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2015 DIGILAW 1123 (GAU)

Sabia Khatun v. Union of India

2015-09-01

B.K.SHARMA

body2015
JUDGMENT : B.K. Sharma, J. 1. This writ petition is directed against the judgment and order dated 24.03.2008 passed by the learned Foreigners Tribunal (2nd Tribunal), Barpeta in F.T. (2nd Tribunal) in Case No. 226/2007, Union of India vs. Supia Khatun. 2. By the said judgment and order, the petitioner, Supia Khatun has been declared to be a Foreigner under Section 2 (a) of the Foreigners Act, 1946. 3. Heard Mr. J Ahmed, learned counsel for the petitioner. Also heard Ms. G. Sarma, learned counsel appearing on behalf of Mr. S.C. Keyal, learned ASGI as well as Mr. Noor Mohammad, learned State Counsel. I have considered the submissions of the learned counsels for the parties and have also perused the entire materials on record including the records received from the Tribunal. 4. According to the petitioner, she came to know about the impugned order when quit India notice was served on her. It is the further plea of the petitioner that before the reference was made, no proper enquiry was conducted and the learned Tribunal decided the reference only on the basis of the evidence of PW-1 and the enquiry report (Ext.1). 5. In para 5(C) of the writ petition, the learned counsel for the petitioner has further contended that there might be mistake on the part of the petitioner in not taking part in the proceeding but even then the Tribunal ought not to have declared the petitioner as foreign national, solely on the basis of the evidence of PW-1. For a ready reference paragraph 5(C) is reproduced below:- "5(C) That the learned tribunal below has committed serious errors of law in declaring the petitioner as foreigner. There may be a wrong on the part of the petitioner for not taking part in the proceeding. Even though the learned Member ought not to have declared the petitioner as foreigner on the basis of the evidence of the PW-1 and on the basis of the illegal report (Ext-1). The state has totally failed to discharge the burden of proof. So, the findings and decision of the learned Member of the Tribunal below in declaring the petitioner as foreigner are illegal, bad in law and perverse and as such the same are liable to be set aside and quashed." 6. During the course of the hearing, Mr. The state has totally failed to discharge the burden of proof. So, the findings and decision of the learned Member of the Tribunal below in declaring the petitioner as foreigner are illegal, bad in law and perverse and as such the same are liable to be set aside and quashed." 6. During the course of the hearing, Mr. J Ahmed, learned counsel for the petitioner referring to the records received from the Tribunal and also the thumb impression of the petitioner assigned in the affidavit and vakalatnama submits that somebody else might have received the notice in the name of the petitioner and accordingly, the impugned ex-parte order is required to be set aside. 7. On the other hand, the learned counsel representing the respondents submit that under Section 9 of the Foreigners Act, 1946, burden of proof being on the part of the proceeded and their being failure on the part of the petitioner to discharge the said burden, the writ petition is liable to be dismissed. 8. On perusal of the records received from the Tribunal, it is found that as against the claim of the petitioner that notice was not served, but the petitioner received the notice putting her signature. While it is true that in the writ petition, she has put her thumb impression both in the vakalatnama and in the affidavit, but in the notice, she somehow put her signature while accepting the notice. There is no denial of this fact. It is not the plea of the petitioner that the signature appearing in the notice is not that of the petitioner. Merely because she accepted the notice somehow putting her signature in the notice, but in the writ petition, she has used her thumb impression, that by itself cannot lead to the inference that the signature appearing in the notice is not of the petitioner. 9. Once it is accepted that the petitioner was served with notice from the Tribunal, it is to be seen whether the petitioner responded to the reference before the Tribunal. It is a fact that inspite of receipt of the notice, the petitioner did not respond to the proceeding and remained absent all throughout the proceeding. The dates are 26.07.2007, 28.08.2007, 04.10.2007, 01.11.2007, 27.11.2007, 31.12.2007, 04.02.2008, 26.02.2008, 24.03.2008 and finally on 03.04.2008. 10. It is a fact that inspite of receipt of the notice, the petitioner did not respond to the proceeding and remained absent all throughout the proceeding. The dates are 26.07.2007, 28.08.2007, 04.10.2007, 01.11.2007, 27.11.2007, 31.12.2007, 04.02.2008, 26.02.2008, 24.03.2008 and finally on 03.04.2008. 10. Above being the position, the Tribunal had no other option then to proceed ex-parte with passing of the impugned ex-parte order. 11. Although, there is no specific provision for setting aside an ex-parte order by the Tribunal, the Full Bench of this Court in the case of the State of Assam vs. Moslem Mondal and Others, 2013 (1) GLT (FB) 809 has held that under certain circumstances, an order of ex-parte can be set aside. However, a note of caution has also been expressed providing that such an exercise shall not be in a routine manner so as to frustrated the very provision of Foreigners Act, 1946 and the Foreigners (Tribunal) Order, 1964. For a ready reference, para 92 of the said 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 proceeding 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. The Tribunal can entertain such application provided the proceeding 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." 12. The petitioner having not assigned any good and sufficient grounds there is no question of setting aside the ex-parte order. 13. The Tribunal, therefore, would have the jurisdiction to reject such application at the threshold, if no ground is made out." 12. The petitioner having not assigned any good and sufficient grounds there is no question of setting aside the ex-parte order. 13. In this connection, I may refer to paragraph 127.1 of the Full Bench judgment Moslem Mondal (supra) which is quoted below:- "127.1 It appears from the judgment passed by the learned Single Judge that there is no explanation in the writ petition filed by the appellant that why he did not file the written statement and documents despite the opportunity given, except stating that he was endeavouring to obtain the documents. The appellant in support of his contention has enclosed a copy of the application dated 17th December, 2009 seeking copy of the electoral role, which application, however, was not filed by the appellant but by one Naziruddin Ahmed. As held above, the burden under Section 9 of the 1946 Act is on the proceedee to prove that he is not a foreigner but an Indian national, which burden the appellant has failed to discharge. The Tribunal, because of non participation by the appellant in the subsequent stages of the proceeding, had no alternative but to proceed against him and had opined the appellant as foreigner. In the absence of any justification to set aside the ex-parte order passed by the Tribunal and to remit the case for fresh trial, the writ Court would definitely not interfere with such an order passed by the Tribunal, when admittedly sufficient opportunities were given to the appellant to discharge his burden of proving that he is not a foreigner. The documents, which the appellant has annexed to the writ petition, cannot also be looked into by the writ Court, those having not been proved before the Tribunal, despite being given the opportunity for doing so." 14. In view of the above, I find no reason to interfere with the impugned judgment and order dated 24.03.2008 passed by the learned Foreigners Tribunal (2nd Tribunal), Barpeta in Case No. 226/2007 and accordingly, the writ petition is dismissed. 15. Consequently, the Superintendent of Police (Border), Morigaon shall take the petitioner into custody and detain her in the detention camp forthwith till such time she is deported to her country of origin. 15. Consequently, the Superintendent of Police (Border), Morigaon shall take the petitioner into custody and detain her in the detention camp forthwith till such time she is deported to her country of origin. Simultaneously, the Deputy Commissioner, Barpeta shall ensure deletion of her name from the voter list, if found. 16. The Registry shall transmit the case records to the Foreigners Tribunal (2nd), Barpeta, Assam alongwith a copy of this order. 17. Copies of this order shall be sent to the Secretary to the Government of India, Ministry of Home Affairs, New Delhi; Commissioner & Secretary to the Government of Assam, Home Department, Dispur; the Superintendent of Police (Border), Barpeta and the Deputy Commissioner, Barpeta. Another copy of this order shall also be furnished to Mr. Noor Mohammad, learned State Counsel, for his necessary follow up action. 18. List the matter after 1 (one) month for submission of report by the Superintendent of Police (Border) and the Deputy Commissioner, Barpeta.