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2009 DIGILAW 540 (GAU)

Haliman Nessa v. Union of India

2009-08-07

BIPLAB KUMAR SHARMA

body2009
JUDGMENT B.K. Sharma, J. 1. The petitioner who has been declared to be a foreigner (illegal Bangladeshi migrant) by the Foreigners Tribunal, has filed this writ petition challenging the legality and validity of the order, so passed by the Tribunal, The impugned order is dated 3.9.2008 passed by the Foreigners Tribunal-III, Barpeta in FT case No. 15(III)/2007. 2. The case of the petitioner is that she did not receive any notice in connection with FT case No. 15(III)/07 and, thus, she had no knowledge about the proceeding before the Tribunal To that effect, the statement made in paragraph 3 is reproduced below: Before that petitioner did not received any copy of the notice in connection with the F.T. Case No 15 (III)/07 and as such she has no knowledge about the proceeding and the impugned judgment holding her foreigner entering into Assam after 25th March, 1971, The petitioner is surprised and shocked with knowing the contents of the judgment holding her as foreigner entering into Assam after 25.3.1971 and that too without giving any opportunity of defending her case. 3. This Court on perusal of the records of the Tribunal having noticed that the notice, in fact, was served on the petitioner, recorded the same in its order dated 30.1.2009. The Learned Counsel for the petitioner being confronted with such a situation, which is contrary to the aforesaid statement made in the writ petition, prayed for time to obtain instruction. However, no instruction was forthcoming and eventually the matter was finally heard. 4. I have heard Mr. A.R. Sikdar, Learned Counsel for the petitioner as well as Ms. R. Chakraborty, learned Addl. Senior Government Advocate. None represented the Union of India. I have also verified the records of the Tribunal. 5. The case against the petitioner was initiated in 2003 under the then IMDT Act. Notice was duly served on the petitioner and she appeared on 25.5.2004 before the Tribunal. However, on all subsequent dates, i.e., 5.7.2004, 18.8.2004 and 6.10.2004, she remained absent but again appeared on 25.11.2004. She again remained absent on 11.1.2005, 22.2.2005, 2.4.2005, 29.5.2005 and 25.6.2005. 6. After the scraping of the IMDT Act by the Apex Court, the foreigners' Tribunal took up the matter and the notice was duly served on her as recorded in the order dated 23.7.2007. She again remained absent on 11.1.2005, 22.2.2005, 2.4.2005, 29.5.2005 and 25.6.2005. 6. After the scraping of the IMDT Act by the Apex Court, the foreigners' Tribunal took up the matter and the notice was duly served on her as recorded in the order dated 23.7.2007. Further, in spite of receipt of notice, the petitioner remained absent as recorded in the said order of the Tribunal. Thereafter on all subsequent dates from 23.8.2007 to 19.9.2008, the petitioner remained absent. The dates in between the said period are 24.9.2007, 30.10.2007, 21.11.2007, 29.12.2007, 3.3.2008, 7.3.2008, 12.5.2008, 10.7.2008, 3.9.2008 and 19.9.2008. 7. On 19.9.2008, the matter was fixed for argument on 22.9.2008. However, on 20.9.2008, the engaged Counsel of the petitioner filed a petition praying for vacating the order dated 23.7.2007 for ex parte hearing. However, as recorded in the order dated 22.9.2008, the said petition was not pressed and none appeared for the petitioner. In such a situation, the said petition was rejected. Thus, it is absolutely false on the part of the petitioner to contend that she never received any notice from the Tribunal. She had not only received notice from the Tribunal but also appeared and eventually after the order for ex parte hearing, filed an application seeking vacation of the order for ex parte hearing. But thereafter again remained absent. The Tribunal on verification of the materials on record has answered the reference in favour of the state and against the petitioner and now the petitioner has filed the writ petition taking recourse to falsehood, on which ground alone the writ petition is liable to be dismissed. 8. In the writ petition, the petitioner has declared her age to be 41 years as on 6.1.2009. If that be so her name would have appeared in various documents including the voter list of the related period, However, she has annexed the photocopy of the voter list of 1997 to contend that her name appeared in the said voter list. The petitioner cannot be permitted to pick up any name from any voter list resembling her name so as to contend that the said name is of her. The burden of proof lies on the petitioner to prove her Indian citizenship, which she failed to discharge and now coming to the writ court, has placed reliance on certain documents (photocopies) which on the face of it are not admissible. The burden of proof lies on the petitioner to prove her Indian citizenship, which she failed to discharge and now coming to the writ court, has placed reliance on certain documents (photocopies) which on the face of it are not admissible. The petitioner to establish her case that she is an Indian citizen, by birth, will have to prove it to the hilt and no amount of leniency can be shown to her. 9. For all the aforesaid reasons, the writ petition is dismissed. The Superintendent of Police, Barpeta, is directed to take the petitioner into custody and keep her under custody till such time, she is deported to Bangladesh. The Superintendent of Police in consultation with the Election Department shall also ensure deletion of the name of the petitioner, if included in any voter list. 10. List on 14.9.2009 by which date the Superintendent of Police, Barpeta shall furnish compliance report. 11. Registry is directed to send forthwith the copies of the judgment and order to the Union of India and the Superintendent of Police, Barpeta. Another copy be furnished to Ms. R. Chakraborty, learned Additional Senior Government Advocate for necessary follow up action. 12. Let the LCR be sent down to the Tribunal alongwith copy of this judgment and order.