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2015 DIGILAW 1409 (GAU)

Jaynalabdin @ Jainal Uddin Ali v. State of Assam

2015-11-12

B.K.SHARMA

body2015
ORDER B.K. Sharma, J. (Oral) - This writ petition is directed against the judgment dated 15/11/2007 of the Foreigners Tribunal, Sivasagar. By the said judgment, the learned Tribunal disposed of 7 (seven) FT Cases. The present proceeding is concerned with FT Case No. 09/07 (State v. Md. Jainuluddin Ali). By the said judgment, while disposing of all the 7 cases, the proceedees involved were held to be foreigners as defined in Section 2(a) of the Foreigners Act, 1946. The petitioner has also been declared to be a foreigner. While doing so, the learned Tribunal has recorded in the impugned judgment that as per the report of the Process Server, the proceedees had gone to some unknown destination after police started enquiries against them. 2. It is the specific case of the petitioner that no notice was served on him. However, on the basis of the impugned judgment and on being declared to be a foreigner, he was pushed back to Bangladesh along with his family members. 3. When the matter was first taken up on 20/11/2009, noticing the fact that the petitioner was deported along-with his family members to Bangladesh and that they have again come back to India and filed the instant writ petition, direction was issued to the Chief Secretary to the Government of Assam and Home Secretary to the Government of India to file affidavit as to how they could come back to India. For a ready reference, the order is quoted below :- "It appears from the averments made in the writ petition that in view of the judgment and order dated 15-11-2007 passed by the learned Foreigners' Tribunal in FT Case No.9/2007, the petitioner was deported along with his family to Bangladesh. The petitioner, however, claims to have returned to India and filed the present writ petition. If such allegations are correct, it makes a serious reflection on the Union of India as well as the State of Assam as the border is not at all protected and the persons are allowed to enter into India without even a valid permit and even though the person has been declared as foreigner and was deported to Bangladesh. In view of the aforesaid position, the Chief Secretary to the Government of Assam and the Home Secretary to the Government of India are directed to file affidavits in this matter, for which 2 (two) weeks time is granted. In view of the aforesaid position, the Chief Secretary to the Government of Assam and the Home Secretary to the Government of India are directed to file affidavits in this matter, for which 2 (two) weeks time is granted. List the case for motion hearing on 4th December, 2009. A copy of this order be furnished to the learned Assistant Solicitor General of India, the learned Sr. Government Advocate, Assam and the learned Central Government Counsel." 4. Even after expiry of six years when no affidavit was filed, this Court by order dated 10/08/2015 recording the following finding, directed both the authorities to file affidavit within two weeks. "It is a very-very serious matter in which a declared foreigner who was pushed back to Bangladesh could come back again and filed the writ petition. Recording the said position, the Chief Secretary to the Government of Assam and Home Secretary to the Government of India were directed to file affidavits within 2(two) weeks. For both the authorities, the said 2(two) weeks are yet to be over. If by the next date fixed, no affidavits are filed, personal appearance of both the authorities will be considered." 5. When the matter was taken up on 25/08/2015, on the request of the learned counsel for the respondents, the matter was adjourned for the second half of the day. In the second half, the learned State Counsel submitted that the affidavit would be filed within one week. So far as the Government of India is concerned, the learned ASGI submitted that the affidavit of the Home Secretary, Government of India was in the transit and would be filed within the week. Accordingly, the matter was adjourned to 31/08/2015. 6. When the matter was again taken up on 02/09/2015, it was submitted by the learned State Counsel that the Chief Secretary of the State has already filed an affidavit on 29/08/2015. However, a prayer was made on behalf of the Govt. of India to grant time. It was submitted that the affidavit would be filed on or before 04/09/2015. Recording the said submission, adjournment prayed for was allowed, fixing the matter on 11/09/2015. Cost of adjournment was also awarded (Rs.10,000/-). 7. On 11/09/2015, it was submitted on behalf of the Union Government that although necessary communication was made with the Home Secretary to the Govt. of India but no response has been received. Recording the said submission, adjournment prayed for was allowed, fixing the matter on 11/09/2015. Cost of adjournment was also awarded (Rs.10,000/-). 7. On 11/09/2015, it was submitted on behalf of the Union Government that although necessary communication was made with the Home Secretary to the Govt. of India but no response has been received. Accordingly, Contempt of Court Proceeding was initiated against the Home Secretary to the Government of India and the matter was adjourned to 22/09/2015 imposing a further cost of Rs.10,000/-. The contempt proceeding was drawn up in view of the contradictory stand on the part of the Government of India in respect of filing of the affidavit. 8. It is only after the aforesaid exercise an orders passed by this Court, the Government of India filed its affidavit on 22/09/2015. In the mean time, the authority has also deposited Rs.20,000/- with the Registry of this Court being the adjournment cost. 9. In the affidavit filed by the Chief Secretary, dealing with the question as to how the petitioners could come back to Assam once again after he was pushed back to Bangladesh, it has been stated thus:- "3. That, as per police report, the declared foreigner, Joinal Abedin along with his wife Nur Neher and three children were pushed back to Bangladesh through Sahapara BOP entry gate in presence of Company Commander 162 Bn. BSF on 25/9/2009 vide exit No. 34/2009 dated 25/9/2009 as per order of the Foreigners Tribunal, Sivasagar dated 15-11-2007 in case No. FTC/No.09/2007. The declared foreigners again sneaked back through border into India and filed the Writ Petition before the Hon'ble Court. 4. That, the International Border is manned by the Border Security Force and the Border Security Force is responsible for checking the ingress of foreigners from Bangladesh coming to India without valid documents through the International Border. It is also submitted that lack of repatriation treaty with Bangladesh has created hindrance in formal repatriation and 'pushing back system' of Bangladeshi National in the Border by the BSF is not proved to be effective. It is also submitted that lack of repatriation treaty with Bangladesh has created hindrance in formal repatriation and 'pushing back system' of Bangladeshi National in the Border by the BSF is not proved to be effective. The 'pushing back system' of declared foreigners and putting them in detention centre till they are deported, to facilitate reference to the Ministry of External Affairs (MEA) through Ministry of Home Affairs, MEA to Bangladesh High Commission, for verification of their addresses and particulars by Bangladesh authorities, and confirmation or otherwise thereof, conveyed back through the same process till it reaches State Government and BSF authorities in the field to effect the deportation, is a very tedious and time consuming process. 5. That, the State Government is working with Central Government in all efforts to seal the Indo-Bangladesh Border through construction of Border Fencing, Border Roads, Flood lighting etc. It is also submitted that due to difficult terrain specifically reverine areas, the border fencing works are yet to be completed in some stretches." 10. In the affidavit filed by the Government of India, except stating about the purported measures adopted for affective border guarding to check and control illegal infiltration, no specific plea has been advances as to how the petitioners, who once pushed back to Bangladesh, could come back to India, even to the invoking of writ jurisdiction of this Court. However, in para IV and 9, it has been stated thus :- "IV. Deportation of declared illegal migrants The persons declared as illegal migrants by the tribunals will be kept in the detention centers till their repatriation to their native country. The details of declared illegal migrants are being sent in the prescribed format to the Bangladesh authorities by the Ministry of External Affairs. 9. That, it is respectfully submitted that, renewed efforts are being made by the State Government of Assam to nab the petitioner Joinal Abedin @ Jainal Uddin Ali @ Jainaluddin Ali who has filed the writ petition before the Hon'ble Court and has gone missing thereafter." 11. From the above narration of the relevant fact, what has emerged is that it is absolutely easy passage for Bangladeshi nationals to illegally enter into Assam. This phenomenon has drastically changed the demography of the State about which detail discussion has been made by the Apex Court in Sarbananda Sonowal v. Union of India reported in AIR 2005 SC 2920 . This phenomenon has drastically changed the demography of the State about which detail discussion has been made by the Apex Court in Sarbananda Sonowal v. Union of India reported in AIR 2005 SC 2920 . Unless some effective measures are taken immediately, this phenomenon will have a far reaching effect, even to the extent of making the indigenous people of Assam, a minority community in their own home State. 12. Coming to the case in hand, admittedly no notice was served on the petitioner. According to the impugned judgment, the petitioner had avoided the notice. As to how notice should be served in such a proceeding has been discussed in the Full bench decision of this Court in the case of State of Assam v. Moslem Mondal and others reported in 2013 (1) GLT 809 : 2013 (1) GLT (FB) 809. In this connection, para 111 of the judgment is quoted below :- "103. Having regard to the aforesaid discussion, we are of the view that, in the absence of any uniform laid down procedure, the following procedure is henceforth required to be adopted, in the matter of service of notice by the Tribunals on the proceedee. The procedure laid down herein below shall be applicable to all the proceedings pending before the Tribunal where the notices are either yet to be issued or issued but not yet served: i. "The proceedee shall be served with the notice, together with the main grounds on which he is suspected to be a foreigner, as far as practicable, personally, whose signature/thumb impression, as proof of service, is to be obtained. ii. Such notice shall be issued in the address where the proceedee last resided or reportedly resides or works for gain. In case of change of place of residence, which has been duly intimated in writing to the investigating agency by the proceedee, the Tribunal shall issue notice in such changed address. iii. The notice shall be issued by the Tribunal in the official language of the State also indicating that the burden is on the proceedee to prove that he is an Indian citizen and not a foreigner. iv. The service of notice on any adult member of the family of the proceedee, in case he is found to be not present at the time of service, shall constitute the service on the proceedee. iv. The service of notice on any adult member of the family of the proceedee, in case he is found to be not present at the time of service, shall constitute the service on the proceedee. In token of such service the name and signature/thumb impression of such adult member shall be obtained. In case such adult member refuses to put the signature or thumb impression, a report in that regard shall be submitted. v. If the proceedee or any available adult member of his family refuses to accept the notice, the process server has to give a report in that regard along with the name and address of a person of the locality, who was present at the time of making such an effort to get the notices served, provided such person is available and willing to be a witness to such service. The signature/thumb impression of such witness, if present and willing, must be obtained. vi. In case the proceedee has changed the place of residence or place of work, without intimation to the investigating agency, a report in that regard shall be submitted by the process server. A copy of the notice shall then be affixed in a conspicuous place where the proceedee last resided or reportedly resided or worked for gain, containing the name and address of a respectable person of the locality, if available and willing to be a witness for that purpose. The signature/thumb impression of such person, in that case, shall also be obtained in the said report. vii. Where the proceedee or any adult member of his family are not found in the residence, a copy of the notice shall be pasted in a conspicuous place of his residence, witnessed by 1(one) respectable person of the locality, subject to his availability and willingness to be a witness in that regard. In that case the signature or thumb impression of that person shall also be obtained in proof of the manner in which such service is effected. viii. Where the proceedee resides outside the jurisdiction of the Tribunal, the notice has to be sent for service to the officer-in-charge of the police station within whose jurisdiction the proceedee resides or last resided or last known to have been resided or works for gain. The process server shall then cause the service of notice in the manner as provided herein above. ix. The process server shall then cause the service of notice in the manner as provided herein above. ix. In case no person is available or willing to be the witness of service of notice, as mentioned above, or refused to put his signature or thumb impression, a signed certificate/verification is to be filed by the process server to that effect, which shall be sufficient proof of such non-availability, unwillingness and refusal." 13. In view of the above, the writ petition is disposed of granting liberty to the petitioner to approach the Tribunal on or before 30/10/2015 by filing an application for setting aside the ex parte order. In the event of filing such application before the stipulated date, the Tribunal shall decide the same in accordance with law. While doing so, the tribunal shall refer to para 92 of Moslem Mondal (Supra) 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. 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." 14. Before parting with the case records, the official respondents are reminded of their duty and responsibility to protect the State of Assam and its indigenous people from the onslaught of illegal migrants from Bangladesh which has the potentiality of rendering them a minority community in their own home State. Before parting with the case records, the official respondents are reminded of their duty and responsibility to protect the State of Assam and its indigenous people from the onslaught of illegal migrants from Bangladesh which has the potentiality of rendering them a minority community in their own home State. In this connection, they should and must take note of the specific observation made by the Apex Court in Sarbananda Sonowal v. Union of India and another reported in (2005) 5 SCC 665 . For a ready reference, para 63 of the judgment is quoted below :- "63. This being the situation there can be no manner of doubt that the State of Assam is facing "external aggression and internal disturbance" on account of large-scale illegal migration of Bangladeshi nationals. It, therefore, becomes the duty of the Union of India to take all measures for protection of the State of Assam from such external aggression and internal disturbance as enjoined in Article 355 of the Constitution. Having regard to this constitutional mandate, the question arises whether the Union of India has taken any measures for that purpose." 15. The respondents should also take note of the observations made by the Apex Court in Sarbananda Sonowal (II) v. Union of India reported in (2007) 1 SCC 174 . In this connection, para 36 and 38 of the said judgment are quoted below :- "36. Submission of the learned counsel to the effect that the Central Government could reject a large number of applications which would render the entire process ineffective, cannot be accepted. The bounden duties of the Central Government are replete in the Constitution of India and the statutory provisions, reference whereto has been made in detail by this Court in Sarbanandan Sonowal (I) v. Union of India reported in (2005) 5 SCC 665 . 38. In Sarbananda Sonowal (I) (Supra) this Court has noticed the lack of will on the part of the Central Government to proceed against the foreigners." 16. At this stage, it is made clear that in the event of failure on the part of the petitioner to approach the Tribunal on or before the stipulated date, this order shall be ignored and the Superintendent of Police (B) Nagaon, shall take consequential action. 17. At this stage, it is made clear that in the event of failure on the part of the petitioner to approach the Tribunal on or before the stipulated date, this order shall be ignored and the Superintendent of Police (B) Nagaon, shall take consequential action. 17. Registry shall send down a copy of this judgment and order to the learned court below so as to reach on or before 30/11/2015. Copies of this judgment and order shall be furnished to the Chief Secretary to the Government of Assam and Secretary, Ministry of Home Affairs, Govt. of India, for their perusal and necessary follow-up action.