High Court · 1971
Case Details
WP(C) 7100/2013 PRESENT HON’BLE MR JUSTICE UJJAL BHUYAN By way of this petition under article 226 of the Constitution of India, petition er seeks quashing of order dated 05-04-1991 passed by the Foreigners Tribunal, S onitpur, Tezpur (Tribunal) in F T Case No.5/1991 opining that the petitioner is a foreigner who came to Assam after 01-01-1966 but before 25-03-1971 and furthe r seeks remand of the case back to the Tribunal for re-trial.
Legal Reasoning
Mr. A.Ali, learned Counsel for the petitioner submits that the impugned order wa s passed ex-parte. Petitioner was totally unaware of the above order and came to know about it only on 20-09-2013 whereafter he applied for and obtained a certi fied copy of the impugned order dated 05-04-1991. Thereafter, without wasting an y further time, the present writ petition has been filed. Learned Counsel submit s that petitioner is a bonafide citizen of India by birth and his father’s name (Golap Rakhit) appeared in the voters list of 1966 in respect of Bihpuria LA Con stituency. He further submits that since the impugned order was passed ex-parte, petitioner may be given one more opportunity to appear before the Tribunal. He finally submits that though the petitioner had engaged an advocate, he could not take subsequent steps being an illiterate and ignorant person. Mr. M. Bhagawati, learned Central Government as well as State Counsel submits th at the writ petition is hit by extra ordinary delay and there is no explanation for such delay. Even in the proceeding before the Tribunal, petitioner remained absent for a long time for which the Tribunal had to proceed ex-parte. Plea of i lliteracy and ignorance will not help as the petitioner had engaged a lawyer to defend him after receipt of notice from the Tribunal. Submissions made have been considered. Order of the Tribunal dated 05-04-1991 reads as under :- (cid:28)This is a reference under paragraph 2 of the Foreigners Tribunal Amendment Orde r 1985 made by the Superintendent of Police, Sonitpur against Sri Kartik Rakhit (hereinafter called the OP). Notice containing the main ground of reference has been duly served on OP. But t he OP has neither submitted representation nor taken any step for defence. Hence the OP set ex-parte. The state examined only one witness. PW 1 Sri Putul Hazarika is the SI of Police , who enquired into the case on 01-10-1990 while he was at Behali PS. During enq uiry he went to the house of OP and after interrogation he recorded the statemen t of OP. PW 1 also examined three witnesses and recorded their statements. After completion of enquiry PW 1 submitted his report against the OP as foreigner who came to Assam within the period of 01-01-1966 to 25th March 1971. As the OP has not contested the case there is nothing to disbelieve the evidence of PW 1. Hen ce the OP is found to be a foreigner. OPINION: From the above discussion the Tribunal is of opinion that the OP Sri Ka rtik Rakhit, S/o Sri Golap Rakhit of village- West Jinjia, PS- Behali, District- Sonitpur, Assam, (i) is a foreigner, who (ii) came to Assam after 01-01-1966 but before 25th March 1971, and (iii) has been ordinarily resident in Assam ever since. (cid:29) The above order was passed by the Tribunal as far back as on 05-04-1991. This wr it petition has been filed on 03-12-2013, after more than 22 years. There is no explanation whatsoever for such long delay. Thus, writ petition is clearly hit b y delay and laches. Learned State Counsel has rightly pointed out that plea of i lliteracy and ignorance taken by the petitioner can be no ground to overlook suc h huge delay of more than 22 years. Moreover, petitioner has himself stated that he had engaged a lawyer after receipt of notice from the Tribunal. A full Bench of this Court in State of Assam and others -Vs- Moslem Mondal and o thers reported in 2013 (1) GLT 809 has held that in an ex-parte proceeding befor e the Tribunal when the proceedee does not appear and does not adduce any eviden ce to discharge his initial burden, the Tribunal has no alternative but to opine the proceedee as a foreigner, having regard to the grounds on which reference h as been initiated and notice having been issued. In an ex-parte proceeding, Stat e is not required to adduce evidence as the burden lies on the proceedee to prov e to the satisfaction of the Tribunal that he is not a foreigner in view of the provisions contained in Section 9 of the Foreigners Act, 1946. Paragraph 78 of t he 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 given case the Trib unal has jurisdiction to entertain and pass necessary order on an application to set aside an ex-parte opinion provided it is proved to the satisfaction of the Tribunal that the proceedee was not served with the notice in the reference proc eeding or that he was prevented by sufficient cause from appearing in the procee ding. Full Bench opined that such application cannot be entertained 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) The Full Bench also held that a person who is detected to be a f oreigner of the stream 01-01-1966 to 25-03-1971, has to register himself before the appropriate registering authority within 30 days from the date of detection as a foreigner which period is extendable by another 60 days by the registering authority for reasons to be recorded in writing. Once registered, he shall be de -franchised for a period of 10 years where after, he shall again regain citizens hip of India. The Full Bench has clarified that even the extended time limit of registration as noticed above can be further extended by the registering authori ty but only under very exceptional circumstances, which also cannot be for an in definite period. The Full Bench has clearly held that in case a person detected to be a foreigner belonging to the 01-01-1966 to 23-05-1971 stream does not regi ster his name, he will be treated as a foreigner for all purposes.
Decision
When the petitioner seeks remand for a fresh decision by the Tribunal, he must b e able to show to the satisfaction of the Court that he was either not served th e notice of the proceeding or he was prevented by sufficient cause from appearin g in the proceeding, the reason for his absence being beyond his control. A proc eeding relating to citizenship of a person cannot be taken lightly. When the mat erials on record indicate clear laches and negligence on the part of the petitio ner, order of remand is not to be passed unless exceptional circumstances are ma de out by the petitioners. No such exceptional circumstances are discernible in the present case. Having regard to the above, no case for interference is made out. There is no me rit in the writ petition, which is hereby dismissed.