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2015 DIGILAW 467 (GAU)

Abdul Karim v. Union of India

2015-04-22

BIPLAB KUMAR SHARMA

body2015
JUDGMENT Biplab Kumar Sharma, J. 1. Heard Mr. M.U. Mahmud, learned counsel along with Mr. M.I. Hussain, learned counsel for the petitioner. Also heard Mr. N. Upadhyay, learned State Counsel and Ms. G. Sarma, learned counsel appearing on behalf of Mr. S.C. Keyal, learned ASGI. By means of this writ petition, the petitioner has put to challenge the judgment and order dated 15.9.2014 of the learned Member, Foreigners Tribunal (II), Barpeta in FT (2nd Tribunal) Case No. 503/2008. By the said judgment and order, answering the reference made against the petitioner, he has been declared to be a foreigner within the meaning of Section 2(a) of the Foreigners Act, 1946 as he entered into India after the cut off date i.e. 25.3.1971. The impugned judgment and order has been passed ex parte as the petitioner after his initial appearance before the Tribunal, remained absent from the proceeding without any steps. 2. While entertaining the writ petition by order dated 23.3.2015, records from the Foreigners Tribunal was called for and the same has been received. On perusal of the said records, it appears that after the initial appearance before the Tribunal on 30.4.2008 with the prayer for adjournment enabling to file written statement, the petitioner subsequently remained absent and did not appear. After the initial order dated 30.4.2008 granting him time to file written statement, he appeared on 26.5.2008; 20.6.2008 and 9.7.2008 and on all the dates, prayed for time to file written statement and the same was allowed. However, thereafter, he remained absent from 30.7.2008 to the date of passing the impugned judgment and order. In between 47 dates had gone by and the petitioner did not appear on any one of the said dates and also did not take steps. 3. Due to non-appearance of the petitioner, the learned Tribunal passed an order on 26.11.2009 recording such non-appearance and ordering for ex-parte proceeding. Even thereafter also, the petitioner remained absent throughout the proceeding and for a ready reference, the dates of his absence before the Tribunal are indicated below: "30.07.2008; 16.08.2008; 12.09.2008; 21.10.2008; 01.12.2008; 05.012009; 12.02.2009; 21.03.2009; 28.04.2009; 22.06.2009; 12.08.2009; 08.10.2009; 26.11.2009; 18.012010; 03.03.2010; 03.05.2010; 05.06.2010; 04.08.2010; 03.09.2010; 01.12.2010; 11.01.2011; 24.02.2011; 08.04.2011; 12.07.2011; 13.09.2011; 15.11.2011; 26.12.2011; 06.03.2012; 09.042012; 25.052012; 16.072012; 27.08.2012; 25.102012; 11.12.2012; 24.01.2013; 26.03.2013; 31.05.2013; 02.08.2013; 21.09.2013; 27.11.2013; 20.01.2014; 15.03.2014; 15.05.2014; 03.07.2014; 01.09.2014" 4. Eventually the Tribunal passed the impugned judgment and order after examining two witnesses on behalf of the State, whose statements/depositions as referred to in the impugned judgment and order are as follows: "Witness No. 1 inquiry officer for the first party side who conducted inquiry into this case deposed in his evidence that on 27.07.05, while he was posted and working as S.I. of police at Sarbhog P.S. on that day as per direction of the S.P. Barpeta, he along with his staff went to vill.-Chengelia, P.S. Sarbhog to conduct inquiry into this case. On the said day of inquiry, he met the O.P./2nd party Md. Abdul Karim Ali, son of late Ismail Ali at his home at vill.-Chengelia P.S. Sarbhog. But on the said day of inquiry on being asked the O.P./2nd party Md. Abdul Karim Ali failed to furnish any relevant documents before him in support of his Indian citizenship. Accordingly, he suspected the O.P./2nd party Md. Abdul Karim Ali to be an illegal migrant, who entered into India after 25th day of March, 1971. He also recorded the statement of the witnesses. He submitted his report Ext. 1. Ext. 1(1) is his signature. Witness No. 2 Idrish Ali, an old aged person of vill.-Chengelia appearing for the first party side has specifically deposed that he did not know about the O.P./2nd party son of Ismail Ali, resident of vill.-Chengelia." 5. The records have revealed that the petitioner, after passing of the impugned judgment and order filed an application seeking vacation of the ex-parte judgment and order. Accordingly, the case record was put up before the Tribunal again on 9.1.2015. The application for vacating the ex-parte judgment and order Was rejected by order dated 12.2.2015. This order not only is under challenge in this writ petition, but has also been withheld by the petitioner. He has not even obliquely stated in the writ petition about filing the application and the rejection thereof. Thus there is suppression of material facts on the part of the petitioner in moving the writ petition. 6. The writ petition has no where disclosed that the petitioner, in fact, had filed an application seeking vacation of the ex parte judgment and order and the same was rejected by the Tribunal on 12.2.2015. Thus there is suppression of material facts on the part of the petitioner in moving the writ petition. 6. The writ petition has no where disclosed that the petitioner, in fact, had filed an application seeking vacation of the ex parte judgment and order and the same was rejected by the Tribunal on 12.2.2015. Surprisingly, the learned counsel of the petitioner at the very threshold of his argument made a submission to allow him to withdraw the writ petition with the liberty to approach the learned Tribunal by filing an application seeking vacation of the ex-parte judgment and order, impugned in this proceeding, although, the fact of the matter is that the petitioner had already approached the learned Tribunal seeking vacation of the ex-parte judgment and order. Thus, even in the submission of the learned counsel for the petitioner, there is withholding of material facts. 7. In the writ petition, the petitioner has assigned reasons for his non-appearance before the Tribunal with the following statements in paragraph-5 of the writ petition. "That the petitioner begs to state that even after having all the aforementioned documents, the S.P. (B), Barpeta suspected him to be a Foreign national and referred a case to the Foreigners' Tribunal-II, Barpeta, which was registered as F.T. Case No. 503/2008. After receiving notice from the Ld. Tribunal the petitioner appeared on several occasions but thereafter he was mislead, by some elderly persons of the locality saying that the petitioner need not to appear before the Ld. Tribunal and the allegation brought against him would be sort out automatically at the instance of political interference. Therefore, the petitioner on subsequent occasions did not appear before the Ld. Tribunal. The Ld. Tribunal also did not take further steps for causing his appearance before the Tribunal and passed the impugned ex-parte judgment and order, dated 15.09.2014 without applying judicious mind, for which the police has arrested him on 04.12.2014 and kept him in detention camp at Goalpara to push him back beyond the border. The petitioner had no knowledge about the passing of the impugned judgment and order, dated 15.09.2014 till the other day, and came to know, when he was detained." 8. The petitioner had no knowledge about the passing of the impugned judgment and order, dated 15.09.2014 till the other day, and came to know, when he was detained." 8. If we go by the aforesaid ground of the petitioner, he has admitted that he did not respond to the proceeding before the Tribunal as he was told by some elderly persons that he need not appear before the Tribunal as the reference made against him would automatically come to an end at the instance of political interference. However, the petitioner has not mentioned as to who were the said elderly persons and what political interference would have been there. 9. The aforesaid ground cannot be said to be a good, cogent and sufficient ground to set aside the ex-parte order. The Full Bench of this Court in its decision reported in 2013 (1) GLT(FB) 809 (State of Assam v. Moslem Mondial) while dealing with the question of power and jurisdiction of the Tribunal to set aside an ex-parte order has held that although the Tribunal has jurisdiction to entertain and pass necessary order on an application to set aside the ex-parte opinion, such application should not be entertained lightly and in a routine manner. 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, therefore, would have the jurisdiction to reject such application at the threshold, if no ground is made out." 10. The Tribunal, therefore, would have the jurisdiction to reject such application at the threshold, if no ground is made out." 10. In the application that was filed before the Tribunal on 7.1.2015, to vacate the ex-parte judgment and order, no ground as such not to speak of cogent and sufficient was assigned. Although the petitioner has withheld the said feet in the writ petition, but, the records of the Tribunal has revealed filing of such application on 7.1.2015 with the following statements: "1. That the petitioner is the appointed Advocate of the 2nd party/O.P. in the above noted case. 2. That the 2nd party/O.P. was appeared before the Hon'ble Tribunal and took time to filing the W/S, but the opposite party was absent in several dates due to his illness. The Opp. Party is very poor man having no sources of income for conducting the case and appoint the counsel. In the mean time the Hon'ble Tribunal has decided to Ex-parte order on 15.09.2014 has declared the opp. Parry i.e. Abdul Karim is a foreigner provision of Foreigners Act 1946. 3. That erosion of Manas River the opp. Party and his whole family members shifted to Vill.-Chengulia, Mouza-D.C. Baushi, P.S. Barpeta Road, Dist-Barpeta, Assam form Golapara, Part-III West, P.O. Golapara, P.S. Abhyapuri, Dist-Bongaigaon, Assam, belong more then 10 years ago and he maintain his family working as a day labour. 4. That after the opp. Party came to know that he was declared as a foreigner and now he is in jail hazot. 5. That the Opp. Party by his appointed counsel want to vacate the ex parte order and want to submit his W/S and to contest the case as per law. 6. That the opp. Party is a genuine citizen of India and having his all necessary documents. 7. That in the above grounds to consider to vacate the ex parte order and to give a chance to filing the W/S by the opp. Party for fair trial for the end of justice." 11. From the above what is seen is that no ground as such was assigned towards vacating the impugned ex-parte judgment and order. On the other hand, coming to the writ court the petitioner has made the above quoted statement in paragraph-5 of the writ petition. 12. Party for fair trial for the end of justice." 11. From the above what is seen is that no ground as such was assigned towards vacating the impugned ex-parte judgment and order. On the other hand, coming to the writ court the petitioner has made the above quoted statement in paragraph-5 of the writ petition. 12. With the above narration of facts, what has emerged is that the petitioner has abused the process of law by filing the instant writ petition. It has been the experience of this Court in the cases of foreigners that after the ex-parte orders are passed by the Tribunal, they straightway invoke the writ jurisdiction throwing some documents and raising untenable grounds, as in the instant case. As noted above, the petitioner remained absent all throughout the proceeding before the Tribunal (as many as on 47 dates) after his initial appearance and taking time to file written statement. The Tribunal had no other alternative than to proceed ex-parte to answer the reference and eventually passed the impugned judgment and order. Thereafter the petitioner filed an application on 7.1.2015 seeking vacation of the ex-parte judgment and order and the same was also rejected vide order dated 12.2.2015. Not only that the said order is not under challenge, the petitioner has even dared to withhold the said fact in the writ petition. 13. In the writ petition, the petitioner has annexed photocopy of a voter list (extract only) of 1997 containing the name of one Abdul Karim son of Ismail Sheikh aged 28 years so as to claim that he is the said person. On the other hand, the reference answered by the impugned judgment is in the name of Abdul Karim Ali son of Ismail Ali. The petitioner never claimed before the Tribunal that his father is also known as Ismail Sheikh. If the petitioner was 28 years of age in 1997, his year of birth would be 1969. There is no explanation as to why his name is not included in any other voter list both pre 1997 and post 1997. Further, the petitioner disclosed his age as 52 years in the application filed on 7.1.2015 for vacating the ex-parte order and accordingly his year of birth would be 1963. 14. There is no explanation as to why his name is not included in any other voter list both pre 1997 and post 1997. Further, the petitioner disclosed his age as 52 years in the application filed on 7.1.2015 for vacating the ex-parte order and accordingly his year of birth would be 1963. 14. Apart from the fact that the Writ Court cannot make a roving enquiry to find out one's citizenship primarily based on finding of facts required to be proved by the proceedee in a summary procedure as per the provision of Foreigners Act, 1946 and the Foreigners (Tribunal) Order, 1964, mere filing of some documents 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." 15. For all the aforesaid reason, there is no merit in the writ petition. Accordingly, it is dismissed. The petitioner, who is presently in the detention camp shall be deported to his country of origin i.e. Bangladesh immediately. His name shall also be deleted from the voter list, if any. 16. Let copies of this order be furnished to Mr. N. Upadhyay, 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. List after one month for furnishing report by S.P. and Deputy Commissioner as to the action taken as per the above directions.