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2015 DIGILAW 1272 (GAU)

Jiban Das v. Union of India

2015-10-01

B.K.SHARMA

body2015
JUDGMENT : B.K. Sharma, J. Heard Mr. R. Ali, 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. B.J. Ghosh, learned State counsel. 2. The challenge in the writ petition is the judgment and order dated 26th September, 2006 of the Foreigners Tribunal, Mangaldai in Case No. F.T.(2) 55/2006 [S.P. (D)'s No.1807/2003) (State v. Sri Jiban Ch. Das). By the said order, the petitioner has been declared to be a foreigner of post 25th March, 1971. The judgment and order so passed is ex-parte as the petitioner in spite of service of notice did not respondent to the proceeding. 3. I have considered the submissions made by the learned counsel appearing for the parties and have also perused the entire materials on record including the LCR received from the Tribunal. 4. As recorded in the impugned judgment and order, the Enquiry Officer had conducted an enquiry as was directed by the Superintendent of Police (B), Darrang. During enquiry, the petitioner could not produce any document in spite of his citizenship rather stated that he belonged to village Amtai, PS-Amtai, District-Mymansingh, Bangladesh and that he entered into India unauthorisedly after 25th March, 1971. The Enquiry Officer submitted his report. The Enquiry Officer also proved the report and exhibited the same. 5. The petitioner having failed to discharge the burden of prove, as envisaged under Section 9 of the Foreigners Act, 1946, the Tribunal had no other alternative than to decide the reference ex-parte. Although the petitioner has made a statement in paragraph 3 of the writ petition that he was not aware of the proceeding before the Tribunal but Mr. A. Ali, learned counsel for the petitioner fairly submits that the said contention is not correct, in view of the fact that the notice was served on the petitioner. 6. On perusal of the record received from the Tribunal, it is found that notice was duly served on the petitioner and he acknowledged the same in presence of 2(two) witnesses, namely, Pabitra Kr. Das and Tapan Ch. Dey. Notice was received by the petitioner on 15th July, 2006. This aspect of the matter finds mention in the order dated 29th July, 2006 of the learned Tribunal. Das and Tapan Ch. Dey. Notice was received by the petitioner on 15th July, 2006. This aspect of the matter finds mention in the order dated 29th July, 2006 of the learned Tribunal. However, the petitioner continuously remained absent on all the dates and eventually the Tribunal had no other alternative but to decide the reference ex-parte vide order dated 26th September, 2006. The petitioner having failed to discharge the burden of proof as envisaged under Section 9 of the Foreigners Act, 1946, the Tribunal rightly decided the reference ex-parte. 7. Under similar circumstances, a Full Bench of this Court in State of Assam & Anr. v. Moslem Mondal & Ors. reported in (2013) 1 GLT 809 upheld the ex-parte order. In this connection, paragraph 127 of the said decision 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 proceeded 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." 8. 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." 8. Above apart, there is unexplained delay of about 10(ten) years in approaching the Court towards assailing the impugned order dated 26th September, 2006. 9. The Foreigners Tribunals are over burdened with huge number of references and noticing the said fact, the Apex Court in its order dated 17th December, 2014 passed in Assam Sanmilita Mahasangha & Ors. v. Union of India & Ors. reported in 2015 (1) GLT (SC) 191 ordered for constitution of more Foreigners Tribunals. Needless to say that the issue relating to ones citizenship is required to be decided expeditiously, more particularly in view of the well known fact that there is huge infiltration of foreigners in Assam. 10. In view of the above, I do not find any merit in the writ petition to interfere with the impugned judgment and order dated 26th September, 2006 of the Foreigners Tribunal, Mangaldai in Case No. FT(2) 55/2006 [SP (D)'s No.1807/2003) and accordingly, the writ petition is dismissed. Consequently, the Superintendent of Police (B), Darrang shall do the needful in this regard. However, I hasten to add that dismissal of the writ petition will not disentitle the petitioner to get the protection as envisaged in the Immigrants (Expulsion from Assam) Act, 1950. 11. Irrespective of dismissal of the writ petition, the petitioner will be entitled to get his case considered in terms of the aforementioned notification dated 7th September, 2015 issued by the Government of India in the Ministry of Home Affairs, by which amendments have been brought to the provisions of the Passport (Entry into India) Rules, 1950 and so also to the Foreigners Order, 1948. In terms of the said amended provisions, the persons belonging to minority communities in Bangladesh and Pakistan, namely, Hindus, Sikhs, Christians, Jains, Parsis and Budhists, who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before 31st December, 2014 are entitled to exemption as provided for by the said amendments. More particularly, in view of the Annexure-E document dated 21st June, 1965 (migration certificate) showing incorporation of the name of one Chitra Mohan Das, whom the petitioner projects as his father. 12. More particularly, in view of the Annexure-E document dated 21st June, 1965 (migration certificate) showing incorporation of the name of one Chitra Mohan Das, whom the petitioner projects as his father. 12. The Registry shall transmit the case records to the Foreigners Tribunal, Mangaldai along with a copy of this order. 13. Copies of this order shall also be sent to the Superintendent of Police (B), Darrang and the Deputy Commissioner, Darrang. Another copy of this order shall also be furnished to Mr. B.J. Ghosh, learned State counsel, for his necessary follow up action.