High Court
Case Details
WA 360/2013 BEFORE HON’BLE MR JUSTICE B.P. KATAKEY HON’BLE MR JUSTICE A.K. GOSWAMI JUDGMENT & ORDER (Oral) Katakey, J. This appeal is directed against the judgment and order dated 20th August, 2013 p assed by the learned Single Judge in WP(C) No.2574/2013, dismissing the writ pet ition filed challenging the orders dated 11th February, 2005 and 7th April, 2005 passed by the learned Member, IM(D)T in Case No.2556/2003. Vide order dated 11 th February, 2005, the Tribunal, constituted under the provisions of the Illegal Migrants (Determination by Tribunal) Act, 1983 (in short, (cid:28)1983 Act (cid:29)), has held the appellant as an illegal migrant, within the meaning of the said Act. Vide o rder dated 7th April, 2005, the application filed by the appellant to recall the order dated 11th February, 2005 has been rejected.
Legal Reasoning
In view of the aforesaid discussion, we are of the view that the learned single Judge has rightly dismissed the writ petition filed by the appel lant, which does not require any interference in an intra Court appeal. [10] The appeal is, therefore, dismissed.
Arguments
[2] We have heard Mr. A.R. Sikdar, learned counsel for the appellant , Mr. M. Bhagabati, learned Central Government counsel appearing for the respond ent No.1 and Mr. J. Handique, learned State counsel appearing for the respondent Nos.2 to 4. [3] Referring to the order dated 11th February, 2005 passed by the T ribunal, it has been contended by Mr. Sikdar, learned counsel, that though under the provisions of the 1983 Act, the burden lies on the State to prove that the noticee is an illegal migrant, the Tribunal by the said order has wrongly placed the burden on the noticee, i.e. the appellant, as it is apparent therefrom that the appellant has been declared as illegal migrant because of his failure to pr oduce any evidence and to contest the proceeding. It has also been submitted th at the Tribunal has also committed illegality in not vacating the ex-parte order dated 11th February, 2005 and in passing the order dated 7th April, 2005, when the appellant could demonstrate that he could not appear in Case No.2556/2003 pr ior to 11th February, 2005 because of the flood and the misplacement of the date fixed in the case as well as the case number. The learned counsel, therefore, submits that the judgment passed by the learned single Judge needs to be interfe red with as the Tribunal has passed the order dated 11th February, 2005 wrongly placing the burden on the appellant/noticee. [4] On the other hand, Mr. Bhagabati, learned Central Government cou nsel as well as Mr. Handique, learned State counsel appearing for the respondent s supporting the aforesaid orders dated 11th February, 2005, 7th April, 2005 and 20th August, 2013 have submitted that it is evident from the order dated 11th F ebruary, 2005 passed by the Tribunal that the State could discharge the initial burden of proving that the appellant is an illegal migrant, by examining the Loc al Verification Officer (LVO). It has also been submitted that since no rebuttal evidence was adduced by the appellant to demonstrate that he is not an illegal migrant and in fact the appellant did not contest the proceeding after he once a ppeared, the Tribunal has not committed any illegality in passing the order date d 11th February, 2005. The learned counsel further submit that the only ground on which the order dated 11th February, 2005 was sought to be recalled, showing the ground for non appearance by the appellant before the Tribunal, was that bec ause of the flood he could not appear. Such contention of the appellant, accordi ng to the learned counsel, has rightly been rejected by the Tribunal vide order dated 7th April, 2005, as the appellant was negligent and did not pursue the pro ceeding despite the knowledge of pendency of the proceeding under the provisions of the 1983 Act and even did not approach the Tribunal immediately after recess ion of flood water. The learned counsel further submit that the fact that appel lant was not at all vigilant and in fact was negligent, is also apparent from th e fact that after abetment of the appeal preferred by the appellate forum under the provisions of the 1983 Act, the appellant for long 8(eight) years did not ta ke any steps and only in the year 2013 approached the High Court in exercise of the jurisdiction under Article 226 of the Constitution of India. The learned co unsel, therefore, submit that the learned single Judge has rightly dismissed the writ petition, which does not require any interference. [5] We have considered the submissions advanced by the learned couns el appearing for the parties and also perused the aforesaid orders passed by the Tribunal as well as by the learned single Judge. [6] It appears from the order dated 11th February, 2005 passed by th e Tribunal that the appellant having received the notice, once appeared and ther eafter, he has chosen not to contest the proceeding. The Tribunal, therefore, ha d not alternative but to record the evidence of the LVO, who has stated in his e vidence that though he visited the place where the appellant reside and demanded proof of his citizenship, the appellant could not produce any document to demon strate that he is not an illegal migrant but an Indian citizen. Such version of the LVO remained uncontroverted. The initial burden cast on the State, under t he provisions of the 1983 Act, to demonstrate that the noticee/appellant is an i llegal migrant, therefore, has been discharged by the State, when a negative fac t cannot be proved. The burden then shifts to the noticee/appellant to produce rebuttal evidence for the purpose of demonstrating that he is not an illegal mig rant but a citizen of India, which the appellant did not availed of. Though the appellant subsequent to the order dated 11th February [7] , 2005, declaring him to be an illegal migrant, filed an application seeking rec all of the said order showing the cause of his non appearance, the same has not been accepted by the Tribunal, for which the order dated 7th April, 2005 was pas sed. The contention of the learned counsel for the appellant that the appellant could not appear before the Tribunal because of the flood as well as loss of th e date and the case number, cannot be accepted, as it is the case of the appella nt before the Tribunal in the aforesaid application filed that he could not appe ar because of the flood only. It is common knowledge that in Assam flood water recedes generally in the month of September and in exceptional case, in the mont h of October in a year. The appellant despite that did not approach the Tribuna l till the date of the order dated 11th February, 2005 and filed the application only in the month of April, 2005. There is absolutely no explanation as to why he did not approach the Tribunal immediately after recession of the flood water . It also appears from the order dated 7th April, 2005 passed by the Tribunal t hat before passing the order on 10th February, 2005, one more notice was issued, which was served on the appellant on 2nd November, 2004 and despite that the ap pellant has chosen not to contest the proceeding. [8] The explanation given by the appellant for filing the writ petit ion after lapse of 8(eight) years from the date of repeal of the 1983 Act is als o not acceptable, as the appellant knew that he has been declared as illegal mig rant by the Tribunal in the year 2005, his application for recalling the order d ated 11th February, 2005 has been rejected. It is not believable that the appel lant would not make an enquiry about the pending appeal proceeding for 8(eight) years. [9]