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2015 DIGILAW 588 (GAU)

Anowara Begum v. Union of India and Ors.

2015-05-18

MANOJIT BHUYAN

body2015
1. Heard Mr. A. Rashid, learned counsel for the petitioner as well as Mr. J. Handique, learned counsel representing respondent Nos. 2, 3 and 4. Also heard Ms. G. Sarma, learned counsel represents respondent No.l. 2. Pursuant to the order dated 7.4.2015, the relevant case records have been requisitioned from the Foreigners Tribunal, Goalpara and is placed before this court. 3. The case records have been duly perused. Challenge is made to the order dated 5.1.2015 passed by the Foreigners Tribunal, Goalpara in F.T. Case No.6285/G/13 (Reference ERO's Case No.190-7/37). By the said order, the petitioner has been declared to be an illegal migrant of post 1971 stream from Bangladesh and as such was liable to be pushed back from the territory of India. The ground aasigned is that despite affording reasonable apportunities, she failed to discharged her onus as provided under section 9 of the foreigners Act, 1946 and also failed to prove her claim as Indian Cittzen. 4. On a perusal of the case records placed before this court, it is seen that pursuant to receipt of notice, the petitioner had put in her appearance on 20.6.2014 and had eventually filed written statement on 19.7.2014. Thereafter, despite several opportunities having been granted, i.e., on 26.8.2014, 26.9.2014, 13.11.2014 and 23.12.2014 the petitioner neither filed the certified copy of the voters list of the base year 1966 nor the evidence of examination-in-chief on affidavit. On all these dates, the petitioner had filed adjournment applications one after another. There is no manner of doubt that the petitioner has not been diligent to prove, establish or demonstrate that she is a citizen of India. 5. The issue with regard to the proceedings before the Foreigners Tribunal and the manner of conducting the same has been laid down in the Full Bench decision of this court in the case of State of Assam v. Moslem Mandal and Others, 2013 (1) GLT 809\ 6. In a proceeding under the Foreigners Act, 1946 read with the Foreigners (Tribunals) Order 1964, as amended, the point for adjudication is to ascertain whether the proceedee is a foreigner or not. Such fact being especially within the knowledge of the proceedee, the burden of proof that the proceedee is a citizen of India is squarely upon the proceedee because of the provision under section 9 of the Foreigners Act, 1946. Such fact being especially within the knowledge of the proceedee, the burden of proof that the proceedee is a citizen of India is squarely upon the proceedee because of the provision under section 9 of the Foreigners Act, 1946. Therefore, it is the obligation of the proceedee to provide enough evidence to establish that he/she is not a foreigner. 7. Although a fair trial and reasonable opportunity is required to be afforded to the proceedee by supplying certified copy of any public document, including the copy of the relevant electoral rolls as recognized by sub-section (2) of section 6(a) of the Citizenship Act, 1955 for the purpose of establishing of citizenship, the said requirement comes into play when such copy is asked for by the proceedee. Clause 3 of the Foreigners (Tribunals) Order 1964 as amended in the year 2012, lays down the procedure for disposal of the question as to whether a person is a foreigner or an Indian Citizen. The reference proceeding before the Tribunal necessarily needs to pass through various important stages before culmination in an opinion by the Foreigners Tribunal. Every such stage is very important having regard to the burden cast on the proceedee to show that he/she is not a foreigner under section 9 of the aforesaid 1946 Act. One such important stage includes proper service of notice, grant of reasonable opportunity to the procedee in conformity with the principles of natural justice. 8. The power of this court under article 226 of the Constitution of India is, however, very limited. The same can only extend to correcting error of jurisdiction and to ascertain whether opportunity had been afforded to the proceedee during the course of trial. The certiorari jurisdiction of the writ court being supervisory, it cannot review the finding of facts as an appellate forum. 9. Having regard to the facts in issue there is no manner of doubt that pursuant to service of notice and appearance of the petitioner before the Tribunal, ample opportunities had been afforded to the petitioner to prove, establish and/or demonstrate her right as an Indian Citizen. Despite the same, the petitioner failed on all counts. 10. Considering the limited jurisdiction of this court and as enunciated in the case of Moslem Mandal (supra), no interference is warranted to the order dated 5.1.2015 passed by the Foreigners Tribunal, Goalpara in FT 6285/G/13. Despite the same, the petitioner failed on all counts. 10. Considering the limited jurisdiction of this court and as enunciated in the case of Moslem Mandal (supra), no interference is warranted to the order dated 5.1.2015 passed by the Foreigners Tribunal, Goalpara in FT 6285/G/13. Accordingly, this writ petition stands dismissed as being without any merit, however, without any order as to costs. 11. Registry to send back the case records to the office of the Foreigners Tribunal, Goalpara forthwith.