If that be so, it w as expected of him to prove the relevant extracts of the voters’ list to ind icate as to whether their names had appeared therein after 1970. 9. The documents represented to be Khiraj pattas issued in faovur of Mir Bo x by the Deputy Commissioner, Nagaon do not indicate the particulars of the lan d for which the same had been issued. Though the name Mir appears in the type d copy of the Electoral Roll of 1970 to indicate him to be the father of Mohmma d Ali, it is not possible to conclusively hold in absence of any better evidence that he is the grand father of the appellant/writ petitioner. 10. This Court in Moslem Mondal and Ors (Supra) while had observed by de alienating the jurisdiction of the Tribunal as well as of this Court in exercise of its power of judicial review that the scrutiny of the evidence available, oral and documentary ought to be left to the learned Tribunal for a decision of issue of nationality in such proceedings, considering the nature of the pleas raised before us and the background of the determination made by the two forums, we are of the unhesitant view that the verification as made by us so as to sat isfy ourselves about the justifiability for a remand to the learned Tribunal for a fresh adjudication is not debarred by the above pronouncement. 11. We have perused the discussion and the findings arrived at by the lea rned Single Judge with particular reference to the analysis made of the document s sought to be produced on behalf of the appellant/writ petitioner to justify hi s request for a fresh opportunity to prove his status as an Indian national. We are of the opinion that the determination made by the learned Single Judge cann ot, in the face of the materials on record be held to be absurd or not borne out thereby. The instant appeal being in the nature of an intra court appeal with a very limited scope of interference, we are of the opinion that no ground has been made out by the appellant/writ petitioner for interference with the impugn ed judgment and order. 12. The appeal therefore lacks in merit and is dismissed. No costs.