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2009 DIGILAW 543 (GAU)

Mustt. Hazera Khatoon 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 30.11.2007 passed by the Foreigners tribunal, Lakhimpur at North Lakhimpur in LFT case No. 89/07. 2. The proceeding before the Tribunal was initiated with the reference made by the police way back in 1986. By now, it is about 23 years and the petitioner is still moving around freely in the fertile land of Assam, even after she has been declared to be a foreigner by the Foreigners Tribunal, thanks to the legal proceedings, a foreigner can initiate one after another in this category, specially in Assam. 3. As stated above, the case against the petitioner started in the IMDT with the reference made by the police suspecting the petitioner to be an illegal Bangladeshi national entering Assam after 25.3.1971. The records of the Foreigners Tribunal reveals that the petitioner first appeared before the IMDT on 9.7.1990. After appearing on few subsequent dates up to 20.2.1992, she remained absent on all the dates during the period from 28.10.1992 to 14.12.1994 and thereafter again appeared on 27.1.1995. She again remained absent on 30.12.1995 and thereafter on all the dates up to 30.6.2005, during which as many as 47 dates were fixed. Yet, the Tribunal did not decide the matter ex parte. 4. After scrapping of the IMDT Act by the Apex Court, the matter was taken up afresh. As per the order sheet, notice was issued to the petitioner fixing 27.7.2007 as the next date. On that date, she appeared through her advocate and prayed for time, which was accordingly granted fixing 28.8.2007, as the next date. On 28.8.2007, the petitioner appeared before the Tribunal and once again prayed for time to file written statement (WS). However, on subsequent dates i.e., 26.9.2007 and 3.11.2007, she remained absent without any step and consequently the Tribunal passed the impugned order dated 30.11.2007, declaring the petitioner to be a foreign national (illegal Bangladeshi migrant), entering Assam after 25.3.1971. 5. I have heard Mr. M.H. Rajborbhuiya, Learned Counsel for the petitioner as well as Ms. R. Chakraborty, learned Addl. Senior Government Advocate. I have also heard Mr. D. Choudhury, learned Central Government Counsel and Mr. 5. I have heard Mr. M.H. Rajborbhuiya, Learned Counsel for the petitioner as well as Ms. R. Chakraborty, learned Addl. Senior Government Advocate. I have also heard Mr. D. Choudhury, learned Central Government Counsel and Mr. I. Uddin, Learned Counsel appearing for respondent No. 6. I have also perused the entire records of the Tribunal. 6. According to the petitioner, she along with her husband on receipt of the notice from the Tribunal, engaged the respondent No. 6 as their counsel. In paragraph 5 of the writ petition, it has been stated that various documents were handed over to him to defend the case of the petitioner. However, no particulars have been furnished as to when the petitioner had received the notice and met their engaged counsel. 7. In paragraph 6 of the writ petition, the plea taken is that they were under the bona fide belief that their engaged Counsel would defend their case by producing the documents handed over to him. It was only in the month of December, 2008, the petitioner could come to know that the proceeding has gone against her and that the police was searching for her. 8. The aforesaid statement made in the writ petition attributing fault on the engaged Counsel has been denied by him (respondent No. 6), who has been arrayed as party respondent at the instance of this Court. The respondent No. 6 in his affidavit, has denied the plea of the petitioner. According to him, the allegation made against him is false and baseless. It has been stated that on 26.7.2007, the petitioner alongwith her husband had visited his chamber and showed him the notice received from the Foreigners Tribunal in FT case No. 89/07, asking to appear before the Tribunal on 27.7.2007. The respondent No. 6 advised them to bring all necessary documents by the next date fixed. Thereafter, the petitioner signed a Vakalat Nama and paid Rs. 200 to him. The respondent No. 6 filed an adjournment petition before the Tribunal on 27.7.2007, seeking time to file written statement and the same was allowed fixing the next date as 28.8.2007. On 28.8.2007, the petitioner came to the respondent No. 6 and told him that as she had not been able to arrange the required documents, time should be taken from the Tribunal. On 28.8.2007, the petitioner came to the respondent No. 6 and told him that as she had not been able to arrange the required documents, time should be taken from the Tribunal. Accordingly, the respondent No. 6, filed an adjournment petition and the Tribunal in consideration of the same, allowed time up to 26.9.2007. However, on 26.9.2007, neither the petitioner nor her husband came to him. He was under the impression 'that they might have engaged another advocate to defend their case. 9. Firstly, the allegation made against the respondent No. 6 in paragraphs 5 and 6 are all vague and indefinite. Nothing has been mentioned as to what was the date of visiting the respondent no, 6. Further, in a proceeding like the one in hand, a suspected foreigner cannot defy the provisions of the Foreigners Act, 1946, under which burden is on him/her to establish the Indian citizenship. Merely by handing over some papers to the advocate, they cannot remain absent from the proceedings without proving the said documents. 10. As noticed above, the proceedings before the IMDT was initiated way back in 1986 and even after 23 years of such initiation, there is no final result, thanks to the legal procedure. Perhaps, it is only in the State of Assam, such lengthy procedure towards declaring a foreigner to be a foreigner is permissible. 11. Let us now examine the allegation against the engaged counsel, which is the whole basis of the case of the petitioner to challenge the ex parte order of the Tribunal. As stated above, the petitioner for a long period remained absent before the IMDT and after the matter was taken up by the Foreigners Tribunal, pursuant to the scrapping of the IMDT Act by the Apex Court, the petitioner was duly served with notice. She appeared before the Foreigners Tribunal on 27.7.2007 through her engaged counsel, who filed a petition seeking adjournment. On the next date i.e., 28.8.2007, the petitioner appeared before the Tribunal and filed Hazira. The Hazira was signed by herself (LTI). Thereafter, on all the subsequent dates, she remained absent which naturally resulted in the ex parte order. 12. The aforesaid factual aspect of the matter has been suppressed by the petitioner in the writ petition that she had engaged the respondent No. 6 by visiting him in his chamber. The Hazira was signed by herself (LTI). Thereafter, on all the subsequent dates, she remained absent which naturally resulted in the ex parte order. 12. The aforesaid factual aspect of the matter has been suppressed by the petitioner in the writ petition that she had engaged the respondent No. 6 by visiting him in his chamber. According to the petitioner, the respondent No. 6 was handed over with all the necessary documents who in turn consulted the court Master of the Tribunal on a date (no date is mentioned) and thereafter assured the petitioner to do the needful in the matter. It is the own case of the petitioner that after meeting the said advocate on that particular date, she did not meet him any further and was under the bona fide belief that the said advocate would do the needful in the matter. But the records of the Tribunal speaks otherwise. The petitioner on receipt of the notice duly appeared before the Tribunal by engaging the respondent No. 6 as her Counsel who in turn filed the adjournment petition on 27.7.2007. On the next date also, i.e., 28.8.2007, the petitioner duly appeared before the Tribunal by filing Hazira under her clear signature (LTI) and also filed an application praying for time to file written statement. 13. From the above revealion, it will be seen that the petitioner has made an absolute false statement in the writ petition that she only handed over the documents to the respondent No. 6 and thereafter was under the bona fide belief that the said respondent would take all the steps. However, the records have revealed that twice she appeared before the Tribunal and prayed for time to file written statement This aspect of the matter has not even obliquely been stated in the writ petition. On the other hand, has blamed the respondent No. 6. Further, if the petitioner was ditched by the respondent No. 6, it was incumbent on her part to lodge complaint with the appropriate authority but she never did anything like that and instead has made the vague and indefinite allegation against the respondent No. 6. 14. Because of the aforesaid misrepresentation of the petitioner before the writ court, she is not entitled to any relief. Her conduct throughout the proceeding from 1986 till this very date in playing with the courts, disentitles her to any relief. 14. Because of the aforesaid misrepresentation of the petitioner before the writ court, she is not entitled to any relief. Her conduct throughout the proceeding from 1986 till this very date in playing with the courts, disentitles her to any relief. Firstly, she remained absent in as many as on 47 dates before the IMDT and secondly even before the Tribunal remained absent, after initial appearance on two dates and now putting the blame on her engaged advocate, has invoked the writ jurisdiction with material suppression of fact. 15. The Tribunal in absence of any effort on the part of the petitioner to discharge her burden as envisaged under Section 9 of the Foreigners Act, 1946 and in consideration of the materials on records, in the reference case, has rightly held the petitioner to be a foreigner (illegal Bangladeshi migrants) entering Assam after 25.3.1971. 16. After such failure to discharge the burden and taking recourse of falsehood, the petitioner has now invoked the writ jurisdiction of this Court. The petitioner has enclosed certain documents to prove her Indian citizenship. At the time of initiation of the reference in 1986, the petitioner was 21 years of age. After 23 years since then, the petitioner is now 46 years of age. If that be so, her name ought to have appeared in the voter lists of the relevant period. However, the petitioner has placed reliance on 1997 voter list only, which purportedly included her name. The petitioner has also placed reliance of "Kobin Nama" of 1987 and a School Certificate issued on 2.5.2006 pertaining to her purported study in the School about 30 years back. Such documents are of no help to the case of the petitioner. If the petitioner is an Indian Citizen, her name would have appeared in the relevant documents including the voter list. Moreover, such documents which are easily available in Assam, are of no consequence. More so, when the petitioner failed to discharge her burden envisaged under Section 9 of the Foreigners Act, 1946. 17. For all the aforesaid reasons, I have no hesitation to dismiss the writ petition. The Superintendent of Police, North Lakhimpur, is directed to take the petitioner into custody and keep her under custody till such time, she is deported to Bangladesh. 17. For all the aforesaid reasons, I have no hesitation to dismiss the writ petition. The Superintendent of Police, North Lakhimpur, 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 jurisdictional Election Office shall also ensure deletion of the name of the petitioner, if included in any voter list. 18. List on 14.9.2009 for reporting compliance by the Superintendent of Police, North Lakhimpur. 19. Let copies of this judgment and order be sent to Union of India and the Superintendent of Police, North lakhimpur, Another copy be furnished to Ms. R. Chakraborty, learned Additional Senior Government Advocate for necessary follow up action. 20. Let the LCR be sent down to the Tribunal alongwith a copy of this judgment and order.