Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 1552 (GAU)

Abdul Matin v. Union of India

2015-12-22

P.K.SAIKIA, RUMI KUMARI PHUKAN

body2015
JUDGMENT : P.K. Saikia, J. This appeal is directed against the ex-parte order dated 14.06.2013, rendered by the learned Member, Foreigners Tribunal (in short, the tribunal), Diphu, Karbi Anglong in F. T. Case No. 107/2006 (c) (Police Case No. 529/2000) declaring the appellant herein, namely Abdul Matin to be a foreigner as well as order dated 23.07.2015, rendered by the learned Single Judge in WP(C) No. 5609/2013 affirming the judgment of the learned Foreigners Tribunal rendered in F. T. Case No. 107/2006 (c). 2. Being aggrieved by the aforesaid judgments, the appellant has preferred this appeal questioning the legality, propriety and correctness of the aforesaid judgments. 3. We have heard Mr. M. U. Mahmud, learned counsel for the appellant and also heard Mr. S.C. Keyal, learned A. S.G. I. for the Union of India as well as Mr. M. Bhagwati, learned G.A., for the State respondents. 4. The facts, necessary for disposal of the present appeal, in short, are that a reference was made to the IMDT, Diphu seeking status on the nationality of the appellant herein. However, proceeding registered on such a reference stood transferred to concerned F.T., in view of decisions rendered by the Hon'ble Apex Court of the Country in the case ofSarbananda Sonowal v. Union of India reported in AIR 2005 SC 2920 . 5. After the transfer of the case, the Tribunal ordered issuance of notice afresh upon the appellant who was opposite party in earlier round of proceeding. Record reveals that after remaining absent for some time, the appellant herein subsequently entered appearance and prayed for time to file W.S. Accordingly, the case was posted on 18.06.2010 and on such a date, the appellant had filed W.S. and the proceeding was posted for evidence on 06.09.2010. 6. Thereafter, the case remained posted for evidence for some time till 27.07.2011. However, on 27.07.2011, the appellant remained absent without any step. Thereafter, subsequently on 17.10.2011, the appellant as opposite party therein again remained absent without any step. The proceeding was, therefore, adjourned till 30.11.2011. On 30.11.2011 when the Tribunal found the opposite party still remained absent, and that too, without any step, it ordered issuance of notice afresh on the opposite party fixing 27.02.2012 for appearance and evidence. 7. On 29.02.2012, the opposite party entered appearance and prayed for time to file "affidavit W.S. and evidence" which was allowed. On 30.11.2011 when the Tribunal found the opposite party still remained absent, and that too, without any step, it ordered issuance of notice afresh on the opposite party fixing 27.02.2012 for appearance and evidence. 7. On 29.02.2012, the opposite party entered appearance and prayed for time to file "affidavit W.S. and evidence" which was allowed. On 14.05.2012, the case was fixed for filing "affidavit W.S. and evidence". On 14.05.2012 on the prayer of appellant herein the case was again posted on 29.08.2012 for "affidavit W.S. and evidence". On 29.08.2012, the opposite party remained present and presumably he did not file "affidavit W.S. and evidence" for which case was adjourned till 08.11.2012. 8. On 08.11.2012, though the opposite party was present, he did not file "affidavit W.S. and evidence" for which the case was again posted on 28.01.2013 for "affidavit W.S. and evidence". On 28.01.2013, the appellant was present and presumably on his prayer, the proceeding was posted on 08.04.2013 for "affidavit W.S. and evidence". On 08.04.2013, the opposite party again remained absent without any step and the case stands adjourned till 23.05.2013 for necessary order. 9. On 23.05.2013 too, opposite party remained absent, and that too, without any step and as such, the learned Tribunal was pleased to fix the proceeding on 14.06.2013 for ex-parte hearing. Since the opposite party also remained absent on 14.06.2013, the tribunal was pleased to hear the matter ex-parte and was also pleased to pass an ex-parte order declaring the appellant herein as foreigner. 10. For ready reference, same is reproduced below: - "14. 06.2013:-This case has been taken for ex parte hearing against the O.P. Abdul Motin. The reference has been filed U/R- 2 Foreigners Tribunal order, 1964 against the O.P. Md. Abdul Motin stating that he could not been able to produce any authentic document to prove him that he is an Indian Citizen O.P. appeared in Court in several Times and thereafter he has been discontinued to appear in court. Heard the Ld. AGP. Perused the entire case records. It is the duty of the OP to prove him that he is an Indian national but he fail to do so. It is presumed that the OP could not been able to prove that he is an Indian citizen and as such he has been discontinued to appear in court. Accordingly, this case has been decided ex parte that Md. It is presumed that the OP could not been able to prove that he is an Indian citizen and as such he has been discontinued to appear in court. Accordingly, this case has been decided ex parte that Md. Abdul Motin is not an Indian Citizen but he is a foreigner. Inform SP(B) accordingly." 11. Being aggrieved by aforesaid order in 2013, the appellant has preferred WP(C) No. 5609/2013 seeking quashment of aforesaid ex-parte order. In the petition under Article 226 Constitution of India, it has been alleged that the present appellant has sufficient documents to show that he is a bona fide Indian citizen by birth but he was not properly advised for which he could not prove those documents in accordance with law resulting in passing of ex-parte order under which he stood declared as foreigner. 12. Appellant further submits that learned Tribunal while rendering the order in question did not act in a way as expected of it under the law. Rather, he rendered such an order most arbitrarily, whimsically and in a most illegal manner and as such, said order is required to be quashed and set aside giving the petitioner/appellant herein an opportunity to prove his claim that he is an Indian Citizen by birth before the Tribunal aforementioned. 13. Such a contention was opposed to by learned Asstt. SGI as well learned GA appearing for the Union of Indi and Govt. of Assam respectively stating that under the law, section 9 in particular, it is duty of proceedee to prove that he is an Indian Citizen by birth. However, he did not do so in spite of granting him enormous opportunity to prove that he is a bona fide Indian Citizen and allowed the proceeding to run ex-parte. Being so, there was no infirmity on the part of the learned Tribunal in rendering the order in question. 14. He further submits that the ex parte order rendered by the learned Tribunal cannot be set aside in routine manner. Rather, the person seeking recalling for an ex parte order, rendered under Foreigner Act, 1946 read with 1964 order, needs to show that there are some grounds of extraordinary nature which prevented him from appearing before the tribunal when the matter was taken up for consideration. Unless same is proved, ex-parte order, rendered by Tribunal, cannot be recalled. 15. Rather, the person seeking recalling for an ex parte order, rendered under Foreigner Act, 1946 read with 1964 order, needs to show that there are some grounds of extraordinary nature which prevented him from appearing before the tribunal when the matter was taken up for consideration. Unless same is proved, ex-parte order, rendered by Tribunal, cannot be recalled. 15. But the petitioner/appellant herein miserably fails to show that there was some extraordinary situation which prevented him from appearing before the Tribunal when the same was taken up for ex-parte hearing requiring the court to recall the earlier ex parte order. Situation being such, there was no infirmity whatsoever in the order rendered by the learned tribunal in F.T. Case No. 107/2006 (c). 16. We have found that on hearing the learned counsel for the parties, learned Single Judge was pleased to dismiss the same upholding the ex parte order rendered by the Tribunal vide order dated 23.07.2015 in WP(C) No. 5609/2013. 17. Learned counsel for the parties repeated their arguments which they have advanced before the learned Single Judge. Before we proceed further, we find it necessary to have a look at the order under challenge. The relevant part is reproduced below:- 5. In paragraph-8 of the writ petition, the petitioner has stated that had he been properly advised that he was required to prove his Indian citizenship by relevant documents and that mere submission of written statement was not enough, he would have definitely taken steps towards proving his Indian citizenship. These are the grounds assigned by the petitioner for setting aside the ex-parte order. Although in the Foreigners Act, 1946 and the Foreigner Tribunals Order, 1964, there is no provision for setting aside ex-parte order, but the Full Bench of this Court in the case of State of Assam v. Moslem Mondal reported in 2013 (1) GLT (FB) 809 while holding that the Tribunal has jurisdiction to entertain and pass necessary order on an application for setting aside an ex-parte opinion, but at the same time it has also been held rather cautioned that such application must not be entertain in a routine manner, otherwise the very purpose of enacting the 1946 Act and the 1964 Order would be frustrated. For a ready reference, paragraph-92 of the said judgment is reproduced below: "92. For a ready reference, paragraph-92 of the said judgment is reproduced 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." 6. Irrespective of the aforesaid position requiring dismissal of the writ petition, I have verified the documents annexed to the writ petition. In the affidavit dated 13.9.2013, filed by the petitioner in support of the writ petition, he has declared his age as 32 years, but, on the other hand, in the voter list of 2005 showing his name, the age has been recorded as 36 years. Similarly, in the voter list of 2011, his age is recorded as 42 years. There is no document to establish any linkage of pre 25.3.1971, which is the cut-off date. Although, the petitioner has placed reliance on a certificate recording therein that the name of his father appeared in 1966 voter list, but the voter list itself has not been produced. Even assuming that the person named in the certificate is the father of the petitioner, then also, he will be a foreigner within the stream of 1.1.1966 to 25.3.1971. In another document, the father and mother of the petitioner are described with alternative names, such as Sajid Ali @ Sajoy Mia and Suboi Bibi @ Muboi Bibi. 7. Merely by annexing some documents cannot prove the contents thereof. In another document, the father and mother of the petitioner are described with alternative names, such as Sajid Ali @ Sajoy Mia and Suboi Bibi @ Muboi Bibi. 7. Merely by annexing some documents cannot prove the contents thereof. Needless to say that mere filing of some documents and picking up any name from such document so as to establish relationship with the said person as father or mother or even grandfather and grandmother does not amount to its proof. In LIC of India v. Ram Pal Singh Bisen, reported in (2010) 4 SCC 491 , the Apex Court has held thus: 31. Under the Law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the Evidence Act cannot be relied upon by the Court. Contents of the document cannot be proved by merely filing in a court. 8. For all the aforesaid reasons, I do not find any merit in the writ petition and accordingly it is dismissed upholding the impugned order of the learned Tribunal." 18. We have considered the judgments under challenge in the light of arguments, advanced and have found that the Tribunal was quite right in rendering the ex parte order dated 14.06.2013 in F.T. Case No. 107/2006 (c) since in spite of giving so many adjournments/opportunities, the appellant fails to prove that he is an Indian Citizen by birth. 19. Equally important, we have also found that the appellant herein (who was petitioner in WP(C) No. 5609/2013) did not assign any ground of extraordinary nature to show that for some extremely genuine reason he could not appear before the Tribunal when the case was called for hearing which ultimately resulted in passing of the ex parte order which was questioned in WP(C) No. 5609/2013. 20. Being so, we have found absolutely no infirmity in the judgments in question and accordingly, present appeal is dismissed being found devoid of merit.