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2015 DIGILAW 1525 (GAU)

Ayub Ali (Md. ) v. Union of India

2015-12-15

P.K.SAIKIA, RUMI KUMARI PHUKAN

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JUDGMENT : P.K. Saikia, J. This appeal is directed against the judgment and order dated 26.02.2015, rendered by the learned Single Judge in WP(C) No. 2960/2012 dismissing the writ petition refusing to interfere with the judgment dated 23.02.2012, rendered by the Foreigners Tribunal (1st), Morigaon (in short, "the Tribunal") in FT Case No. 49/2007. 2. We have heard Mr. HRA Choudhury, learned senior counsel assisted by Mr. F. U. Borbhuiya, learned counsel appearing for the appellants and also heard Mr. S.C. Keyal, learned Asstt. S.G.I. appearing for the Union of India as well as Mr. P.S. Deka, learned GA, appearing for the State respondents. 3. The brief facts necessary for disposal of the present appeal are that in 1997 the SP(B) made a reference to the IMDT, Morigaon requesting it to ascertain the citizenship status of the appellant No. 1 and 2 herein who are father and mother respectively of appellant No. 3 and 4. During pendency of the aforesaid case the decision in Sarbananda Sonowla v. Union of India and Ors., reported in (2005) 5 SCC 665 was rendered under which the IMDT Act stood null and void and all the cases pending before the IMDT stood transferred to the respective Foreigners Tribunals constituted under the Foreigners Act, 1964. 4. Accordingly, notice was served by the Tribunal on the appellants herein. Appellants entered appearance on 20.04.2007 and filed W.S. as well. In the meantime, 2 witnesses were examined from the side of State and case was posted for evidence on 14.06.2011. On 14.06.2011, a petition was filed on the ground that appellants could not collect the necessary documents. 5. Such prayer was accepted and proceeding was posted for evidence of the appellants on 16.08.2011. On that day, the appellants again prayed for adjournment on the ground of illness. Accordingly, prayer was accepted and case was posted for evidence on 14.11.2011. However, no certificates showing the illness of witnesses were produced before the Tribunal. 6. On 14.11.2011, the appellants filed another application praying for adjournment on the ground that they could not collect necessary documents to establish their citizenship status. Such adjournment was also sought for on the ground of illness of the witnesses. Said prayer too was accepted although the adjournment sought on the ground of illness of witnesses was not supported by medical documents and next date was fixed on 23.02.2012. 7. Such adjournment was also sought for on the ground of illness of the witnesses. Said prayer too was accepted although the adjournment sought on the ground of illness of witnesses was not supported by medical documents and next date was fixed on 23.02.2012. 7. Vide order dated 14.11.2011, it was also stated that if the appellants failed to produce his witness on the next date, then the case would be disposed of in accordance with law. On 23.02.2012, the appellants again prayed for time on the ground that they could not collect the necessary document to establish their case that they are Indian Citizen. 8. However, the Tribunal rejected such prayer holding that such prayer lacks merit and accordingly the Tribunal disposed of the case ex-parte holding that the appellants entered India after 25.03.1971 and accordingly, ordered their deportation to the country of their origin vide order dated 23.02.2012. 9. Being aggrieved, the appellants approached this court by the way of WP(C) No. 2960/2012 seeking quashment of the order dated 23.02.2012. Notice of such proceeding was served on the State respondents. State respondents entered appearance and contested the proceeding stating that the writ proceeding needs to be dismissed since it lacks merit. On hearing both the sides, learned Single Judge was pleased to dismiss the same which is now, questioned in the present appeal. 10. Mr. Choudhury, learned senior counsel appearing for the appellants submits that the order aforesaid needs to be quashed and set aside since the appellants were not granted enough time by the Tribunal to establish their case that they are Indian citizens. It was contended that since the order rendered by the Tribunal is unsustainable in law and same could not have been affirmed by the learned Single Judge under the order dated 26.02.2015 rendered in WP(C) No. 2960/2012. 11. This contention was, however, opposed to by the learned counsel for the respondents. Referring to the order of 1964, passed in exercise of the power conferred on the Union of India u/s 3 of the Act of 1964, (in short, Act of 1964), Mr. Keyal, ASGI submits that the Tribunal is duty bound to dispose of a proceeding initiated there-under within a period of 60 days from the receipt of the reference. 12. Referring to the order of 1964, passed in exercise of the power conferred on the Union of India u/s 3 of the Act of 1964, (in short, Act of 1964), Mr. Keyal, ASGI submits that the Tribunal is duty bound to dispose of a proceeding initiated there-under within a period of 60 days from the receipt of the reference. 12. But in the present case, the Tribunal took years to dispose of the proceeding in question and it was mainly for the appellants/petitioners seeking adjournment after adjournment. In view of above, it cannot be said that the Tribunal had committed an error in rendering the judgment which is questioned in WP(C) No. 2960/2012. 13. He further submits that section 9 of the F.T. Act 1946 requires that the duty of proving that a person is an Indian citizen is on the person who claims to be Indian citizen, and not, on the State. Unfortunately, despite granting several adjournments, the appellants herein failed to discharge their burden which law enjoins upon them. Being so, having passed the order declaring the appellants as foreigner, the Tribunal had committed no wrong whatsoever. 14. We have considered the rival submissions having regard to the judgment under challenge and the pleadings of the parties. For ready reference the relevant part of the judgment is reproduced below:- "7. I have considered the submissions of the learned counsel for the parties and have perused the materials on record including the records of the Tribunal, which has been called for. 8. The petitioners herein belong to one family. The petitioner No. 1 is the husband of petitioner No. 2 and father of petitioner Nos. 3 and 4. It appears that there was a case registered against the petitioner Nos. 1 and 2 under the IMDT Act. Consequent upon the Hon'ble Supreme Court striking down the IMDT Act, 1983 and the Illegal Migrants (Determination by Tribunals) Rules, 1984, for short, IMDT Rules, 1994, as unconstitutional, in terms of the directions contained in the said judgment all pending cases stood transferred to the Tribunal constituted under the Foreigners (Tribunals) Order, 1964, for short, the Order of 1964 and are to be decided in the manner provided in the Foreigners Act, 1946, for short, the Act of 1946 and the Rules made there under and the procedure prescribed under Order of 1964. 9. 9. The Tribunal has issued a notice dated 01.03.2007 to the petitioners indicating that the Superintendent of Police (Border), Morigaon had submitted a report that they are suspected to have illegally entered India after 25.03.1971 and are residing in India in the present address of the petitioners. By the said notice dated 01.03.2007, the petitioners were directed to submit written statement on 20.04.2007 failing which, it was indicated that the case would proceed ex-parte against them. 10. The petitioners appeared before the Tribunal and presented their written statement on 20.04.2007. Two witnesses were examined on behalf of the State. On 14.06.2001, case was posted for evidence of the petitioners. On 16.08.2011, on the ground of ailment, petition for adjournment was filed and accordingly, case was posted for evidence on 14.11.2011, after 3 months. On 14.11.2011, a petition was filed on behalf of the petitioners praying for adjournment on the grounds that they have not been able to collect their documents as well as due to sickness of the witnesses. On both the occasions, namely on 16.08.2011 and 14.11.2011, while granting adjournment, the Tribunal had noted that medical certificates were not produced. The Tribunal also noted in the order dated 14.11.2011 that the plea that they have not been able to collect the documents at that distance of time, could not be considered to be a reasonable ground for granting adjournment. Nevertheless, one more opportunity was granted to produce the documents by fixing the matter after more than 3 months on 23.02.2012. It was also recorded in the said order that if on the next date fixed, the witnesses were not ready with their documents, the Tribunal will dispose of the case in accordance with law. 11. Once again a petition was filed on 23.02.2012 praying for adjournment on the ground that though they had applied for voter list, they had not received the same. The Tribunal rejected the prayer for adjournment and in absence of any evidence on the side of the petitioners, proceeded to hold that petitioners to be illegal migrants entering India after 25.03.1971. 12. The Tribunal rejected the prayer for adjournment and in absence of any evidence on the side of the petitioners, proceeded to hold that petitioners to be illegal migrants entering India after 25.03.1971. 12. Section 9 of the Act of 1946 provides that if in any case not falling under Section 8 any question arises with reference to the Act or any order made or direction given there under, whether any person is or not a foreigner of a particular class or description, the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall notwithstanding anything contained in the Indian Evidence Act, 1872, shall lie upon such person. A Full Bench of this Court in the case of State of Assam & Ors., v. Moslem Mondal & Ors., reported in 2013(1) GLT (FB) 809, had held that Section 9 of the Act of 1946 imposes a burden on the proceedee to prove that he is not a foreigner. It was further held that the State is not required to adduce evidence even in an ex-parte proceeding as the burden lies on the proceedee to prove to the satisfaction of the Tribunal that he is not a foreigner. 13. It is also relevant to note that in exercise of powers conferred by Section 3 of the Act of 1946, the Central Government had made certain amendments in the Order of 1964. Paragraph 3 of Order of 1964 is substituted and presently, paragraph 3(9) of the said order reads as follows:- "After the case has been heard, the Tribunal shall submit its opinion as soon as thereafter as may be practicable, to the officer or the authorities specified in this behalf in the order of reference. Every case should be disposed of within a period of 60 days after the receipt of the reference from the competent authority." 14. Thus, in view of the above, every case should be disposed of within a period of 60 days from the date of receipt of the reference from the competent authority. However, this amendment was effected after the Tribunal had rendered the impugned judgment. But it goes without saying even in absence of a time frame, the reference were to be disposed of within a reasonable period of time having regard to the issue involved. However, this amendment was effected after the Tribunal had rendered the impugned judgment. But it goes without saying even in absence of a time frame, the reference were to be disposed of within a reasonable period of time having regard to the issue involved. The Full Bench in Moslem Mondal (supra) had also noted about this aspect of the matter and had observed that speedy trial is a fundamental right which is guaranteed under Article 21 of the Constitution of India and that while there can be no denying of the fact that in the name of detection and deportation of foreigners, India citizen should not be harassed, it is equally true that the reference proceeding must also be disposed of at the earliest so that foreigners can be deported from India immediately as otherwise it would be against notional interest. 15. That the petitioners did not adduce any evidence is not in dispute. The thrust of the argument of the learned counsel for the petitioners is that the petitioners have been denied reasonable opportunity to enable them to discharge the burden cast upon them by Section 9 of the Act of 1946 and one more opportunity should be granted to them. 16. Principles of natural justice cannot be put into a strait-jacket formula. It is more than three decades that the issue of influx of foreign nationals has been in public domain in the State of Assam. Process of determination of question of citizenship cannot be a one -way traffic, leaning only in favour of a person whose citizenship is doubted. Interest of the State is also of paramount importance in that unabated influx has the potential to affect the integrity and sovereignty of the country. Citizenship of a person, no doubt, is a very valuable right and should be zealously guarded. However, if a person does not take steps for safeguarding his interest, he does so at his own peril. Right to a fair hearing or principles of natural justice cannot be permitted to lead to a farcical situation and to be an engine for defeating the very object of identification and deportation of foreigners. The petitioners had known about the allegations against them that they are foreigners entering India with any valid documents, at least from 2007, even ignoring the earlier part under the IMDT Act from 1997. The petitioners had known about the allegations against them that they are foreigners entering India with any valid documents, at least from 2007, even ignoring the earlier part under the IMDT Act from 1997. The petitioners, all these years, apparently, did not take any step to defend their rights in the Court proceedings. In the circumstances, I am not inclined to grant any further opportunity to the petitioners as any such course of action, according to the perception to the Court, would be self-defeating." 15. On considering the matter in its entirety, we have found no infirmity in the judgment under challenge since it was found well evident that appellants had been granted sufficient opportunity to show that they are citizens of India but they fail to utilise all those opportunities. 16. Being so, we have found that the judgments under challenge does not suffer from any infirmity and as such, the present appeal is liable to be dismissed. Resultantly, the present appeal is dismissed. 17. The State respondents are directed to deport the appellants to the country of their origin accordingly in accordance with the prescription of law.