JUDGMENT AND ORDER B.K. Sharma, J. Mr. M.U. Mahmud, learned counsel for the petitioner by referring to the Foreigners (Tribunal) for Assam Order, 2006 submits that the Tribunal having not followed the provisions of the said Order, the impugned judgment and order came to be passed erroneously. Such a submission made by the learned counsel for the petitioner is not sustainable misleading inasmuch as the Apex Court in the decision reported in (2007) 1 SCC 474 (Sarbananda Sonowal (II) v. Union of India) has set aside and quashed the said Order of 2006 as unconstitutional and contrary to its earlier decision in Sarbananda Sonowal (I) v. Union of India reported in AIR 2005 SC 2920 . 2. Be that as it may, Mr. Mahmud, learned counsel for the petitioner being confronted with the above submits that what he wanted to refer is the Foreigners (Tribunal) Order, 1964 (as amended). He, by producing the Foreigners (Tribunals) Amendment Order, 2013 submits that as per the amended provision, the Foreigners Tribunal has the power of a Civil Court, which include issuance of warrant of arrest against the proceedee, if he/she fails to appear before the Tribunal. According to him, whenever the proceedee does not appear in response to the notice, the Tribunal should not pass any ex-parte order deciding the reference, but should first issue warrant of arrest against the proceedee. 3. I am afraid, the above submission is absolutely misplaced. If the proceedee even after receipt of the notice does not appear, the Tribunal is very much empowered to proceed ex-parte. The provision referred to above is only by way of enlarging the power of the Foreigners Tribunal and does not necessarily mean that in each and every case, where the proceedee does not appear, the Tribunal is bound to issue warrant of arrest against the proceedee to respond to the proceeding and cannot pass ex-parte order. 4. In the instant case, the petitioner has challenged the judgment and order dated 8.10.2009 passed by the Foreigners Tribunal, Barpeta in FT Case No. 112/2006 (B) (FT Ref. No. 1323/98) (State of Assam v. Abdul Kalam). By the said judgment and order, the petitioner has been declared to be a foreigner of post 25.3.1971 stream. 4. In the instant case, the petitioner has challenged the judgment and order dated 8.10.2009 passed by the Foreigners Tribunal, Barpeta in FT Case No. 112/2006 (B) (FT Ref. No. 1323/98) (State of Assam v. Abdul Kalam). By the said judgment and order, the petitioner has been declared to be a foreigner of post 25.3.1971 stream. The order so passed is ex-parte upon failure of the petitioner to discharge the burden of proof as envisaged under Section 9 of the Foreigners Act, 1946, about which the Apex Court has discussed in detail in Sarbananda Sonowal (I) (supra). In paragraph-9 of the writ petition, the petitioner has blamed one Mr. Mannan Alom, an Advocate of Barpeta Bar purportedly for not taking steps in the matter. For a ready reference, paragraph-9 of the writ petition is quoted below: "9. That the petitioner begs to state that the Electoral Registration Officer of No. 44 Jania LAC brought an allegation against the petitioner stating that the petitioner is a foreign national. The Superintendent of Police, Barpeta also forwarded the same and a case was registered being F.T. Case No. 112/06 (B), Reference Case No. 1323/98 against the petitioner in the Foreigners Tribunal, Barpeta. The petitioner appeared before the learned Tribunal executed a Vakalatnama in favour of one Advocate namely Mr. Mannan Alom of Barpeta Court but the Advocate has neither submitted written statement nor took any steps and remained absent, nor asked the petitioner to adduce evidence etc. Thus the ex-parte proceeding was started and the petitioner was declared as foreign national by the learned Tribunal by the ex-parte judgment and order dated 8.10.09 passed FT Case No. 112/06(B)." 5. Mr. Mannan Alom, learned counsel of the Barpeta Bar has been made party respondent (respondent No. 5), who has filed a counter affidavit on 18.7.2012. In the affidavit, he has denied the above allegation and has contended that the petitioner had engaged him to conduct the earlier IM(D)T Case No. 2571/2003 and later on, the petitioner withdrew the brief from him. He has further stated that after scrapping of the IM(D)T Act, 1983 in Sarbananda Sonowal (I) (supra), the reference against the petitioner was re-registered as FT (2nd) Case No. 258/06 vide order dated 25.7.2006. 6. He has further stated that after scrapping of the IM(D)T Act, 1983 in Sarbananda Sonowal (I) (supra), the reference against the petitioner was re-registered as FT (2nd) Case No. 258/06 vide order dated 25.7.2006. 6. After the aforesaid registration of FT (2nd) 258/06 case, notice was issued afresh to the petitioner and after receiving notice, the petitioner appeared before the Tribunal by engaging another counsel namely Ajit Kumar Sarkar for conducting the case of the petitioner. Referring to the orders passed from time to time by the Tribunal, the respondent No. 5 has also pointed out that the petitioner prayed for time before the Tribunal on 22.9.2006 for filing written statement and the prayer was allowed fixing the matter on 13.10.2006. On 13.10.2006 also, the petitioner appeared and filed adjournment petition, which was also allowed fixing the matter on 2.11.2006. The petitioner again prayed for time on 2.11.2006 and the same was allowed fixing the matter on 15.11.2006. However, on 15.11.2006, the petitioner remained absent without any step and the Tribunal had no other option than to adjourn the matter fixing it on 5.12.2006 for necessary order. On 5.12.2006, the petitioner remained absent and accordingly, the Tribunal decided to proceed ex-parte and eventually passed the impugned order dated 8.10.2009. 7. Coming to the Writ Court, the petitioner has blamed the respondent No. 5 unmindful of the fact that it is for the petitioner and for that matter the proceedee to discharge the burden of proof as envisaged under Section 9 of the Foreigners Act, 1946. Not only that the petitioner has also made misleading statement in the writ petition in blaming the respondent No. 5 inasmuch as has not even obliquely mentioned about engagement of Mr. Ajit Kumar Sarkar in the proceeding before the Tribunal. Be that as it may, when the burden of proof is on the petitioner, he cannot disown the same by uncalled for blame game unmindful of her own duty in the proceeding. If after engaging a counsel, the proceedee remains absent without any steps, the counsel cannot be blamed. 8. Ajit Kumar Sarkar in the proceeding before the Tribunal. Be that as it may, when the burden of proof is on the petitioner, he cannot disown the same by uncalled for blame game unmindful of her own duty in the proceeding. If after engaging a counsel, the proceedee remains absent without any steps, the counsel cannot be blamed. 8. As has been held by the Full Bench of this Court in State of Assam v. Moslem Mondal reported in 2013 (1) GLT 809, 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. In this connection para 127.1 of the judgment are 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. 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." 9. In the said decision i.e. Moslem Mondal (supra), the Full Bench has further held that although the Tribunal has jurisdiction to entertain and pass necessary order on an application for setting aside an ex-parte opinion, but at the same time it has also been held rather cautioned that such application must not be entertain in a routine manner, otherwise the very purpose of enacting the 1946 Act and the 1964 Order would be frustrated. For a ready reference, paragraph-92 of the said judgment is reproduced 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. 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 added) 10. In the instant case, not to speak of showing any exceptional circumstances, the petitioner has failed to show any circumstance, and has made misleading statement. The Tribunal, therefore, would have the jurisdiction to reject such application at the threshold, if no ground is made out." (Emphasis added) 10. In the instant case, not to speak of showing any exceptional circumstances, the petitioner has failed to show any circumstance, and has made misleading statement. Not only that, during the course of hearing also Mr. Mahmud, learned counsel for the petitioner first placed reliance on the repealed Order of 2006. However, later on, he furnished the clarification referred to above. 11. For all the aforesaid reasons, I do not find any merit in the writ petition and accordingly, it is dismissed. 12. The Superintendent of Police (B), Barpeta and the Deputy Commissioner, Barpeta are directed to take appropriate action in the matter towards deportation of the petitioner from India and deletion of her name from the voter lists. She shall be immediately taken into custody and kept in detention camp, if not already done. 13. Let copies of this judgment and order be furnished to the Superintendent of Police (B), Barpeta and the Deputy Commissioner, Barpeta for their necessary follow up action.