High Court · 2009

3. If the petitioner failed to respond to the proceeding before the Tribuna l and consequently the Tribunal had to proceed ex-parte, the writ Court without any valid ground cannot set aside the said proceeding and the consequential orde r. The aforesaid grounds urged in paragraph-6 of the writ petition are hardly an y ground to set aside the ex-party proceeding. If such grounds are allowed as gr ounds to set aside the ex-parte proceeding, there will be no end to the legal pr oceeding and the foreigners merrily roaming around in Assam will continue to li ve in Assam to the detriment of the Indian citizen.

4. According to the petitioner, her father, namely Late Ishwar Barman @ Is hwar Chandra Barman who was aged about 32 years on 10.04.69 had entered into the soil of India on 10.04.64 alongwith other family members such as wife, three da ughters and one son which include the petitioner. They had allegedly migrated fr om the village Ghagra of Mymensingh District in Banladesh. According to the pet itioner she was just about 5 years of age at that point of time. Their family wh ile entering into India first arrived at Dalu in the District of Meghalaya and t hey had reported to the appropriate authority of Govt. of India seeking relief. Accordingly they were issued with Relief Eligibility Certificate bearing No. 740 dated 26.03.65 (Annexure-1) Further case of the petitioner is that after entering into Indian soil t 5. he family was registered as per the provision of the Citizenship Act, 1955. Such registration was effected by Annexure-2 certificate bearing No. 328462 dated 06 .12.1971.

6. As per the narration in the writ petition, the petitioner got married in the year 1978/1979 with one Shri Kukil Barman of Village Digarumukh under P.S. Pragjyotishpur, Kamrup (Metro) and presently residing there with her husband and children. The petitioner has placed reliance on Anenxures- 3 and 4 certificates (photo copies) dated 11.07.09 and 04.07.09 purportedly issued by the village Ga onburha. The contents of the first certificate is that the petitioner is the dau ghter of Late Ishwar Chandra Barman of Village No. 3 Derapathar, P.O. Derapathar , P.S. Kaki in the District of Nagaon, Assam as on 11.07.2009 and that her fath er’s name appeared in 1997 voter list of No. 38 Kaki Jila Parishad. So far as An nexure-4 certificate is concerned, same has certified that the petitioner is th e resident of Chandrapur Bagisha (Digarumukh), Mauza Panbari, Dist- Kamrup (Metr o). On the basis of the aforesaid documents, it is the case of the petitione 7. r that she is an Indian citizen and thus, the proceeding initiated, firstly in I M(D)T and secondly in the Foreigners’ Tribunal are not sustainable and the conse quential quit India notice dated 13.09.2001 (Annexure-6) is also not legally va lid.

8. I have heard Mr. A. Chamuah, learned counsel for the petitioner as well as Ms. R. Chokraborty, learned Addl. Sr. Govt. Advocate appearing for the State. I have also gone through the records of the Tribunal and so also the originals of Annexures - 1 and 2 documents annexed to the writ petition about which mentio n has been made above. On a close scrutiny of the entire materials on record and in consideration of the submissions advanced by the learned counsel for the par ties, my findings and conclusions are as follows:

9. At the first instance, it must be said that, as noted above, there is no valid explanation as to why the petitioner did not respond to the proceeding be fore the Tribunal. She filed the writ petition on 24.08.09, i.e. after about 1 a nd ‰ years of the impugned order dated 18.08.08 passed by the Foreigner’s Tribun al in the aforesaid FT Kamrup (M) case No. 12/08 and more than six months after quit India notice dated 13.01.09 was served on her. It was only when she was ta ken into custody by the police, she woke up from her slumber and filed the writ petition. Perhaps her expectation was that in her case also the police and the S tate administration would show the same lethargy as is shown in the case of othe r Foreign nationals regarding their detection, detention and deportation which h as been the experience of this Court dealing with a number of cases. If there is no valid ground to set aside the ex-parte order of the Tribunal, there is no qu estion of entertaining the writ petition and on that score alone, the writ petit ion is liable to be dismissed. However, I have also gone into the merit of the c ase of the petitioner as has been projected in the writ petition.

10. As per the declaration made in the affidavit verifying the contents of t he writ petition, the petitioner is aged about 50 years. If that be so, her name would have appeared in many documents and at least in several voter lits. Howev er, there is none.

11. As regards the Annexures- 1 and 2 documents on which the petitioner has placed heavy reliance, on a scrutiny what I find is that while Annexure-1 is the purported Relief Eligibility Certificate without any official seal with an ove rwritten signature dated 26.03.67 and with no entries in the portion (cid:28)For Offici al Use (cid:29), Annexure-2 certificate is dated 17.10.71 pertaining to one Shri Ishwar Chandra Barman certifying that he has been registered under Section 5 (1) (a)/( d) of the Citizenship Act, 1955. If the same Ishwar Chandra Barman is the father of the petitioner and was registered only on 17.10.71, it is not understood as to how the Relief Eligibility Certificate could have been issued in 1967. As per the own declaration of the petitioner, her father was aged about 32 years as on 10.04.69, but in Annexure-2 certificate dated 17.10.71 his age is shown as 40 y ears. There is overwriting in the column (cid:28)Place of Birth (cid:29) and only legible porti on is (cid:28)gala (cid:29). But in paragraph 2 of the writ petition it is the stand of the pet itioner that their family was the resident of (cid:28)Ghagra (cid:29). On the fact of it, the c ertificate is fictitious and cannot be relied upon. Even if the same is relied u pon, same pertains to only Shri Ishwar Chandra Barman and not to the petitioner. Further, if the family of the petitioner had entered into Indian soil on 10.04. 64, as has been claimed by the petitioner and was registered vide Annexure-1 Rel ief Eligibility Certificate and Annexure-2 Certificate of Citizenship Registrati on, the names of all family members would have appeared in many more documents i ncluding the voter lists. However, there is none.

12. The petitioner has placed reliance on Annexure-3 certificate (photo copy ) dated 11.07.09 purportedly issued by the Govt. Gaoburha. But in the certificat e there is no indication as to which area or village the issuing authority belon gs. The certificate has only certified that the petitioner is the daughter of La te Ishwar Chandra Barman who is the resident of No. 3 Derapathar under P.S. Kaki in the District of Nagaon and that her father’s name had appeared in 1997 voter list of No. 38 Kaki Jila Parishad. If the petitioner had entered into India on 10.04.64 alongwith her father and other family members, the petitioner could hav e placed reliance on many more documents including several voter lists instead o f placing reliance on Annexure-3 Certificate certifying inclusion of her father’ s name in the aforesaid 1997 voter list. There is no explanation as to why the n ame of the petitioner who is 50 years of age is not included in the voter list. Inclusion of name in the voter list 1997 is of no consequence as the cut off dat e is 25.03.71. Further as has been held by the Apex Court in Bhanwaroo Khan and others vs. Union of India and others reported in (2002) 4 SCC 346, long stay in a country and enrolment in the voter lists would not confer any right on alien t o continue to stay in the country.

13. I now examine the Annexure-4 certificate dated 04.07.09 certifying the p etitioner and her husband to be the residents of village Chandrapur Bagisha (Dig arumukh) in the District of Kamrup (Metro), Assam. According to the said certifi cate they have been married for last 30/33 years. This certificate does not mean anything. It only certifies about the relationship of the petitioner with one S hri Kukil Barman for the last about 30/33 years. As per this certificate, the pe titioner is a resident of Chandrapur Bagisha (Digarumukh), Mauza Panbari, Distri ct Kamrup (Metro), but as per the Annexure-3 Certificate she is a resident of Vi llage No. 3 Derapathar, Mouza Kaki, P.S. Kaki in the District of Nagaon, Assam. Significantly, both the certificates are of July, 2009. While the Anenxure-3 Cer tificate is dated 11.07.09, Annexure-4 Certificate is dated 04.07.09. Thus, the petitioner claims to be a resident of two places of two different districts in t he State of Assam at the same time. All these facts clearly show that the petiti oner is undoubtedly a foreigner and the Tribunal has rightly declared her to be so.

14. For the aforesaid reasons, I do not find any merit in the writ petition, rather it is an abuse of the process of law. The writ proceedings have become a n easy way out for such foreign nationals who after not responding to the procee dings before the Tribunal for obvious reasons, approach the writ Court dumping d ocuments and asking the writ Court to interfere with the orders of the Tribunal blaming the Tribunal with all sorts of untenable pleas and with the mindset that such foreign nationals have the legal rights to stay in Assam with patronage fr om the authorities shouldering the duties and responsibilities towards detection , detention and deportation of the foreign nationals.

15. The writ petition is dismissed. The petitioner is already in the custody of the authorities. Such authorities shall now ensure deportation/ push back of the petitioner from the Indian soil observing all the formalities and shall als o ensure that she does not come back to India like many such foreign nationals w ho even after deportation/push back easily come back to India making a mockery o f the very establishment of the Foreigners’ Tribunals and the proceedings thereu nder. Additionally, they also burden the writ Court on conclusion of the proceed ings before the Tribunal which has become a never ending business. Unless the au thority shows a serious concern and take steps in war footing towards detection, detention and deportation of such foreign nationals on which the Apex Court has already emphasized in the cases of Sarbananda Sonowal (I) reported in AIR 2005 SC 2920 and Sarbananda Sonowal (II) reported in (2007) 1 SCC 174, it will be a mockery of the very establishment of the Foreigners’ Tribunal and the proceeding s thereunder. What will be the resultant effect, is known to all. 16 List the matter on 22.12.2009 for furnishing compliance reports on the a foresaid directions by the Commissioner and Secretary, Department Home Affairs, Govt. of Assam, the Director General of Police, Assam and the Superintendent of Police, Kamrup (Metro). Let a copy of this judgment and order be furnished to Ms . R. Chokraborty, for her necessary follow up action.