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2015 DIGILAW 876 (GAU)

Bimala Khatun v. Union of India

2015-07-21

BIPLAB KUMAR SHARMA

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JUDGMENT : Biplab Kumar Sharma, J. 1. This writ petition is directed against the ex-parte judgment dated 3.8.2010 of the Foreigners Tribunal, Sonitpur, Tezpur in FT (D) Case No. 191/2008 [S.P. (B), Sonitpur, Tezpur Case No. TZP (B)/07/437 dated 11.6.2007] (State of Assam Vs. Musstt. Bimala Khatun). By the said judgment passed ex-parte, the petitioner has been declared to be an illegal migrant. I have heard Mr. A. Ali, learned counsel for the petitioner. Also heard Mr. B.J. Ghosh, learned State Counsel and so also Ms. G. Sarma, learned counsel appearing on behalf of Mr. S.C. Keyal, learned ASGI. I have also perused the entire materials on record including the records received from the Tribunal. 2. As stated in the writ petition, during the period from 1.10.2004 to 25.11.2004, house to house enumeration was made and thereafter draft electoral roll of the constituency in question was published on 15.6.2005. When the name of the petitioner was included in the said draft electoral roll, a doubt arose as to whether she is an Indian citizen or an illegal migrant. Accordingly following due process, a reference was made to the Foreigners Tribunal. The Tribunal issued notice to the petitioner and on receipt of the same, she appeared on 5.8.2008 and prayed for time to file written statement. The prayer was allowed fixing the matter on 24.9.2008. On 24.9.2008 also, the petitioner appeared and prayed for time and the same was allowed fixing the matter on 17.11.2008. However, she did not appear on 17.11.2008 and in all subsequent dates, namely, 13.1.2009, 2.3.2009, 9.4.2009, 9.6.2009, 17.7.2009, 27.8.2009, 18.10.2009, 22.12.2009, 6.2.2010, 22.3.2010, 4.5.2010, 17.6.2010 on which date having regard to the long absence of the petitioner without any step, the Tribunal ordered for ex-parte hearing fixing the matter on 28.7.2010. 3. On 28.7.2010 also, the petitioner remained absent and the State examined one witness, who proved the documents including the verification report etc. Thereafter the ex-parte judgment was pronounced on 3.8.2010. 4. In the writ petition, the petitioner has urged the ground of illiteracy in not taking steps in the matter. However, it is on record that in the proceeding before the Tribunal, she had engaged an Advocate. Thereafter the ex-parte judgment was pronounced on 3.8.2010. 4. In the writ petition, the petitioner has urged the ground of illiteracy in not taking steps in the matter. However, it is on record that in the proceeding before the Tribunal, she had engaged an Advocate. As regards the delay in filing the writ petition on 14.11.2013 against the impugned ex-pare judgment dated 3.8.2010 (more than three years delay), the petitioner has stated that as the ex-parte order was passed on 3.8.2010, she was unaware about the same till 28.2.2011 and thereafter she applied for the copy of the same on 1.3.2011 and obtained the same on 5.3.2011. Thereafter she started collecting necessary documents and filed the writ petition. This ground urged towards explaining the delay in filing the writ petition is also not tenable. 5. In the writ petition, there is absolutely no ground urged by the petitioner not to speak of urging any sufficient and/or cogent ground, about which, the Full Bench of this Court has emphasized in State of Assam Vs. Moslem Mondal reported in 2013 (1) GLT (FB) 809. Although there is no provision in the Foreigners Act, 1946 or Foreigners (Tribunal) Order 1964 to set aside an ex-parte judgment, but the Full bench of this Court in the said decision held 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. 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 procedee 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. Such application, however, should not be entertained in a routine manner. The Tribunal can entertain such application provided the procedee 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. Mr. Ali, learned counsel for the petitioner referring to the documents annexed to the writ petition has submitted that irrespective of the impugned judgment, the petitioner is required to be declared an Indian citizen. 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 procedee 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 Vs. 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." 7. Even in Annexure-D document said to be a school certificate issued by the Headmaster of Kamarchuburi Primary School, there is discrepancies. As per the said certificate, the petitioner completed her studies on 31.12.1997 having passed Class-IV examination in 3rd Division. As per the said certificate her date of birth is 22.1.1985. On the other hand in the purported seal of the school, the certificate is shown issued under serial No. 644 dated 22.1.1992. If it was issued on 22.1.1992, the petitioner was aged about 7 years and could not have passed Class-IV examination. As submitted by Mr. Ghosh, learned State Counsel and Ms. On the other hand in the purported seal of the school, the certificate is shown issued under serial No. 644 dated 22.1.1992. If it was issued on 22.1.1992, the petitioner was aged about 7 years and could not have passed Class-IV examination. As submitted by Mr. Ghosh, learned State Counsel and Ms. G. Sarma, learned counsel representing the Union of India, normally in the Class-IV results, there is no provision for providing division like HSLC examination. Be that as it may, this aspect of the matter need not detain us in view of the aforesaid fact. 8. In view of the above, the writ petition is dismissed upholding the impugned Order of the learned Tribunal. 9. Registry may transmit the case records to the Tribunal. 10. The Superintendent of Police (B), Sonitpur and the Deputy Commissioner, Sonitpur are directed to take appropriate action in the matter towards deportation of the petitioner from India and deletion of her name from the voter lists. She shall be immediately taken into custody and kept in detention camp, of not already done. 11. Let copies of this judgment and order be furnished to the Superintendent of Police (B), Sonitpur and the Deputy Commissioner, Sonitpur. Another copy be sent to the Union of India in the Ministry of Home. An extra copy of this judgment and order may also be furnished to Mr. S.C. Keyal, learned ASGI for his necessary follow up action. List after one month for furnishing reports by the Superintendent of Police (B), Sonitpur and the Deputy Commissioner, Sonitpur.