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2013 DIGILAW 459 (GAU)

Majeda Begum @ Majeda Bewa @ Majeda Khatun v. Union of India and Ors.

2013-07-15

B.K.SHARMA

body2013
Heard Mr. M.U. Mahmud, learned counsel for the petitioner. Also heard Mr. M. Bhagawati, learned CGC and Mrs. H.M. Phukan, learned State Counsel. 2. By means of this writ petition, the petitioner has challenged the Annexure 22 order dated 4.5.2013 passed by the learned Member, Foreigners Tribunal, Goalpara in FT Case No. 5082/G/2012 - Union of India v. Majeda Begum. By the said order, the prayer of the petitioner to set aside the ex parte order dated 4.3.2013 passed in the said FT. Case has been rejected. 3. In the order dated 4.3.2013 declaring the petitioner to be a foreigner and answering the reference in favour of the State, it was noticed that the petitioner repeatedly failed to adduce any evidence. After submission of the written statement, the petitioner was given opportunity to prove her case by both primary and secondary evidence. However, on the dates fixed, i.e., 24.9.2012, 6.11.2012, 11.12.2012 and 19.2.2013, the petitioner could not adduce any evidence. By order dated 19.2.2013, a last chance was given to the petitioner. Details have been discussed in the impugned order dated 4.3.2013. 4. As recorded in the said order, from 19.4.2013, i.e., from the first day of her appearance before the Tribunal, even after expiry of almost one year, the petitioner kept on taking time in the name of collecting documents. As per the amendment brought to the Foreigners (Tribunal) Order, 1964, there is requirement of early disposal of the reference. As per the said amendment, very sparingly the power of adjournment should be exercised. However, for ends of justice, the petitioner was given several opportunities, but she failed to adduce any evidence. It was in such circumstances, the impugned ex parte order dated 4.3.2013 was passed. 5. Being aggrieved, the petitioner had approached this court by filing a writ petition being WP(C) No. 1389/2013. The writ petition was disposed of by order dated 18.3.2013 granting liberty to the petitioner to approach the Tribunal for setting aside the ex parte order by filing appropriate application. Armed with the said order, the petitioner filed the Annexure 21 application dated 26.6.2013 before the Tribunal praying for setting aside the ex parte order dated 4.3.2013. In the said application, except for referring to the aforesaid order of this court, the petitioner did not assign any ground, not to speak of sufficient ground to set aside the ex parte order. In the said application, except for referring to the aforesaid order of this court, the petitioner did not assign any ground, not to speak of sufficient ground to set aside the ex parte order. For a ready reference, the application dated 26.3.2013 is reproduced below : "Typed copy (Relevant Portion) Before the member of F.T. at Goalpara Majeda Bewa Filed by adv. Sonauddin Ahmed 26.3.2013 F.T. No. 5082/G/12 The Union of India v. O.P. Majeda Bewa @ Majeda Khatun. The O.P. named above most respectfully begs to state as follows : 1. That on 4.3.2013 in connection with the above proceeding an ex parte order was passed by the hon'ble Member F.T. Goalpara and declared the O.P. as foreign national and further given a direction to S.P. (B) Goalpara to push back the O.P. from the Territory of India within one early date. 2. That the O.P. filed a writ petition vide WP(C) No.1389/2013 before the hon'ble Gauhati High Court dated 18.3.2013 against the said ex parte order. 3. That the hon'ble Gauhati High Court was pleased to pass an order dated 18.3.2013 directing the O.P. to approach the Tribunal for setting aside the ex parte order by filing appropriate application. In the order it was also been mentioned that in the event of filing such application it shall definitely be considered keeping in mind the judgment passed by the Full Bench of this court reported in 2013 (1) GLT(FB)809. 4. That under the above the circumstance the O.P. has appeared and filed this petition for setting aside ex parte order passed dated 4.3.2013 by your honour on the strength of order passed by the hon'ble Gauhati High Court dated 18.3.2013 for the ends of justice and the proceeding further may be proceeded as per provision of the law to contest by the O.P. 5. That the O.P. further begs to submit that an interim order may be passed by your honour so that the O.P. cannot be pushed back by the S.P. (B), Goalpara as mentioned in his order dated 4.3.2013 for the ends of justice. Therefore, it is prayed that your honour would be pleased enough to set aside the ex parte order dated 4.3.2013 and given a chance to contest the case by adducing evidence in her favour. Therefore, it is prayed that your honour would be pleased enough to set aside the ex parte order dated 4.3.2013 and given a chance to contest the case by adducing evidence in her favour. It is further prayed that your honour may pass an interim order in favour of the O.P. so that she cannot be pushed back by the S.P. (B) Goalpara. And for this your O.P. as in duty bound shall ever pray. Dated 26.3.2013." 6. On perusal of the said application, what is found is that except for referring to the said order of this court, the petitioner did not urge any ground to set aside the ex parte order, as if, it is a matter of right to get the ex parte order set aside, merely by asking for it. The Full Bench of this court in its judgment reported in 2013 (1) GLT 809, while dealing with the power of the Foreigners Tribunal to regulate their own proceeding including the power to set aside an ex parte opinion, however, observed that the Tribunal is empowered to pass necessary order on an application to set aside an ex parte opinion, provided it is proved to the satisfaction of the Tribunal that the proceedee was not served with the notice in the reference proceeding or that he was prevented by sufficient cause from appearing in the proceeding, reason for which was beyond his control. Paragraph 92 of the judgment is quoted below : "92. As discussed above, the Tribunals constituted under the Foreigners Act read with the 1964 Order have to regulate their own procedure and they have also the quasi--judicial function to discharge and hence in a given case the Tribunal has jurisdiction to entertain and pass necessary order on an application to set aside an ex parte opinion, provided it is proved to the satisfaction of the Tribunal that the proceedee was not served with the notice in the reference proceeding or that he was prevented by sufficient cause from appearing in the proceeding, reason for which was beyond his control. Such application, however, should not be entertained in a routine manner. Such application, however, should not be entertained in a routine manner. The Tribunal can entertain such application provided the proceedee could demonstrate the existence of the special/exceptional circumstances to entertain the same by way of pleadings in the application filed for setting aside the ex parte opinion, otherwise the very purpose of enacting the 1946 Act and the 1964 Order would be frustrated. The Tribunal, therefore, would have the jurisdiction to reject such application at the threshold, if no ground is made out." (emphasis supplied) 7. In the instant case, no ground having been assigned to set aside the ex parte order, the Tribunal was right in rejecting the application by its impugned order dated 4.5.2013. In the said order, all the details of the proceeding have been referred to including the amendment brought to the Foreigners (Tribunal) Order, 1964. Needless to emphasize that any proceeding pertaining to foreigners is required to be decided expeditiously and cannot be kept pending for years together. Under section 9 of the Foreigner Act, 1954, the burden lies on the suspected foreigner to discharge the burden of proof that he/she is not a foreigner. Be that as it may, the petitioner having not assigned any ground to set aside the ex parte order, there is no scope to set aside the ex parte order passed by the Foreigners Tribunal. Accordingly, the writ petition is dismissed. 8. The Deputy Commissioner and S.P., Goalpara are directed to delete the name of the petitioner from the voter list and to detain her in detention camp till she is deported to her country of origin. 9. Let a copy of this order be furnished to Mrs. H.M. Phukan, learned State Counsel for necessary communication with Deputy Commissioner and S.P. Goalpara. Registry shall also furnish copies of this order to the Deputy Commissioner and S.P. Goalpara for their necessary follow up action. 10. At this stage, Mr. M.U. Mahmud, learned counsel for the petitioner fairly admits that in the application seeking setting aside the ex parte order, no ground was assigned. ____________