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2015 DIGILAW 1260 (GAU)

Bimala Nessa v. Union of India

2015-09-30

BIPLAB KUMAR SHARMA

body2015
JUDGMENT : Biplab Kumar Sharma, J. 1. Heard Mr. M.U. Mahmud, learned counsel for the petitioner. Also heard Ms. P. Baruah, learned counsel appearing on behalf of Mr. S.C. Keyal, learned Assistant Solicitor General of India and so also Mr. Sk. Nur Mohammad, learned State counsel. The petitioner is aggrieved by the ex-parte judgment and order dated 23rd December, 2009 of the Foreigners Tribunal-I, Barpeta passed in F.T. Case No. 155/2006(B) (F.T. Reference Case No. 7962/1998) (State of Assam Vs. Birnala Nessa), by which she has been declared to be a foreigner of post 25th March, 1971. 2. As recorded in the impugned judgment, although the petitioner initially entered appearance in the Tribunal and filed written statement and produced photocopies of some documents but she did not come forward to prove the contents of the written statement and the documents. Irrespective of the said position, the Tribunal in its impugned judgment has discussed the stand of the petitioner in the written statement and so also the documents produced. 3. Mr. Mahmud, learned counsel for the petitioner submits that the petitioner is required to be given another chance to adduce evidence. According to him, it is because of the fault on the part of the counsel representing the petitioner, the proceeding resulted in order for ex-parte hearing with eventual ex-parte judgment. 4. On the other hand, the learned counsel appearing for the respondents submitted that the blame game attributing fault on the engaged counsel cannot help the case of the petitioner having regard to the mandate of law requiring the proceedee to prove his/her case. 5. I have considered the submissions advanced by the learned counsel appearing for the parties and have also perused the entire materials on record including the LCR received from the Tribunal. 6. The LCR has revealed that the reference against the petitioner was started in view of the report of the Electoral Registration Officer (ERO) in which a doubt was expressed against the petitioner as to whether she is an Indian citizen or not. Such doubt arose when her name was included in the Draft Electoral Roll that was prepared pursuant to the Intensive Revision of Electoral Roll ordered by the Election Commission of India. House to house enumeration was made during 16th January, 1997 to 15th April, 1997 with reference to 1st January, 1997. Such doubt arose when her name was included in the Draft Electoral Roll that was prepared pursuant to the Intensive Revision of Electoral Roll ordered by the Election Commission of India. House to house enumeration was made during 16th January, 1997 to 15th April, 1997 with reference to 1st January, 1997. Based on that, the Draft Electoral Roll was published on 24th July, 1997. 7. Registering the reference, notice was issued to the petitioner and on receipt of the same, she appeared and filed her written statement alongwith photocopies of 3(three) documents. In the written statement, she referred to the 1966 voter list purportedly containing her father's name. However, the written statement did not name her father. The 3(three) documents (all photocopies) are dated 2nd July, 2005, 5th July, 2005 and the said voter list of 1966(extract only) containing the name of one Somesh Uddin, whom the petitioner seeks to project as her father. The certificate furnished is to the effect that the petitioner is a resident of the particular locality and that she entered into marital tie with one Jomar Ali. 8. It is on the above basis, the petitioner sought to discharge her burden of proof to establish that she is an Indian citizen, that too by birth. As per Section 9 of the Foreigners Act, 1946, the burden is always on the proceedee to establish that he or she is not a foreigner and that is an India citizen. This aspect of the matter has been discussed in detail in Sarbananda Sonowal Vs. Union of India & Ors. reported in AIR 2005 SC 2920 . The petitioner miserably failed to discharge the said burden. 9. On perusal of the records received from the Tribunal, it is found that notice was duly served on the petitioner and she remained absent on 2nd July, 2005. After scrapping of the IM (D) T Act, 1983 in Sarbananda Sonowal (supra) case, notice was reissued to her and duly served. She remained absent on 20th September, 2006 and on 30th October, 2006 prayed for time and was allowed. When the reference was transferred to another Tribunal, again notice was issued to the petitioner and the petitioner duly received the same. She appeared before the Tribunal on 31st October, 2007 and filed the written statement and the aforesaid photocopies of documents. She remained absent on 20th September, 2006 and on 30th October, 2006 prayed for time and was allowed. When the reference was transferred to another Tribunal, again notice was issued to the petitioner and the petitioner duly received the same. She appeared before the Tribunal on 31st October, 2007 and filed the written statement and the aforesaid photocopies of documents. However, she failed to discharge her burden of proof by adducing evidence and all along prayed for time. The dates are 4th December, 2007; 28th January, 2008, 14th March, 2008, 14th May, 2008, 18th July, 2008; 25th November, 2008 and 19th January, 2009. She did not appear before the Tribunal on 10th March, 2009 and the matter was fixed for evidence on 30th April, 2009, on which date the petitioner again prayed for time. The prayer was allowed as a last chance. However, on the next date fixed, i.e. on 9th July, 2009, the petitioner again filed a petition for adjournment, which the learned Tribunal rightly rejected and fixed the matter on 5th August, 2009 for argument. On 5th August, 2009, the petitioner again prayed for time and the prayer was rejected fixing the matter on 18th August, 2009. On 18th August, 2009, the petitioner remained absent and the learned Tribunal heard the Assistant Government pleader and thereafter, fixed the matter for delivery of judgment on 31st August, 2009. Although the matter was fixed for judgment on 31st August, 2009, the matter was adjourned to 22nd October, 2009; 9th December, 2009; 18th December, 2009 and finally the judgment was pronounced on 23rd December, 2009. The petitioner remained absent on all these dates. 10. An ex-parte order passed by the Tribunal cannot be interfered with lightly. As has been held by a Full Bench of this Court State of Assam & Anr. Vs. Moslem Mondal & Ors. reported in (2013) 1 GLT (FB) 809, the Tribunal although has jurisdiction to entertain and pass necessary order on an application to set aside the ex-parte opinion, but such a course of action must not be in a routine manner, otherwise the very purpose of enacting the Foreigners Act, 1946 and the Foreigners (Tribunal) Order, 1964 would be frustrated. For a ready reference, paragraph 92 of the said judgment is quoted below:- "92. For a ready reference, paragraph 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 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 to 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) 11. The Apex Court in Life Insurance Corporation of India & Ann Vs. Ram Pal Singh Bisen, reported in (2010) 4 SCC 491 that mere filing or accepting a document in Court does not amount to proof of its contents. Admission of documents in Court may amount to admission of its contents but not the truth. For a ready reference, paragraph 31 of the said judgment is quoted below:- "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 Curt. Contents of the document cannot be proved by merely filing in a court." 12. Above being the position, I see no reason to interfere with the impugned judgment and order dated 23rd December, 2009 passed by the learned Member, Foreigners Tribunal-I, Barpeta in F.T. Case No. 155/2006 (B) (F.T. Reference Case No. 7962/1998) and accordingly, the writ petition is dismissed. Contents of the document cannot be proved by merely filing in a court." 12. Above being the position, I see no reason to interfere with the impugned judgment and order dated 23rd December, 2009 passed by the learned Member, Foreigners Tribunal-I, Barpeta in F.T. Case No. 155/2006 (B) (F.T. Reference Case No. 7962/1998) and accordingly, the writ petition is dismissed. Consequently, the Superintendent of Police (B), Barpeta 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, i.e. Bangladesh. Simultaneously, the Deputy Commissioner, Barpeta shall ensure deletion of her name from the voter list, if found. 13. The Registry shall transmit the case records to the Foreigners Tribunal-I, Barpeta, Assam alongwith a copy of this order. 14. Copies of this order shall also be sent to the Superintendent of Police (B), Barpeta and the Deputy Commissioner, Barpeta. Another copy of this order shall also be furnished to Mr. Sk. Nur Mohammad, learned State counsel, for his necessary follow up action. List the matter after 1(one) month for submission of report by the Superintendent of Police (B) and the Deputy Commissioner, Barpeta.