Judgment · High Court · 2012

#02. We have heard Mr. MH Ahmed, learned counsel for the appellant/wr it petitioner and Mr. M Bhagabati, learned Central Government Counsel for the Un ion of India. Also heard Mr. PS Deka, learned State Counsel, Assam.

#03. On a reference being made under the Act, Case No. 1342/2003 was registered against the writ appellant/writ petitioner before the Illegal Migrant (D) Tribunal, Barpeta then functional under the Act. Notices were issued to her in the said proceedings, but inspite thereof, she did not arrange for her representation, though served therewith. By order dated 07. 03.2005 the learned Tribunal, on a perusal of the materials on record, held the writ appellant/writ petitioner to be an illegal migrant within the meaning of th e Act. Being aggrieved, she instituted WP(C) No.5474/2005, contending, inter alia, that no prior notice in the proceeding before the learned Tribunal had been served o n her at any point of time and that the ex-parte determination made therein agai nst her being violative of the principles of natural justice, was non-est in law . The learned Single Judge on a scrutiny of the records of the pro 04. ceedings before the learned Tribunal was of the view that not only notices had b een duly sent to the writ petitioner/writ appellant, those were served on her mo re than once and that on one occasion, she had appeared through her learned advo cate and had prayed for time, which was granted. The learned Tribunal further r ecorded that thereafter the writ appellant/writ petitioner had remained absent w ithout steps and, consequently, the ex-parte judgment and order dated 07.03.2005 was passed, rejecting the plea that she had never been served with the notice o f the proceeding before the learned Tribunal. Apart from this revelation from th e original records and also being of the opinion that she even, otherwise, could not establish her claim of Indian Citizenship, the learned Single Judge, by the decision impugned in the instant appeal, rejected the writ petition. An application for review of the judgment and order dated 10.01.2006, thus rende red by the learned Single Judge as above, was made by the writ appellant/writ pe titioner contending that it was a bonafide mistake of her learned conducting cou nsel to aver in the writ petition that she not been served with the notice of th e proceedings before the learned Tribunal. According to her, she had instructed her learned counsel to the effect that no notice of the enquiry before the refer ence had been served on her and that absence of service of notice on her by the learned Tribunal was a result of an inadvertent misunderstanding on the part of her learned counsel. The application for review was rejected on 29.11.2006.

#05. In the instant appeal, the writ appellant/writ petitioner has pr offered additional facts. According to her, her father, Late Gendu Mia had been residing in the State of Assam from before 1947 and was possessed of immovable p roperty for which he paid land revenue regularly. She further stated that her fa ther’s name was enrolled in the voters list of 1966 of 52 No. Baghbor LAC. She c laimed to have been given in marriage to one Minazuddin of Digirpam, P.S. Baghbo r, Barpeta, whose name was also enrolled in the voters list of 1989. She claimed herself to be bonafide citizen of the country along with other siblings. Accord ing to her, though the learned Tribunal adjudged her to be an illegal migrant, s he could not immediately, thereafter, prefer an appeal, as by the decision, rend ered in SARBANANDA SONOWAL VS. UNION OF INDIA, AIR 2005 SC 2920 the Apex Court h ad annulled the Act as a result whereof the learned Tribunal constituted thereun der ceased to function. That the mistake on the part of her learned counsel qua the factual aspect of service of notice of the proceedings of the learned Tribun al, was bonafide and that she, being a rustic illiterate village woman, ought no to be made to suffer therefor has been highlighted.

#06. The Superintendent of Police (B), Barpeta filed an affidavit-in- opposition in the appeal, pleading, inter alia, that Minazuddin, husband of the writ appellant/writ petitioner and Miachan Ali, her son had produced before SI ( B) Sirajul Islam of Baghbor a voters list of 1966, 1997 and 2011 of village Digi rpam 45 No. Baghbor LAC. That the voters lists of 1966 and 1977 contained the na me of Late Gendu Mia, S/o. Late Dukhi Mia for village Ranir Pam, 52 No. Baghbor LAC and Satra Kanara Gobindapur Reserve 45 No. Baghbor, LAC was also stated. Pro duction of the voter lists of 1966 and 1997 enrolling the name of Late Basaton N essa, W/o. Late Gendu Mia was also affirmed. The deponent, however, contended th at no document, however, was available to establish that the writ appellant/writ petitioner was the daughter of Late Gendu Mia and late Basaton Nessa of village Satra Kanara Gobindapur Reserve. In reply thereto, the writ appellant/writ petitioner in her affi 07. davit, while affirming the production of the aforementioned documents has brough t on records, the relevant extract of the Chitha of Ranir Pam under Mandia Mauza recording the names of the heirs and legal representatives of Gendu Mia, S/o. L ate Dukhi Mia. A copy of the revenue paying receipt dated 23.06.2006 pertaining to the said land and issued in her favour has also been appended thereto.

#08. Mr. Ahmed has assiduously argued that the learned Single Judge h as erred in law in overlooking the fact that the imputation that the writ appell ant/writ petitioner is an illegal migrant had not been proved as required and th at on that count alone the impugned judgment is liable to be set aside. Accordin g to the learned counsel, notwithstanding the fact that the learned Tribunal had decided the proceedings ex-parte against the writ appellant/writ petitioner, th e prosecution was unmistakably required to prove the imputation levelled against her and there being no semblance of any material in support thereof as is obvio us on the face of the order dated 07.03.2005, the same ought to have been interf ered with by the learned Single Judge. Reiterating that the writ appellant/writ petitioner should not be made to suffer the adverse consequences of a bonafide m istake of her conducting counsel, Mr. Ahmed, has argued that the Act having been annulled by the Apex Court vide its decision in SARBANANDA SONOWAL (Supra), the matter ought to be remitted to the jurisdictional Foreigners Tribunal to be adj udicated afresh after due opportunity to the writ appellant/writ petitioner to p rove her claim of Indian Citizenship. Referring to the documents on record, more particularly, the voters list of 1966 containing the name of Gendu Mia as well as the copy of the extract of the Chitha disclosing her to be one of his legal h eirs, the learned counsel has insisted that interest of justice warrants examina tion of the writ appellant/writ petitioner’s claims of Indian Citizenship afresh . In support of his submissions, the learned counsel has placed reliance on the decision of the Apex Court in RAMESH CHAND ARDAWATIYA VS. ANIL PANJWANT, AIR 200 5 SC 2920 and of this Court in SANTI RANJAN DEY & ORS. VS. THE STATE OF ASSAM & ANR., 2006 (4) GLT 716, KARAMAT ALI VS. THE STATE OF ASSAM & ORS. 2008 (1) GLT 9 47 and Commissioner-cum-Secretary & Ors. Vs. T.C. Syndicate & Ors., 2011 (2) GLT

#09. Mr. Bhagabati, as against this, has contended that as the writ a ppellant/writ petitioner had failed to defend her cause before the learned Tribu nal inspite of service of notice on more than one occasion, having regard to the reasons recorded in the impugned judgment and order sustaining its determinatio n, no interference is called for. According to the learned Central Government Co unsel, the documents on record are all yields of afterthought and ought not to b e entertained. Mr. Deka has endorsed the contentions advanced on behalf of the U nion of India. We have extended our thoughtful consideration to the pleadings o 10. n records and the documents available. That, the writ appellant/writ petitioner had been served with the notice of the proceedings of the learned Tribunal, wher eupon, she had entered appearance through her learned counsel and had prayed for time at the first instance is a matter of record. That, she did not appear ther eafter and had remained absent without steps is also not disputed. The order dat ed 07.03.2005 of the learned Tribunal, however, does not discuss in details the materials produced on behalf of the prosecution to establish that she was an ill egal migrant within the meaning of the Act. Though the learned Tribunal had reco rded that the writ appellant/writ petitioner was absent inspite of service of no tice and had failed to submit the relevant documents in support of her nationali ty, the determination against her is visibly summary and cryptic. Even the conte nts of the report on which the reference had been registered have not been set o ut to indicate the reasons in support of the ultimate adjudication that the writ appellant/writ petitioner is an illegal migrant under the Act. This assumes sig nificance in the face of the basic fundamental principle that even, while dispos ing of a proceeding ex-parte, a judicial forum ought to examine the availability or otherwise of sufficient materials/evidence in support of the party in whose favour the eventual verdict is pronounced. The proceeding before the learned Tri bunal being adversarial in nature, this fundamental proposition of law as highli ghted by the Apex Court in RAMESH CHAND ARDAWATIYA (Supra) and this Court in Com missioner-cum-Secretary & Ors. (Supra) cannot be disregarded. To this extent, th e challenge to the tenability of the determination made by the learned Tribunal cannot be lightly brushed aside.

#11. A shifting stand of the writ appellant/writ petitioner vis-a-vis the service of notice of the proceedings before the learned Tribunal is apparen t. Be that as it may, her plea of inadvertent and bonafide mistake by her learne d counsel in correctly projecting her instructions in this regard is not an impl ausible one, she being an unlettered and rustic village woman. On a prima facie perusal of some of the documents referred to by the Superintend ent of Police (B), Barpeta in his affidavit filed in the instant appeal, more pa rticularly, the extract of the voters list of 1966 carrying the name of Gendu Mi a, S/o. Dukhi Mia, copy of the extract of the Chitha of the aforementioned land and that of the revenue paying receipt pertaining thereto disclosing, amongst ot hers, the name of the writ appellant/writ petitioner as the daughter/legal heir of Late Gendu Mia, we are of the considered opinion that in the singular facts a nd circumstances of the case, she is entitled to one opportunity of proving her claim of Indian Citizenship in accordance with law. In arriving this conclusion, we have felt guided by the decision of a Division Bench of this Court in KARAMA T ALI (Supra).

#12. In the above view of the matter, the impugned judgment and order dated 10.01.2006 as well as the determination made by the learned Tribunal vide its order dated 07.03.2005, passed in Case No. 1342/2003, are interfered with. The matter is remitted to the learned Foreigners Tribunal, Barpeta for a decisio n afresh after due opportunity to the parties. The appellant/writ petitioner wou ld present herself before the Tribunal without fail on 02.07.2012 to take furthe r order(s) in this regard.

#13. We make it clear that on her failure to do so, this determinatio n would automatically stand recalled without further reference to her. The appea l is, thus, allowed. No costs. A copy of this order be forwarded to the Superintendent of Police, Barpeta to en sure action in terms therewith.