Supreme Court
Case Details
WP(C) 1256/2010 PRESENT HON’BLE MR JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (ORAL) By way of this petition under article 226 of the Constitution of India, petitioner seeks quashing of order dated 05-10-2009 passed by the Foreig ners Tribunal, Goalpara in Case No. FT.1361/G/06 declaring the petitioner to be an illegal migrant of the post 1971 stream, liable to expulsion from India. 2. The Electoral Registration Officer (ERO) of the No.37 Goalpara E ast Legislative Assembly Constituency (LAC) considered the draft electoral roll of ward No.4 of Goalpara town for the purpose of intensive revision of the draft electoral roll following direction of the Election Commission of India with ref erence to 01-01-1997 as the qualifying date. When the ERO had doubt about the ci tizenship of the petitioner, he got the matter verified through the Local Verifi cation Officer (LVO) as per prescribed format, including on the spot verificatio n. Petitioner failed to furnish any document in support of her citizenship. As p er report of LVO, petitioner was allowed to stay in the house where she was stay ing by the owner without taking any rent from 1993 to 1997. The ERO then forward ed the case to the Superintendent of Police, Goalpara being the Chairman of the Screening Committee. 3. Case was referred to the Illegal Migrants (Determination) Tribun al (IMDT). While the case was pending before the IMDT, the Illegal Migrants (Det ermination by Tribunals) Act, 1983, under which the IMDT was functioning, was de clared unconstitutional by the Hon’ble Supreme Court. Consequently, the case was transferred to the Foreigners Tribunal, Goalpara (Tribunal), where it was re-nu mbered as FT Case No.1361/G/06. 4. Though notice issued by the Tribunal was duly served on the peti tioner, who was represented by a lawyer, no written statement was filed. Later o n, the lawyer withdrew from the case on the ground that the petitioner did not c ooperate with him. Thereafter, the case proceeded ex-parte and by the impugned o rder dated 05-10-2009, the Tribunal declared the petitioner to be an illegal mig rant of the post 1971 stream, liable to expulsion from India. 5. Thereafter, the present writ petition has been filed.
Decision
6. This Court by order dated 22-02-2010 admitted the writ petition and in the interim directed that the petitioner may not be deported from India, giving liberty to the respondents to detain the petitioner in custody. 7. Heard Mr. R. Dey, learned Counsel for the petitioner and Mr. A. Hussain, learned Central Government Counsel. Also heard Mr. M. Bhagawati, learne d Government Advocate, Assam. 8. Learned Counsel for the petitioner submits that petitioner was b orn and brought up at Bilasipara, which was earlier in the undivided Goalpara di strict and now in Dhubri district. Father of the petitioner Md. Kazimuddin Sheik h was a citizen of India and his name was recorded in the National Register of C itizens. Both her father and mother Musstt. Sarvanu were voters in the 1966 vote rs list. Her mother and her brothers have been exercising their franchise from N o.27 Bilasipara East LAC. After her marriage to one Md. Abdul Mazid during 1971- 72, she came to and settled down at Goalpara where she had cast her vote. When n otice was served upon the petitioner to appear before the Tribunal, she engaged a counsel who appeared before the Tribunal on 16-03-2009. Petitioner is an illit erate lady and she did not have any document to prove her citizenship. She could collect only a certified copy of the voters list of 1996 where her name appeare d. While she was making attempts to collect documents to show that she has been residing in India prior to 1971, which was time consuming, the impugned order wa s delivered. Learned Counsel submits that petitioner may be given one more oppor tunity to appear before the Tribunal and to prove her citizenship. He there fore seeks remand of the case for hearing afresh after setting aside the impugne d order. 9. Submission made by learned Counsel for the petitioner is strongl y opposed by the learned Central Government Counsel as well as by the learned St ate Counsel. Learned State Counsel has referred to the affidavit filed on behalf of respondent No.3 to contend that petitioner failed to produce any document be fore the enquiry officer in support of her nationality during the enquiry. There were clear laches on her part in the proceeding before the Tribunal. Tribunal c ould not have waited for an indefinite period for the petitioner to prove her na tionality. Having regard to the settled legal position as to the onus of proving one’s citizenship when questioned by the State, they assert that there is no in firmity in the decision of the Tribunal. They therefore seek dismissal of the wr it petition. 10. f the case. Submissions made have been considered. Also perused the record o 11. It is not in dispute that notice from the Tribunal in connection with the impugned proceeding was served on the petitioner. After receipt of not ice, petitioner engaged a Counsel who represented her before the Tribunal. After a number of dates, during which period written statement was not filed by the p etitioner, the Counsel withdrew from the case complaining that he did not receiv e any communication from his client. Though the Tribunal granted further time to the petitioner, she neither filed written statement nor appeared before the Tri bunal to context the proceeding. Finally, the Tribunal passed the impugned order dated 05-10-2009. 12. A perusal of the order dated 05-10-2009 as well as the record wo uld show that time was sought for on behalf of the petitioner on 28-04-2009, 10- 06-2009, 10-07-2009 and 31-07-2009. The engaged Counsel filed a petition before the Tribunal on 03-09-2009 withdrawing himself from the case complaining that th e petitioner did not maintain any contact with him. On that day, the petitioner was absent. Because of her absence and non-submission of written statement, orde r was passed by the Tribunal to proceed with the case ex-parte, fixing 05-10-200 9. When the case was taken up on 05-10-2009, the petitioner again remained absen t. As such, the Tribunal passed the ex-parte order holding that petitioner had f ailed to prove her citizenship. Accordingly, she was declared as illegal migrant of post 1971 stream, liable for expulsion from India. 13. Under section 9 of the Foreigners Act, 1946, the onus of proving that a person is not a foreigner shall lie upon such person. A full Bench of this Court in State of Assam and others -Vs- 14. Moslem Mondal and others reported in 2013 (1) GLT 809 has held that in an ex-par te proceeding before the Tribunal when the proceedee does not appear and does no t adduce any evidence to discharge his initial burden, the Tribunal has no alter native but to opine the proceedee as a foreigner, having regard to the grounds o n which reference has been initiated and notice having been issued. In an ex-par te proceeding, State is not required to adduce evidence as the burden lies on th e proceedee to prove to the satisfaction of the Tribunal that he is not a foreig ner in view of the provisions contained in Section 9 of the Foreigners Act, 1946 . Paragraph 78 of the said judgment is as under :- (cid:28)(78). In a proceeding under the Foreigners Act, 1946 read with 1964 Order the i ssue is whether the proceedee is a foreigner. It being a fact especially within the knowledge of the proceedee, the burden of proving that he is a citizen is, t herefore, upon him, because of Section 9 of the 1946 Act and it is, therefore, h is obligation to provide enough evidence to establish that he is not a foreigner . In an ex-parte proceeding before the Tribunal constituted under the provisions of 1964 Order the said position would not be changed as the burden of proving t hat the proceedee is not a foreigner continues to be upon the proceedee, which c annot shift and when the proceedee does not adduce any evidence to discharge suc h burden, the Tribunal has no alternative but to opine the proceedee as a foreig ner, having regard to the main grounds on which the reference has been initiated and the notice having been issued to the proceedee. Unlike in a suit in the Civ il Court, where the Court may require the plaintiff to adduce evidence to prove his case even in an ex-parte proceeding, as the burden of proof lies on the plai ntiff in view of Section 101 of the Evidence Act, in a proceeding before the Tri bunal under the provisions of 1946 Act read with 1964 Order, the same is not req uired, meaning thereby that the State is not required to adduce evidence in an e x-parte proceeding, as the burden lies on the proceedee to prove to the satisfac tion of the Tribunal that he is not a foreigner, in view of the provisions conta ined in Section 9 of the 1946 Act. (cid:29) Coming to ex-parte proceeding, the Full Bench held that in a giv 15. en case the Tribunal has jurisdiction to entertain and pass necessary order on a n application to set aside an ex-parte opinion provided it is proved to the sati sfaction of the Tribunal that the proceedee was not served with the notice in th e reference proceeding or that he was prevented by sufficient cause from appeari ng in the proceeding. Full Bench opined that such application cannot be entertai ned in a routine manner. Paragraph 92 of the said judgment reads as under:- (cid:28)(92). As discussed above, the Tribunals constituted under the Foreigners Act re ad with the 1964 Order have to regulate their own procedure and they have also t he quasi-judicial function to discharge and hence in a given case the Tribunal h as jurisdiction to entertain and pass necessary order on an application to set a side an ex-parte opinion, provided it is proved to the satisfaction of the Tribu nal that the proceedee was not served with the notice in the reference proceedin g or that he was prevented by sufficient cause from appearing in the proceeding, reason for which was beyond his control. Such application, however, should not be entertained in a routine manner. The Tribunal can entertain such application provided the proceedee could demonstrate the existence of the special/exceptiona l circumstances to entertain the same by way of pleadings in the application fil ed for setting aside the ex-parte opinion, otherwise the very purpose of enactin g the 1946 Act and the 1964 Order would be frustrated. The Tribunal, therefore, would have the jurisdiction to reject such application at the threshold, if no g round is made out. (cid:29) 16. When the petitioner seeks remand for a fresh decision by the Tri bunal, he must be able to show to the satisfaction of the Court that he was eith er not served the notice of the proceeding or he was prevented by sufficient cau se from appearing in the proceeding, the reason for his absence being beyond his control. A proceeding relating to citizenship of a person cannot be taken light ly. It cannot continue for an indefinite period or till such time or decision wh ich can only be to the satisfaction of the proceedee. After a proceeding is cont inued for a number of years and when the materials on record indicate clear lach es and negligence on the part of the petitioner, order of remand is not to be pa ssed unless exceptional circumstances are made out by the petitioner. A perusal of the averments made in the writ petition do not disc 17. lose any such exceptional circumstances to warrant remand of the case to the Tri bunal for a fresh decision as sought for by the petitioner. All that has been st ated in the writ petition is that the petitioner is an illiterate and poor perso n. This is no ground for remand. When the petitioner had engaged a lawyer to def end herself before the Tribunal, such averments on the face of it are untenable and cannot be accepted. In view of above, this Court finds no good ground to interfere w 18. ith the order of the Tribunal dated 05-10-2009. Writ petition is devoid of merit and is accordingly dismissed. Interim order passed earlier stands vacated. Regi stry to send down the case record forthwith. No cost.