ABDUL MATALI Vs. UNION OF INDIA AND ORS.

JUDGEMENT

(1.) This appeal by the proceedee under the provisions of Foreigners Act, 1946 is directed against the judgment and order dated 6.5.2013 passed by the learned Single Judge in WP(C) No. 1291/2013 dismissing the writ petition filed by the present appellant challenging the order dated 29.1.2013 passed by the learned Member, Foreigners Tribunal-III, Barpeta (Assam) in FT Case No. 232 (III)/2011 on the basis of the reference made by the Superintendent of Police ('SP' for short), Barpeta. The aforesaid FT case had been registered against the appellant. The appellant's case in brief is that a proceeding was initiated against the appellant under the provisions of the Illegal Migrants (Determination by Tribunals) Act, 1983 ('IMDT Act, 1983' for short), which was registered and numbered as IMDT Reference Case No. 2252/2001 before the Tribunal, alleging that the appellant is an illegal migrant. The said proceeding, however, had been transferred to the Foreigners' Tribunal, in view of the declaration made by the Apex Court in Sarbananda Sonowal (1) v. Union of India & Anr., 2005 5 SCC 665 that IMDT Act is ultra vires the Constitution and directing transfer of the proceeding from the IMDT to the Foreigners' Tribunal. The proceeding, thereafter, was registered as FT Case No. 232(III)/2011 in the FT No. (III), Barpeta. The appellant contested the said proceeding by filing written statement contending inter alia that he is an Indian national by birth and his parents' name were also enumerated in the voters list of 1965. It has also been pleaded that his father was issued with an Indian passport by the authority under the provisions of Passport Act way back on 7.9.1953 and the appellant's name has also been enumerated in the Voters list of 1997, 2005 and 2010 under the 42 No. Patacharkuchi Legislative Constituency. It has further been contended that his mother's name, namely, Sara Khatun Bibi, was also enumerated in the Voters list of 1970.

(2.) The appellant in support of his contentions has examined himself as witness and also proved nine (9) documents, being the passport dated 7.9.1953 issued in the name of Abdul Aziz Sheikh (Ext. 1); Certificate dated 1.1.2012 issued by the village Headman of Dumuria village certifying that the appellant is a resident of Dumuria (Ext. 2); Voters list of 1965 containing the names of Abdul Aziz, Son of Osman Ali, Sara Khatun Bibi (wife of Aziz Ali), Abdul Mannaf, son of Aziz Ali as Ext. 3. The voters list of 1970 containing the names of Sara Khatun Bibi, wife of Abdul Aziz and Abdul Mannaf son of Aziz Ali (Ext. 4); Voters list of 1997 containing the name of Abdul Mannaf, son of Abdul (Ext. 5) Voters list of 1997 containing the name of Motaleb, son of Abdul as Ext. 6; Voters list of 2005 containing the name of Abdul Mannaf, son of Abdul Aziz, Ext. 7, Voters lists of 2005 and 2010 containing the name of the appellant as Exts 8 and 9 respectively. According to the appellant, Abdul Aziz Sheikh and Abdul Aziz is one and the same person and Sara Khatun Bibi is his mother. The Tribunal upon appreciation of the evidence on record, passed the order as indicated hereinabove opining that the appellant is a foreigner within the meaning of Foreigners Act coming to Assam, (India) from the specified territory after 25th March 1971.

(3.) Aggrieved by the order dated 29.1.2013 a writ petition being WP(C) No. 1291/2013 was filed by the appellant challenging the legality of the aforesaid order dated 29.1.2013. The learned Single Judge of this Court after hearing the counsel appearing for the parties and upon perusal of the materials on record, was not inclined to interfere with the impugned order passed by the learned Tribunal in exercise of power under Article 226 of the Constitution of India and dismissed the writ petition. Hence, the instant appeal challenging the judgment and order dated 6.5.2013 passed by the learned Single Judge.