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2015 DIGILAW 1544 (GAU)

Shamela Khatun @ Shubala Khatun v. Union of India

2015-12-18

P.K.SAIKIA, RUMI KUMARI PHUKAN

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JUDGMENT : Rumi Kumari Phukan, J. This appeal is directed against the judgment and order dated 31.08.2015 passed by the learned Single Judge in W.P.(C) No.2522 of 2012 whereby the impugned judgment so passed by the learned Member, Illegal Migrants (D) Tribunal, Barpeta in Case No.2134/03 (Reference Case No.1886(A), has been upheld and the appellant has been declared as foreigners. 2. We have heard Mr. M.U. Mahmud, learned counsel for the appellant. Also heard Mr. S.K. Ceyal, learned Assistant Solicitor General of India representing the Union of India and Mr. M. Bhagwati, learned Government Advocate, Assam. 3. It is the pleaded case of the appellant that inspite of having all the relevant documents in favour of the appellant’s citizenship, a case has been registered in the Illegal Migrants (D) Tribunal, Barpeta being Case No.2134/03 [Reference Case No.1886(A)]. The said Tribunal declared the appellant as foreign national of post 23.03.1971 by its ex-parte judgment dated 18.3.2005. Thereafter, the petitioner filed a writ petition being W.P.(C) No.2522 of 2012 before this Hon’ble Court challenging the ex-parte order so passed by the learned Tribunal, but the same was also dismissed by the learned Single Judge vide its order dated 31.08.2015. 4. The petitioner further stated that she has all the required documents to prove that she is an Indian citizen, but the learned Tribunal did not rely upon the said documents so submitted by the appellant. By raising the point towards the learned engaged counsel, it has been alleged that due to dereliction of duty of the engaged counsel who had not informed her about the second time proceeding of the case, has resulted in second ex-parte order against her. She has also filed a complaint against the said advocate before the Bar Council of Assam, which is still pending. But she has not made a party in this appeal although she was made a party in the writ proceeding so filed before the learned Single Judge. Referring about the conduct of the learned engaged counsel, it has been submitted that she has not been properly guided by the conducting lawyer for which she had defaulted in contesting the case properly and still she pray to allow her to give a chance to contest the case by setting aside the ex-parte order passed by the learned Tribunal, Barpeta. 5. 5. We have considered the rival submission of the learned counsel for both the parties and also have gone through the impugned orders under challenge and perused the documents available on record. 6. It is to be noted from the findings of the learned Tribunal vide its order dated 18.3.2005 that apart from filing W.S., the appellant failed to produce any documents before the learned Tribunal to prove her nationality. Accordingly, the learned Tribunal has declared her foreigner. 7. On the other hand, the learned Single Judge has also appreciated each and every submission so made before the Court. The fact that the petitioner (appellant herein) has filed the writ petition after more than seven years without any explanation as to the cause of delay, has been discussed. As regarding blaming on the engaged counsel, it has been discussed that the said advocate by filing affidavit has categorically replied that no any relevant document was submitted to the engaged counsel, save and except a certificate from the Gaon Burah and the appellant herself did not appear before the Court inspite of instructions given by her. So the learned engaged counsel has denied the allegation so made by the petitioner that she has not duly represented the petitioner nor had intimated her about the same. That apart, the learned Single Judge has also verified the records of the Tribunal wherefrom it reveals that the petitioner remained absent from 2003 to 2005 i.e. till 18.3.2005 inspite of giving ample opportunity to adduce her evidence. It has also been observed that the petitioner has taken recourse to falsehood by blaming the engaged counsel, whereas it was bounden duty on the part of the petitioner to discharge the burden i.e. to establish that she is an Indian citizen and thereby it has been held that the learned Tribunal was absolutely within its competence and jurisdiction to pass the ex-parte order and, as such, declined to interfere with the same. 8. It is to be noted that the appellant inspite of being aware about such pendency of the case against her where her nationality has been questioned and that in the event she fails to prove her nationality, she will be declared as foreigner, she has chosen to remain absent and did not produce any document to prove her case, which is a mandate of Section 9 of the Foreigner’s Tribunal Act. She has not made out any ground as to why she failed to produce all the relevant documents if it was in her possession. The appellant herself never tried to assert her own case and due to such inability to prove her case, the learned Tribunal by giving ample opportunity ultimately has decided the case ex-parte. 9. In Full Bench decision of this Court in the case of State of Assam & Anr. Vs. Moslem Mondal & Ors. Reported in (2013) 1 GLT 809 FB, it has been held that an ex-parte order cannot be set aside by a Tribunal in a regular manner and it is necessary to prove on the part of the petitioner that he was prevented by sufficient cause while appearing before the Tribunal. The contention of the appellant that she has enough documents to prove her citizenship cannot be considered at this stage, which she did not produce before the learned Tribunal. It is also seen that the present appeal has been preferred on the same ground as has been challenged before the learned Single Judge while preferring the writ petition. As has been discussed above, the aforesaid decision has been rendered by discussing all legal and factual aspects of the matter pertaining to the matters before the Foreigners Tribunal also. It can be safely held that both the judgments and orders under challenge suffer from no sort of infirmity and there is no good ground to interfere with the aforesaid orders. 10. In 2010(2) GLT 1 Moslem Mondal and ors Vs. Union of India and ors, it has been held – “ Writ proceeding not a substitute for a proceeding before the Tribunal - Appellants in a writ petition challenging the order of the Foreigners tribunal declaring them foreigners in an ex parte proceeding - Appellants in their writ petition bringing in certain new evidence to support their claim of being Indian citizens - Single Judge while justifying the ex parte proceeding also examining the new evidence of the appellants and holding that the same does not establish the claim of the appellants - Held, writ Court could have examined only the materials available before the Tribunal and not the new evidence.” 11. In view of the above proposition, neither the Single Judge had allowed nor this appellate Court can allow the appellant to rely upon the documents which was never produced before the learned Tribunal and there is no scope to interfere with the orders of the Tribunal as well. 12. In view of all above, we are of the considered opinion that the appeal is devoid of merit and is, accordingly, dismissed, with no order as to cost. 13. Send a copy of this judgment to S.P.(B), Barpeta and Deputy Commissioner, Barpeta, in order to take appropriate steps towards deportation of the appellant from India and deletion of her name from the voter list as has been directed in W.P.(C) No.2522 of 2012. A copy of the order be also sent to the Union of India in the Ministry of Home and State Government in the Home Department for necessary follow up action. Further, a copy of this order be also furnished to Mr. S.C. Keyal, learned Assistant Solicitor General of India for the respondents for appropriate action.