Moslem Mond al & ors v. Union of India & ors. reported in
Case Details
WA 266/2008 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY THE HON’BLE MR. JUSTICE A.K. GOSWAMI THE HON’BLE MR. JUSTICE UJJAL BHUYAN [Katakey, J.] The State of Assam, represented by the Commissioner & Secretary, Home De partment, as well as the Superintendent of Police, Barpeta, have filed the Revie w Petition No.22/2010 seeking review of the judgment and order dated 01.02.2010 passed by a Division Bench of this Court in Writ Appeal No.238/2008 (Moslem Mond al & ors. Vs. Union of India & ors. reported in 2010(2) GLT 1), on the grounds s et forth in the review petition. On 28.04.2010 when the review petition was take n up for consideration by a Division Bench, a prayer was made by the learned cou nsel appearing for the appellants in WA No.238/2008 to hear all the learned coun sel appearing for the parties in the appeal including amicus curiae assisting th e Court and to hear the review petition along with other matters, which was acce pted by the Court. Vide order dated 17.05.2010, while issuing notice in the revi ew petition, the aforesaid Division Bench consisting of the Hon’ble the then Chi ef Justice and the Hon’ble Judge, who was one of the members of the Division Ben ch which decided the WA No.238/2008, referred the matter to a Full Bench conside ring the (cid:28)importance of the issue involved in the matter and that there are numb er of judgments, which if are not taking contrary view but are taking different view (cid:29) than the view taken by the Division Bench in the aforesaid judgment dated 01.02.2010 passed in WA No.238/2008. Accordingly the review petition along with other connected matters, relevant facts of which are discussed below, relating t o detection and deportation of foreigners under the provisions of Foreigners Act , 1946 (in short 1946 Act) read with Foreigners (Tribunals) Order, 1964 (in shor t the 1964 Order), have been placed before this Full Bench for hearing. Relevant facts in Review Petition No.22/2010 2. This review petition arises out of the judgment and order dated 01.02.20 10 passed by a Division Bench of this Court in Writ Appeal No.238/2008, which wa s filed by Moslem Mondal and 17 others, who were the petitioners in WP(C) Nos.13 55/2008, 1358/2008, 1359/2008 and 1364/2008, challenging the common judgment and order dated 25.07.2008 passed in WP(C) No.1094/2008 and batch, including the af oresaid writ petitions. 3. The Division Bench vide order dated 14.08.2008 while admitting the appea l for hearing, passed an interim direction to re-examine the cases of each one o f the appellants by the Tribunal after giving an appropriate opportunity to them as well as to the State to produce such evidence as each of the parties deem fi t in the circumstances. The Tribunal was directed to conduct fresh enquiry and t o record appropriate conclusion based on the evidence that may be produced by ei ther parties and to place the same before the Division Bench. Accordingly, the T ribunal submitted 6(six) reports, 4(four) pertaining to WA No.238/2008 and one e ach in connection with WA Nos.264/2008 and 265/2008. Copies of the said reports were also furnished to the learned counsel appearing for the parties. The Divisi on Bench in its order dated 02.12.2008 passed in WA Nos.238/2008, 264/2008 and 2 65/2008 discussed the aforesaid reports. The petitioners in WP(C) Nos.1355/2008 and 1359/2008 were found to be Indian citizens. One of the petitioners in WP(C) No.1358/2008, namely, Shri Iman Ali and his 4(four) children were found to be In dian citizens. The wife, however, was concluded to be a foreigner. In WP(C) No.1 364/2008, while the husband was found to be not an Indian citizen along with the children, his wife was found to be an Indian citizen. The appellants in WA No.2 64/2008 were found to be foreigners and the sole appellant in WA No.265/2008 an Indian citizen. 4. The Division Bench thereafter decided only the WA No.238/2008, filed by 18 appellants, vide judgment and order dated 01.02.2010 interfering with the dec
Decision
ision of the learned Single Judge in WP(C) No.1355/2008, where 4 out of 18 appel lants were the petitioners, setting aside the same, apart from setting aside the order dated 31.12.2007 passed in F.T. Case No.124/2007, by upholding the findin g recorded by the Tribunal and its opinion expressed in its report dated 15.10.2 008, to the extent the same are consistent with the finding recorded in the afor esaid judgment passed by the Division Bench. The Division Bench, however, by the said judgment and order did not decide WA No.238/2008 in so far as it concerns the other appellants, who were the writ petitioners in WP(C) Nos.1358/2008, 1359 /2008 and 1364/2008, apart from WA Nos.264/2008 and 265/2008. 5. In paragraph 43 of the aforesaid judgment and order dated 01.02.2010 the Division Bench formulated the following questions of law for decision:- When proceedings under the Foreigners Act are initiated before the Tribu (cid:28)(i) nal constituted under the Foreigners Order, 1964 on whom does the burden of proo f lie? (ii) Whether the State is required to prima facie satisfy the Tribunal before a person, against whom proceedings are initiated, is called upon to discharge t he burden under Section 9 of the Foreigners Act? (iii) Whether the documents prepared under the Census Act and the Electoral Ro lls prepared for the purpose of elections under the Representation of the People Act are admissible piece of evidence and if they are admissible what is the evi dentiary value of such documents? (iv) (v) What is the standard of proof in such proceedings? What is the role of the Tribunal in such proceedings? (cid:29) 6. The first question was answered by the Division Bench to the effect that in view of the expression ’onus of proof’ occurring in Section 9 of the 1946 Ac t, which reflects what Section 106 of the Evidence Act envisages, and does not r eplace Section 101 of the Evidence Act completely, the initial burden lies on th e State to establish, to the satisfaction of the Tribunal, that the grounds on w hich it claims the proceedee to be foreigner, are true, which will be confined t o the grounds on which the State rests its case and it will, however, have no re sponsibility to prove, other than the grounds which State must prove, that the p roceedee is not an Indian citizen. It has further been held that the proceedee, thereafter, has to discharge his burden of proof that he is an Indian citizen as the State is not expected to prove a negative fact, namely, that the proceedee is not an Indian citizen. 7. The Division Bench, however, while answering the second question, placin g reliance on the decision of the Apex Court in Sarbananda Sonowal(II) Vs. Union of India reported in (2007)1 SCC 174, took the view that the Tribunal is not re quired to arrive at a prima facie satisfaction before initiating a proceeding ag ainst an individual under the Foreigners Act. 8. In answering the 3rd question it has been held that the documents prepar ed under the Census Act are not admissible in evidence, in view of Section 15 of the said Act. It has, however, been held that the voters list is certainly a re levant piece of evidence in the enquiry of nationality of a person and the entri es in the voters list are admissible in evidence. 9. The standard of proof in a proceeding before the Tribunal under the 1946 Act, which is the fourth question, is held to be the same as that in a civil su it i.e. preponderance of probabilities. Relevant facts in the Writ Appeals WA No.258/2008 The Superintendent of Police, Barpeta, suspecting the appellant as illeg 10. al migrant, within the meaning of the Illegal Migrants (Determination by Tribuna ls) Act, 1983, (in short the 1983 Act), made a reference under Section 8(1) of t he said Act read with Rule 9(A) of the Rules framed thereunder, on the basis of which Case No.1311/2003 was registered before the IM(D)T, Barpeta, which proceed ing was subsequently transferred to the Foreigners Tribunal and accordingly F.T. Case No.243/2006 was registered. The said proceeding proceeded ex-parte against the appellant as she did not contest the same despite service of notice. The Tr ibunal on the basis of the evidence adduced by the State passed the order dated 03.10.2007 declaring the appellant to be a foreigner entering into Assam from th e specified territory after 25.03.1971. The said order was put to challenge by t he appellant in WP(C) No.6560/2007, which was dismissed by the learned Single Ju dge vide order dated 25.07.2008, giving rise to the present appeal. Like few oth er appeals, a Division Bench of this Court on 19.09.2008, while admitting the ap peal for hearing, passed an interim order to the effect that the appellant would be entitled to the same interim relief as passed on 14.08.2008 in WA No.238/200 8, meaning thereby giving a further opportunity to the parties to adduce evidenc e before the Tribunal with a further direction to the Tribunal to pass necessary order and to remit the records to the writ appellate court. The said order was passed on the basis of the case as projected by the appellant that she did not g et a reasonable opportunity of being heard before the Tribunal for which she cou ld not produce the relevant documents to demonstrate that she is an Indian citiz en and not a foreigner. Pursuant to the said order passed by the writ appellate court, t he appellant appeared before the Tribunal and examined three witnesses including herself and proved 5(five) documents, which are marked as Exts.-A to F. The Sta te also examined the Local Verification Officer. The witnesses were cross-examin ed by the respective parties. The Tribunal upon appreciation of the evidence on record as adduced by the parties, passed the order dated 02.03.2009 opining that the appellant could prove that she is an Indian citizen and as such is not a fo reigner within the meaning of 1946 Act. WA No.264/2008 10.1. Reference Case No.438/2008 was registered against the appellant No.1 onl y, namely, Md. Nabesh Ali, in the IM(D)T, Barpeta on the basis of the reference dated 01.08.2002 made by SP (B) Barpeta, under Section 8(1) of the 1983 Act alle ging that the appellant No.1, Nabesh Ali, entered into India after 25.03.1971. T he said proceeding, however, was transferred to the Foreigners Tribunal (I), Bar peta, in view of the judgment passed by the Apex Court in Sarbananda Sonowal (I) Vs. Union of India & anr. reported in (2005)5 SCC 665. F.T. Case No.103/2007 wa s then registered against the appellant No.1 only. Both the appellant No. 1 alon g with the appellant No.2 (though there was no reference against the appellant N o.2) filed their written statement on 19.07.2007 contending inter alia that they are Indian nationals. In the said proceeding the State examined one witness in support of the reference who was duly cross examined by the appellants. The appe llants, however, did not adduce any evidence and after cross examination of the witness examined by the State they in fact did not appear in the proceeding. The Tribunal thereafter passed the order on 29.12.2007 opining that the appellant N abesh Ali and (cid:28)family members (cid:29) are foreigners who have entered into Assam after 25.03.1971 as alleged in the reference. It has also been opined that the childre n of the appellants, though born in Assam, will follow the nationality of their parents. The appellants along with the children being aggrieved preferred WP(C) No.546/2008, which having been dismissed by the learned Single Judge vide common judgment and order dated 25.07.2008, preferred the present writ appeal, wherein a Division Bench of this Court while admitting the appeal passed an interim ord er as was passed in WA No.238/2008 thereby giving the opportunity to the parties including the appellants to adduce evidence with a further direction to the Tri bunal to submit its opinion based on the evidence to be adduced by the parties t o the writ appeal. Accordingly the evidence were led by the parties and a number of documents were also proved by them. The learned Member, Foreigners Tribunal vide order dated 18.10.2010 upon consideration of the evidence adduced by the pa rties, both oral and documentary, has opined that the appellant Nos.1 and 2 have failed to prove that they have been living in Assam since before 25.03.1971 and as such they cannot be declared as Indian citizens. WA No.265/2008 On the basis of the reference made by the Superintendent of Police (B) B 10.2. arpeta, Assam, Case No.1283/2003 was initially registered against the appellant in the IM(D)T, Barpeta, wherein notice was issued to the appellant. The said pro ceeding, however, proceeded ex parte against the appellant because of his non-ap pearance. The said proceeding was subsequently transferred to the Foreigners Tri bunal in view of the judgment passed by the Apex Court in Sarbananda Sonowal (I) and renumbered as Case No.24(III)/2007 in the Foreigners Tribunal (III), Barpet a. Though notice was again issued by the Tribunal, as the appellant did not appe ar, the proceeding proceeded ex parte. In the said proceeding the Tribunal recor ded the evidence of witness examined by the State. The Tribunal thereafter vide order dated 31.10.2007 opined the appellant to be foreigner coming to Assam afte r 25.03.1971. The said order was put to challenge by the appellant in WP(C) No.1 18/2008, which having been dismissed, the appellant preferred this appeal. A Div ision Bench vide order dated 08.09.2008 admitted the appeal and passed the same interim directions, which has been passed on 14.08.2008 in WA No.238/2008 allowi ng the parties to adduce fresh evidence before the Tribunal with a further direc tion to the Tribunal to decide the proceeding afresh and to remit the record to the writ appellate court, after recording its opinion based on evidence. The app ellant was also allowed to go on bail. Pursuant to the aforesaid interim directi on issued by a Division Bench the appellant and the respondents appeared before the Tribunal and adduced both oral and documentary evidence. The witnesses exami ned were duly cross examined by the respective parties. The Member, Foreigners T ribunal III, Barpeta, on marshalling the evidence adduced by the parties, both o ral and documentary, vide order dated 20.10.2008 has opined that the appellant i s an Indian National. WA No.266/2008 10.3. On the basis of the reference made by the Superintendent of Police, Barp eta under Section 8(1) of the 1983 Act read with Rule 9(A) of the Rules framed t hereunder, Case No.1312/2003 was registered before the IM(D)T, Barpeta, which pr oceeding was subsequently transferred to the Foreigners Tribunal, in view of the judgment passed by the Apex court in Sarbananda Sonowal(I). F.T. Case No.302/20 06(B) was thereafter registered against the appellant. The said proceeding proce eded ex-parte against the appellant as despite service of notice she did not con test. In the said proceeding the Local Verification Officer was examined by the State. The Tribunal upon appreciation of the evidence adduced passed the order d ated 03.10.2007 declaring the appellant to be a foreigner entering into Assam fr om the specified territory after 25.03.1971. Being aggrieved the appellant prefe rred WP(C) No.6564/2007, which has been dismissed by the learned Single Judge vi de common judgment and order dated 25.07.2008. The appellant thereafter preferre d the present appeal, wherein an interim order, as passed on 14.08.2008 in WA No .238/2008 was also passed, thereby directing the Tribunal to decide the proceedi ng afresh after giving reasonable opportunity to the parties to adduce evidence, in view of the allegation made by the appellant of denial of reasonable opportu nity of hearing by the Tribunal. The appellant accordingly appeared before the T ribunal and adduced evidence, both oral and documentary. Three witnesses includi ng the appellant herself were examined in the proceeding, apart from proving 6(s ix) documents, which are marked as Exts.-A to F. The State also examined the Loc al Verification Officer as witness and proved the report submitted by him to the effect that the appellant entered into Assam from the specified territory after 25.03.1971. The Tribunal upon appreciation of the evidence on record as adduced by the parties passed the order dated 18.02.2009 opining that the appellant cou ld prove that she is an Indian citizen and not a foreigner within the meaning of 1946 Act. The said order along with the evidence as adduced were transmitted to the writ appellate court, pursuant to the interim direction issued. WA No.268/2008 10.4. The Superintendent of Police, Barpeta made a reference under Section 8(1 ) of 1983 Act read with Rule 9(A) of the Rules framed thereunder to the IM(D)T, Barpeta, suspecting the appellant to be an illegal migrant within the meaning of 1983 Act, on the basis of which Case No.2289/2003(B) was registered in the IM(D ) Tribunal. The said proceeding was subsequently transferred to the Foreigners T ribunal, Barpeta, in view of the judgment passed by the Apex Court in Sarbananda Sonowal(I) and consequently F.T. (2nd) Case No.215/2006(B) was registered and n umbered. The said proceeding, however, proceeded ex-parte against the appellant as she did not contest the same despite service. The Tribunal thereafter on the basis of the evidence adduced by the State passed the order dated 29.11.2007 dec laring the appellant to be a foreigner entering into Assam from the specified te rritory after 25.03.1971, thereby answering the reference against the appellant. Being aggrieved the appellant preferred WP(C) No.1039/2008, which was dismissed vide common judgment and order dated 25.07.2008 passed in a batch of writ petit ions. Hence the appellant preferred the present writ appeal. A Division Bench of this Court vide order dated 19.09.2008 while admitting the appeal, passed an in terim order, as has been passed in WA No.238/2008, thereby allowing the parties to adduce evidence before the Tribunal, with a further direction to the Tribunal to pass necessary order and to transmit the record. The said order was passed b asically on the contention of the appellant that she was denied the reasonable o pportunity of being heard by the Tribunal for which she could not adduce evidenc e to demonstrate that she is not a foreigner. The parties accordingly appeared b efore the Tribunal and adduced evidence. The Tribunal on the basis of the eviden ce adduced, both oral and documentary, passed the order dated 18.02.2009 opining that the appellant is a foreigner as she could not discharge her burden of proo f that she is an Indian citizen. WA No.280/2008 F.T. Case No.32/2006(B) was registered in the Foreigners Tribunal, Barpe 10.5. ta on the basis of the reference made by the Superintendent of Police, Barpeta s uspecting the appellant to be a foreigner coming into Assam from the specified t erritory after 25.03.1971. The appellant on receipt of the notice entered appear ance and filed the written statement and also photocopies of certain documents i n support of her claim that she is not a foreigner but an Indian citizen. The ap pellant though appeared before the Tribunal on the subsequent dates through the learned counsel, she, however, did not appear on 17.08.2007, when one witness wa s examined by the State. The appellant was thereafter vide order dated 29.09.200 7 given a further opportunity to adduce evidence. Despite the opportunity grante d, no evidence was led. The Tribunal on the basis of the evidence on record pass ed the order dated 29.11.2007 opining that the appellant is a foreigner entering into Assam from the specified territory after 25.03.1971, thereby answering the reference in affirmative and against the appellant. Being aggrieved the appellant preferred WP(C) No.12/2008, which has been dismissed by the learned Single Judge vide common judgment and order da ted 25.07.2008 passed in a batch of writ petitions including WP(C) No.12/2008. T he appellant then preferred the present appeal, wherein a Division Bench of this Court vide order dated 24.09.2008 while admitting the appeal for hearing passed the similar interim order, as passed on 14.08.2008 in WA No.238/2008, thereby g iving a further opportunity to the appellant to adduce the evidence to prove tha t she is an Indian citizen. Consequently the parties including the appellant app eared before the Tribunal and adduced evidence. While the appellant examined thr ee witnesses including herself and proved 9(nine) documents, the State examined one witness and proved the report submitted by the Inquiry Officer. The Tribunal upon appreciation of the evidence adduced passed the order dated 07.02.2009 opi ning that the appellant has failed to prove that her family members have been li ving in Assam prior to 25.03.1971 and thus failed to prove that she is an Indian citizen, thereby concurring with its earlier ex-parte order dated 29.11.2007. T he entire record of the said proceeding including the aforesaid order dated 07.0 2.2009 has been transmitted to the Registry of this Court pursuant to the afores aid interim order passed by the writ appellate court. WA No.281/2008 10.6. The Superintendent of Police, Barpeta made a reference under the provisi ons of 1964 Order suspecting the appellant as foreigner coming to Assam from the specified territory after 25.03.1971, on the basis of which F.T. Case No.33/200 6(B) was registered in the Foreigners Tribunal, Barpeta. In due course of time t he notice was issued to the appellant, on receipt of which she appeared through the learned counsel. The appellant also filed the written statement denying that she is a foreigner and contending inter alia that her father Saheb Ali was a vo ter in respect of No.51 Jania LAC, whose name appeared in the electoral rolls of 1966 as well as 1970 and after her marriage to Jhandu Mia of village No.1 Barda lani, she became the resident of that village and her name appeared in the elect oral roll of 1997 in respect of Baghbar LAC. The appellant also annexed copies o f the aforesaid electoral rolls, apart from few certificates issued by the villa ge Headman and others, to the written statement. In the said proceeding the Stat e adduced evidence first by examining the Local Verification Officer, who proved his report. Though the said witness was cross-examined by the appellant, she, h owever, did not adduce any evidence despite the opportunity given. The Tribunal vide order dated 22.11.2007 opined that the appellant is a foreigner coming to A ssam from the specified territory after 25.03.1971. The said order was put to ch allenge by the appellant in WP(C) No.8/2008, which was dismissed by the learned Single Judge vide common judgment and order dated 25.07.2008. The appellant then preferred the present appeal, wherein the similar interim order as was passed o n 14.08.2008 in WA No.238/2008 was passed. Consequently the appellant appeared b efore the Tribunal and adduced her evidence. The Tribunal upon appreciation of t he evidence on record, as adduced by the parties, passed the order dated 07.02.2 009 that the appellant is not a foreigner within the meaning of 1946 Act. The sa id order along with the entire proceeding have been sent to the Registry as dire cted vide the aforesaid interim order passed by the writ appellate court. WA No.370/2008 10.7. This appeal arises out of the judgment and order dated 30.09.2008 passed by the learned Single Judge in WP(C) No.5393/2002, dismissing the writ petition filed by the appellants, wherein the orders passed by the IM(D) Tribunal and th e IM(D) Appellate Tribunal were put to challenge. Reference was made by the Supe rintendent of Police, Nagaon under Section 8(1) of the 1983 Act to the IM(D) Tri bunal, Hojai, Nagaon, for deciding as to whether the appellant No.1 Md. Abdul Ha nnan is or is not an illegal migrant coming to India after 25.03.1971. On the ba sis of the said reference IM(D)T Case No.8/1995 was registered and notice was is sued to the appellant No.1. The record does not reveal issuance of any notice to other appellants. The appellant No.1, however, filed the written statement on b ehalf of all the appellants, namely, appellant Nos.2, 3 and 4, who are the child ren of the appellant No.1, contending inter alia that they are Indian national a nd his father’s name was also recorded in the electoral roll of 1966 and his nam e was recorded in the electoral roll of 1970 in respect of No.93 Hojai Legislati ve Assembly Constituency. The appellants also adduced evidence, both oral and do cumentary in support of their pleadings. The IM(D) Tribunal answered the referen ce in affirmative and in favour of the State declaring the appellant No.1 Md. Ab dul Hannan as an illegal migrant within the meaning of 1983 Act, vide order date d 28.02.2002. The appeal being Appeal Case No.6/2002 preferred by the appellants was dismissed by the Appellate Tribunal vide order dated 18.07.2002. WP(C) No.5 393/2002 was thereafter filed challenging both the aforesaid orders, which was d ismissed by the learned Single Judge vide judgment and order dated 30.09.2008. B eing aggrieved the appellants preferred the present appeal. A Division Bench of this Court on 03.12.2008 passed an order to the effect that the appellants are entitled to similar interim direction as has been passed in WA No.238/2008 (Moslem Mandal’s case), whereby and whereunder the Tribunal was directed to allow both the parties a further opportunity to adduce evidence in support of their claims. Accordingly Case No.F.T./H/1/09 was regist ered in the Foreigners Tribunal, Hojai, Sankardev Nagar. The appellants led fres h evidence in the said proceeding. The Tribunal upon appreciation of the evidenc e on record as adduced passed the order dated 30.04.2009 to the effect that the appellants are foreigners as they migrated illegally to India from Bangladesh af ter 25.03.1971. WA No.59/2009 10.8. This appeal is against the judgment and order dated 30.09.2008 passed by the learned Single Judge in WP(C) No.1535/2008, whereby and whereunder the writ petition filed by the appellant challenging the order dated 28.11.2007 passed b y the Foreigners Tribunal in F.T. Case No.283/2006 has been dismissed. On the ba sis of the reference made by the Superintendent of Police(B), Barpeta to the IM( D)T, Barpeta under Section 8(1) of the 1983 Act doubting the appellant to be an illegal migrant, Case No.IMDT 2384/03 was registered. Notice was accordingly iss ued to the appellant, on receipt of which the appellant appeared and filed the a pplication seeking time to file the written statement. The appellant, however, f or the reasons best known to her did not appear on the subsequent dates and as s uch an order was passed on 10.12.2003 to proceed ex-parte. The said proceeding w as transferred to the Foreigners Tribunal, in view of the judgment passed by the Apex Court in Sarbananda Sonowal(I) and accordingly F.T.(2nd) Case No.269/06 wa s registered. Fresh notice was thereafter issued by the Foreigners Tribunal on 2 6.07.2006 to the appellant asking her to show-cause as to why she should not be declared as foreigner within the meaning of 1946 Act and 1964 Order. The record of the Tribunal does not reveal sending of a copy of the main grounds on which t he appellant is alleged to be a foreigner, as required under the 1964 Order, exc ept issuance of the said notice. The appellant, who appears to be an illiterate person, on receipt of the notice entered appearance through the learned counsel and filed application for allowing time to file the written statement. The appel lant, however, did not contest the proceeding thereafter. The Tribunal, therefor e, proceeded ex-parte and after recording the evidence of the witness examined b y the State passed the order dated 28.11.2007 answering the reference in the aff irmative and in favour of the State by opining that the appellant came to Assam from the specified territory after 25.03.1971. The said order was put to challen ge in the aforesaid writ petition, which has been dismissed, as noticed above. WA No.71/2009 10.9. This appeal is directed against the judgment and order dated 23.01.2009 passed by the learned Single Judge in WP(C) No.2798/2004, dismissing the writ pe tition by affirming the order dated 03.02.2004 passed by the appellate Tribunal , in Appeal Case No.50/2003, affirming the order dated 11.04.2003 passed by the IM(D)T in Case No.3531/2000. On the basis of the reference made under Section 8( 1) of the 1983 Act, Case No.3531/2000 was registered in the IM(D)T Nalbari, wher ein the appellant on receipt of the notice entered appearance and filed the writ ten statement denying that he is an illegal migrant within the meaning of the 19 83 Act and also contended that he is an Indian national by birth. While the Stat e examined three witnesses in support of the reference made, the appellant, howe ver, did not adduce any oral evidence. The IM(D)T having marshalled the evidence on record, passed the order dated 11.04.2003 answering the reference in favour of the State and against the appellant holding him to be an illegal migrant with in the meaning of the 1983 Act. Being aggrieved the appellant preferred Appeal No.50/2003 before the appellate Tribunal which has also been dismissed vide order dated 03.02.200 4. The appellant, therefore, preferred the aforesaid writ petition and on its di smissal the aforesaid writ appeal. A Division Bench of this Court having regard to the contention of the appellant that he could not adduce evidence before the Tribunal, for no fault of his, while admitting the appeal, passed an interim ord er on 16.03.2009 directing the Foreigners Tribunal, Nalbari to allow the parties to adduce evidence and to pass appropriate order in the light of materials to b e produced. Accordingly the F.T. Case (NAL) No.1/2009 was registered. The appell ant in support of the contention that he is an Indian national examined three wi tnesses namely, the appellant himself, Smti. Damayanti Baishya, the Gaon Bura an d Md. Mustaffa Ali, a retired L.P. school teacher. The appellant has also proved six documents, being the school certificate certifying that the appellant read up to Class II (Ext.-1); electoral roll 1966 and 1971 containing the name of his father Taizuddin in Chhaprapara village under No.61 LAC (Exts.-2 and 3); the an nual patta issued for the year 1954-55 in the name of Taizuddin and others (Ext. -4); family identity card (ration card) (Ext.-5) and certificate issued by the v illage headman (Ext.-6). The Tribunal on the basis of the fresh evidence adduced in the a foresaid proceeding, and pursuant to the aforesaid order dated 16.03.2009 passed by the Division Bench in the present appeal, passed the order dated 19.09.2009 answering the reference in favour of the State by opining that the appellant is a Foreigner who entered into Assam from Bangladesh after 1982. A copy of the sai d order was also furnished to the learned counsel for the appellant. Challenging the finding recorded in the said order dated 19.09.2 009 the appellant filed an affidavit basically contending inter alia that though the appellant’s father was present before the Tribunal on 08.07.2009 for record ing his evidence, the Tribunal did not record his evidence. It has also been con tended that Md. Taizuddin, Tajimuddin, Md. Tajimuddin is one and the same person , who is the father of the appellant and whose name is reflected in various docu ments proved by the appellant before the Tribunal. The appellant has also challe nged the finding recorded by the Tribunal that his father is not alive. WA No.171/2010 10.10. Reference was made by the Superintendent of Police, Goalpara on 26.06.19 98 under Section 8(1) of the 1983 Act and Rule 9(A) of the Rules framed thereund er, doubting the appellant as illegal migrant, on the basis of which a proceedin g was registered in IM(D) Tribunal, Goalpara, which was subsequently transferred to the Foreigners Tribunal, Goalpara, in view of the judgment passed by the Ape x Court in Sarbananda Sonowal(I). F.T. Case No.1152/G/06 was then registered in the Tribunal at Goalpara. The appellant on receipt of the notice appeared and fi led application seeking adjournment on 06.08.2008 for filing written statement a nd list of witnesses and accordingly time was granted. The case was again taken up on 20.08.2008 and 17.09.2008, when also the prayer for adjournment was made, which, however, was rejected on 17.09.2008 fixing 03.11.2008 for ex-parte hearin g. The case was then taken up on 07.11.2008 for ex-parte hearing and the Tribuna l vide order passed on that date opined that the appellant is a foreigner. The s aid order was put to challenge in WP(C) No.4758/2009, which writ petition was al so dismissed on 04.06.2010, giving rise to the present appeal. WA No.313/2011 10.11. This appeal is directed against the order dated 4th May, 2011 passed by the learned Single Judge, dismissing WP(C) No.1959/2011, wherein the order dated 4th October, 2010 passed by the learned Member, Foreigners Tribunal, Goalpara i n F.T. Case No.197/G/2006, declaring the appellant as foreigner, was put to chal lenge. The aforesaid proceeding was registered in the Tribunal, on the basis of the reference made by the Superintendent of Police. Though the appellant on re ceipt of the notice entered appearance, he, however, did not contest the proceed ing subsequently. The appellant took at least eight adjournments for filing the written statement and affidavit including on 31st August, 2010, on which date, a further last chance was given to the appellant to file his written statement f ixing 13th September, 2010. The prayer for adjournment was again made on that d ate by the appellant and the case was accordingly deferred to 4th October, 2010. Because of the conduct of the appellant, the engaged learned counsel had also withdrawn from the case. The appellant though was given sufficient opportunitie s to file his written statement and also the documents in order to prove that he is not a foreigner but an Indian national, he, however, did not avail such oppo rtunity and delayed the proceeding by taking adjournments. A Division Bench of t his Court vide order dated 14.11.2011 referred this appeal to the Full Bench for decision and accordingly the appeal has come up for hearing before this bench. 11. We have heard Mr. Nagendra Rai, learned Sr. counsel appearing for the re view petitioners as well as for the State of Assam in the writ appeals; Mr. R. S achar, learned Sr. counsel appearing for the respondents in the review petition; Mr. B.C. Das, learned Sr. counsel appearing for the respondent No.6 in the revi ew petition; Mr. M.U. Mahmud, Mr. G.P. Bhowmik, Mr. T.J. Mahanta, Mr. S.K. Ghosh , Mr. A.R. Sikdar, Mr. I. Uddin, Mr. H.R.A. Choudhury, Mr. M.A. Sheikh, Mr. D. S ur, Mr. P.B. Mazumdar, Mr. A.B. Siddique, Mr. M.H. Choudhury, Dr. B. Ahmed, Mr. N.N. Upadhyay, learned advocates; Mr. H.R.A. Choudhury, Mr. A.B. Choudhury, Mr. D.P. Chaliha, learned Sr. counsel and Mr. Suman Shyam learned counsel appearing for the parties. We have also heard Mr. R. Sharma, learned A.S.G.I. and Mr. A.C. Buragohain, learned Addl. Advocate General, Assam. Submissions of the learned counsel for the parties in Review Petition and Writ A ppeals 12. Mr. Sachar, learned Sr. counsel, appearing for the respondents in the Re view Petition, who were the appellants in WA No.238/2008, raised a preliminary o bjection relating to the maintainability of the reference of the Review Petition to the Full Bench for hearing, contending that such reference is not maintainab le in view of the provisions of Gauhati High Court Rules. Referring to Rule 5 of Chapter-X of the Gauhati High Court Rules, which provides for presentation of t he application seeking review by way of motion in open Court to the Division Cou rt of whose judgment a review is sought, or, if the Judge of such Division Court be not sitting together, to the senior of such Judges who may be then attached to the Court and present, has submitted that the reference of the review petitio n by a Division Bench of this Court vide order dated 17.05.2010 for decision to the Full Bench is not maintainable, the same being contrary to the aforesaid pro visions of Gauhati High Court Rules. It has also been submitted that the review petition is to be heard by the bench, whose judgment is sought to be reviewed or by a bench consisting of at least one of the Judges constituting the earlier Di vision Bench, in case the other member of the earlier Division Bench is not pres ent. 13. Mr. Nagendra Rai, learned Sr. counsel, appearing for the review petition ers as well as for the State of Assam in the writ appeals, in reply to the preli minary objection raised, referring to the order dated 17.05.2010 passed by a Div ision Bench of this Court consisting of the then Hon’ble Chief Justice and the H on’ble Judge, who was one of the members of the Division Bench, which disposed o f WA No.238/2008, has submitted that the Division Bench was within its competenc e to refer the cases to Full Bench having regard to the importance of the questi on of law involved in the review petition as well as other connected writ appeal s, arising out of the decision given by the Tribunal constituted under the provi sions of 1964 Order, as well as the views taken by other Division Benches contra ry to the view taken by the Division Bench in the judgment dated 01.02.2010 pass ed in WA No.238/2008, in view of Rule 1 of the Chapter-VII of the Gauhati High C ourt Rules, which provides that whenever one Division Court differs from any oth er Division Court upon a point of law or usage having the force of law, the case shall be referred for decision by a Full Bench. Referring to Rule 1(iii) of Cha pter-II of the Gauhati High Court Rules, it has also been submitted by the learn ed Sr. counsel that the Hon’ble Chief Justice, whenever he thinks fit or on the requisition of any Division Court, may constitute a special Division Court consi sting of three Judges, for hearing of any particular appeal, or any particular q uestion of law arising in an appeal, or of any other matter and hence no illegal ity can be found in directing hearing of the review petition along with other wr it appeals by a three Judges Bench, more so when the case involves a substantial question of law of general importance having regard to the foreigners issue, ef fecting the sovereignty and integrity of the country. The learned Sr. counsel su bmits that though in the order dated 17.05.2010 passed by a Division Bench refer ring the cases to a Full Bench, the cases in which the views contrary to the vie w taken by the Division Bench in WA No.238/2008 have not been mentioned, the sai d order was passed having regard to the pleadings in the review petition filed b y the State of Assam wherein the cases in which the contrary view was taken has been pleaded. Referring to the decision in State of Rajasthan Vs. Prakash Chand & ors. reported in (1998)1 SCC 1, it has also been submitted by the learned Sr. counsel that in any case the Hon’ble Chief Justice being the master of roster ca n withdraw any proceeding, even a part heard proceeding, from any Court and dire ct hearing of the same by any other Court including by a larger bench. 14. On the merit, criticizing the judgment passed by the Division Bench in M oslem Mondal’s case, which is the subject matter in the review petition, it has been submitted by Mr. Rai, learned Sr. counsel that the view taken by the Divisi on Bench relating to the burden of proof being contrary to various pronouncement s of the Apex Court as well as the provisions of Section 9 of the 1946 Act, the same amounts to an error apparent on the face of the record and hence such error can be corrected in exercise of the review jurisdiction by the High Court, the same being per incuriam. The learned Sr. counsel, however, has submitted that th e scope of the review of the said judgment would be limited to the question of l aw decided by the Division Bench and would not extend to the finding of fact rec orded in Moslem Mondal’s case and as such the State of Assam has not sought for the review of the finding recorded by the Division Bench relating to the citizen ship of the concerned appellants in WA No.238/2008. 15. Referring to the provisions in clause 3 of the 1964 Order, the learned S r. counsel submits that what the State is required to furnish to the Tribunal, w hile making the reference, is the main grounds on which the proceedee is alleged to be a foreigner with the supporting materials and nothing more. It has also b een submitted that the Tribunal, having regard to the grounds taken in the refer ence by the State, has to issue notice on the proceedee, whose burden is to prov e that he is not a foreigner, in view of the provisions contained in Section 9 o f the 1946 Act. Mr. Rai further submits that Section 9 of the 1946 Act being in accordance with the underlying policy of Section 106 of the Evidence Act, which provides that any fact which is especially within the knowledge of any person, t he burden of proving that fact is upon him, and in Section 9 it having specifica lly been mentioned that the burden would be on the proceedee to prove that he is not a foreigner, notwithstanding anything contained in the Evidence Act, Sectio n 101 of the Evidence Act has no application in a proceeding instituted under th e provisions of 1946 Act read with 1964 Order. According to the learned Sr. coun sel in a proceeding before the Tribunal, which proceeded ex-parte, the State is also not required to adduce evidence first in support of the grounds on the basi s of which the reference has been made and the Tribunal has to form an opinion o n the basis of the grounds furnished as well as the other material particulars p laced before it by the State. Likewise, in a contested proceeding the State is a lso not first required to adduce evidence in support of the grounds, before the proceedee adduces evidence to demonstrate that he is not a foreigner as required under Section 9 of the 1946 Act, as the burden is on the proceedee to prove tha t he is not a foreigner and if the said burden is discharged, then the onus will shift to the State to prove that the proceedee is a foreigner, by adducing the rebuttal evidence. 16. The learned Sr. counsel in support of his contention has placed reliance on the decision of the Apex Court in The Union of India & ors. Vs. Ghaus Mohamm ad reported in AIR 1961 SC 1526, wherein it has been held that by reason of Sect ion 9 of the 1946 Act, wherever a question arises whether a person is or is not a foreigner, the onus of proving that he is not a foreigner lies upon him and he nce the burden is upon the proceedee to establish that he is a citizen of India in the manner claimed by him and not a foreigner. Referring to another decision of the Apex Court in Fateh Mohd., son of Nathu Vs. Delhi Administration reported in AIR 1963 SC 1035, the learned Sr. counsel further submits that the Apex Cour t placing reliance on Ghaus Mohammad’s case has taken the same view by holding t hat the burden lies on the proceedee to prove that he is not a foreigner, in vie w of Section 9 of the 1946 Act. The learned Sr. counsel in support of his conten tion has also placed reliance on the decision of the Apex Court in Masud Khan Vs . State of Uttar Pradesh reported in (1974)3 SCC 469, wherein also the same view has been taken. 17. Mr. Rai has further submitted that the Apex Court in Sarbananda Sonowal( I) (supra) in clear terms has held that there is good and sound reason for placi ng the burden of proof upon the person concerned, who asserts to be a citizen of a particular country, which is in accordance with the underlying policy of Sect ion 106 of the Evidence Act and an exception to the general rule that the burden of proof is on the person, who desires any Court to give judgment as to any leg al right or liability depending on existence of facts, which he asserts, as stip ulated in Section 101 of the Evidence Act. The learned Sr. counsel, therefore, s ubmits that the view taken by the Division Bench in Moslem Mondal’s case that th e provision of Section 9 of the 1946 Act is not an exception to Section 101 of t he Evidence Act is contrary to the provisions of the 1946 Act and also the law l aid down by the Apex Court. 18. Referring to the decision in Sarbananda Sonowal(II) (supra), the learned Sr. counsel further submits that the Apex Court has declared the Foreigners (Tr ibunals for Assam) Order, 2006 (for short 2006 Order) as invalid and unconstitut ional as by the said Order the burden was placed on the State to first establish the existence of the grounds given in the reference, before the proceedee is ca lled upon to discharge his burden as required under Section 9 of the 1946 Act an d hence the Division Bench in Moslem Mondal’s case ought not to have held that t he initial burden is on the State to prima facie prove the existence of the grou nds on which the reference is made. Mr. Rai has also submitted that in Sarbanand a Sonowal(II) (supra) the Apex Court has reiterated its earlier view that the bu rden is upon the proceedee to prove that he is not a foreigner but a citizen of India and what the State is required to do is to set out the main grounds in mak ing the reference and once the Tribunal satisfied itself about the existence of the grounds, the burden of proof would be upon the proceedee, which does not, ho wever, mean that the State is required to adduce evidence first to demonstrate t he existence of the grounds in making the reference. 19. Mr. Rai, referring to clauses 3 and 4 of the 1964 Order, further submits that the Tribunal, however, must ensure proper service of notice on the proceed ee before rendering its opinion on the reference made by the State under the pro visions of the Foreigners Act. According to the learned Sr. counsel the provisio ns of the Civil Procedure Code relating to the service of summons on the defenda nts have to be followed, in the absence of any other mode of service provided by any law or in the absence of any Rule framed by the Tribunal regulating its own procedure, as indicated in clause 4(a) of the said Order, wherein it has been s tipulated that the Tribunal shall have the power of a Civil Court while trying a suit under the Code of Civil Procedure in respect of summoning and enforcing th e attendance of any person and examining him on oath. The learned Sr. counsel su bmits that the Tribunal, which is empowered to regulate its own procedure, has t o adopt a just and fair procedure in the matter of service of summons on the pro ceedee as required under clause 3 of the 1964 Order and the procedure stipulated in the Code of Civil Procedure in that regard being a just, proper and fair pro cedure, the same has to be followed by the Tribunal, the proceeding before it be ing of civil nature. It has also been submitted that in a proceeding which has proceeded ex-p 20. arte, the Tribunal being the creature of Statute is invested with the power to r ecall an ex-parte order, even in the absence of any express provision in that re gard in the 1946 Act or 1964 Order, as the Tribunal is considered to be endowed with such ancillary or incidental power as are necessary for the purpose of doin g justice between the parties. The learned Sr. counsel submits that in a given c ase if the Tribunal is satisfied that the notice was not properly served, it can recall an ex-parte opinion and give the proceedee the opportunity to discharge his burden of proving that he is not a foreigner, as such power is to be exercis ed by the Tribunal for doing justice between the parties, wherever necessary. Th e learned Sr. counsel in support of his contention has placed reliance on the de cision of the Apex Court in Grindlays Bank Ltd. Vs. Central Government Industria l Tribunal & ors. reported in 1980 (Supp.) SCC 420 equal to AIR 1981 SC 606 and Satnam Verma Vs. Union of India reported in AIR 1985 SC 294. 21. Referring to the provisions contained in Section 6A(3) of the Citizenshi p Act, 1955 (in short the 1955 Act), it has been submitted by the learned Sr. co unsel that a person who has been detected to be a foreigner coming to Assam on o r after 1st day of January, 1966 but before 25th day of March, 1971, from the sp ecified territory, and has since the date of his entry into Assam, been ordinari ly resident in Assam, has to register himself in accordance with Rules made by t he Central Government in this behalf under Section 18 of the said Act, with such authority as may be specified in such Rules. It has been submitted that in the event of failure to get the name registered, such foreigner would be liable to b e deported. The learned Sr. counsel, however, submits that though Rule 19 of the Citizenship Rules, 2009 (in short the 2009 Rules) provides the initial time lim it of filing such application for registration, which is 30 days from the date o f detection and extendable by another 60 days by the registering authority, such time limit can be extended by the writ court in a writ proceeding filed by such person if existence of an extraordinary situation/circumstances preventing such person from filing the application within the time allowed under Rule 19 of the said Rules could be demonstrated, as otherwise grave injustice would be caused to such person. 22. Mr. Sachar, the learned Sr. counsel appearing for the respondents in the review petition submits that even if the reference to the Full Bench is held to be maintainable, the judgment passed by the Division Bench in Moslem Mondal (su pra), cannot be disturbed in exercise of the review jurisdiction as there is no error apparent on the face of the judgment. It has also been submitted that the review petition cannot be treated as an appeal to correct each and every error, even if occurred in the judgment, and if decision is erroneous, it is open to th e Appellate Court only to correct such error and not by the review Court. Accord ing to the learned Sr. counsel, the error apparent on the face of the records is such, which can be noticed on the bare perusal of the judgment and for which no lengthy argument is necessary. It has also been submitted that a judgment passe d cannot be reviewed even on the ground that two views were possible and not eve n on the ground that the view taken by the Division Bench has subsequently been held to be not valid in another case, even by the Apex Court, on the underlying principle of maintaining the certainty of the judgment passed. The learned Sr. c ounsel, however, submits that the State or any other party can raise the issue o f legality of the judgment passed in Moslem Mondal’s case in another writ appeal or writ petition but not in the review petition filed seeking review of the jud gment passed therein. The learned Sr. counsel in support of his contention has p laced reliance on the decisions of the Apex Court in Smt. Meera Bhanja Vs. Smt. Nirmala Kumari Choudhury reported in (1995)1 SCC 170, Parsion Devi & ors. Vs. Su mitri Devi & ors. reported in (1997)8 SCC 715 and Nand Kishore Ahirwar & anr. Vs . Haridas Parsedia & ors. reported in (2001)9 SCC 325. 23. The learned Sr. counsel has also submitted that even on merit the decisi on of the Division Bench cannot held to be erroneous as the State is to lead pri ma facie evidence in support of the main grounds on which the reference rests, s o as to afford reasonable opportunity to the proceedee to meet the grounds. It h as also been submitted that a person can also institute a suit for declaration o f his right as citizen, when there is no proceeding initiated under the 1946 Act or 1964 Order against him, as he cannot be remediless if his civil right is vio lated. 24. Questioning the maintainability of the review petition filed by the Stat e of Assam, Mr. Mahmud, learned counsel appearing for the petitioners in WP(C) N o.1355/2008, who are also some of the appellants in WA No.238/2008, apart from t he appellants in some other writ appeals listed before this Full Bench, has subm itted that since the scope of review of the judgment passed by a Court of law is very limited, which can be entertained only on existence of any of the grounds enumerated in Order XLVII Rule 1 of the Code of Civil Procedure, the present rev iew petition filed by the State of Assam is not maintainable, as the review peti tioner has sought rehearing of WA No.238/2008, which is not permissible in exerc ise of the review jurisdiction. It has been submitted that the present review pe tition is, in fact, an appeal in disguise, as the State of Assam wants rehearing on the issues formulated by the Division Bench in the aforesaid writ appeal. On facts it has been submitted that the Tribunal, in its subsequent report submitt ed to the Division Bench, has found the writ petitioners in WP(C) No.1355/2008 a s not foreigners, which decision has also been accepted by the Division Bench, w hich in any case cannot be the subject matter of the review. The learned counsel has placed reliance on the decision of the Apex Court in Aribam Tuleshwar Sharm a Vs. Aribam Pishak Sharma & ors. reported in AIR 1979 SC 1047, Smt. Meera Bhanj a (supra), Parsion Devi (supra), Delhi Administration Vs. Gurdip Singh Uban & or s. reported in (2000)7 SCC 296, Kewal Chand Mimani (D) by LRS. Vs. S.K. Sen & or s. reported in (2001)6 SCC 512 and Nand Kishore Ahirwar (supra) to support his a rgument on the question of maintainability of the review petition. 25. Mr. Mahmud has, however, submitted that though the review petition is no t maintainable, he has no objection to the other writ appeals being decided by t he Full Bench. Referring to various provisions of the 1955 Act relating to the a cquisition of citizenship, including Section 6A therein, and also Section 9 of t he 1946 Act, apart from clause 3 of the 1964 Order, issued by the Govt. of India in exercise of the power conferred by the 1946 Act, Mr. Mahmud has submitted th at the Tribunal constituted under the 1964 Order would assume jurisdiction to re nder its opinion as to whether the proceedee is a foreigner or not only if there is a reference made by the Govt. of India or by the authority empowered to do s o and before rendering such opinion the Tribunal must ensure proper service of n otice on the proceedees and furnish the main grounds on which the reference is m ade so that the proceedee is given the reasonable opportunity to demonstrate tha t he is an Indian citizen. The reasonable opportunity which is required to be gi ven to a proceedee, according to the learned counsel, means and includes the pri ma facie establishment of the grounds by the authority making the reference, so that the proceedee can effectively counter the same and demonstrate that he is a n Indian national, as required under Section 9 of the 1946 Act. The learned coun sel further submits that as Section 9 of the 1946 Act speaks about the ’onus of proof’ and not the ’burden of proof’, the provisions of Section 101 of the Evide nce Act relating to the burden of proof, does not entirely get replaced by Secti on 9 of the 1946 Act. The learned counsel, therefore, submits that the Division Bench of this Court in Moslem Mondal’s case has rightly held that the State has to first adduce evidence, confined to the grounds on which its case rests, and t hereafter the onus of proof would be on the proceedee to substantiate that he is an Indian national, in view of Section 9 of the 1946 Act, as the State is not e xpected to prove a negative fact. 26. To buttress the argument, the learned counsel has referred to the decisi on of the Apex Court in Sarbananda Sonowal(II) (supra), more particularly paragr aph 60 thereof, wherein the Apex Court has opined that having regard to the fact that the Tribunal, in the notice to be sent to the proceedee, is required to se t out the main grounds, the primary onus in relation thereto would be on the Sta te and once the Tribunal satisfied itself about the existence of the grounds, th e burden of proof would be upon the proceedee. The learned counsel, therefore, s ubmits that the State is to adduce the prima facie evidence in support of the ma in grounds on which the proceedee is alleged to be a foreigner so that the Tribu nal can record its satisfaction about the existence of the grounds before issuan ce of notice to the proceedee and as soon as such satisfaction is recorded, the burden of proof that the proceedee is an Indian citizen would be upon the procee dee. The learned counsel further submits that in a good number of cases though t he State has adduced initial evidence in support of the grounds, it has examined only the Investigating Officer and not the persons from whom such Investigating Officer has gathered the information and hence the Tribunal ought not to have i ssued the notice on the proceedee on such reference cases, in the absence of ade quate evidence before it for recording the satisfaction about the existence of t he grounds. The learned counsel submits that the Division Bench in Moslem Mondal ’s case has, therefore, rightly held that the initial burden is on the State to demonstrate the existence of the grounds for recording the satisfaction by the T ribunal before issuance of notice to the proceedee. 27. The learned counsel in support of his contention that the initial burden of proof lies on the State, has placed reliance on the decisions of the Apex Co urt in Shambhu Nath Mehra Vs. The State of Ajmer reported in AIR 1956 SC 404, Co llector of Customs, Madras & ors. Vs. D. Bhoormul reported in (1974)2 SCC 544, N arayan Govind Gavate & ors. Vs. State of Maharashtra & ors. reported in (1977)1 SCC 133, Sita Ram Bhau Patil Vs. Ramchandra Nago Patil (Dead) by L. Rs. & anr. r eported in (1977)2 SCC 49, Sucha Singh Vs. State of Punjab reported in (2001)4 S CC 375 and Vikramjit Singh alias Vicky Vs. State of Punjab reported in (2006)12 SCC 306. 28. Mr. Mahmud, learned counsel further submits that, as held by the Apex Co urt, the burden of proof looses its importance whenever both the parties adduced evidence as in that case the Tribunal is to decide the reference on the basis o f the evidence adduced and not giving any emphasis on whom the burden of proof l ies. Referring to the decision of the Division Bench in Moslem Mondal’s case, it has been submitted by Mr. Mahmud that since both the parties have adduced evide nce and the Tribunal has recorded the opinion that the appellants are not foreig ners but citizens of India, the question as to on whom the burden of proof lies is not required to be gone into at all. 29. It has also been submitted by the learned counsel that though sub-sectio n (2) of Section 8 of the 1946 Act provides that the determination of the nation ality by the Tribunal shall be final and shall not be called upon in any Court, a person, against whom the opinion has been rendered by the Tribunal that he is a foreigner, still can approach the Civil Court having jurisdiction over the mat ter, for declaration of his right as citizen of India in a properly instituted s uit, there being no express or implied bar of Civil Court’s jurisdiction in the 1946 Act or 1964 Order or in any other law. The learned counsel submits that und er Section 9 of the Civil Procedure Code the Civil Courts shall have jurisdictio n to try all suits of a civil nature unless of course cognizance of such suits i s either expressly or impliedly barred. The learned counsel in support of his co ntention has placed reliance on the decision of the Apex Court in Ghaus Mohammad (supra) and Akbar Khan Alam Khan & anr. Vs. Union of India & ors. reported in A IR 1962 SC 70. 30. Referring to clause 3 of 1964 Order which requires service of the main g rounds of reference, it has been submitted by the learned counsel that since the proceeding before the Tribunal is of civil nature, in the absence of any proced ure laid down by the Tribunal relating to the service, the spirit of the provisi ons of the Civil Procedure Code is to be followed in the matter of service of su mmons on the proceedee. It has also been submitted that in most of the cases, th e Tribunal has decided to proceed ex-parte against the proceedee even without pr oper service of notice as required under the Civil Procedure Code. The learned c ounsel further submits that though clause 3 of 1964 Order also mandatorily requi res the service of the main grounds, on which the proceedee is suspected to be a foreigner, in a large number of cases those grounds were never served on the pr oceedees, without which it was not possible on the part of the proceedees to def end themselves, which in turn amounts to denial of the reasonable opportunity to the proceedees and consequently violation of clause 3 of the 1964 Order. The learned counsel further submits that though fair investigation is on 31. e of the basic human rights of a person against whom an investigation is conduct ed, the State authority has conducted the investigation, before making the refer ence to the Tribunal, not in a fair manner, and such investigations were conduct ed even without issuing any notice to the person concerned and taking into accou nt their statements. The investigation which is the basis for making the referen ce, according to the learned counsel, therefore, must be fair, otherwise it woul d amount to violation of the human rights of the person, against whom such inves tigation is conducted. Hence, according to the learned counsel, directions may b e issued to the State to conduct fair investigation and to make such investigati on only in presence of the village headman (Gaon Bura) or prominent/respectable persons of the village and also to get the signature or the thumb impression of the person against whom such investigation has been initiated, so that the perso n concerned can produce the documents in his possession to demonstrate that such investigation against him is not required to be conducted at all. 32. It has also been submitted that the Tribunal while deciding a reference proceeding, has to conduct a fair trial, which is one of the fundamental rights guaranteed under Article 21 of the Constitution of India. The learned counsel su bmits that though the proceedees are alleged to be foreigners, they have the fun damental right of fair trial, which has been denied to them by the Tribunal, as no fair trial has been conducted by the Tribunal, while rendering its opinion on the reference made by the State. The learned counsel also submits that role of the Tribunal should be proactive and it should not treat itself as a mere record ing machine. Mr. Mahmud, learned counsel has also submitted that in certain proc eedings the ex-parte opinions were rendered by the Tribunal even without recordi ng the evidence of the State and also the proper service of notice. It has also been submitted that there are instances of frequent shifting of the residence by a person, against whom the reference is made, either for search of livelihood o r because of erosion due to heavy flood experienced in the State of Assam, which is a regular phenomenon. According to the learned counsel, in such cases, the S tate, without making any effort to find out the person and to serve notice, give s report of purported substituted manner of service, which is accepted by the Tr ibunal and accordingly, the opinions were rendered ex-parte, thereby denying rea sonable opportunity to the proceedee. The learned counsel, therefore, submits th at the directions may be issued to the Tribunal not to proceed ex-parte against the proceedees unless proper notice, as required under the Civil Procedure Code, is served. The further grievance of the learned counsel is that though by the 2 012 Amendment of Foreigners (Tribunals) Order, 1964, the time limit for disposal of the reference proceeding is set, there are instances where the proceedee was unable to contest the reference proceeding effectively because of non-supply of the copies of the documents like the voters list etc. which are most relevant a nd necessary for the purpose of demonstrating by the proceedee that he is not a foreigner but an Indian national, by the State or its instrumentalities, when ap plied for. The learned counsel in support of his contention has placed reliance on 33. the decisions of the Apex Court in Dwarka Prasad Agarwal (D) by LRS. & anr. Vs. B.D. Agarwal & ors. reported in (2003)6 SCC 230, Zahira Habibulla H. Sheikh & an r. Vs. State of Gujarat & ors. reported in (2004)4 SCC 158, Zahira Habibullah Sh eikh (5) & anr. Vs. State of Gujarat & ors. reported in (2006)3 SCC 374, Samadha n Dhudaka Koli Vs. State of Maharashtra reported in (2008)16 SCC 705, National H uman Rights Commission Vs. S