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2015 DIGILAW 1458 (GAU)

Jamir Ali @ Abdul Jamir v. State of Assam

2015-11-23

B.K.SHARMA, PARAN KUMAR PHUKAN

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JUDGMENT : B.K. Sharma, J. Heard Mr. M.U. Mahmud, learned counsel appearing for the petitioner. We have also heard Mr. M. Bhagabati, learned State counsel and so also Mr. S.C. Keyal, learned Assistant S.G.I. We have considered the submissions advanced by the learned counsel appearing for the parties and have also perused the materials available on record including the LCR received from the Tribunal. 2. This writ petition is directed against the judgment and order dated 23.05.2012 of the learned Foreigners Tribunal, Nalbari passed in F.T. (Nal) Case No. (N) 14/2007 (Police Reference No. 22/2006) (Jamir Ali @ Abdul Jamir v. the State of Assam). 3. By the said order, passed ex-parte, the petitioner has been declared to be a foreigner of post 25.03.1971. The order, so passed, is upon failure of the petitioner to discharge his burden of proof as envisaged under Section 9 of the Foreigners Act, 1946. 4. On perusal of the materials on record including the records received from the Tribunal, it is found that the petitioner upon service of notice, appeared before the tribunal on 13.06.2008 and prayed for time to file written statement. Prayer was allowed, fixing the matter on 27.06.2008, on which date, he did not appear. However, the learned Tribunal granted him another chance to file written statement and fixed the matter on 20.08.2008. On 20.08.2008, the petitioner filed written statement and photo copies of some documents. The matter was fixed for evidence and hearing on 15.11.2008 on which date, the petitioner filed an application praying for time which was allowed and the next date was fixed on 13.01.2009. On 13.01.2009, the petitioner remained absent without any step. However, the Tribunal fixed the matter on 30.01.2009. The petitioner appeared on 09.04.2009 and the matter was adjourned till 21.04.2009. Thereafter, certain dates were fixed for hearing and the petitioner remained absent on 30.12.2009, 26.04.2010, 11.05.2010, 06.07.2010, 16.09.2010, 28.12.2010, 26.05.2011, 09.08.2011, 01.11.2011, 03.01.2012, 03.02.2012, 06.03.2012 and finally on 23.05.2012. 5. Above being the conduct of the petitioner, the tribunal had no other option than to proceed ex-parte in the matter with the eventual passing of the ex-parte order dated 23.05.2012. 6. Coming to the writ Court, the petitioner has assigned the following ground for non-appearance:- "7. 5. Above being the conduct of the petitioner, the tribunal had no other option than to proceed ex-parte in the matter with the eventual passing of the ex-parte order dated 23.05.2012. 6. Coming to the writ Court, the petitioner has assigned the following ground for non-appearance:- "7. That the petitioner begs to state that even after having all the annexed documents, the Superintendent of Police (B), Nalbari doubted his citizenship and made a reference to the Ld. F.T. Nalbari for opinion in an illegal manner and without the knowledge of the petitioner. Thereafter, a case was registered being F.T. (Nal) Case No. (N)/14/07 and notice was sent to the petitioner to prove his citizenship. After receiving notice, the petitioner engaged advocate of Nalbari Bar namely, Abed Ali, i.e. the Respondent No. 4 and handed over all the relevant documents to the engaged Advocate. The Advocate took several dates and thereafter, filed a written statement on 28.08.2008, wherein some documents were annexed and in that written statement the petitioner claimed as Indian citizen. But later on, the Ld. Counsel remained absent without any step. Hence, the Ld. F.T. proceeded with the case Ex-parte and declared the petitioner as a Foreign National vide order dated 23.05.2012 and held that he has migrated from Bangladesh in 1971. The Ld. Counsel took signatures of the petitioner in different papers, took fees and told him that he will inform the petitioner when evidence has to be adduced in support of WS but he did not inform anything later on, and consequently, the impugned order has been passed. For such dereliction of duty on the part of his lawyer, the petitioner has already filed a complaint before the Bar Council of Assam, Nagaland etc. on 04.06.2012." 7. Mr. Mahmud, learned counsel for the petitioner placing reliance on the decision of the Full Bench in the case of State of Assam v. Moslem Mandal reported in 2013(1) GLT (FB) 809; unreported judgment and order dated 04.10.2013 passed in Writ Appeal No. 216/2013 (Fajar Ali @ Phajar Ali v. Union of India and Ors.) and the order dated 13.08.2013 passed in WP(C) No. 2726/2013 submits that the tribunal committed manifest error of law in deciding the reference ex-parte. He further submits that in the given facts and circumstances, the impugned ex-parte order is required to be set aside remanding the matter back to the tribunal for fresh adjudication. He further submits that in the given facts and circumstances, the impugned ex-parte order is required to be set aside remanding the matter back to the tribunal for fresh adjudication. 8. Mr. M. Bhagabati, learned State counsel and Mr. S.C. Keyal, learned Assistant S.G.I, opposing the aforesaid submission submits that the petitioner having been provided with sufficient opportunity to discharge the burden of proof as envisaged under Section 9 of the Foreigners Act, 1946 and he having been failed to avail the same, the tribunal was justified in passing the impugned order ex-parte. 9. We have given our anxious consideration to the submissions made by the learned counsel for the parties and have also perused the entire materials available on record including the record received from the tribunal. 10. As to what is the ground of non-appearance is noted above. As per the requirement of Section 9 of the Foreigners Act, 1946, the burden of proof is always on the proceedee to establish that he/she is not a foreigner. A proceeding before the tribunal is not like that of a writ proceeding in which documents are annexed, affidavit is sworn and filed. In the proceeding before the Tribunal, it is for the proceedee to demonstrate towards discharging the burden of proof under Section 9 of the Foreigners Act, 1946 that he/she is not a foreigner. 11. As noted above, the petitioner after the initial appearance and filing of written statement and photo copies of some documents did not come forward to discharge the said burden of proof and now coming to the writ Court, has blamed the engaged counsel as if it was the duty of the engaged counsel to adduce evidence in absence of the petitioner. In Moslem Mandal (Supra), the Full Bench held that the tribunal, although, has jurisdiction to entertain an application for setting aside an ex-parte order but the same must not be a routine manner otherwise the very purpose of enacting the Foreigners Act, 1946 and the Foreigners Tribunal (order) 1946 would be frustrated. The tribunal, therefore, would have the jurisdiction to reject such application at the threshold, if no ground is made out. 12. Mr. Mahmud, learned counsel for the petitioner submits that the petitioner is required to be given a chance to pray before the tribunal to set aside the ex-parte order. The tribunal, therefore, would have the jurisdiction to reject such application at the threshold, if no ground is made out. 12. Mr. Mahmud, learned counsel for the petitioner submits that the petitioner is required to be given a chance to pray before the tribunal to set aside the ex-parte order. As to what is the ground for setting aside the ex-parte order has been noted above. It is only upon showing special/exceptional circumstances, an ex-parte order can be set aside. The ground assigned in the writ petition cannot be said to be special/exceptional ground towards setting aside an ex-parte order. The need for early disposal of the reference need to be emphasized. It is for this purpose, the Apex Court by its order dated 14.12.2014 passed in Assam Sanmilita Mahasangha and others v. Union of India reported in 2015 (1) GLT (SC) 191, ordered for constitution of more tribunals for expeditious disposal of the references. By bringing an amendment to the 1964 order, it has been provided that a procedee may be entitled to maximum 10 (ten) days time and the references are to be decided within 60 (sixty) days. These are sound and good provision, inasmuch as, a proceeding/reference against a suspected foreigner, by no stretch of imagination can be prolonged, but is required to be disposed of at the earliest. 13. In the instant case, in spite of getting several opportunities, the petitioner did not respond to the proceeding before the tribunal and now coming to the writ Court, has played the blame game towards making the prayer for setting aside the ex-parte order. The respondent No. 4, i.e., the engaged counsel has filed counter affidavit denying the aforesaid plea of the petitioner. In the said affidavit, he has stated that after filing the written statement and xerox copies of some documents, the petitioner did not come forward to produce the originals and adduce evidence. It has also been stated that the petitioner did not keep any contact with him. 14. The writ proceeding is not a proceeding to adjudicate the above type of complaint made by the suspected foreigner. It has also been stated that the petitioner did not keep any contact with him. 14. The writ proceeding is not a proceeding to adjudicate the above type of complaint made by the suspected foreigner. It is the common experience of this Court that in an ex-parte proceeding and order, the proceedee files writ petition blaming the engaged advocate for improper conduct of the proceeding, unmindful of the own duty towards discharging the burden of proof in terms of Section 9 of the Foreigners Act, 1946. 15. In that view of the matter, we are of the considered opinion that the decision in Moslem Mandal (Supra) is totally misplaced. It cannot help the case of the petitioner. The Division Bench decision in Fajar Ali (Supra) is also no help to the case of the petitioner. In the said case, an order passed by the then IM(D)T, Barpeta, constituted under the provisions of the Illegal Migrants (Determination) by Tribunals Act, 1983 (in short, "1983 Act") was challenged. Although there was delay but some amount of explanation was furnished. The IM(D)T Act has been scrapped by the Apex Court in Sarbananda Sonowal v. Union of India and Anr., reported in (2005) 5 SCC 665 . Under the said set, the burden of proof was on the state to establish that the suspected is a foreigner. It was in such circumstances, the matter was remanded back to the Foreigners Tribunal. However, after the aforesaid decision an issue being raised as to whether after the order passed by IM(D)T, the matter can again be remanded back to the Foreigners Tribunal, the Full Bench in Anowar Ali v. State of Assam reported in 2014(3) GLT (FB) 500, held that the cases already decided by the then IM(D)T cannot be reopened and tried afresh before the Foreigners Tribunal. The issue before the Full Bench was as to whether after scraping of the IM(D)T Act, 1983 in Sarbananda Sonowal (Supra), the judgment and orders of the IM(D)T could be reopened and tried afresh before the Foreigners Tribunal. Answering the said question in the negative, the Full Bench held that the judgment and orders delivered by the IM(D)T before scraping of the IM(D)T Act cannot be reopened and tried afresh by the Foreigners Tribunal. 16. Above being the position, the Division Bench judgment even otherwise also does not help to the cases of the petitioner. Answering the said question in the negative, the Full Bench held that the judgment and orders delivered by the IM(D)T before scraping of the IM(D)T Act cannot be reopened and tried afresh by the Foreigners Tribunal. 16. Above being the position, the Division Bench judgment even otherwise also does not help to the cases of the petitioner. The decision in Sabed Ali v. Union of India has been pressed into service to submit that the matter is required to be remanded back to the tribunal enabling the petitioner to file an application for setting aside the ex-parte order. As noted above, as per the Full Bench decision in Moslem Mandal (Supra), it is only upon showing special/exceptional circumstances, the tribunal can set aside an ex-parte order. 17. In the instant case, we ourselves have considered the ground assigned in the writ petition for setting aside the ex-parte order. In the facts and circumstances of the case, the above decision is also of no help to the case of the petitioner. Needless to say that the ratio of a decision will have to be understood in the background fact of each case. It has been said long time ago that the ratio of a decision is an authority for that it actually decides, and not what logically follows from it. 18. On perusal of the records received from the tribunal, it is found that along with the written statement the petitioner submitted photo copies of some documents which include the certificates of Gaon Burha and Gaon Panchayat dated 04.06.2008 certifying the petitioner to be a resident of the particular locality. The petitioner also produced photo copies of the purported NRC of 1951 furnished by the Kamrup District Jamiat Ulema. We are afraid this document cannot be said to be NRC, inasmuch as, no political party is entitled to furnish NRC. The land holding certificate produced by the petitioner being dated 25.05.2005 is of no help to the case of the petitioner as the cutoff date is 25.03.1971. The two voter lists on which the petitioner placed reliance are also photo copies. Needless to say that the photo copies are inadmissible in evidence. Moreover, the petitioner also failed to establish any linkage to the persons named in the said voter list. 19. The two voter lists on which the petitioner placed reliance are also photo copies. Needless to say that the photo copies are inadmissible in evidence. Moreover, the petitioner also failed to establish any linkage to the persons named in the said voter list. 19. Above discussion relating to the documents produced by the petitioner before the tribunal is not to record any filing on the basis of the said documents. As has been held by the Division Bench of this Court in Moslem Mandal v. State of Assam reported in (2010) 2 GLT 1, the writ Court can examine only the materials/evidence produced before the tribunal and not any new evidence. Apart from the fact that the petitioner cannot be permitted to lead evidence in the writ proceeding, the petitioner also been failed to prove the documents submitted before the tribunal, and thereby failed to discharge the burden of proof as envisaged under Section 9 of the Foreigners Act, 1946. 20. For all the reasons aforesaid, we do not find any merit in the writ petition and accordingly, it is dismissed. 21. Now, the Superintendent of Police (B), Nalbari shall ensure that the petitioner is arrested and detained in the detention camp till his deportation to his country of origin i.e., Bangladesh. The Deputy Commissioner, Nalbari shall rensure deletion of the name of the petitioner from the voter list, if any. 22. Let the matter be listed again after one month so as to submit report by the Superintendent of Police (B), Nalbari about the action taken in terms of this order. 23. The Registry shall send down the case records to the learned court below along with a copy of this judgment and order. A copy of the judgment and order may also be furnished to Mr. M. Bhagabati, learned State counsel for his immediate necessary follow up action. Copies shall also be sent to the SP(B), Nalbari and Deputy Commissioner, Nalbari for their immediate follow up action.