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2015 DIGILAW 1249 (GAU)

Anowara Begum v. State of Assam

2015-09-29

BIPLAB KUMAR SHARMA

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JUDGMENT : Biplab Kumar Sharma, J. 1. This writ petition is directed against the judgment and order dated 17.5.2010 (Annexure-A) of the Foreigners Tribunal, Nagaon passed in FT Case No. 639 of 2007 (State vs. Musstt. Anowara Khatoon). By the said order, the petitioner has been declared to be a foreigner of post 25.3.1971. I have heard Mr. A. Sharif, learned counsel for the petitioner. Also heard Ms. P. Baruah, leaned counsel appearing on behalf of Mr. SC Keyal, learned Assistant Solicitor General of India and so also Mr. N. Goswami, learned State counsel. I have also perused the entire materials on record including the records received from the Tribunal. 2. The case against the petitioner was initiated when her name was included in the draft electoral roll of 85 Rupahihat Assembly constituency. The draft electoral roll was published on 24.7.1997 pursuant to the order of the Election Commission of India for intensive revision of electoral roll with reference to 1.1.1997 as the qualifying date. House to house enumeration was done during the period from 16.1.1997 to 15.4.1997. When the name of the petitioner was included in the said draft electoral roll, a doubt arose as to whether she is an Indian citizen or an illegal migrant. Accordingly following due process, a reference was made to the Foreigners Tribunal to answer as to whether the petitioner is an Indian citizen or not. 3. In the writ petition, the petitioner has assigned the following ground for non-appearance. "3. That the petitioner states that she has read upto class-IV and thereafter, discontinued her studies in 1992 due to acute poverty. Her husband is also an illiterate person. Therefore, the petitioner and her husband engaged an Advocate and handed over to him all the relevant documents for taking necessary steps. After preparation and submission of the written statement, the petitioner was told by her learned counsel that she would be informed as and when her presence would be necessary for taking further steps, as required by law. Unfortunately, after submission of her written statement and after passing of several months, she received a copy of the impugned judgment and order dated 17.5.10 passed in F.T. Case No. 639/07, whereby opinion was given therein by the Tribunal that she is a foreigner, who illegally entered into Assam from Bangladesh after 25.3.1971. 4. Unfortunately, after submission of her written statement and after passing of several months, she received a copy of the impugned judgment and order dated 17.5.10 passed in F.T. Case No. 639/07, whereby opinion was given therein by the Tribunal that she is a foreigner, who illegally entered into Assam from Bangladesh after 25.3.1971. 4. That the petitioner states that it reveals from the impugned judgment and order dated 17/5/2010 and the written statement submitted in the above noted case that the relevant documents, particularly, voter lists and school certificate were not submitted before the Tribunal. The written statement also does not reflect the case of the petitioner correctly and also no steps were taken by her learned counsel to produce her witnesses to examine them in support of her claim that she is not a foreigner but bona fide Indian citizen by birth." 4. The aforesaid ground cannot be said to be a good, cogent and sufficient ground to set aside the ex-parte order. The Full Bench of this Court in its decision reported State of Assam vs. Moslem Mondal, 2013 (1) GLT (FB) 809 while dealing with the question of power and jurisdiction of the Tribunal to set aside an ex-parte order has held that although the Tribunal has jurisdiction to entertain and pass necessary order on an application to set aside the ex-parte opinion, such application should not be entertained lightly and in a routine manner. For a ready reference, paragraph-92 of the decision 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. 5. When the aforesaid ground assigned in the writ petition is tested in reference to the finding of the Full Bench and even otherwise also cannot be said to be good and sufficient ground, not to speak of being exceptional ground to set aside the ex-parte order. 6. The petitioner after initial appearance and filing of written statement and photocopies of three documents, abandoned the proceeding all throughout. As envisaged under Section 9of the Foreigners Act, 1946, burden lies on the proceedee to prove his Indian citizenship. About which detail discussion has been made in Sarbananda Sonowal vs. Union of India, AIR 2005 SC 2920 . 7. On perusal of the LCR, it appears that number of adjournments had been prayed for and the learned Tribunal also granted the same. Adjournments prayed for were on 31.10.2008, 8.12.2008, 31.3.2009, 12.05.2009 etc. In between, the petitioner also remained absent on 16.1.2009, 4.8.2009, 8.10.2009, 19.11.2009, 20.2.2010, 7.4.2010 and finally on 17.05.2010, when the reference was disposed of ex-parte. She filed her written statement and photocopies of three documents on 20.2.2009. 8. Irrespective of the aforesaid position, I have gone through the photocopies of the said documents. Two of the documents are certificates dated 23.10.2008 and 21.10.2008 certifying that the petitioner is a resident of the particular area and that her name appeared in the voter list of 1997. The third document (not legible) appears to be voter list of 1965 containing one name. However, apart from the fact that all the three documents are photocopies, the petitioner also failed to establish any linkage to the third document. The learned Tribunal has rightly held that mere production of photocopies does not lead to discharge the burden of proof as envisaged under Section 9 of the Foreigners Act, 1946. However, apart from the fact that all the three documents are photocopies, the petitioner also failed to establish any linkage to the third document. The learned Tribunal has rightly held that mere production of photocopies does not lead to discharge the burden of proof as envisaged under Section 9 of the Foreigners Act, 1946. That apart, as has been held by the Apex Court in LIC of India vs. Ram Pal Singh Bisen, (2010) 4 SCC 491 , mere filing of some documents does not amount to its proof. In the said case, the Apex Court has held thus: 31. Under the Law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the Evidence Act cannot be relied upon by the Court. Contents of the document cannot be proved by merely filing in a court. 9. Under somewhat similar circumstance, the Full Bench in Moslem Mondal (supra) has held thus: "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 endeavoring 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. 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." 10. Above being the position, I see no reason to interfere with the impugned order dated 17.5.2010 (Annexure-A) of the Foreigners Tribunal, Nagaon passed in FT Case No. 639 of 2007. Accordingly, the writ petition is dismissed. 11. The SP (B), Nagaon is directed to apprehend the petitioner immediately and keep him in detention camp till deportation to his country of origin. His name shall also be deleted from the voter list, if any. 12. Let copies of this order be furnished to the SP (Border), Nagaon and Deputy Commissioner, Nagaon for necessary follow up action. Copies may also be sent to the Government of Assam in the Home Department and Union of India in the Home Department for appraisal and necessary action. Send down the LCR along with a copy of this order.