High Court
Case Details
WP(C) 2366/2009 BEFORE HON’BLE MR JUSTICE B.K. SHARMA 1. None appears for the petitioner on call. On the last occasion al so, i.e. on 11.12.2012, none had appeared for the petitioner. Prior to that also when the matter was taken up on 19.11.2012, none had also appeared for the peti tioner. 2. arned State counsel.
Legal Reasoning
I have heard Mr. M. Bhagawati, learned CGC as well as Mr. B.J. Ghosh, le 3. The petitioner is aggrieved by order dated 08.04.2009 passed by the lear ned Foreigners’ Tribunal, Goalpara in FT Case No. 751/G/06 by which he was decla red to be a foreign national (illegal Bangladeshi migrant) entering into India a fter the cut off date ,i.e. 25.03.1971. Presently the petitioner is in the deten tion camp and awaiting for deportation to Bangladesh.
Decision
The impugned order dated 08.04.2009 and the proceeding thereof are ex p 4. arte. In the writ petition, the petitioner has blamed his engaged counsel before the Tribunal. In paragraph-7 of the writ petition, it has been stated that he h ad engaged his counsel to defend his case. However, the said counsel did not tak e steps for filing written statement (WS) and also did not produce the materials / documents which were allegedly handed over to him. 5. The aforesaid plea of the petitioner is a common plea always taken by th e declared foreigners. It being a case of determination as to whether the petiti oner is illegal Bangladesi or not, it was incumbent on his part to respond to th e proceeding before the Tribunal. He having not done so, he cannot now take the plea that his engaged counsel did not take steps in the matter. 6. I have verified the case records received from the Tribunal. On perusal of the same, it appears that after service of notice on the petitioner, he did n ot appear on 24.04.2007. He all along remained absent on the next dates fixed wh ich are 21.05.2007, 10.07.2007, 07.08.2007 and 07.09.2007. Thereafter fresh noti ce was issued to the petitioner on 20.07.2008. The petitioner appeared before t he Tribunal on 29.07.2008 by submitting an application for time to file WS. The prayer was allowed fixing the matter on 05.08.2008. On 05.08.2008 also the petitioner remained absent. However, an applicati 7. on was filed praying for some more time to file WS which was allowed fixing the matter on 18.08.2008. On 18.08.2008 also an application was filed praying for ad journment of the matter and the same was allowed. It was ordered that such adjou rnment would be the last adjournment and the matter was fixed on 10.09.2008. 8. On 10.09.2008, the petitioner appeared before the Tribunal and filed WS and the list of witnesses. The matter was thereafter fixed on 11.11.2008 for evi dence. The petitioner was directed to submit the statement of his witnesses and supported affidavit. when the matter was taken up on 11.11.2008, the petitioner appeared before the Tribunal and filed an application praying for time to adduce evidence. The prayer was allowed fixing the matter on 12.01.2009. 9. On 12.01.2009, the petitioner again remained absent, but filed an applic ation praying for time and the same was allowed fixing the matter on 20.03.2009 . On 20.03.2009 the petitioner again remained absent without any steps. Accordin gly, the matter was fixed for evidence on 08.04.2009. On 08.04.2009 also the pet itioner remained absent and accordingly the Tribunal had no other alternative th an to pass the impugned order proceeding against the petitioner ex parte. 10. As per the provision of Section 9 of the Foreigners’ Act, 1946, the bu rden lies on the procedee to establish that he is an Indian citizen. The petitio ner having failed to discharge the said burden cannot now blame his engaged coun sel for non-appearance before the Tribunal. If this kind of plea is allowed to stand, the proceeding before the Tribunal which is summary in nature will never come to an end and the proceedee can always avoid appearance and final disposal of the proceeding. 11. In the WS that was filed before the Tribunal, the document on which the petitioner relined upon, is the voter list of 1956 (photocopy and extract only) wherein the name of one Babor Ali whom the petitioner claims to be his father a ppeared. It is on the basis of the said document only, the petitioner claimed to be an Indian citizen without proving the said document and establishing that th e said Babor Ali whose name appeared in the voter list of 1956 is his father. 12. In the counter affidavit filed by the respondent No. 3, i.e. the DSP, Go alpara, it has been stated that the documents mentioned by the petitioner were n ever produced before the enquiry officer and that the said documents also were n ot proved in the manner required to be proved as per Evidence Act. The petitioner having failed to discharge the burden of proof as envisag 13. ed under Section 9 of the Foreigners Act, 1946, the Tribunal has rightly made th e declaration that the petitioner is an illegal Bangladeshi migrant who entered into Assam after 25.03.1971. 14. In view of the above, the writ petition is dismissed. Interim order oper ating in this proceeding stands vacated. The petitioner who is said to be in the detention camp shall now be deported to the country of his origin, i.e. Banglad esh. If his name has appeared in any voter list, same shall be deleted. 15. Let the copies of this order be furnished to Mr. M. Bhagawati, learned C GC and Mr. BJ Ghosh, learned State counsel for their necessary follow up action. Copies may also be sent to the Deputy Commissioner, Goalpara and the Superinten dent of Police (B), Goalpara. Another copy be sent to the Union of India in the Home Department. List the matter after one month for submission of compliance re port by the Deputy Commissioner, Goalpara and the Superintendent of Police (B), Goalpara.