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2015 DIGILAW 901 (GAU)

Abdul Matin v. Union of India and Ors.

2015-07-23

B.K.SHARMA

body2015
1. This writ petition is directed against the judgment dated 14.6.2013 of the Foreigners Tribunal, Diphu passed in FT Case No. 107/2007 (C) (Police Case No. 529/2000) v. Md. Abdul Motin, S/o Late Sajit Ali. By the said order, the petitioner has been declared to be a foreigner and the order so passed is ex parte one. The Tribunal had to pass the order ex parte because of non-appearance of the petitioner, in spite of given of notice. 2. I have heard Mr. S.C. Biswas, learned counsel for the petitioners. Also heard Ms. M. Goswami, learned State Counsel and so also Mr. S.C. Keyal, learned ASGI. I have also perused the entire materials on record including the records received from the Tribunal. 3. On perusal of the records received from the Tribunal, it appears that in response to the notice, the petitioner had appeared before the Tribunal and filed Written statement and also photocopies of some documents claiming that he is not a foreigner, but an Indian citizen. However, he did not prove the documents and/or the contents of the written statement as envisaged under section 9 of the Foreigners Act, 1946. 4. In the writ petition, the petitioner has contended that the Tribunal passed the impugned order whimsically and arbitrarily without considering the relevant records including the written statement. According to the petitioner, the tribunal failed to appreciate the documents submitted by the petitioner. While making .such statement, the petitioner has not even obliquely referred to his own obligation to discharge the burden of proof as envisaged under section 9 of the Foreigners Act, 1946, about which, a vivid discussion has been made by the Apex Court in Sarbananda Sonowal v. Union of India, AIR 2005 SC 2920 . 5. In paragraph 8 of the writ petition, the petitioner has stated that had he been properly advised that he was required to prove his Indian citizenship by relevant documents and that mere submission of written statement was not enough, he would have definitely taken steps towards proving his Indian citizenship. These are the grounds assigned by the petitioner for setting aside the ex parte order. These are the grounds assigned by the petitioner for setting aside the ex parte order. Although in the Foreigners Act, 1946 and the Foreigner Tribunals Order, 1964, there is no provision for setting aside ex parte order, but the Full Bench of this court in the case of State of Assam v. Moslem Mondal, 2013 (1) GLT (FB) 809 while holding 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 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." 6. Irrespective of the aforesaid position requiring dismissal of the writ petition, I have verified the documents annexed to the writ petition. In the affidavit dated 13.9.2013, filed by the petitioner in support of the writ petition, he has declared his age as 32 years, but, on the other hand, in the voter list of 2005 showing his name, the age has been recorded as 36 years. Similarly, in the voter list of 2011, his age is recorded as 42 years. In the affidavit dated 13.9.2013, filed by the petitioner in support of the writ petition, he has declared his age as 32 years, but, on the other hand, in the voter list of 2005 showing his name, the age has been recorded as 36 years. Similarly, in the voter list of 2011, his age is recorded as 42 years. There is no document to establish any linkage of pre 25.3.1971, which is the cut-off date. Although, the petitioner has placed reliance on a certificate recording therein that the name of his father appeared in 1966 voter list, but the voter list itself has not been produced. Even assuming that the person named in the certificate is the father of the petitioner, then also, he will be a foreigner within the stream of 1.1.1966 to 25.3.1971. In another document, the father and mother of the petitioner are described with alternative names, such as Sajid Ali @ Sajoy Mia and Suboi Bibi @ Muboi Bibi. 7. Merely by annexing some documents cannot prove the contents thereof. Needless to say that mere filing of some documents and picking up any name from such document so as to establish relationship with the said person as father or mother or even grandfather and grandmother does not amount to its proof. In LIC of India v. Ram Pal Singh Bisen, (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." 8. For all the aforesaid reasons, I do not find any merit in the writ petition and accordingly it 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), Karimganj and the Deputy Commissioner, Karimganj 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. 9. Registry may transmit the case records to the Tribunal. 10. The Superintendent of Police (B), Karimganj and the Deputy Commissioner, Karimganj 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, if not already done. 11. Let copies of this judgment and order be furnished to the Superintendent of Police (B), Karimganj and the Deputy Commissioner, Karimganj. 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. 12. List after one month for furnishing reports by the Superintendent of Police (B), Karimganj and the Deputy Commissioner, Karimganj.