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2009 DIGILAW 562 (GAU)

Rajia Khatun v. Union of India

2009-08-13

BIPLAB KUMAR SHARMA

body2009
JUDGMENT B.K. Sharma, J. 1. The petitioner, who has been declared to be a foreigner (illegal Bangladeshi migrant) entering into Assam after the cut off date i.e. 25.3.1971, has filed this writ petition challenging the order of the Foreigners Tribunal. The particular reference was made by the State and on the basis of the said reference, initially, the case was registered under the then Illegal Migrants (Determination) Tribunal Act. The case was registered as IMDT Case No. 2524/2003 in the Court of illegal Migrants (Determination) Tribunal, Barpeta. After scraping of the IMDT Act by the Apex Court, the case was re-registered as FT (2nd) Case No. 63/2006. In the Court of Foreigners Tribunal (2nd), Barpeta. 2. I have heard Mr. A.S. Choudhury, learned senior counsel assisted by Mr. M.H. Ahmed, learned Counsel for the petitioner as well as Ms. R. Chakraborty, learned Additional Senior Government Advocate, Assam. I have also heard Mr. S.R. Bhattacharjee, learned senior counsel assisted by Mr. H.A. Sarkar, learned Counsel appearing for the newly impleaded respondent. I have also carefully examined the records of the Tribunal. 3. The order passed by the Tribunal declaring the petitioner to be a Bangladeshi illegal migrant, as usual, is an ex parte order and the blame is on the engaged counsel i.e. the respondent No. 5, as, if, the petitioner does not have any responsibility to prove her Indian citizenship, which she claims to be by birth. Once an advocate is engaged, the blame game on the Advocate is not a new phenomenon in cases pertaining to foreigners. No amount of leniency can be shown to such plea. Having regard to the magnitude of the foreigners problem in the State of Assam and law relating to burden of proof, as envisaged under Section 9 of the Foreigners Act, 1946, a foreigner cannot claim a better right than an Indian citizen litigant. 4. In the writ petition, the petitioner has explained the circumstances leading to ex parte impugned order dated 11.7.2008 with the statement that the petitioner on receipt of the notice from the Foreigners Tribunal, appeared on 20.11.2006 and filed written statement and photocopies of documents. Same was done by engaging the respondent No. 5. According to the petitioner, after submission of the written statement and documents by the petitioner on 20.11.2006, the next date fixed was 13.12.2006, on which date, the Local Verification Officer (LVO) was examined and cross-examined. Same was done by engaging the respondent No. 5. According to the petitioner, after submission of the written statement and documents by the petitioner on 20.11.2006, the next date fixed was 13.12.2006, on which date, the Local Verification Officer (LVO) was examined and cross-examined. It is the stand of the petitioner that the LVO could not establish the case of the State against the petitioner. Further statement made is that the respondent No. 5 was happy with the proceeding and the documents produced by the petitioner in support of her Indian citizenship and advised the petitioner not to worry about the case. He also advised that she need not come to the Tribunal any more and there was no need to examined any defence witness in support of her case. Accordingly, she abandoned the proceeding before the Tribunal. 5. Further story of the petitioner is that in the third week of November, 2008, some police personnel visited the residence of the petitioner and advised her to go to the Superintendent of Police (Border), Barpeta for deportation to Bangladesh. Having come to know about such development, the petitioner applied for the certified copy of the judgment and order. After obtaining same filed the instant writ petition. In paragraph 12 of the writ petition, it has been stated that when contacted the engaged counsel i.e. the respondent No. 5 told her that as she did not prove the documents and also did not adduce any evidence, the judgment has gone against her. The respondent No. 5 also allegedly told the petitioner about the wrong advice he had given to her as a result of which he had prayed for time on 16.3.209 and 3.4.2007 and also tried to contact the petitioner but could not. 6. I have verified the records of the Tribunal. As stated above, the case was first registered as IMDT Case No. 2524/2003 and on receipt of notice from the Tribunal, the petitioner appeared on 20.11.2003 and submitted written statement and documents. However, on the next date fixed i.e. 16.12.2003, the petitioner did not appear and the matter was adjourned to 11.1.2004 and thereafter, to 28.4.2005 and again on 7.6.2005. On 7.6.2005, the petitioner prayed for time, which was duly granted fixing the matter on 8.7.2005, on which date, the petitioner remained absent. However, on the next date fixed i.e. 16.12.2003, the petitioner did not appear and the matter was adjourned to 11.1.2004 and thereafter, to 28.4.2005 and again on 7.6.2005. On 7.6.2005, the petitioner prayed for time, which was duly granted fixing the matter on 8.7.2005, on which date, the petitioner remained absent. After scrapping of the IMDT Act by the Apex Court, the reference as registered was FT Case No. 63/2006 and notice was issued to the petitioner afresh. After service of notice, the matter was fixed on 21.9.2006, on which date, the petitioner appeared and prayed for time by filing an application. On the next two dates also i.e. 10.10.2006 and 1.11.2006, the petitioner took time to file written statement and the same was allowed. 7. On 20.11.2006, the petitioner appeared before the Tribunal and filed written statement and photocopies of documents. The matter was thereafter fixed for evidence on 13.12.2006. On 13.12.2006, the petitioner was absent and the next date given was 24.1.2007, on which date, the petitioner re-appeared. On the next three dates i.e. 26.2.2007, 16.3.2007 and 3.4.2007, the petitioner was present, but prayed for time to adduce evidence. 8. On the next date fixed on 24.4.2007, the petitioner was absent without any steps and the matter was adjourned to 24.5.2007, on which date, although she did not appear, but the respondent No. 5 i.e. her engaged counsel filed an application praying for time and the same was allowed fixing the matter on 26.6.2007. On 26.6.2007, there was no appearance on behalf of the petitioner. However, time was allowed fixing the matter on 11.7.2007. 9. On all subsequent dates fixed thereafter, which are 11.7.2007, 9.8.2007, 14.9.2007, 12.10.2007, 7.11.2007, 30.11.2007, 5.1.2008, 11.2.2008, 12.3.2008, 10.4.2008, 8.5.2008 and 6.6.2008, the petitioner remained absent. on 6.6.2008, the Tribunal passed the order to the effect that the petitioner was not interested in the proceeding and thus, the proceeding would proceed in accordance with law. 10. On the next date fixed i.e. 26.6.2008 also, the petitioner remained absent without any steps. However, the learned Government pleader was heard. On 11.7.2008, the judgment was delivered. On that day also, the petitioner remained absent. 11. From the above dates relating to the proceeding, what is striking is that the petitioner in filing the writ petition has taken recourse to falsehood. However, the learned Government pleader was heard. On 11.7.2008, the judgment was delivered. On that day also, the petitioner remained absent. 11. From the above dates relating to the proceeding, what is striking is that the petitioner in filing the writ petition has taken recourse to falsehood. In paragraph 8 of the writ petitioner, it has been stated that the petitioner appeared before the Tribunal on 20.11.2006 and filed written statement. On the next date fixed also i.e. on 13.12.2006, she appeared and thereafter, as per the advice of the respondent No. 5, about which discussions have been made above, she did not appear before the Tribunal any more. Thus, her stand is that she had appeared before the Tribunal on two dates i.e. 20.11.2006 and 13.12.2006. However, the records of the proceedings speak otherwise. Apart from the fact that the petitioner defaulted in appearance in the proceeding under the IMDT Act, even in the proceeding before the Foreigners Tribunal, she remained absent on number of occasions, pointed out above on verification of the records of the Tribunal, what I find is that the husband of the petitioner appeared before the Tribunal on 21.9.2006 and filed an application on her behalf praying for time to file written statement. On 10.10.2006 also, her husband appeared and prayed for time on behalf of the petitioner and the same was allowed. On 1.11.2006, the petitioner appeared before the Tribunal and once again prayed for time. Same was allowed. Thereafter, the petitioner appeared on the next date i.e. 20.11.2006 by filing written statement and photocopies of some documents. On five subsequent dates, which are on 24.1.2007, 26.2.2007, 16.3.2007 and 3.4.2007 and 24.5.2007, the application for adjournment were filed by her engaged counsel i.e. the respondent No. 5. In the applications, the ground urged was that perhaps because of some unavoidable circumstances, the petitioner could not appear before the Tribunal and accordingly, adjournments were sought for. As to what transpired thereafter, has been noticed above. 12. From the above revelation, what is established is that the petitioner has taken recourse to falsehood. She has mentioned her dates relating to appearance before the Tribunal on 20.11.2006 and 13.12.2006, although records of the Tribunal otherwise. She has not mentioned in the writ petition about appearance of her husband before the Tribunal praying for time on her behalf. 12. From the above revelation, what is established is that the petitioner has taken recourse to falsehood. She has mentioned her dates relating to appearance before the Tribunal on 20.11.2006 and 13.12.2006, although records of the Tribunal otherwise. She has not mentioned in the writ petition about appearance of her husband before the Tribunal praying for time on her behalf. The petitioner has also not stated anything about her appearance on 1.11.2006 by filing an adjournment petition under the clear signature. Now, the petitioner has filed this writ petition making allegation against her engaged counsel, who in his affidavit has denied the allegation. 13. In the counter affidavit filed by the respondent No. 5, his stand is that after filing the written statement and photocopies of documents, he had advised the petitioner to appear before the Tribunal on next date. It was in her absence, he cross-examined the State witnesses. As noted above, he had filed adjournment petition anticipating that her absence was due to some difficulties. Although he tried to contact the petitioner, he could not. The respondent No. 5 has also enclosed photocopies of the orders to show his sincere efforts to get the case adjourned in absence of the petitioner. As an advocate, he cannot do anything more. If the petitioner had chosen not to appear before the Tribunal, her engaged counsel could not have helped her out for all the times to come. It is very easy to blame engaged counsel by stating that his advice was not to appear before the Tribunal, but such a story is unbelievable. When the burden of proof is on the petitioner to establish her case as envisaged under Section 9 of the Foreigners Act, 1946, it cannot be the plea of the petitioner that after filing written statement and photocopies of documents, she was advised that she was not required to appear before the Tribunal. It need not be stated that the photocopies of documents are inadmissible in evidence. If this principle is applicable to an Indian citizen, same will also be applicable to a foreign national like the petitioner. 14. In the counter affidavit filed by the State, the plea of the petitioner has been denied. It need not be stated that the photocopies of documents are inadmissible in evidence. If this principle is applicable to an Indian citizen, same will also be applicable to a foreign national like the petitioner. 14. In the counter affidavit filed by the State, the plea of the petitioner has been denied. It has been stated that during the intensive revision of the Electoral Roll as per the direction of the Election Commission of India in the year 1998, a suspicion arose on inclusion of the name of the petitioner. On such doubt, the matter was enquired into and verified which revealed that the petitioner was not an Indian citizen. Accordingly, the reference was made to the Tribunal for determination as to whether the petitioner was a foreigner (illegal Bangladeshi migrant) entering into Assam after 25.3.1971. As to what transpired thereafter, has been noted above. 15. In the written statement filed before the Tribunal, the plea of the petitioner was that she is an Indian citizen by birth. She also stated that the name of her father appeared in the voter list of 1966 and 1970. In support of such stand in the written statement, the petitioner produced the purported photocopy of the voter list of 1966 and 1970 containing the name of one Reajuddin claiming him to be her father. Apart from the fact that by naming somebody as father or mother, one's Indian citizenship is not established, photocopies of certain certificates issued by the Gaon Panchayats which are easily available in Assam, also does not help the case of the petitioner. Documents are also not proved in original. 16. The petitioner, as per her own declaration, is aged 56 years. If that be so, it is not understood as to why her name is not recorded in any of the voter list except the 1989 voter list, which the petitioner submitted along with the written statement indicating the name Rejia Khatun to be the one belonging to her. In the proceeding before the Tribunal, the State examined the LVO to prove the reference. In his cross-examination, he denied the suggestion that the petitioner had produced before him the documents relating to her nationality. Except that suggestion that no other question was put to him by way of cross-examination and thus, the case of the State went unrefuted and could not be contradicted. In his cross-examination, he denied the suggestion that the petitioner had produced before him the documents relating to her nationality. Except that suggestion that no other question was put to him by way of cross-examination and thus, the case of the State went unrefuted and could not be contradicted. The documents pertaining to the reference were also exhibited by the State witness and those documents were also not to put to contradiction. As stated above, photocopies of document produced by the petitioner are of no consequence in absence of originals. Photocopies of the documents were never proved by the petitioner. 17. From the materials on record, a doubt has arisen about the Indian citizenship of the husband of the petitioner namely, Sahar Ali, who appeared before Tribunal on behalf of the petitioner and prayed for time. In paragraph-4 of the writ petition, the petitioner has stated that she has 8 (eight) children. Once the petitioner is declared as foreigner and if her husband is also foreigner, naturally, their offsprings are also foreigners unless protected by same law in the field. Having regard to the magnitude of the foreigners problem in Assam and the unsustainable pleas, which are handy to such foreigners, I am of the considered opinion that there is scope for the State to enquire into the Indian citizenships of the husband of the petitioner and their children. Such enquiry and the revelation thereof will determine the future course of action. The Superintendent of Police, Barpeta is directed to carry out the enquiry in this regard and then, to take necessary follow up action depending upon the outcome of the enquiry. 18. For all the aforesaid reasons, I do not find any merit in the writ petition and accordingly, it is dismissed upholding the impugned order passed by the Foreigners Tribunal (2nd), Barpeta in FT Case No. 63/2006. The Superintendent of Police, Barpeta is directed to take the petitioner into custody immediately and to keep her in custody till such time she is deported to Bangladesh. The enquiry, as directed above, shall also be carried out in respect of the husband and children. 19. List on 14.9.2009 for compliance report by the Superintendent of Police, Barpeta. The Registry is directed to send copies of this judgment and order to the Union of India and the Superintendent of Police, Barpeta forthwith. Another copy be furnished to Ms. The enquiry, as directed above, shall also be carried out in respect of the husband and children. 19. List on 14.9.2009 for compliance report by the Superintendent of Police, Barpeta. The Registry is directed to send copies of this judgment and order to the Union of India and the Superintendent of Police, Barpeta forthwith. Another copy be furnished to Ms. R. Chakrborty, learned Additional Senior Government Advocate, Assam for her necessary follow up action. 20. Registry shall send down the LCR to the Tribunal immediately along with copy of this judgment and order.