High Court
Case Details
WP(C) 7268/2013 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 17-11-2008 passed by the Foreigners Tribunal (2 nd), Barpeta (Tribunal) in F T (2nd) Case No.35/2006 declaring the petitioner to be a foreigner as well as orders dated 20-08-2013 and 24-10-2013 passed by the said Tribunal rejecting prayer for setting aside ex-parte order and review. Peti tioner further seeks remand of her case to the Tribunal for fresh trial. . M. Bhagawati, learned Central Government as well as State Government Counsel.
Legal Reasoning
Heard Mr. A.R. Sikdar, learned Counsel for the petitioner and Mr Learned Counsel for the petitioner submits that initial decision of the Tribunal was an ex-parte one. Because of erosion of land over which peti tioner’s house stood and the illness of her husband, who ultimately died on 27-0 7-2012, petitioner could not take immediate steps. Subsequently, she filed appli cation before the Tribunal for setting aside ex-parte order. However, the Tribun al passed order dated 20-08-2013 dismissing the said petition. Thereafter, petit ioner filed review petition, which was also dismissed by the Tribunal by order d ated 24-10-2013. Learned Counsel submits that petitioner is a bonafide citizen o f India and given an opportunity, she will be able to prove her citizenship. He, therefore, seeks remand of her case back to the Tribunal for fresh decision. Submissions made by learned Counsel for the petitioner has been strongly opposed by learned Central Government and State Government Counsel. He submits that full opportunity was given to the petitioner by the Tribunal but sh e remained absent. Therefore, the Tribunal was compelled to proceed ex-parte. Th e hardships pointed out by the petitioner are all after the ex-parte decision of the Tribunal and do not explain the absence of the petitioner. In the circumsta nces, there is no error in the decision of the Tribunal rejecting the petition s eeking setting aside of ex-parte order. Since there is no provision for review, the Tribunal rightly rejected the review petition. He finally submits that a pro ceeding relating to citizenship has to be expeditiously decided and must reach f inality at some stage. Such a proceeding cannot be permitted to be carried on fo r an indefinite period till a decision is reached which is to the satisfaction o f the petitioner. Submissions made have been considered. Although the petitioner has assailed legality and validity of th e ex-parte order of the Tribunal dated 17-11-2008, the said assailment is after 5 years. Even, the application for setting aside ex-parte order was filed almos t after 5 years. From a perusal of the order dated 17-11-2008 as well as the ord er dated 20-08-2013, it is seen that the petitioner was absent on as many as 13 (thirteen) occasions because of which the Tribunal decided to proceed ex-parte o n 26-09-2008. Thereafter, order dated 17-11-2008 was passed opining that petitio ner is a foreigner. It is also seen that initially, the case against the petitio ner was registered as IM(D) T, Barpeta Case No.2661/2003 and after declaration o f the illegal Migrants (Determination) by Tribunals Act, 1983 as unconstitutiona l by the Hon’ble Supreme Court, the proceeding was re-registered as FT (2nd) Cas e No.35/2006. Thus, the ex-parte decision was rendered 5 (five) years after inst itution of the proceeding. When the petition for setting aside ex-parte order was filed, th e same was rejected by order dated 20-08-2013. The Tribunal observed that the on ly ground urged to set aside ex-pate order was that default of the petitioner wa s due to her ignorance of law. Referring to the proceedings before the Tribunal,
Decision
it was observed that despite numerous opportunities granted, petitioner failed to appear and consequently Tribunal proceeded ex-parte. It was further observed that the petition for setting aside ex-parte order was filed on 16-07-2013 i.e. after 5 (five) years of passing of ex-parte order. In view of delay and laches, the said petition was dismissed. Order dated 20-08-2013 (as per typed copy annex ed to the writ petition) reads as under :- (cid:28) This petition dated 16-07-2013 has been filed by the opposite party/ 2nd party Fatema Begum alias Fatema Khatoon praying for order to set aside the ex-parte o pinion of this Tribunal dated 17-11-2008. The ex-parte judgment and order was pa ssed by this Tribunal in connection with this Tribunal Case No. Barpeta FT(2nd) 35/06 arising out of reference Case No.9226/98 and then IM(D) Barpeta Case No.26 61/2003. Heard Mr. Shahjahan Ali, learned Counsel for the petitioner (OP/2nd party) Fatem a Khatoon. I have also heard Mr. B. Sarmah, learned Asstt. Govt. pleaded for the state side. Mr. Shahjahan Ali, learned Counsel appearing for the petitioner submits that the petitioner should be given an opportunity to contest her case by adducing evide nce, documents etc. in support of her Indian citizenship. Hence, prayed to pass an order for setting aside the ex-parte order passed by this Tribunal on 17-11-2 008. As per full Bench decision of the Hon’ble Gauhati High Court reported in 201 3 (1) GLT 809 (The State of Assam -Vs- Moslem Mandal and others) although the Tr ibunal is empowered to pass necessary order on an application to set aside an ex -parte opinion the same should be only on satisfaction that the proceedee was no t served with the notice and for reason which was beyond control. As observed in paragraph 92 of the said Judgment, such application should not be entertained i n a routine manner. In the instant petition, which had been filed by the petitioner on 16-07-2013 an d prayed to set aside ex-parte order. In the said petition the petitioner in her petition in para-5 simply stated that she defaulted due to her ignorance about the law. But as per case record it appears that the OP/2nd party Fatema Begum refused to receive the notice from the process server police personnel. Later on 27-08-2007 petitioner Fatema Begum appeared before the Tribunal and prayed time for submis sion of written statement. Accordingly time was allowed fixing on 12-09-2007. Thereafter, as per prayer of the petitioner (OP/2nd party) several occasions i.e . on 15-10-2007, 20-10-2007, 15-11-2007, 03-12-2007, 08-01-2008, 14-02-2008, 28- 02-2008 were allowed to submit written statement. But thereafter, the OP/2nd party (petitioner) was found absent for several occas ions i.e. on 20-03-2008, 20-04-2008, 22-05-2008, 19-06-2008, 18-07-2008, 27-08-2 008 without any steps. Accordingly, on 26-09-2008 ex-parte proceeding against the petitioner started. Moreover, regarding service of notice the Gaonbura of village- Safakamar deposed in his evidence that the OP/ 2nd party (herein referred to as petitioner) Fatem a Begum refused to receive the notice, which was issued by this Tribunal. The sa id police report and signature of Gaonburah had been exhibited as Ext. 1 and Ext .1(1). This petition had been filed on 16-07-2013 by the petitioner for setting aside the ex-parte order of this Tribunal, which was passed on 17-11-2008 i.e. a fter 5 (five) years. Considering the above as well as the conduct of petitioner in defending before t his Tribunal and also on account of an explained delay and laches see no ground to set aside the ex-parte opinion passed by this Tribunal on 17-11-2008. Accordingly, this petition is dismissed (cid:29). there is no provision for review. Petition filed for review was also dismissed on the ground that 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) In this case, petitioner remained absent before the Tribunal whi ch led to passing of ex-parte order 5 years after institution of proceeding. The application for setting aside ex-parte order was again filed after about 5 year s and the ground given was petitioner’s ignorance of law, which was rightly reje cted by the Tribunal. As rightly pointed out by learned State Counsel, a proceed ing relating to citizenship cannot be allowed to continue for an indefinite peri od or till such time a conclusion is reached which can only be to the satisfact ion of the petitioner. 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. After a proc eeding is continued for a number of years and when the materials on record indic ate clear laches and negligence on the part of the petitioner, order of remand i s not to be passed unless exceptional circumstances are made out by the petition er. 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.