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2010 DIGILAW 648 (GAU)

Bahara Khatun v. Bahara Khatun

2010-08-25

HRISHIKESH ROY, MADAN B.LOKUR

body2010
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. H. Das, learned Counsel for the Appellant (writ Petitioner). Ms. B. Goyal, learned Government Counsel makes submission on behalf of the official Respondents. 2. This appeal is directed against the judgment dated 4.6.2010 in W.P.(C) No. 642/09 whereby the Writ Petition filed by the Appellant was dismissed. In the writ proceeding the Appellant challenged the orders of the Foreigner's Tribunal, Goalpara in FT 886/G/06 whereby it was declared that the Appellant was not an Indian citizen and was a post 25.3.1971 migrant from Bangladesh. After the Tribunal's ex parte declaration (since the Appellant remained absent on consecutive dates), she sought review of the Tribunal's declaration citing various excuses for her absence. But by a common order dated 3.1.2009 in four similar review applications, the Tribunal held that no case is made out for recall of its earlier order and accordingly all the four applications were rejected. 3. The Appellant contended before the learned Single Judge that she was an Indian citizen by birth and her parents were enrolled in the voters list of the year 1996. In support of the said contention, she placed reliance upon a certificate issued by a Gaon Panchayat in respect of one Late Abdul Azi. The certificate specified that late Abdul Azi was an inhabitant of village Kharmuza Gaon Panchayat and the Appellant claimed Abdul Azi to be her father. But she could not show any documents for herself to show that she is an Indian citizen. 4. In the proceeding before the Tribunal, although notice was served on the Appellant, no steps were taken by her to prove her claim and since she was absent on consecutive dates, the impugned ex parte declaration was made by the Tribunal on 10.11.2008 declaring her to be a post 25.3.1971 stream illegal migrant to India. As is already recorded, when review was sought by the Appellant and 3 others, the Foreigner's Tribunal in all the 4 connected cases, i.e., namely, (1) F.T. Case No. 1130/G/2006; (2) F.T. Case No. 1122/G/2006 and (3) F.T. Case No. 1119/G/2008 and in the Appellant's FT 886/G/2006, the same was refused. The Tribunal found the tendered explanation for failure to file written statements to be not reasonable and accordingly the ex parte declaration was confirmed in all the 4 cases. 5. The Tribunal found the tendered explanation for failure to file written statements to be not reasonable and accordingly the ex parte declaration was confirmed in all the 4 cases. 5. The declaration made by the Foreigner's Tribunal in the batch Case No. F.T. 1130/G/2006 pertaining to one Smt. Tarabhanu was challenged in W.P.(C) No. 1166/09 which, however, was dismissed by Writ Court on 12.8.2009. Resultant Appeal, i.e., W.A. No. 280/09 filed by Smt. Tarabanu was considered by the Appellate Bench and thereafter by the order dated 14.9.2009, the Appeal too was dismissed at the admission stage. 6. We find that the learned Single Judge in the present case considered the dismissal order passed by the Division Bench in W.A. No. 280/09 and following the Appellate Order in Tarabanu's Writ Appeal, the impugned order has been passed whereby the writ petition of Mrs. Bahara Khatun was dismissed. 7. We have considered the submissions made by the learned Counsel for the Appellant who prays for one more opportunity to prove her Indian citizenship. But we find from the proceeding of the Tribunal that the Appellant was absent on most dates and she failed to avail the opportunity to establish that she is an Indian citizen. 8. Even before this Court, the writ Petitioner has not enclosed any acceptable document to show that she is an Indian citizen by birth although in her affidavit she mentions her age as 60 years. In the absence of any acceptable proof, we hold that she failed to discharge the burden of proof as envisaged under Section 9 of the Foreigners Act, 1946. 9. That apart, we have also perused the order passed by the Division Bench on 14.9.2009 in WA No. 280/09 which has been made the basis for the impugned order by the learned Single Judge in the present proceeding. The case of the Appellant therein and the present Appellant are on the same footing and when WA No. 280/09 has been dismissed, the present Appeal must in our view suffer the same fate. 10. Having considered the case pleaded by the Appellant and also the judgment rendered in the parallel proceeding, we see no reason to interfere with the declaration made by the Foreigners Tribunal which stands affirmed by the dismissal of the writ petition filed by the Appellant. Consequently, this Appeal fails and is ordered accordingly. No costs. Appeal dismissed.