WP(C) 175/2009 BEFORE THE HON’BLE MR JUSTICE B.K. SHARMA 1. The petitioners, namely Md. Talu Hussain and Msstt. Sahara Khatu n, claiming to be Indian citizens by birth have filed this writ petition challen ging the orders dated 28.12.07 passed by the Foreigners’ Tribunal, North Lakhimp ur in LFT Case No. 134/07 and LFT Case No. 133/07. Although the impugned orders passed by the Tribunal are in two different proceedings, but the petitioners hav e chosen to assail both the orders by filing a single writ petition. 2. The petitioners, as disclosed in the cause title of the writ petition, a re aged about 50 years and 45 years respectively. They are husband and wife. It was 23 years back in the year of 1987, two cases being IM(D)T Case No. 102/87 a nd IMDT Case No. 110/87 were registered against the petitioners alleging them to be illegal migrants from Bangladesh. Thus for the last 23 years the issue as to whether the petitioners are illegal migrants from Bangladesh, is yet to be fina lized and in the process not only they got married, but also procured children. This is the pace at which the foreign nationals and/or illegal migrants in Assam are being detected. Deportation is a far cry. Experience of this Court is, even if a Bangladeshi national is deported/pushed back he/she easily comes back to A ssam making a mockery of the entire process of detection and deportation of fore ign nationals incurring huge expenditures. 3. Coming to the instant case, the aforesaid proceedings before the then IM (D)T was referred to the Foreigners’ Tribunal, Lakhimpur after the IM(D)T Act wa s struck down by the Apex Court in the case of Sarbananda Sonowal (I) reported in AIR 2005 SC 2920. In the Foreigner’s Tribunal (hereinafter referred to as the Tribunal), the cases were reregistered as LFT Case No. 134/07 and LFT No. 133/0 7 respectively. 4. In paragraph-2 of the writ petition, the allegation made is that the Tri bunal decided both the cases ex parte without hearing the petitioners and withou t considering the materials available on record. The particular statements in th e said paragraph that & the petitioners have not been given any information of the aforesaid two cases after such transfer, as a result of which petitioners co uld not get any opportunity of producing documents, submitting W.S. and placing their cases to prove their nationality. And thereby they are being seriously pre judiced is absolutely a false statement as the records of the Tribunal have rev ealed and which have been discussed below. FT Case No. 134/07 5. It was on 11.04.07, the Tribunal recorded the order relating to scrappin g of IM(D)T Act by the Apex Court and the requirement to proceed with the matter according to the provisions of Foreigners Act 1946. On 20.07.07 an order was pa ssed for registering the case afresh and to issue notice to the petitioner by fi xing the matter on 21.08.07 as the next date. As recorded in the order dated 21. 08.07, the petitioner did not appear before the Tribunal inspite of service of n otice. However, he appeared before the Tribunal on 24.08.07 by filing an applica tion praying for another date to file written statement. The reason for non-appe arance on 21.08.07 was assigned as ’Assam Bandh’ called by some organizations. T he application was signed by the petitioner No. 1 himself. 6. On the basis of the aforesaid prayer, the Tribunal was pleased to adjour ned the matter on 19.09.07 providing opportunity to the petitioner to file writt en statement. On 19.09.07 also an application was filed on behalf of the petitio ner No. 1 praying for further time on the ground of illness of the petitioner No . 1. The prayer was allowed by the Tribunal fixing the matter on 29.10.07. On 29 .10.07 the petitioner did not appear and no step was taken. Situated thus, the T ribunal passed an order for ex parte hearing of the matter fixing the matter on 26.11.07. On 26.11.07 also the petitioner remained absent and accordingly the Tr ibunal fixed the matter for ex parte hearing on 28.12.07 on which date also the petitioner remained absent and ultimately the Tribunal passed the impugned order assailing which the instant writ petition has been filed. FT Case No. 133/07 7. As in the aforesaid case, in the instant case also the Tribunal by its o rder dated 03.04.07 recorded about the scrapping of the IM(D)T Act and requirem ent to proceed with the matter in accordance with the provisions of the Foreigne rs Act, 1946. 8. On 20.07.07 the Tribunal passed the order for fresh registration of the case fixing the matter on 21.08.07. Notice was duly issued to the petitioner No. 2 for filing written statement etc. On 21.08.07, the petitioner No. 2 appeared before the Tribunal and prayed for time to file written statement and the same w as allowed fixing the matter on 19.09.07. Be it stated here that the application was filed by the petitioner No. 2 herself. On 19.09.07, the petitioner No. 2 di d not appear but filed an application praying for time. The reasons assigned for non-appearance was alleged illness. The Tribunal granted the prayer fixing the matter on 29.10.07. On 29.10.07, the petitioner No. 2 remained absent without a ny step. Accordingly the Tribunal passed an order for ex-parte hearing of the ma tter fixing next date as 26.11.07. On 26.11.07 also the petitioner No. 2 did not appear nor took any step. Situated thus, the Tribunal fixed the matter on 28.12 .07 for ex-parte order. On 28.12.07 also, the petitioner did not appear and acco rdingly the Tribunal passed the impugned order. 9. With the aforesaid revelations made from the records, it is absolutely f alse on the part of the petitioners to make a declaration in the writ petition t hat they were not provided with any opportunity of being heard. In view of such false statement on oath, the petition is liable to be dismissed. 10. It appears that after the aforesaid two impugned orders the Superintende nt (B) Lakhimpur issued quit India notices both dated 18.07.08 (Annexures- C an d D) to the petitioners directing them to leave India within seven days. It was only after that the petitioners filed the instant writ petition on 20.01.09 and obtained an interim order dated 21.01.09 not to deport them from India. 11. In paragraph -5 of the writ petition, the petitioners have stated that t hey were aware of the transfer of the cases from IM(D)T to Foreigners’ Tribunal, Lakhimpur. According to them, they had handed over the necessary documents to o ne Shri Prasanta Dutta, learned Advocate to defend them in the proceeding before the Tribunal. It is the further statement of the petitioners that the said lear ned Advocate (respondent No. 5) while accepting the documents alongwith the earl ier documents assured the petitioners that whatever their presence would be requ ired they would be intimated. It was on that assurance the petitioners had been waiting for communication from the respondent No. 5, but instead of such communi cation they could come to know about the aforesaid ex-parte orders passed by the Tribunal. 12. In the aforesaid statements made in paragraph-5 no material particulars have been disclosed as to when the documents were handed over to the respondent No. 5. There is total suppression of fact that the petitioners in fact, after tr ansfer of the cases to the Foreigners Tribunal did appear on two occasions and t hereafter abandoned the proceedings. The applications for adjournments were all filed by the petitioners themselves and thus, it is totally false to state that they had entrusted the case to the petitioner No. 5. Case in the writ petition. 13. According to the petitioners, the petitioner No. 1 was born in 1958 and was brought up in Borbam Pathar village in the District of Lakhimpur. His furthe r claim is that his entire dynasty has been living in the said village and their names have been included in the voter lists. The petitioner No. 1 claims that h is father’s name as Nazar Ali and his name appeared in 1951 NRC. The petitioner No. 1 further claims that his grandfather’s name is Usman Ali @ Osan Ali and th at he has landed property in the said village. Further claim of the petitioner is that his brothers are Md. Nobir Hussain, Md. Zafar Ali and Md. Tajar Ali and their names are included in Annexure-F Jamabandi. 14. In paragraph- 8 of the writ petition, it has been stated that the petiti oner No. 1 had cast his vote in 1997 as his name appeared in the voter list of 1 997 in the particular constituency. The petitioner has also relied on Annexure- H certificate issued by the Gaonburah. 15. As regards to the petitioner No. 2, the claim is that her father is Amir uddin and grandfather is Zamir Seikh who have landed property in village Doraba ndi under Lahorighat Police Station in the district of Nagaon. According to her, the said father and grandfather now live in the district of Morigaon. She has p laced reliance on Annexure -I Sale Deed of 1941. She has also placed reliance on Annexure-J Kacha Patta purportedly standing in the name of her father named Ami ruddin. She has also placed reliance on a Kacha Patta standing in the same name which is Annexure-K. According to the petitioner No. 2, name of her father appea red in the voter list of 1965. 16. In paragraph-14 of the writ petition, the petitioners have stated that t hey were married for the last about 30 years and they have now three sons and th ree daughters. They have also placed reliance on Annexure-M certificate dated 16 .11.08 purportedly issued by the Gaonburah of the particular village certifying her marriage with the petitioner No. 1. 17. Since the aforesaid allegation has been made in the writ petition again st the respondent No. 5 who was not originally party respondent, this Court by order dated 21.01.09 directed the petitioners to make him party respondent and a ccordingly he was added as respondent No. 5. The said Advocate has entered appea rance in this proceeding and has filed an affidavit in opposition totally denyin g the stand taken by the petitioners against him. According to him, the petition ers have made absolutely false and mala fide allegations against him and thereby have cast unwanted aspersions on his integrity as an Advocate. He has denied th at on receipt of notice from the Foreigners’ Tribunal, the petitioners had come to him and that he had assured them to do the needful. According to him, he was engaged only to conduct the case before the IM(D)T and not before the Tribunal. 18. In paragraph-7 of the affidavit the respondent No. 5 has stated about th e facts which are revealed on perusal of the records of the Tribunal and has bee n discussed above. 19. In reply affidavit filed by the petitioners, they have generally denied the statements made by the respondent No. 5 in his affidavit without dealing wit h the specific pleas raised by the respondent No. 5, more particularly the fact that after transfer of the case to Foreigner’s Tribunal from the IM(D)T they had appeared on two occasions and thereafter did not appear. As against the specifi c plea of the respondent No. 5 in reference to the records of the Tribunal made in paragraph -7, there is no reply of the petitioners. 20. I have heard Mr. M.H. Choudhury, learned counsel for the petitioners as well as Ms. R. Chokraborty, learned Addl. Sr. Govt. Advocate. I have also heard Ms. Hoda, learned CGSC and Mr. S.S. Sarma, learned Sr. counsel assisted by Mr. G . Jalan, learned Advocate for the respondent No. 5. I have also gone through the entire records including the records of the Tribunal in both the cases. 21. The falsehood to which the petitioners have taken recourse to, has been noted above. As against their claim that they had engaged the respondent No. 5 w ho allegedly did not take step, the records of the Tribunal have revealed that t he petitioners appeared before the Tribunal all by themselves without any engage d Advocate. On two occasions they prayed for time to file written statement whic h the Tribunal granted and thereafter they did not respond to the proceedings. S o far as the engagement of the respondent No. 5 is concerned, he was engaged bef ore the IM(D)T and not before the Foreigners’ Tribunal. Had it been so, there wo uld have been no occasions for the petitioners to appear before the Tribunal and to pray for time to file written statement. This aspect of the matter has not b een stated by the petitioners in the writ petition even remotely. They have blam ed the respondent No. 5 without any material particulars and also has not dealt with that part of the fact revealed from the records of the Tribunal and discuss ed in paragraph-7 of the counter affidavit filed by the respondent No. 5. 22. As has been held by the Apex Court in Tilokchand Motichand vs. H.B. Muns hi reported in AIR 1970 SC 898, a petitioner has no right to move the Court for enforcement of his right on a petition containing misleading and inaccurate sta tements, and if he files such a petition the Court will dismiss it. The calculat ed and designed suppression of material facts in order to secure an interim reli ef; which if disclosed, would have disentitled the petitioner to the extra-ordin ary remedy or in case would have materially affected the merits on both the inte rim and ultimate reliefs claimed would deprive the petitioner from considering h is case on merit. 23. In the instant case, the petitioners are not entitled to any relief they having not made a full and true disclosure of the facts, but for, in order to p ut forward their case on violation of the principle of natural justice, have cho sen to suppress their representation before the Tribunal. As a general rule, sup pression of material fact by a litigant disqualifies such litigant from obtainin g any relief. This rule has been evolved out for the need of the Court to deter a litigant from abusing the process of Court by deceiving it. 24. In the instant case, the writ petitioners have projected their case by s uppression of material fact which entailed them with admission of the writ petit ion with interim orders. Thus, on that score alone the writ petition is liable t o be dismissed. 25. As regards the merit of the case of the petitioners, there is noting to interfere with the impugned orders passed by the learned Tribunal. The burden of proof casts on the petitioners as per the provisions of Section 9 of the Foreig ners Act, 1946, having not been discharged, the Tribunal had no other option tha n to answer the reference in favour of the State. That being the position, I see no reason to interfere with the impugned orders passed by the Tribunal. 26. Coming to the writ jurisdiction, the petitioners have annexed certain do cuments to prove that they are Indian citizens and that too by birth. In support of such claim, they have enclosed the purported NRC of 1951 containing the name of one Nazar Ali whom the petitioner No. 1 claims to his father. There is nothi ng to show that the name Nazar Ali finds mention in the NRC 1951 is the father o f the petitioner No. 1. That apart, there could be many persons by name Nazar Al i and the petitioner cannot be permitted to pick up any one of them relatable to a particular document to claim that he is his father. 27. The petitioners have referred to 1997 voter list containing their names and disclosing their age as 47 years and 45 years respectively. If the petitione rs are Indian citizens by birth and they were 47 years and 45 years of age in th e year 1997, they could have produced many more documents including the voter li sts to establish their Indian citizenship. It is also not understood as to how t heir age could be 50 years and 45 years as on the date of filing of the writ pet ition on 20.01.09 if they were aged 47 years and 45 years in 1997. Although the writ petition was filed on 20.01.09, but the affidavit in support of the said wr it petition, was sworn in 23.12.08. 28. The certificate on which the petitioners have placed reliance only speak s of the fact that the petitioners are residents of the particular locality. The y do not prove anything else. Same is the case with the Sale Deed, undated Jamab andi, Revenue Receipt etc. which are all photo copies annexed to the writ petit ion. As noted above, the petitioner No. 1 has claimed that his grandfather Amiru ddin was a voter in 1965 (Annexure-L photo copy) and that there are landed prop erties in the names of his father and grandfather, but he could not explain as w hy except 1965 their names did not appear in any other voter lists. I hasten to add that it is not for the writ Court to appreciate the said documents so as to find out as to whether the petitioners are Indian citizens. The petitioners havi ng failed to discharge their burden of proof of Indian citizenship by responding to the proceeding before the Tribunal and such failure being not on account of any unavoidable circumstances and there being suppression of material fact in mo ving the writ Court, it is not for the writ Court to appreciate the documents pr oduced by the petitioners so as to return a finding in their favour. 29. The petitioners merely placing reliance on certain documents (all photo copies) cannot claim to have establish and/or discharge the burden of proof as e nvisaged under Section 9 of the Foreigners Act, 1946. They will have to establis h such documents in the manner prescribed in the Evidence Act which they have fi led to so do. 30. In view of the above, I have no hesitation to dismiss the writ petition upholding the impugned order passed by the Tribunal. The direction is hereby iss ued to immediately take the petitioners and their children into custody and keep them in judicial custody or in detention camp till such time they are deported/ pushed back to Bangladesh. 31. The Superintendent of Police (B), Lakhimpur and Deputy Commissioner, Lak himpur shall ensure apprehension and deportation/ push back of the petitioners a nd their children to Bangladesh as expeditiously as possible and to delete their names from the voter lists. 32. The writ petition is dismissed. The Superintendent of Police (B), Lakhim pur and Deputy Commissioner, Lakhimpur shall furnish compliance report on or bef ore 22.06.2010. Let a copy of this order be furnished to the Superintendent of Police (B), Lakhimpur and Deputy Commissioner, Lakhimpur and another copy to th e Union of India in the Home Ministry. A further copy of this judgment be furnis hed to Ms. R. Chokraborty, learned Addl. Sr. Govt. Advocate for her necessary fo llow up action. LCR be sent down to the Tribunal alongwith a copy of this Judgme nt.