ASHRAF ALI Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioners have filed this petition seeking to invoke the jurisdiction of this Court under Article 226 of the Constitution of India in challenging the order dated 28.5.2009 passed by the learned Member, Foreigners Tribunal (1st), Morigaon in Case No. FT(C) 652/2006 declaring them as foreigners within the meaning of Section 2(a) of the Foreigners Act, 1946. (the 1946 Act).

(2.) A reference under Section 8(1) of the Illegal Migrants (Determination by Tribunals) Act, 1983 was made by the Superintendent of Police (B), Morigaon, Assam to the Tribunal constituted under the provisions of the said Act for determination of the question as to whether the petitioners are illegal migrants within the meaning of Section 3(c) of the said Act, alleging that they entered into India on or after 25th day of March 1971. On the basis of such reference, IM(D)T Case No. 397/2001 was registered. The said proceeding, however, subsequently transferred to the Foreigners Tribunal, Morigaon, in view of declaration of the Illegal Migrants (Determination by Tribunals) Act, 1983 as unconstitutional by the Apex Court in Sarbananda Sonowal v. Union of India and Ors., 2005 AIR(SC) 2920, and consequent upon the issuance of notification by the Government of Assam dated 5.7.2006. Accordingly FT(C) 652/2006 had been registered and numbered in the Foreigners Tribunal (1st), Morigaon and notices were issued therein. The petitioners on receipt of the notices entered appearance and filed their joint written statement contending, inter alia, that they are Indian nationals by birth and the names of the parents of the petitioner Nos. 1 and 2 were enrolled in the electoral roll of Lahorighat LAC, Assam in the year 1966 and 1970 and Dhing LAC, Assam in the year 1965 and 1970, respectively, and out of their wedlock since the petitioner Nos. 3 to 8 were born, they are also Indian nationals by birth. In the written statement they have also denied that they illegally entered into India after 25.3.1971 as alleged.

(3.) Altogether 4(four) witnesses were examined in the proceeding before the tribunal, 2(two) from the side of the petitioners and 2(two) by the State. The petitioners though filed seven Nos. of documents in support of their claim that they are Indian nationals, none of those documents were proved and marked as exhibits. The respondent State, however, proved 3(three) documents, namely, Ext.-1 being the communication issued by the Superintendent of Police (B), Morigaon to the Sub-Inspector of Police (B), Dharamtul P.S. to make an enquiry, under the provisions of the Illegal Migrants (Determination by Tribunals) Act, 1983, as to whether the petitioners are illegal migrants within the meaning of the said Act and to submit the report; the Ext.-2 dated 30.11.2000 issued by the S.I. of Police (B) furnishing the particulars in Form No. 1 and Ext.-3 being the report submitted by the Sub-Inspector of Police (B), dated 30.12.2000, which also contains the recommendation of the Inspector of Police, Deputy Superintendent of Police and also the endorsement of the Superintendent of Police (B), dated 5.7.2002. The witnesses were duly cross-examined by the respective parties. The learned Tribunal upon appreciation of the materials available on record has passed the order declaring the petitioners as foreigners within the meaning of Section 2(a) of the 1946 Act, and, hence, the present writ petition.