Un ion of India v. Azizur Rahman). The order being ex parte, the
Case Details
WP(C) 3875/2013 BEFORE HON’BLE MR. JUSTICE B. K. SHARMA JUDGMENT & ORDER (ORAL)
Legal Reasoning
Heard Mr. M. U. Mondal, learned counsel for the writ petitioner. Also h eard Mr. M. Bhagawati, learned Central Government counsel, appearing for the res pondents. The petitioner, who has been declared to be a foreign national (illegal 2. Bangladeshi migrant), has filed this writ petition challenging the declaration i ssued vide order, dated 18.07.2011, by the learned Member, Foreigners Tribunal, Kamrup (Rural), in D.V. (R) Case No. 146/2009/430 (Police Case No. 419/2006) (Un ion of India vs. Azizur Rahman). The order being ex parte, the petitioner prefe rred an application for setting aside the ex parte order, but the same was also rejected by order, dated 06.04.2013, passed in Misc. Case No. 01.2013. The said order is also under challenge. 3. Mr. Mondal, learned counsel for the petitioner submits that although the petitioner had received due notice form the Tribunal, but he could not appear d ue to his illness. Mr. Mondal submits that the fact of the illness of the petit ioner ought to have been considered by the learned Tribunal instead of rejecting the petitioner’s prayer for setting aside the ex parte order. 4. Mr. M. Bhagawati, learned Government counsel, on the other hand, submits that the petitioner having been provided with ample opportunities to respond to the Reference initiated by the Foreigners Tribunal, the impugned orders are not liable to be interfered with. According to Mr. Bhagawati, the grounds assigned for setting aside the ex parte order are not sufficient and good grounds and ac cordingly the Tribunal rightly rejected the application of the petitioner for se tting aside the ex parte order. 5. I have considered the submissions made by the learned counsel for the pa rties and have also considered the entire materials on record including the reco rd received from the Tribunal. Admittedly, the petitioner, in spite of service of notice did not respond to the proceeding before the Tribunal. It appears tha t the petitioner, in spite of service of notice, did not appear before the Tribu nal without any step on 27.12.2010, 28.12.2010, 10.01.2011, 07.02.2011, 28.02.20 11, 29.03.2011, 02.06.2011, 01.07.2011 and, finally on 18.07.2011, when the ex p arte order was passed. 6. As per the requirement of Section 9 of the Foreigners Act, 1946, burden lies on the proceedee to prove that he is an Indian citizen by producing relevan t documents. 7. After the ex parte order declaring the petitioner to be a foreign nation al of post-1971 stream was passed, the petitioner made an application for settin g aside the said order. In the application, the petitioner assigned the ground of his illness and also that he had gone to Shillong to earn livelihood. The le arned Tribunal has rejected the application dealing with the grounds assigned. The Reference against the petitioner was initiated pursuant to the order of the Election Commission of India for suo motu local verification for revision of Ele ctoral Rolls in the Assembly Constituencies in Assam with reference to 01.01.200 5 as the qualifying date. As discussed in the order, dated 06.04.2013, by which the application of the petitioner for setting aside the ex parte order was reje cted, the first ground assigned by the petitioner was that he had been suffering from malaria, typhoid and jaundice. The second ground assigned was that he had left for Shillong for earning livelihood after his illness. 8. As recorded in the impugned order and also as found from the records, no tice was duly served on the petitioner and he got ample opportunities to defend the Reference, but he did not. The plea of the petitioner that he was sick and left for Shillong in search of livelihood appears to be not true inasmuch as the medical documents show that he was under medical treatment for three months, i. e., from 20.12.2010 to 30.03.2011. If the petitioner was sick for three months, it was his duty to respond to the proceeding after recovery from illness instea d of going to Shillong to earn livelihood, which is also not supported by any do cument. 9. The Full Bench of this Court, in the case of State of Assam and ors. -vs - Moslem Mondal and ors., (2013) 1 GLT 809, while dealing with the power of the Tribunal to set aside ex parte orders, has held that the Tribunal has jurisdicti on to entertain such application and pass necessary order provided that it is pr oved to the satisfaction of the Tribunal that the proceedee was not served with the notice in the Reference proceeding or that the proceedee was prevented by su fficient causes from appearing in the proceeding and the reasons for which beyon d his control. It has also been held that such application should not be entert ained in a routine manner. The Tribunal can entertain such application provided that the proceedee would demonstrate the existence of special/exceptional circu mstances to entertain the same by way of pleadings in the application filed for setting aside the ex parte opinion. It has also been held in the said Full Benc h judgement that if the proceedings were not upheld, the very purpose of enactin g the 1946 Aft and the 1964 Order would be frustrated. The Tribunal, therefore, would have the jurisdiction to reject such application at the threshold, if no List this writ petition again after one month for furnishing report by t ground is made out. (para 92 of the judgement) So far as the parent order is concerned, when, in spite of service of no 10. tice and ample opportunity given to the petitioner by adjourning the Reference o n several occasions, the petitioner did not respond to the proceeding, the learn ed Tribunal had no other option than to pass ex parte order. If the petitioner was sick, the same could have been supported by adequate documents, but the docu ments produced by the petitioner were for only three months. The petitioner cou ld also go to Shillong to earn livelihood instead of responding the proceeding b efore the learned Tribunal. Therefore, the grounds assigned are not sufficient grounds. I do not find any infirmity in the order passed by the learned Tribuna l rejecting the prayer of the petitioner for setting aside the ex parte order. 11. In the result, this writ petition stands dismissed. Consequently, it is hereby directed that the petitioner should be apprehended and kept in detention camp immediately with consequential deletion of his name from the voters list. The petitioner will remain in the detention camp till his deportation from Indi a. The Superintendent of Police, Kamrup (Rural), and the Superintendent of Poli ce (B), Kamrup, shall now take appropriate action in terms of the directions con tained in the judgement and order. 12. he aforesaid authorities. 13. At this stage, Mr. Mondal, learned counsel for the petitioner submits th at even if the petitioner is held to be a foreigner but being within the stream of 01.01.1966 and 24.03.1971, he is not required to be deported and he is now re quired to be registered with the Registering authority. This aspect of the matt er has been dealt with in the order dated 13.08.2013 passed in this proceeding. The learned Member of the Foreigners Tribunal was directed to furnish clarifica tion in respect of the notice indicating the petitioner to be a foreigner within the stream of 01.01.1966 to 24.03.1971. Such a course of action was adopted in view of the doubt that arose having regard to the fact that in all other docume nts pertaining to the Reference, the petitioner was identified as a post-25.03.1 971 foreigner. 14. Pursuant to the order passed by this Court on 13.08.2013, the learned M ember, Foreigners Tribunal, has furnished the report clarifying the position. In the said report it has been stated that the notice was served in the availabl e format of 1966-71 stream. According to the report, in absence of the availabl e format pertaining to post-25.03.1971 foreigners, the notice was issued to the petitioner in the format of 1966-1971 stream although the Reference was initiate d suspecting him to be a post-25.03.1971 foreigner. In view of the above, it is not a case for registration of the petitione 15. r with the Registering authority for being a foreigner within the stream of 1966 -1971. All the documents including the findings of the learned Tribunal and the application that was filed by the petitioner for setting aside the ex parte ord er indicate that the petitioner was suspected to be a post-25.03.1971 foreigner. Thus, the format of the notice cannot be made use of to claim that the petitio ner is a foreigner within the stream of 1966-1971, more particularly when that w as not the case of the petitioner before the Foreigners Tribunal. 16. Before parting with the case records, this Court expresses grave concern about the functioning of the Foreigners Tribunals because of non-providing of n ecessary infrastructures including Format of notice etc. The Union and the Stat e Governments are directed to provide adequate infrastructure to all the Foreign ers Tribunal so that they can function properly and effectively and the kind of situation, which has arisen in the instant case because of non-availability of p rescribed format, does not arise in future. 17. Furnish copy of this judgement and order to Mr. M. Bhagawati, learned co unsel representing the respondents. Copies may also be furnished to the Deputy Commissioner, Kamrup (R) and Superintendent of Police (B), Kamrup. Copy be serv ed to the Union Government in the Department of Home.