Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 561 (GAU)

Anowara Khatun @ Anowara Bewa v. Union of India

2009-08-13

BIPLAB KUMAR SHARMA

body2009
JUDGMENT B.K. Sharma, J. 1. The petitioner is aggrieved by the order dated 3.1.2009 passed by the Foreigners Tribunal, Goalpara in F.T. Case No. 1122/G/2006 by which the petitioner has been declared to be a foreigner (illegal Bangladesh migrant) entering Assam after 25.3.1971. 2. I have heard Mr. H. Das, learned Counsel for the petitioner as well as Ms. R. Chakraborty, learned Additional Senior Government Advocate, Assam. None appears on behalf of the Union of India. I have also carefully examined the records of the Tribunal. 3. The case against the petitioner as registered in the Foreigners Tribunal, Goalpara on the basis of a reference made by the State Suspecting the petitioner to be an illegal Bangladeshi migrant entering Assam after 25.3.1971. The petitioner on receipt of the notice from the Tribunal, appeared on 5.8.2008 and prayed for time to file written statement, which was allowed fixing the matter on 16.8.2008 for written statement and evidence. On 16.8.2008, the petitioner once again made a prayer for adjournment which was allowed as a last chance fixing the matter on 8.9.2008. On 8.9.2008 also, which was the last date for filing written statement and evidence, the petitioner did not do so, but filed an application seeking further time, which the Tribunal refused fixing the matter on 1.11.2008 for ex parte hearing. On all subsequent dates i.e. 4.11.2008 and 5.11.2008 also, the petitioner did not appear as a consequence of which the ex parte order dated 5.11.2008 resulted, which is under challenge in this proceeding. 4. The petitioner claims to be an Indian citizen by birth. Her name appeared in the voter list of 1994 and 1997. As against the ex parte order passed by the Tribunal, the petitioner has tried to explain, albeit unconvincingly circumstances leading to her non-appearance before the Tribunal. It appears that the petitioner filed an application to set aside the ex parte order, which the Tribunal rejected by its order dated 3.8.2009. 5. According to the petitioner, she duly received notice from the Tribunal and appeared on 6.8.2008 praying for time to file written statement. On the next date fixed, which the petitioner states to be 3.11.2008, due to bandh call given by an organisation, the petitioner could not appear before the Tribunal and on the following day i.e. 4.11.2008 also, she remained absent. On the next date fixed, which the petitioner states to be 3.11.2008, due to bandh call given by an organisation, the petitioner could not appear before the Tribunal and on the following day i.e. 4.11.2008 also, she remained absent. It is the case of the petitioner that on that day, the lawyers fraternity of Goalpara District had organised silent demonstration protesting against the serial bomb blasts in Assam. On 10.11.2008 also which was the next date fixed, the petitioner remained absent without any step and accordingly, the Tribunal passed the ex parte order. 6. As against the aforesaid stand of the petitioner in the writ petition, the records of the Tribunal speak otherwise. On 6.8.2008, the petitioner appeared before the Tribunal and prayed for time to file written statement. Time was granted fixing the matter on 22.8.2008, on which date also the petitioner prayed for time, which was allowed, fixing the matter on 12.9.2008. Like the earlier occasions, on 12.9.2008 also, the petitioner once again prayed for time which was also granted fixing the matter on 3.11.2008. 7. As to what transpired thereafter has been stated above. The records of the Tribunal has revealed that because of the Assam Bandh call given by some organisation, the Tribunal did not function on 3.11.2008 and accordingly the matter was taken up on 4.11.2008, on which date the petitioner remained absent. The stand of the petitioner that because of the silent demonstration resorted to by the lawyers fraternity, she could not appear, is not at all correct. Even otherwise also, she ought to have appeared on 4.11.2008. The Tribunal passed an order for ex parte hearing of the matter on 10.11.2008. It was incumbent on the part of the petitioner to appear before the Tribunal even if her story in respect of the dates 3.11.2008 and 4.11.2008 is accepted. 8. When the petitioner did not appear before the Tribunal on 10.11.2008, the Tribunal had no other alternative than to pass the order ex parte answering the reference against the petitioner and in favour of the State. The Tribunal in its order has observed that when the law requires the suspected foreigner to discharge the burden of proof towards establishing his/her Indian citizenship, it as incumbent on the part of the petitioner to discharge the said burden. 9. The Tribunal in its order has observed that when the law requires the suspected foreigner to discharge the burden of proof towards establishing his/her Indian citizenship, it as incumbent on the part of the petitioner to discharge the said burden. 9. The reference came to be made when the District Electoral Registration Officer doubted the inclusion of the name of the petitioner in the Draft Electoral Roll of 1997. On verification, it was found that, in fact, the petitioner is an illegal Bangladeshi migrant who entered into Assam after the cut off date i.e. 25.3.1971. Accordingly, after observing necessary formalities, the reference was made. The petitioner instead of discharging her burden as envisaged under Section 9 of the Foreigners Act, 1946, wilfully avoided the proceeding before the Tribunal. 10. As noticed above, in the writ petition, the petitioner has withheld the intervening dates between 6.8.2008 to 3.11.2008 which are 2.8.2008 and 12.9.2008. On both the dates, the petitioner appeared and prayed for time to file written statement, which she failed to do. The application filed by the petitioner for vacating the ex parte order has been rejected by the Tribunal by its order dated 3.1.2009. The Tribunal has exercised the particular discretion not to vacate the ex parte order having regard to the facts and circumstances involved in the case and as discussed in the order. Such discussion have revealed that the petitioner took recourse to falsehood in making the application for vacating the ex parte order. The Tribunal has rightly observed that the plea advanced by the petitioner is not at all acceptable and that such course of action, if accepted would lead to a never ending business, more particularly, when the Foreigners Tribunals are burdened with thousand of such cases. 11. During the course of hearing, the petitioner produced the voter lists of 1994 and 1997 showing the name of one Anowar Khatun and Anowar Bibi, aged 40 and 53 years respectively. The petitioner is now 60 years old as per the affidavit filed. If that be so, it is understood as to why her name does not appear in any other voter lists and documents. 12. Even it is accepted that the 1994 and 1997 voter lists did contain the name of the petitioner, same by itself will not establish the Indian citizenship of the petitioner, by birth, as has been claimed in the writ petition. 12. Even it is accepted that the 1994 and 1997 voter lists did contain the name of the petitioner, same by itself will not establish the Indian citizenship of the petitioner, by birth, as has been claimed in the writ petition. The cut off date is 25.3.1971 and unless the linkage is established to pre 25.3.1971 period, the said two voter lists are of no help to the case of the petitioner. Further, as stated above, there is also no explanation as to why the name of the petitioner has not been included in any other voter list. 13. The case of the petitioner came to be detected when her name was included in the draft voter list of 1997. Upon verification and cross verification, it was found that she was not an Indian citizen. Accordingly, the reference was made to the Tribunal and as to what transpired thereafter, has been discussed above. 14. For the illegal Bangladeshi migrant, it has become a matter of convenience not to respond to the proceeding before the Tribunal. It is the experience of this Court that in almost all the cases, the Tribunals are destined to pass ex parte order in absence of any response from the suspected foreigners. Once an ex parte order is passed, the blame game starts, either blaming the engaged advocate or the Tribunal, unmindful of the fact that the issue relating to foreign nationals is a very serious one and the suspected foreigner is required to establish his/her Indian citizenship by discharging the burden cast on him under Section 9 of the Foreigner Act, 1946. Considering the magnitude of the problem in Assam, any amount of leniency shown will be anti-thesis to the very purpose of establishing the Foreigners Tribunal, pursuant to the direction of the Apex Court in Sarbananda Sonowal-I reported in AIR 2005 SC 2920 and Sarbananda Sonowal-II reported (2007) 1 SCC 174 . 15. For all the aforesaid reasons, I do not find any merit in the writ petition and accordingly it is dismissed. The Superintendent of Police, Goalpara shall ensure apprehension and deportation of the petitioner, as expeditiously as possible, and shall report compliance on or before 14.9.2009. 16. List on 14.9.2009 for furnishing compliance report by Superintendent of Police, Goalpara. 17. 15. For all the aforesaid reasons, I do not find any merit in the writ petition and accordingly it is dismissed. The Superintendent of Police, Goalpara shall ensure apprehension and deportation of the petitioner, as expeditiously as possible, and shall report compliance on or before 14.9.2009. 16. List on 14.9.2009 for furnishing compliance report by Superintendent of Police, Goalpara. 17. Let copies of this judgment and order be sent to Union of India and the Superintendent of Police, Goalpara immediately and another copy be furnished to Ms. R. Chakraborty, learned Additional Senior Government Advocate for necessary follow up action. 18. Let the LCR be sent down to the Tribunal alongwith a copy of this judgment and order.