MOHAMMAD SAHID ALI FAKIR Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition has been filed under Section 17 of the Illegal Migrants (Determination) Tribunal Act, 1983, (hereinafter referred to as IMDT Act). However, during the pendency of the petition the IMDT Act, 1983 was amended by Act 24 of 1988 and the Section 17 conferring revisional jurisdiction to the High Court has been deleted. However, in appropriate case this Court can exercise jurisdiction under Article 227 of the Constitution of India and this petition is treated as a petition under Article 227 of the Constitution.

(2.) Proceedings under the provisions of Foreigners Act in F.T. Case No. 13/80 was initiated against the petitioners before the Foreigners' Tribunal, Sonitpur. After enactment of the I.M.D.T. Act, 1983, the case was transferred to the learned I.M.D. Tribunal, Sonitpur, hereinafter mentioned as the Tribunal. The case was renumbered as I.M.D.T. Case No. 8/85. In the proceeding before the tribunal, the State examined one witness i.e. the police officer, on the basis of whose report the proceeding was initiated. The petitioner examined 3 witnesses and filed and proved some documents. The learned tribunal by the judgment and order dated 17-2-86 passed in the I.M.D.T. Case No. 8 of 1985, held that the petitioners migrated to India (Assam) from Bangladesh in the year 1973 and therefore were foreign nationality. The petitioners preferred Appeal Case No. 10/86 impugning the order of the tribunal. The learned appellate tribunal by the impugned judgment dated 22-10-86 dismissed the appeal and affirmed the decision of the learned tribunal.

(3.) I have heard Mr. H.R.A. Choudhury, learned counsel for the petitioner and Mr. R. P. Sharma, learned Govt. Advocate, Assam. Mr. Choudhury submits that the learned tribunal committed manifest error of law in placing entire burden on the petitioners to establish that they are citizens of India although it was for the State to discharge initial burden by leading cogent evidence that petitioners are not citizens of India and that the petitioners migrated in 1973 from Bangladesh. No evidence is adduced in support of the allegation except the hearsay evidence of the sole witness of the Inquiry Officer who deposed that he came to know from one Lihil Nath and Kinaram Nath of the locality that the petitioners migrated into India (Assam) in 1973. But, neither Lohit nor Kinaram has been examined.