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2015 DIGILAW 894 (GAU)

Dulal Miah @ Dulal Sk. v. Union of India

2015-07-23

B.K.SHARMA

body2015
JUDGEMENT : 1. Heard Dr. G. Lal, learned counsel for the petitioner. Also heard Ms. M. Goswami, learned State Counsel. I have also heard Ms. G. Sarma, learned counsel holding for Mr. S.C. Keyal, learned ASGI. This writ petition is against the order dated 04/06/2009 of the learned Member, Foreigners Tribunal, Goalpara in FT Case No. 810/G/06 (ERO’s Case No. 293 116/37 Ka (Union of India Vs. Dulal Sekh). By the said order passed exparte, the petitioner has been declared to be a foreigner. 2. From the materials on record it appears that after the initial appearance and filing of written statement and some photocopies of documents, the petitioner abandoned the proceeding before the Tribunal and did not discharge the burden of proof that he is an Indian citizen as envisaged under Section 9 of the Foreigners Act, 1946 and discussed in Sarbananda Sonowal Vs. Union of India and others reported in AIR 2005 SC 2920 . 3. On perusal of the records received from the Tribunal, it is found that the proceeding against the petitioner was initiated in 2002 and inspite of service of notice the petitioner remained absent on as many as 26 dates. After the scrapping of IM(D)T Act by the Apex Court in Sarbananda Sonowal (Supra), proceeding started against the petitioner as per the provisions of the Foreigners Act, 1946. On that occasion also, he remained absent on 07/04/2007 and 08/05/2007, however, filed the written statement on 20/06/2007. Thereafter, he remained absent on 27/07/2007 but again appeared on 06/08/2008 and prayed for time. The matter was again taken up on 28/01/2008, 06/09/2008, 05/01/2009, 28/04/2009 and 03/06/2009. On all the dates, the petitioner remained absent and prayed for time. 4. As recorded in the order dated 03/06/2009 with the joining of a new Member, inspite of service of notice on the petitioner earlier, fresh notice was issued and served. Although the petitioner appeared but all-along prayed for time. Rejecting the prayer for further adjournment on 03/06/2009, the Tribunal fixed the matter for exparte hearing. When the matter was taken up on 04/06/2009, the petitioner could not appear which resulted in the exparte order. 5. Dr. G. Lal, learned counsel for the petitioner submits that the petitioner be given a further opportunity by setting aside the exparte order. Rejecting the prayer for further adjournment on 03/06/2009, the Tribunal fixed the matter for exparte hearing. When the matter was taken up on 04/06/2009, the petitioner could not appear which resulted in the exparte order. 5. Dr. G. Lal, learned counsel for the petitioner submits that the petitioner be given a further opportunity by setting aside the exparte order. The only ground on which the petitioner has prayed for setting aside the exparte order is in paragraph 9 of the writ petition, which is quoted below :- “9. That the petitioner states that the learned Foreigners Tribunal, Goalpara has passed the impugned judgement and order dated 05.06.2009 without giving sufficient and adequate opportunity to the petitioner to prove his nationality, and without considering his Written Statements and only relying upon the evidence of the local verification officer (L.V.O.) who was not even put into cross examination causing serious prejudice to the petitioner. It may be mentioned here that the case has been dismissed without taking any hearing causing serious prejudice to the petitioner. Under the facts and circumstances as narrated above, the aforesaid impugned judgment and order dated 05.06.2009 is liable to be set aside and quashed and the petitioner may be given an opportunity to prove his case.” 6. Mr. S.C. Keyal, learned ASGI submits that the petitioner having failed to discharge the burden of proof as envisaged under Section 9 of the Foreigners Act, 1946, inspite of granting several opportunities, he is not entitled to get the impugned order set aside. Ms. M. Goswami, learned State Counsel also adopted the said argument. Although, there is no provision for setting aside the exparte order but the Full Bench of this Court in State of Assam Vs. Moslem Mondal and others reported in 2013 (1) GLT 809 has held that in appropriate cases, Tribunal can set aside exparte order provided good and sufficient cause is shown. It has also been held that after exparte orders are set aside in routine manner, the very purpose of enacting the Foreigners Act, 1946 and the Foreigners (Tribunal) Order, 1964 would be frustrated. For a ready reference, para 92 of the said judgement in Moslem Mondal (Supra) is quoted below :- “92. It has also been held that after exparte orders are set aside in routine manner, the very purpose of enacting the Foreigners Act, 1946 and the Foreigners (Tribunal) Order, 1964 would be frustrated. For a ready reference, para 92 of the said judgement in Moslem Mondal (Supra) 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.” 7. In the instant case, the Tribunal while holding that the petitioner did not come forward to discharge the burden of proof cast on him under Section 9 of the Foreigners Act, 1946. Also perused the photocopies of the documents submitted by the petitioner and found that the photocopy of the uncertified copy of the voter list of 1965 did not disclose any name with number of constituency. The School certificate on which the petitioner placed reliance (photocopy only) was shown issued in 1998, after 26 years of purported completion of L.P. education. Coupled with this, the petitioner also did not prove the said documents by producing the originals or examined the author of the documents as has been held by the Apex Court in L.I.C. of India and Anr. Vs. Ram Pal Singh Bisen reported in 2010 (4) SCC 491 , mere production of some documents or exhibiting the same without proving the contents thereof is not enough. Vs. Ram Pal Singh Bisen reported in 2010 (4) SCC 491 , mere production of some documents or exhibiting the same without proving the contents thereof is not enough. In this connection, para 31 of the judgement is quoted below :- “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 Curt. Contents of the document cannot be proved by merely filing in a court.” 8. Above being the position, I do not find any merit in the writ petition and accordingly it is dismissed upholding the impugned judgement and order. Consequently, the Superintendent of Police (B), Goalpara shall apprehend the petitioner immediately and confine him in the detention camp till such time he is deported to his country of origin. 9. Let the matter be listed again after one month so as to submit report by the Superintendent of Police (B) Goalpara and the Deputy Commissioner, Goalpara, about the action taken in the terms of this order. 10. The Deputy Commissioner, Goalpara shall ensure deletion of the name of the petitioner from the voter list, if any. 11. Registry shall send down the case records to the learned court below along with a copy of this judgement and order. A copy of the judgement and order may also be furnished to M. M. Goswami, learned State Counsel for her immediate necessary follow up action. Copies shall also be sent to the SP(B), Goalpara and Deputy Commissioner, Goalpara, for their immediate follow up action.