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2015 DIGILAW 794 (GAU)

Nur Mohammad v. Union of India

2015-06-23

P.K.SAIKIA, RUMI KUMARI PHUKAN

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JUDGMENT P.K. Saikia, J. This appeal is directed against the judgment dated 03.04.2014, rendered by learned Single in W.P.(C) No. 6218/2013 by which the learned Single Judge refused to interfere with the order dated 03.11.2010 passed by Foreigners’ Tribunal, Sonitpur, Tezpur, in FT(D) Case No. 74/2008 under which the appellant/writ petitioner stood declared as foreigner. 2. We have heard Dr. B. Ahmed, learned counsel appearing for the appellant/writ petitioner. Also heard Mr. S.C. Keyal, learned Asstt. Solicitor General appearing for the Union of India and Mr. M. Bhagawati, learned Govt. Advocate appearing for the State of Assam. 3. In order to appreciate the dispute in this appeal, we find it necessary to have a look at the background of the case. A reference was made by SP, Sonitpur, Tezpur, to the learned Foreigners’ Tribunal, Sonitpur, Tezpur (hereinafter referred to as ‘Tribunal’), stating that the writ petitioner herein is a foreigner. On the receipt of such reference, notice was issued on the petitioner. On receipt of the same, the writ petitioner appeared before the Tribunal on 29.05.2008 and prayed for time to file written statement which was allowed fixing 09.07.2008 for filing written statement. 4. On the date aforesaid, the petitioner filed written statement and the case aforesaid was posted for hearing. Thereafter, the petitioner through himself or through his counsel appeared before the Tribunal on all 3 (three) subsequent dates, viz. 28.08.2008, 23.09.2008 and 14.11.2008 and prayed for time to file original documents. All those prayers were allowed. However, the writ petitioner remained absent on and from 07.01.2009 till the time of disposal of aforesaid case on 03.11.2010. In between, the learned Tribunal has fixed as many as 16 dates to enable the writ petitioner to lead evidence to show that he is not a foreigner. In the meantime, State, however, examined one witness and proved the enquiry report and some other documents which were marked as Annexures Ext. 1, Ext. 2 and Ext. 3. Under the order dated 03.11.2010 the petitioner stood declared as a foreigner. 5. Though the petitioner was declared as foreigner under the order dated 03.11.2010 passed in FT(D) Case No. 74 of 2010, the petitioner filed a writ petition on 09.10.2013 which was numbered as W.P.(C) No. 6218/2013. 1, Ext. 2 and Ext. 3. Under the order dated 03.11.2010 the petitioner stood declared as a foreigner. 5. Though the petitioner was declared as foreigner under the order dated 03.11.2010 passed in FT(D) Case No. 74 of 2010, the petitioner filed a writ petition on 09.10.2013 which was numbered as W.P.(C) No. 6218/2013. In the writ petition, it has been alleged that the writ petitioner is an illiterate person, he had engaged an advocate and through him he had submitted a WS before the Tribunal. However, thereafter, due to his illiteracy and ignorance, he failed to prosecute his claim in the aforesaid proceeding for which the learned Tribunal ultimately heard the matter ex-parte and declared him as foreigner. 6. The learned Tribunal on hearing both sides was pleased to dismiss such a proceeding holding that no ground has been made out requiring the Writ Court to interfere with the judgment of the Tribunal. The judgment impugned is reproduced below:- The instant case has been registered on a reference being forwarded by S.P.(B), Sonitpur, Tezpur alleging inter-alia therein that the Election Commissioner of India had ordered intensive revision of Electoral Rolls for the 72 Barchalla Assembly Constituency, in Assam with reference to 1.1.2005 as the qualifying date. During the period from 1.10.04 to 25.11.04 house to house enumeration was done. The Electoral of the said Constituency was published in draft on 16.06.2005 including therein the name of the opposite party Nur Mahammad, son of Siraj Ali of village- Dhupguri under Dhekiajuli, P.S. of District Sonitpur. The then Electoral Registration Officer for the said Assembly constituency having doubt on the citizenship of the opp. Party got the matter verified by an officer locally who in his report has stated that the opp. Party during verification could not produce any document regarding her nationality. Hence is the case. The opp. party contested the case by filing a written statement. Subsequently, the opp. party remained absent without any step for more than a year and hence, the case was proceeded ex-parte against the opp. party. I have carefully gone through the evidence of witness examined for the state and other material available on record. Witness No. 1, Marketing Inspector of Dhekiajuli Sri Dimbeswar Baruah is the L.V.O. of this case. Subsequently, the opp. party remained absent without any step for more than a year and hence, the case was proceeded ex-parte against the opp. party. I have carefully gone through the evidence of witness examined for the state and other material available on record. Witness No. 1, Marketing Inspector of Dhekiajuli Sri Dimbeswar Baruah is the L.V.O. of this case. It is found from his evidence that on 20.12.04 he was appointed as L.V.O. by the then Deputy Commissioner, Sonitpur, Tezpur to verify the citizenship of some suspected voters and proformas from the then A.E.R.O. Abdul Rejjek extension Officer, Dhekiajuli Block and informed those suspected voters through Sarkari Gaonburah of that area to gather at the premises of Goriapather L.P. School on 8.2.05 for verification along with their necessary documents regarding their nationality and on 8.2.05 he went to Goriapather LP School for verification and in presence of Sarkari Goanburah asked the opp. party to produce any document regarding her nationality to prove that he is a citizen of India but the opp. party failed to produce any document and hence, he prepared his report in Ex. (1) Annexure ‘A’, the format for Verification Officer’s report and submitted the same to then A.E.R.O. The opp. party in his written statement claimed that he is a citizen of India. He in support of his claim has submitted photocopy of some document. Law is well settled that photocopy of any document is not admissible in evidence unless and until the original one is produced and duly proved. Record reveals that the case was pending for submission of original documents by the opp. party for more a year but the opp. party failed to avail that opportunity. But the opp. party did not come forward to substantiate his claim. The evidence of witness examined for the State remained unchallenged. The opp. party did not come to challenge the allegations made against him. I, therefore, find nothing to disbelieve the evidence of witness examined in this case. Considering the evidence of witness examined for the State and other materials available on record, I am of the opinion that the opp. party Nur Mohammad is not a citizen of India. In the result, the case decided in the affirmative and in favour of the State. 7. Dr. Considering the evidence of witness examined for the State and other materials available on record, I am of the opinion that the opp. party Nur Mohammad is not a citizen of India. In the result, the case decided in the affirmative and in favour of the State. 7. Dr. Ahmed, learned counsel for the appellant/writ petitioner, submits that the order under question is unsustainable for reasons more than one. In that connection, it has been stated that the Writ Court basically exists to advance the cause of justice and not to thwart it on technical ground. In that connection, he has relied on the decision of the Apex Court in the case of Roshan Deen Vs. Preeti Lal reported in (2002) 1 SCC 100 . 8. It has also been contended that the enquiry report was based on mere fiction, conjectures and surmise than on facts and is million miles away from reality since there is indisputable evidence in the possession of the petitioner to show that he is the citizen of India and have been wrongly shown as foreigner. In that connection, it has been contended that his other family members are Indian citizens. 9. It is also the case of the learned counsel for the appellant/writ petitioner that the Verification Officer who submitted report against the petitioner did not act in discharge of his official duty but with huge hostility and with bias towards the petitioner. Since the said Verification Officer acted against him with biased and with malafide intention, on that count alone, the judgment of the learned Foreigners’ Tribunal is required to be quashed and set aside. 10. When it was pointed out that the petitioner / appellant did not raise such a contention before the learned Single Judge, it has been stated that though such plea was not raised before the learned Single Judge, the same can still be raised at the appellate stage, same being a question of law. In that connection, our attention has been drawn to the decision of the Hon’ble Apex Court in the case of Ratan Lal Sharma Vs. Managing Committee (Dr. Hari Ram (Co-Education) Higher Secondary School and Ors) reported in (1993) 4 SCC 10 . 11. In that connection, our attention has been drawn to the decision of the Hon’ble Apex Court in the case of Ratan Lal Sharma Vs. Managing Committee (Dr. Hari Ram (Co-Education) Higher Secondary School and Ors) reported in (1993) 4 SCC 10 . 11. Therefore, the learned counsel for the appellants urges this Court to set aside the judgments of the learned Single Judge as well as the learned Tribunal and to remand the matter to the Tribunal for decision afresh on the basis of WS already filed by the petitioner before the Tribunal. 12. This contention was, however, profoundly disputed by the learned Assistant Solicitor General of India contending that there is absolutely nothing on record to support the plea that Verification Officer or for that matter other officials who conducted the enquiry against the petitioners acted with malice or bias towards the petitioner. According to learned Asstt. Solicitor General, the mere raising a plea of bias or unfairness by the petitioner is not enough. There must be concrete proof of the same. But then, such material was found conspicuously absent in the proceeding in hand. 13. We have considered the submissions from both the sides having regard to pleaded case of the parties. It has been found that the petitioner never raised all those pleas before the learned Tribunal when he was given enormous opportunity to prove that he is a bona fide citizen of India. Instead, over a long period of time, he remained absent without taking any steps for which the learned Tribunal was forced to hear the matter ex-parte and thereafter, came to a conclusion that the petitioner is a foreigner. 14. On a closure look at the pleadings of the parties, it is also found that the judgment in question was passed strictly in accordance with prescription of law since he was given ample opportunities by the Tribunal to show that the petitioner is a bonafide citizen of India. However, instead of availing all those opportunities, the petitioner chose not to participate in the proceeding aforesaid resulting in rendering the judgment in question after hearing the matter ex-parte. 15. We have also found that before vacating an ex-parte order passed by Tribunal, under the Foreigners’ Act, the Court must come to a conclusion that there are extraordinary reasons which prevented the petitioner from appearing before the tribunal when the matter was taken up for hearing. 15. We have also found that before vacating an ex-parte order passed by Tribunal, under the Foreigners’ Act, the Court must come to a conclusion that there are extraordinary reasons which prevented the petitioner from appearing before the tribunal when the matter was taken up for hearing. In Moslem Mondal Vs. State of Assam, reported in 2013 (1) GLT 809 it has been held that ex-parte order passed by Tribunal cannot be vacated as a routine manner. 16. A perusal of the judgment under challenge unmistakably demonstrates that the petitioner hopelessly fails to show that there were some extraordinary reasons which prevented him from participating before the Tribunal when the matter was taken up for hearing. 17. For ready reference, we find it necessary to reproduce below the relevant part of the judgment of the learned Single Judge:- On perusal of the case records received from the Tribunal it is found that the petitioner on receipt of notice from the Tribunal appeared on 29/05/2008 and prayed for time to file Written Statement, which was allowed fixing the matter on 09/07/2008, on which date he filed the written statement. Thereafter, either the petitioner himself or through his counsel, appeared on 3 (three) subsequent dates, namely, 28/08/2008, 23/09/2008 and 14/11/2008 and prayed for time to file original documents. Although the prayer was allowed, the petitioner did not submit the original documents and remained absent all throughout the proceeding and to be precise on 7.1.2009, 25.2.2009, 6.4.2009, 25.5.2009, 2.7.2009, 12.8.2009, 9.10.2009, 9.12.2009, 22.2.2010, 20.4.2010, 2.6.2010, 15.7.2010, 26.8.2010, 11.10.2010, 21.10.2010 and eventually on 03/11/2010. In between, the State examined one witness who proved the enquiry report etc. (Ext. 1, 2 and 3). Although the impugned order was passed on 03/11/2010, the petitioner did not do anything in the matter for long three years and eventually filed the instant writ petition on 09/10/2013. The only explanation furnished for non-appearance before the Tribunal is in paragraph 4 of the writ petition, which is quoted below :- “4. That the petitioner could not obtain the opportunity to proceed the case properly for which he now prays one more opportunity to proceed the case before the Tribunal by submitting all the necessary documents. He is an illiterate person. That the petitioner could not obtain the opportunity to proceed the case properly for which he now prays one more opportunity to proceed the case before the Tribunal by submitting all the necessary documents. He is an illiterate person. Whenever, he received the notice, he engaged an Advocate to submitted his written statement but thereafter, he could not take any step in his case due to his illiteracy and ignorance. This is not his negligency. So he prays either to set aside the ex-parte impugned judgement or to remand back the case for re-trial.” By no stretch of imagination, the above stand can be a ground for setting aside the ex parte order. In this connection, the Full Bench of this Court in its judgement reported in 2013 (1) GLT 809 (State of Assam Vs. Moslem Mondal), has held thus :- “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.” The prayer for setting aside an ex-parte order cannot be acceded to in a mechanical manner and that too in respect of a proceeding pertaining to a foreigner. As per the provision of Section 9 of the Foreigners Act, 1946, the burden lies with the proceedee to prove that he is an Indian citizen. An application for setting aside an ex-parte order cannot be granted in a routine manner in absence of any cogent and sufficient ground. As per the provision of Section 9 of the Foreigners Act, 1946, the burden lies with the proceedee to prove that he is an Indian citizen. An application for setting aside an ex-parte order cannot be granted in a routine manner in absence of any cogent and sufficient ground. Before the Tribunal, the petitioner stated thus in the written statement :- “1. That the present case lodged by the complainant against this opposite party is not tenable under the law. 2. That the complainant S.P., Sonitpur without making any proper investigation and without verifying anything has lodged the false and frivolous complaint before the tribunal and as such the same is liable to be dismissed. 3. That this opposite party was born and brought up at village-Dhupguri, Mouza-Barsala, PO & PS- Dhekiajuli, dist- Sonitpur, Assam. The father of this opposite party came to India before 1965. At first the father of the opposite party Siraj Ali residing at Nagaon District. Afterwards they shifted to village Dhupguri, mouza-Barsala, District-Sonitpur. 4. That the father of this opposite party i.e. Md. Siraj Ali, S/o. Late Jalim Ali enrolled in the voter list of the year 1965 in Nagaon District. 5. That this opposite party is a citizen of India by birth and not liable to be deported from India as doubtful citizen under law and equity. 6. That this opposite party begs to submit under noted documents. Exhibit 1- Gaonbuda Certificate. Exhibit-2 -Voter list of the year 1965. Exhibit -3- NRC of 1951.” From the above, what is seen is that the petitioner relied on only 1965 voter list (photocopy) purportedly containing the name of his father. However, he failed to prove the same. In the writ petition, the petitioner has annexed one more document, which is 1997 voter list containing the name of his projected father. However, the projected father in the 1965 voter list is 30 years of age but on the other hand, the projected father in the voter list of 1997 is 38 years of age, although in between long 32 years had gone by. Thus, during this 32 years, the petitioner's projected father attained the age of 38 years from 30. Above apart, although the petitioner has declared his age in the writ petition as 35 years and thus attained the voting right long back but could not produce any document, not to speak of any voter list. Thus, during this 32 years, the petitioner's projected father attained the age of 38 years from 30. Above apart, although the petitioner has declared his age in the writ petition as 35 years and thus attained the voting right long back but could not produce any document, not to speak of any voter list. However, I hasten to add that this Court is not for scrutinizing the materials on record. As has been held by the Division Bench of this Court in Moslem Mondal and others Vs. Union of India and others reported in 2010 (2) GLT 1, the Writ Court cannot scrutinize the evidence like an original Court and that it would have to go by the evidence adduced before the Tribunal. Above being the position, this Court exercising writ jurisdiction, cannot interfere with the same. As has been held by the Apex Court in LICI Vs. Rampal Singh Bisen reported in (2010) 4 SCC 491 , admission of documents in evidence does not amount to its proof, in other words, merely making of exhibit or a document does not dispense with its proof, which is required to be done in accordance with law. The documentary evidence adduced by the petitioner was also required to be proved in accordance with the provisions of the Evidence act which he failed to do. Under the Law of Evidence 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 also to admission of contents but not its truth. Apart from the aforesaid position of the case, the documents were also not produced and marked as required under the Evidence Act. Needless to say that the contents of the documents cannot be proved by merely filing in a Court. Above being the position, I see no reason to interfere with the impugned order and accordingly the writ petition is dismissed. Registry may transmit the case records to the Tribunal. 18. We have found that the petitioner has filed WS but he allowed the proceeding to run ex-parte since he remained absent from appearing before the learned Tribunal over a long period of time for which the learned Tribunal declared him as foreigner. Registry may transmit the case records to the Tribunal. 18. We have found that the petitioner has filed WS but he allowed the proceeding to run ex-parte since he remained absent from appearing before the learned Tribunal over a long period of time for which the learned Tribunal declared him as foreigner. However, before the learned Single Judge, the petitioner claims that he could not appear before the Tribunal for a long period of time due to illiteracy and ignorance. 19. However, such ground cannot be considered as extraordinary one since the petitioner having secured adjournments for a couple of weeks for filing WS and having secured several adjournments to submit evidence, started running away from the Tribunal over a long period of time which ultimately forced the Tribunal to pass the judgment ex-parte declaring him to be foreigner. In the face of such conduct, the claim of the petitioner that he could not appear before the Tribunal when the matter was fixed for hearing for his illiteracy and ignorance under no circumstance can be treated as extraordinary ground as held in Moslem Mondel (supra). 20. It may be stated that though the petitioner claims that the Verification Officer acted in a mala fide way and with hostility towards the petitioner in submitting a report before him. On perusal of materials on record, we do not find any ground to conclude that the Verification Officer acted in a biased way or submitted the report against the petitioner on some mala fide considerations. It is a settled law that mala fide needs to be established by adducing concrete evidence and such materials are, however, found conspicuously lacking in the case in hand. 21. Above being the position, we have no other option but to dismiss the appeal which we accordingly do. 22. Return the LCR immediately.