High Court · 2012

ppeared and sought for adjournment to enable her to submit written statement which was also allowed. On the next da te, so fixed, i.e. on 29.12.2008, the learned counsel appearing for the petition er (who was respondent in the aforesaid proceeding) prayed for some more time to enable the petitioner to submit the written statement. However, the prayer was declined by the learned Tribunal and the matter was fixed on 06.01.2009 for proceeding ex-parte against the petitioner. [5] According to the petitioner, on 06.01.2009, the counsel appearing for the re spondent (the petitioner herein) filed an application before the learned Tribuna l stating that since the petitioner did not communicate with the counsel to file written statement, the counsel desired to withdraw his power in the aforesaid c ase. The learned Tribunal accepted the prayer of counsel of the petitioner to withdraw from the case and fixed 1.7.2009 for proce eding ex-parte against the petitioner. Thereafter, on 7.01.2009, learned Tribuna l passed the impugned order. The learned Tribunal held that the order dated 07.0

1.2009 was passed under compelling situation and the learned Tribunal had no alternative except to allow the petitioner’s counsel to withdraw from the case. The learned Tribunal also held that it was the responsibility of the respondent(the petitioner herein ) as provided by Sec.9 of Foreigners Act to prove that she is an Indian citizen and not a fore igner. [6] Learned Tribunal thereafter, proceeded to consider the reports of the Electo ral Registration Officer (for short E.R.O) as well as the Local Verification Off icer (for short L.V.O). In the impugned order it has been stated that on an orde r from the Election Commission of India an intensive revision of the Electoral Roll of the constitue ncy office was undertaken in between 16th January, 1997 to April, 1997. While the E.R.O considered the Electoral Roll of Khutamari village, he detected that the name of the petitioner was enrolled in the Elector al Roll of the aforesaid village having no base on 01.01.1997. Thus, having doub t on the citizenship of the petitioner, the E.R.O directed a verification by the L.V.O delivering him a form at, \Annexure-A\ as provided under IM(D) TAct. Accordingly, a report was prepared by the L.V.O and submitted to the E.R.O. The E.R.O being not satisfied with the report of L.V.O passed an order on 14.10.1997 to refer the case to the competent authority as the petitioner failed to produce any document in support of her cit izenship. Accordingly, one D. Singh, S.I of Police (B) vide his seizure list sei zed the report and order of E.R.O along with report of L.V.O, filled up format form No. VII in duplicate along with forw arding format maintaining a single paged case diary and placed the matter before the Screening Committee. The then Superintendent of Police Goalpara, being the Chairman of the Screening Committee forwarded the case to the Chairman IM(D)T. While the matter was pending before the IM(D)T for disposal, the 1M (D) T Act itself was repealed and in its place, the Foreigners Tribunal were introduced under Foreigners Act to try the cases in accordance wit h the provisions of Foreigners Act, Citizenship Act and Passport Act. [7] Learned Tribunal held that the petitioner has been given reasonable opportunity for hearing and she failed to make out any case tha t she is a citizen of this country and she did not even communicate to her counsel. Accordingly, since the petitioner failed to pro ve her Indian citizenship in spite of being given opportunity, she was declared an illegal migrant. [8] The learned counsel appearing for the petitioner relying upon the Judgment & Order of this Court in Anghta Khuman Co-operative Co llective Farming Society Ltd. & Ors. - vs- Konthoujam Parijat Singh & Ors. repor ted in (1993) Supp. (1) GLR 285 and Dimbeswar Kalita -vs- Oil & Natural Gas Commission & Anr. report ed in 2003 (3) GLT 137 has stated that once the counsel has decided to withdraw his power to appear for his client without the knowledge of his client, the part y ought to have been notified by the Tribunal. The petitioner, therefore, conten ds that since the Ld. Tribunal did not inform or issue notice to the petitioner, the entire proceedings before the Tribunal is vitiated. (9) On perusal of the impugned order, it is seen that the learned Tr ibunal while accepting the prayer of the counsel of the petitioner to withdraw from the case, did not take any further steps to inform t he petitioner of such an act of her counsel, who was appointed by the petitioner to represent her in the particular case. There is nothing on record to show that the withdrawal of the counsel from the c ase was with prior knowledge of the petitioner. The Tribunal did not notify the petitioner about the aforesaid act of withdrawal by her counsel so as to enable her to take appropriate steps to defend herself. Having not notified by the Tribunal, this Court is of the opinion that there was a procedural lapse on the part of the Tri bunal to proceed with the case ex-parte. [10] Further, perusal of the impugned order shows that the learned Tribunal straightaway proceeded to give its own finding by merely going through the report submitted by the Screening Committee without first satisfying itself about the correctness or otherwise of the said report. Order 3 of the Foreigners (Tribunals) Orders, 1964 provides that a person , who is charged of being to be a foreigner is to be given an opportunity of making a representation and prod ucing evidence in support of his case and after considering such evidence as may be produced and after hearing such persons as may deserve to be heard, the lear ned Tribunal is to give its findings. This court is of the opinion that before considering such representation and evidence of the person charged, the l earned Tribunal must be first prima-facie satisfied itself of the report submitt ed to the Tribunal. In other words, the Tribunal before proceeding with the repo rt submitted by the competent authority must be satisfied that the report is actionable for which th ere has to be some application of mind. It assumes more importance where ex-part e orders are passed as these would have serious implication for those persons ag ainst whom decisions are made. (11) In the present case, on perusal of the impugned order it is seen that there is nothing on record to show that the learned Tribunal had applied its mind on the correctness or otherwise of reports or documents submitted by the Screening Committee on the basis of which the Tribunal gave its opinion. This Court is of the opinion t hat the Tribunal has to undertake the minimum basic requirement of being satisfi ed with the report which was not done. The learned Tribunal therefore, committed procedural error which substantially a ffects the proceedings which would warrant interference by this Court. In this r egard, learned counsel appearing for the petitioner has relied on the Judgment & Order of this Court in PraCulla Sarkar -vs- Union oC India 8& Ors. decided in W.P(C) No.2 432/2010 on 03.06.2010. In the said case, this Court had held that, \ From the entire perusal of the proceeding it does not appear tha t any oral evidence in support of the allegation was produced by the complainant or any witness was examined to prove that the petitioner was a foreign national. In absence of such evidence in our opinion, the learned Tribunal was not justified in relying upon Section 9 of the Foreigner Act, 1946 to record the findings that the petitioner could not discharge his burden and therefore he could safely be declared a foreign national.\ (12) Also in Moalem Mondal 8& Ora. -va- Union of India 8& Ora. reported in 2010 (2) GLT 1, this Court also held as follows: \86. The Tribunal cannot, therefore, render an opinion that the proceedee is a foreigner merely because the proceedee does not respond to the notice. The omission to respond to such a notice, issued by the Tribunal, as indicated hereinabove, would deny him the opportunity of placing his case before the Tribunal. It will not, as a collary, absolve the State of its burden to prove the truth of the grounds on which it claims the proceedee to be foreigner. If the State establishes the grounds before the Tribunal by bringing such materials, which would establish the truth of the assertions made the ’reference’, the Tribunal would be free to give its opinion if it finds that the grounds are sufficient to hold the proceedee a foreigner. The evidence to be given by the State, as already mentioned above, may remain confined to the grounds on which the State rests its case and it will have no responsibility to prove(apart from the grounds, which the state. must prove) that the proceedee is not an Indian citizen. (Emphasis is added by us). Whether such ground are sufficient to interfere that the proceedee is or is not a foreigner, however, remains, within the ambit of the powers of the Tribunal, to determine. Thus, when it is stated that the ’burden of proof is on a foreigner to prove that the he is an Indian citizen, what it means is that if the proceedee claims to be an Indian Citizen, he has the burden to e stablish his claim of being an Indian Citizen, because the State is not expected to prove a negative fact, namely, that the proceedee is not an Indian Citizen.\ As no such exercise / consideration by the Tribunal before declaring the petitioner as a foreigner, and as such the present impugned order is liable to be interfered with. stated above, there (13) Accordingly, this Court is of the view that the failure on the p art of the learned Tribunal to inform the petitioner about the withdrawal of her lawyer from the proceeding and also failure of the Tribunal to come to a prima facie finding or satisfaction as regards the correctness or otherwise of the rep ort submitted before it by the Screening Committee before passing the impugned order is liable to be interfered. (14) As a result, the present writ petition is allowed. (15) The impugned order dated 07.01.2009 passed by the Learned Member, Foreigner s Tribunal, Goalpara in F.T. Case No.1321/G/06 is hereby set aside and the matte r is remanded back to the learned Member, Foreigners Tribunal, Golpara to procee d with the matter afresh in accordance with law. [16] It has been stated by the learned counsel appearing for the petitioner that after passing of the impugned order by the learned Member, Tribunal, the petiti oner has been placed under detention and since the impugned order has already be en set aside by this Court, the petitioner may be set at liberty. In this regard, learned cou nsel appearing for the Central Govt. has pointed out that if the petitioner absc onds the entire exercise would be rendered infructuous. (17) Considering the above facts, this court while setting aside the order of th e Tribunal dated 07.01.2009 passed in F.T Case No. 1321/G/06 and directing the p etitioner to be released from detention, the following conditions may be imposed. i) The petitioner shall not leave station without the permission of the Superintendent of Police of the District who may impose such other conditions including local surety as he may deem fit and proper. ii) The petitioner shall report to the local Police Station every 15(fifteen) days till the disposal of the case by the Foreigners Tribunal, Goalpara or as directed by the Superintendent of Police of the District. (18) Send back the L.C.R.