S tate v. Mamiran Nessa) was registered in FT
Case Details
WP(C) 6265/2010 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER (ORAL)
Legal Reasoning
By means of this writ petition, the petitioner has challenged the orders dated 1 5.9.2010 and 23.10.2009 passed by the learned Member, Foreigners Tribunal (1), B arpeta in FT Case No. 310/2006 (B). While by the second order dated 23.10.2009 ( Annexure-2), the Foreigners Tribunal, Barpeta has answered the particular refere nce against the petitioner and in favour of the State, by the first order dated 15.9.2010 (Annexure-4), the prayer for setting aside the ex-parte order i.e. ord er dated 23.10.2009 (Annexure-2) has been rejected. 2.
Legal Reasoning
I have heard Mr. J. Ahmed, learned counsel for the petitioner as well as Mr. M. Bhagawati, learned CGC. Also heard Ms. K.K. Choudhury, learned State Cou nsel. I have also perused the entire materials on record including the file rece ived from the Foreigners Tribunal, Barpeta. 3. The FT Case No. 310/2006 (B) arising out of FT Reference No. 322/1997 (S tate Vs. Mamiran Nessa) was registered in FT(1) Barpeta on the basis of the refe rence made by the authority for its opinion as to whether the petitioner is a fo reigner (illegal Bangladeshi migrant) who had entered into Assam after 25.3.1971 without any valid document of travel. On receipt of the notice, the petitioner appeared before the Tribunal and submitted her written statement. On perusal of the proceeding file of the Tribunal, it is seen that number of adjournments had been granted. Although, the reference was of 1997, but it took nearly 10 years t o dispose of the matter. Be that as it may, the petitioner in her written statem ent stated that her grand father’s name appeared in the voter list of 1970. It w as also stated that her father’s name also appeared in the voter lists of 1997 a nd 2005. Another statement made was that her father had landed property at Villa ge Simlabari under periodic patta No. 28. However, she did not state anything re lating to her in reference to any document. 4. With the aforesaid statement, she prayed for dismissal of the reference. However, after filing of the written statement, the petitioner did not appear t o prove her citizenship as per the provision of Section 9 of the Foreigners Act. 1946. She also did not submit any document. As per Section 9 of the Foreigners Act, 1946, burden lies on the proceedee to prove that she is not a foreigner and for that matter is an Indian citizen. 5. When the petitioner failed to discharge her burden of proof and also did not respond to the proceeding before the Tribunal, there was no option left tha n to proceed ex-parte against her. In the proceeding, State examined two witness es namely PW-1 Abul Hussain and PW-2 Abdul Rahim. While PW-1 is the Gaonburha, P W-2 is the Enquiry Officer, who had conducted the verification when doubt arose as to whether the petitioner is an Indian citizen or not. PW-1 in his deposition categorically stated that he was present during the enquiry and that the petiti oner could not produce any document to prove her Indian citizenship. Referring t o the visit of the Enquiry Officer to the place and meeting the petitioner, he i n his deposition stated that the petitioner could not submit anything to prove h er Indian citizenship. Ext-1 is the report submitted by the Enquiry Officer and Ext-1(1) is his signature. 6. PW-2 who had conducted the enquiry as per the direction of the Electrica l Registration Officer, Baghbar LAC stated in his deposition that he had visited the village in which the petitioner used to reside and enquired about her natio nality and that on such visit, the local Gaonburha had accompanied him. He in hi s deposition stated that he personally met the petitioner and asked her to submi t the relevant documents to prove her Indian nationality. She was also allowed t ime, but she failed to produce any document. Accordingly, he submitted the said enquiry report. Learned Tribunal on perusal of the relevant materials having answered th 7. e reference in favour of the State and against the petitioner, she has filed the instant writ petition, which was preceded by another writ petition being WP(C) NO. 2436/2010, which was dismissed by order dated 20.8.2010 on withdrawal. The g round of withdrawal was to move the learned Foreigners Tribunal. However, nothin g was disclosed as to how and as to what manner and under what circumstances, th e Tribunal would be moved for further adjudication of the matter. Learned Tribunal in its impugned judgment dated 23.10.2009 has rightly h 8. eld that mere statement in the written statement regarding alleged incorporation of names of grandfather and father without producing any document cannot prove Indian citizenship of the petitioner. I find no infirmity in the order dated 23. 10.2009. 9. As noted above, the petitioner had earlier filed the writ petition being WP(C) No. 2436/2010 assailing the said order, but the same was withdrawn on 20. 8.2010, which was allowed and the writ petition was dismissed on withdrawal. Str ictly speaking there was no liberty granted to the petitioner to pursue other re medy. However, submission made by the learned counsel for the petitioner that th e petitioner would move the Foreigners Tribunal was recorded. After the aforesaid development, the petitioner filed an application dat 10. ed 24.8.2010 for review of the aforesaid judgment and order dated 23.10.2009. Th e application was filed under Order 9 Rule 13 CPC. The said petition was not acc ompanied by any delay condonation petition. From the date of the judgment dated 23.10.2009, there was a delay of 10 months. As per Article 123 of the Limitation Act, application for setting aside the ex-parte decree is required to be filed within 30 days. Be that as it may, in the said application, only ground assigned for set 11. ting aside the ex-parte judgment dated 23.10.2009 was that although she submitte d written statement but the engaged Advocate did not submit the documents. This ground, as the experience of this Court is a common ground in respect of proceed ing before the Foreigners Tribunal in good number of cases. The petitioner took the plea of negligence on the part of the engaged counsel unmindful of his/her o wn duty to prove that he/she is not a foreigner as required under Section 9 of t he Foreigners Act. Learned Tribunal rightly rejected the said application being devoid of any merit. As recorded in the said order dated 15.9.2010, the petition er had, earlier also approached the Tribunal by filing another application under the same provision, but the same stood rejected. 12. Mr. J. Ahmed, learned counsel for the petitioner referring to the Full B ench decision of this Court reported in 2013 (1) GLT (FB) 809 (State of Assam Vs . Moslem Mondal) submits that the Tribunal having had the jurisdiction to entert ain the application for setting aside of ex-parte award, learned Tribunal ought to have entertained and allowed the application that was filed by the petitioner . 13. Setting aside of the ex-parte order cannot be automatic. Sufficient grou nd will have to be assigned towards that end. There being no explanation in the application that was filed by the petitioner as to what prevented her from appea ring before the Tribunal after filing written statement, merely by blaming the e ngaged counsel, she cannot seek setting aside of the ex-parte order. As recorded in the impugned order, she had also filed another application on an earlier occ asion, but the said fact was not disclosed before this Court. 14. Considering the matter in its entirety, I am of the considered opinion t hat there is no merit in the writ petition and accordingly, it is dismissed. It is submitted that the petitioner is presently in the detention camp. The SP(B), Barpeta shall ensure her deportation to her country of origin. The Deputy Commis sioner, Barpeta shall also ensure deletion of the name of the petitioner from th e voter list, if any. Registry shall send down copies of this order to the said two authorities for their needful. Another copy may also be sent to the Union Go vernment in the Home Department. Mr. M. Bhagawati, learned CGC may also be provi ded with a copy of this order for his needful.