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2015 DIGILAW 1447 (GAU)

Maleka Khatun v. Union of India

2015-11-20

B.K.SHARMA, PARAN KUMAR PHUKAN

body2015
ORDER B.K. Sharma, J. - By means of this writ petition, the petitioner seeks to challenge the order dated 12.1.2009 (Annexure-11) of the Foreigners Tribunal (III), Barpeta passed in FT Case No. 160(III)/07 (Ref. Case No. 10393/98). By the said order, passed ex-parte, the petitioner was declared to be an illegal migrant. The Tribunal had to pass the impugned order ex-parte as the petitioner did not respond to the proceeding after filing written statement. 2. I have heard Mr. K. Bhuyan, learned counsel for the petitioner. Also heard Mr. M. Bhagawati, learned State Counsel and Mr. S.C. Keyal, learned ASGI. I have also considered the entire materials on record. 3. It appears that the petitioner after filing written statement failed to adduce any evidence towards discharging the burden of proof as envisaged under Section 9 of the Foreigners Act. 1946, about which detail discussions have been made in Sarbabanda Sonowal v. Union of India reported in AIR 2005 SC 2920 . Coming to the Writ Court, the petitioner has urged the following ground for non-appearance before the Tribunal. "11. That the petitioner most respectfully submits that all the relevant document for proving her nationality was furnished to her engaged Advocate and accordingly was furnished before the Tribunal but without due procedure that is to be exhibited at the time of evidence of D.W.-1. The said young Advocate never informed the petitioner to appear before the court for adducing her evidence and also the said Advocate due to inefficiency of knowledge could not exhibit the relevant documents as per procedure. Therefore, it is a procedural defects from the sides of the young engaged Advocate. The petitioner is illiterate and layman. She does not know how to and in what manner the documents is to be furnished before the Tribunal. Even the engage Advocate for the petitioner did not appear at the time of argument in record of this case. That the learned Foreigner Tribunal never informed the petitioner regarding continuous absent of the engaged Advocate of the petitioner in connection of this case. Further no order was passed by the Tribunal regarding absence of the engage Advocate. How many dates was fixed for argument in absence of engage Advocate of the petitioner not found on record. The petitioner approached several times to her engage Advocate to get information of the proceeding in connection of the said case. Further no order was passed by the Tribunal regarding absence of the engage Advocate. How many dates was fixed for argument in absence of engage Advocate of the petitioner not found on record. The petitioner approached several times to her engage Advocate to get information of the proceeding in connection of the said case. But in reply the said Advocate told that every thing was going on properly in support of the petitioner. And later on the petitioner in doubt approach before eh said Tribunal and found that one judge and order dated 12-01-2009 has been passed against her claim. Thereafter she applied for certified copy of such judgment and order on 26-02-2009 which she received the certified copy of the said judgment and order on 14-05-09 and after gone through the judgment and order she come to know that she has declared as foreigner by the learned court of Foreigner Tribunal which is purely impugned, illegal and arbitrary in the eye of law." 4. In the decision of State of Assam v. Moslem Mondal, reported in 2013 (1) GLT (FB) 809, the Full Bench of this Court has held that the Tribunal is empowered to set aside an ex-parte order only upon showing special/exception circumstances, otherwise the very purpose of enacting the Foreigners Act and Foreigners (Tribunal Order would be frustrated. 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. 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 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. By no stretch of imagination, the ground assigned in the above quoted paragraph-9 of the writ petition cannot be said to be special/exceptional circumstances towards setting aside the ex-parte order. 6. During the course of hearing of this proceeding, the petitioner has produced the purported certified copy of the voter list of 1970. On perusal of which, prima facie a doubt arose and accordingly the following order was passed on 29.9.2015. "Heard the learned counsel appearing for the parties at some length. Hearing remains inconclusive. On perusal of the voter lists of 1966 and 1970 annexed to the writ petition, there is some doubt about the authenticity of the voter list of 1970. The learned counsel for the petitioner has produced the purported certified copy of the same containing the name of Padmalochan Bhuyan. However, the name appears to be inserted at a later stage after deleting the earlier words. Similarly, there is overwriting in the letters "1970"; "153" and "154". In view of the above, Mr. Sk. Nur Mohammad, learned State counsel is requested to get the same verified through the Deputy Commissioner, Barpeta and to obtain a report about the authenticity of the said certified copy of the voter list of 1970. The said certified copy is handed over to Mr. SK Nur Mohammad, learned State counsel for his necessary follow up action. List the matter for further hearing on 6th October 2015. Let a copy of this order be furnished to Mr. SK Nur Mohammad, learned State counsel." 7. Mr. M. Bhagawati, learned State Counsel, has produced the letter dated 29.9.2015 of Mr. SK Nur Mohammad, learned State counsel for his necessary follow up action. List the matter for further hearing on 6th October 2015. Let a copy of this order be furnished to Mr. SK Nur Mohammad, learned State counsel." 7. Mr. M. Bhagawati, learned State Counsel, has produced the letter dated 29.9.2015 of Mr. S.K. Noor Mohammed, leaned Standing Counsel addressed to the Deputy Commissioner, Barpeta enclosing therewith the doubtful certified copy of the voter list of 1970 seeking report upon enquiry, Pursuant to the said letter, the Deputy Commissioner, Barpeta has addressed the letter dated 13.10.2015 to the learned State Counsel enclosing therewith the letter dated 12.10.2015 of the Election Officer, Barpeta addressed to the Deputy Commissioner, Barpeta. Along with the said letter, relevant document has also been enclosed. As per the report of the Election Officer, Barpeta, the suspected document produced as certified copy of voter list of 1970 is not genuine. It neither resembles to the voter list of 1966 nor 1970. On enquiry, it was found that the said document is a tampered one. For a ready reference, the said letter is reproduced below: “Govt. of Assam Office of the Deputy Commissioner, Barpeta (Election Branch) To Deputy Commissioner, Barpeta Sub: Inquiry report on WP(C) No. 2525/2009 in the matter of Maleka Khatun v. The State of Assam and others. Ref: Letter No ADDLSRGA/NM/2015/7437 dated 29/09/2015 Sir, With reference to the above and as per your direction I have the honour to cause an inquiry on certified copy of Electoral Roll 1970 in connection with WP(C) No. 2525/2009 as follows- The suspected documents produced as certified copies of voter list 1970 is not genuine. The detail of the suspected document is thoroughly checked with voter list of 1970/1966 and issue register of issuing office i.e. office of the Election Officer, Barpeta. As per issue register, the certified copy bearing issue No. 2753 dated 09/06/2009 issued from the office of the Election Officer, Barpeta does not belonged to the voter list of 1970 rather of voter list -1966 on which the information relating to the voters should have been as - (Voter list of 1966 as Annexure as 'A') Sl. As per issue register, the certified copy bearing issue No. 2753 dated 09/06/2009 issued from the office of the Election Officer, Barpeta does not belonged to the voter list of 1970 rather of voter list -1966 on which the information relating to the voters should have been as - (Voter list of 1966 as Annexure as 'A') Sl. No. House No. Name of Election Relation Sex Age 109 27 Ajgar Ali Jainuddin M 30 110 27 Jabeda Vanu Ajgar Ali F 24 Whereas the information of said voter in the voter list of 1970 were as - (Voter list of 1970 as Annexure-'B') Sl. No. House No. Name of Election Relation Sex Age 153 27 Ajgar Ali Jainuddin M 34 154 27 Jabeda Vanu Ajgar Ali F 28 The suspected document produced to the Hon'ble Gauhati High Court is neither resembles the voter list - 1966 nor voter list - 1970. On enquiry it is found that the said document is tempered with as (i) 'A' - 70' of 1970, (ii) 'B' - Sl. No. of voter as 153 and 154 and (iii) 'C' - Name of 'Electoral Registration Officer' as "Padmalochan Bhuyan" if the same is considered to be a copy of voter list 1970. Again, the suspected produced document depicted as voter list of 1970 does not match with - (i) 'D' - Bhanu inplace of Khatun and (ii) 'E' - age as 30 & 24 in place of 34 & 28 respectively for Ajgar Ali & Jabeda Bhanu (Mispatched information found in the suspected produced document are exhibited as 'A', 'B', 'C', 'D' & 'E' over the body of the document which is annexed as Annexure 'C'). This is for favour of your kind information and necessary action." 8. Mr. K. Bhuyan, learned counsel for the petitioner referring to the written statement filed before the Tribunal submits that the Tribunal ought to have been considered the said written statement in spite of answering the reference against the petitioner expert. We are afraid such a plea of the learned counsel for the petitioner cannot be accepted inasmuch as the burden of proof is always on the proceedee to establish that he/she is not a foreigner. 9. On perusal of the records, received from the Tribunal, it is found that at the initial stage of the proceeding, the petitioner kept on taking time. 9. On perusal of the records, received from the Tribunal, it is found that at the initial stage of the proceeding, the petitioner kept on taking time. However, she filed her written statement on 12.11.2007. Thereafter she did not adduce any evidence to prove the contentions raised in the written statement nor produce any document to establish that she is an Indian citizen. Finally she remained absent on 15.12.2008, 29.12.2008 and 21.1.2009. 10. Above being the position, the Tribunal had no other option than to pass the ex-parte order. 11. For all the aforesaid reasons coupled with the forgery which the petitioner has taken recourse to, we do not find any merit in the writ petition. Accordingly, the writ petition is dismissed. 12. Let copies of this order be furnished to Mr. M. Bhagawati, learned State Counsel and SP (Border), Barpeta and Deputy Commissioner, Barpeta 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.