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2009 DIGILAW 542 (GAU)

Malati Das v. Union of India

2009-08-07

BIPLAB KUMAR SHARMA

body2009
JUDGMENT B.K. Sharma, J. 1. The petitioner claiming herself to be an Indian citizen by birth, has invoked the writ jurisdiction assailing the legality and validity of the order dated 7.7.2008 passed by the Foreigners Tribunal, Morigaon in F.T.(D) Case No. 532/06 which was initiated against her on the basis of the reference made by the State suspecting the petitioner to be an illegal Bangladeshi national entering into Assam after 25.3.1971. 2. The petitioner claims that one Dinesh @ Dinesh Biswas is her father whose name appeared in the voter lists of 1966 and 1970. Although the petitioner is 44 years of age, she could not produce even a single voter list containing her name. After the order of the Tribunal, the petitioner has procured the copy of the voter list of 1966 purportedly containing the name of her father, on 1.1.2009 and so also the Annexures-3 and 4 certificates purportedly issued by the Gaon Panchayat only on 10.12.2008 and 8.12.2008 by which it has been certified that the petitioner is the daughter of Dinesh whose name appeared in the voter list of 1970. There is also no explanation as to why the name of her father does not appear in any one of the voter list other than 1966 and 1970. In the photo copy of the voter lists of 1966 purportedly containing the name of the father of the petitioner (Dinesh), his age is shown as 35 years and so also in the voter list of 1970. The age 35 is overwritten. 3. It is on the above basis the petitioner claims Indian citizenship by birth. As regards the ex parte order passed by the Tribunal her plea is that although she had received notice from the Tribunal, but she did not pursue the proceeding with the bona fide belief that since the Tribunal was shown the aforesaid photo copy of the voter list of 1970, the Tribunal would not proceed against her. She came to know about the ex parte order passed by the Tribunal only after receiving the quit India notice in December 2008 and thereafter filed the writ petition. 4. I have heard Mr. M.H. Rajborbhuyan, Learned Counsel for the petitioner as well as Ms. R. Chokraborty, learned Addl. Sr. G.A. I have also heard Ms. N. Hawelia, learned C.G.S.C. I have also gone through the entire records of the Tribunal. 5. 4. I have heard Mr. M.H. Rajborbhuyan, Learned Counsel for the petitioner as well as Ms. R. Chokraborty, learned Addl. Sr. G.A. I have also heard Ms. N. Hawelia, learned C.G.S.C. I have also gone through the entire records of the Tribunal. 5. Contrary to the plea of the petitioner in the writ petition that on receipt of the notice she had visited the Tribunal and produced the voter list of 1970 and, thereafter remained under bona fide belief that the Tribunal would not proceed any further, the records of the Tribunal have revealed that on receipt of the notice from the Tribunal, the petitioner duly appeared before the Tribunal alongwith her husband on 23.3.2007. She filed an application praying for time to file written statement which was duly granted. She also appeared on 3.5.2007 by filing another application praying for time to file written statement. That prayer was also allowed. However, no written statement was filed by the petitioner, nor she appeared before the Tribunal thereafter. 6. The order sheet of the Tribunal reveals that the petitioner after her initial appearance did not appear on 7.9.2007, 30.12.2007, 27.3.2008, 6.5.2008 and 7.7.2008 on which date the impugned order was passed. The Tribunal on the basis of the materials on record has declared the petitioner to be a foreigner (illegal Bangladeshi migrant) entering into Assam after 25.3.1971. As we all know that after scrapping of the IMDT Act, 1983 such proceedings are under Foreigners Act, 1946. Section 9 of the Act casts the burden on the suspected foreigner to prove his/her Indian citizenship. In the instant case although the petitioner claims to be an Indian citizen by birth, but she miserably failed to discharge the burden to prove the same. Not to speak of discharging the burden the rather avoided the proceeding before the Tribunal and has now approached the writ court knowing it fully well that the matter is likely to be delayed amidst thousands of writ petitions pending for disposal. 7. If the petitioner is an Indian citizen by birth and now her age is 44 years, it is not understood as to why she could not establish the same before the Tribunal and even before this Court by producing any valid document. It is also not understood as to why her name does not appear in any of the voter list. It is also not understood as to why her name does not appear in any of the voter list. Further the claim of the petitioner that Shri Dinesh @ Dinesh Biswas is her father is also not believable in absence of any clinching evidence. There is also no explanation as to why the name of said Dinesh does not appear in any one of the voter lists except the voter list of 1966 and 1970. The photo copy of the voter lists of 1960 and 1970 also do not have any evidentiary value in law. 8. For all the aforesaid reasons, I do not find any merit in the writ petition and accordingly it is dismissed. The Superintendent of Police, Morigaon shall now take the petitioner into custody and confine her in jail till such time she is deported to Bangladesh from Assam. Let the matter be listed on 14.9.2009 for furnishing compliance report by the Superintendent of Police, Morigaon. 9. Let copies of this judgment and order be sent to the Union of India and the Superintendent of Police, Morigaon immediately. Another copy be furnished to "Ms. R. Chokraborty, learned senior Government advocate for her necessary follow up action. 10. Let the LCR be sent down to the Tribunal alongwith a copy of this judgment and order.