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2014 DIGILAW 480 (GAU)

Mafizuddin v. State of Assam

2014-05-02

A.K.GOSWAMI

body2014
JUDGMENT : A.K.Goswami, J. This writ petition is directed against the judgment and order dated 31.8.2013 passed by the learned Member, Foreigners Tribunal No.III, Barpeta, Assam in FT Case No.07(III)/2009 holding that the petitioner is a foreigner and an illegal migrant of post -1971 stream. 2. Heard Mr. K.K.Handique, learned counsel for the petitioner. Also heard Mr. B.J.Ghosh, learned State Counsel. I have also perused the records of the learned Tribunal. 3. Mr. Handique submits that though the petitioner had filed written statement, no evidence could be led by the petitioner though he is in possession of documents to prove that he is not a foreigner but an Indian citizen. His only submission is that one opportunity may be granted to him to adduce evidence, by setting aside the order impugned. 4. There is no dispute that the petitioner had received notice from the learned Tribunal on 16.3.2009. The step taken by the petitioner or the lack of it, is chronologically recorded by the learned Member, Foreigners Tribunal No.III, Barpeta, which is also borne out of records. The learned Member in paragraph-2 of his judgment records as follows: "2. Notice was duly served on the OP first through village Gaonbura. On receipt of the said notice, one Jaynab Nessa, identifying herself to be the wife of the OP, appeared on 16.03.2009 and filed a petition showing cause of absence of the OP and prayed for time to file written statement (W/S for short). The said petition was also signed by learned Advocate appearing for the petitioner without filing any Vakalatnama. On the subsequent two dates, the OP remained absent without step. Again on 02.06.2009, learned Advocate for the OP filed a petition praying for time due to lack of documents. The said petition was also allowed. Thereafter, again the OP remained absent without taking any step continuously for the subsequent nineteen dates till 9.12.2010 from 02.06.2009. On the subsequent two dates, the OP remained absent without step. Again on 02.06.2009, learned Advocate for the OP filed a petition praying for time due to lack of documents. The said petition was also allowed. Thereafter, again the OP remained absent without taking any step continuously for the subsequent nineteen dates till 9.12.2010 from 02.06.2009. It may be mentioned that in the meantime fresh notice issued for service on the OP, as it appears from the record, was duly served personally on the OP and was returned to this Tribunal by Officer-in-charge of Sarthebari Police Station, Dist Barpeta along with the report of the police process server, on 17.04.2010.Considering the long absence of the OP after receipt of the notice and even after his appearance before this Tribunal, as mentioned above, it was ordered vide order dated 09.12.2010 that the case will proceed ex parte. Accordingly, Local verification Officer (LVO for short) was summoned as a witness for the State petitioner but the summons issued for service on LVO was returned by police process-server that nobody knows any such person. The OP, however, remained absent without any step. The record shows that fresh notices for service on the OP were issued vide order dated 15.07.2011, 03.09.2011, 07.10.2011 and 05.11.2011. The record further shows that the OP refused to receive the notice issued on 03.09.2011 and it was therefore received by OP's brother on behalf of the OP. The notice issued on 05.11.2011 was, however, personally served on the OP for his appearance before this Tribunal on 05.12.2011. The OP appeared, along with his appointed learned Advocate by filing duly executed Vakalatnama, and filed his written statement (W/S) on 05.12.2011 stating that he is a bona fide citizen of India by birth. He also filed photocopies of certain documents along with his W/S in support of his version. After submission of the W/S by the OP, LVO was again summoned as a witness for the Sate petitioner. As the summons issued for service on the LVO were not returned by police process server for quite a long period, learned Advocate for the OP filed a petition on 31.07.2012 praying for time to file documents and affidavit. The said petition was allowed and time was granted to the OP for filing relevant documents and Affidavit in support of his version. Two more such petitions were allowed. The said petition was allowed and time was granted to the OP for filing relevant documents and Affidavit in support of his version. Two more such petitions were allowed. Thereafter since 30.11.2012, the OP remained absent without step for subsequent six dates and as such vide order dated 21.03.2013 this Tribunal passed an order that the case will proceed ex parte. LVO was again summoned, who appeared on 03.05.2013. On his (LVO's) appearance, his evidence was recorded on oath on 03.05.2013. The OP, however remained absent without any step till date." 5. From the perusal of the aforesaid as also from the records, it is clear that the case was proceeded against the petitioner ex parte on two occasions. It is also revealed that after appearance of the petitioner through his counsel on 2.6.2009, the petitioner remained absent on nineteen dates from 2.6.2009 to 9.12.2010, on which date it was ordered that the case would proceed ex parte against the petitioner. Prior to that, after his wife had appeared on 16.3.2009 on his behalf, the petitioner did not take any step on two dates. Fresh notices for appearance were directed to be issued beginning from order dated 15.7.2011 and notice issued on 5.11.2011 was served upon the petitioner. The petitioner, thereafter, filed written statement on 5.12.2011 and after taking some steps on three dates, again stopped appearing before the Tribunal on six subsequent dates on and from 13.11.2012, again necessitating passing of an order that the case will proceed ex parte against the petitioner. 6. If a person chooses to remain absent after receiving notice and an order was passed for proceeding ex parte, this court fails to see why a second notice is required to be given. Purpose of a notice is to enable a person to meet the allegations against him and to enable him to defend/prove his case. After receipt of notice by the notice, the Tribunal is not obliged and/or required to give a second notice to the notice and the Tribunal should proceed to decide the issue in accordance with law. In the instant case, materials on record reveal that not only once, but for the petitioner's repeated failure to appear, notice was re-issued twice to the petitioner. 7. It is more than three decades that the burning issue of foreign nationals has been in the public domain in the State of Assam. In the instant case, materials on record reveal that not only once, but for the petitioner's repeated failure to appear, notice was re-issued twice to the petitioner. 7. It is more than three decades that the burning issue of foreign nationals has been in the public domain in the State of Assam. Process of determination of question of citizenship cannot be a one-way traffic, leaning only in favour of a person whose citizenship is doubted. Interest of the State is equally paramount as it affects the integrity and sovereignty of the country. No doubt, citizenship of a person is a valuable right. However, one who does not take step for safeguarding his interest does so at his own risk and peril, more so, in the context of allegation of wide-spread influx of foreign nationals from a specified territory to the State of Assam. It appears to the court that an idea is gaining ground that one can conveniently delay the proceeding before the Tribunals and keep the issue alive for years to come, so that he can avert deportation and at the same time, try to create evidence over the years. But for such a perception, it would have been inconceivable that one could afford to be as casual and nonchalant as the petitioner was when, otherwise, so much was at stake against him. For everything, there is time and place. Right to fair hearing or principles of natural justice cannot be permitted to lead to absurdities, consigning, in essence, the issue to back-burner. Such an eventuality can neither be countenanced nor accepted in a court of law. 8. Materials on record demonstrate that the petitioner was given ample opportunity to discharge his burden under the Foreigners Act, 1946 that he is not a foreigner. The petitioner has miserably failed to make out a case for grant of a further opportunity. 9. In view of the above discussion, I find no merit in this application and accordingly, the same is dismissed. The respondents will now take consequential steps in terms of the judgment and order dated 31.8.2013 passed by the learned Member, Foreigners Tribunal No.III, Barpeta, Assam in FT Case No.07(III)/2009. Interim order stands vacated. Send back the records.