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2016 DIGILAW 1010 (GAU)

ASMUL KHATUN @ ASMUL BEGUM v. UNION OF INDIA

2016-11-17

RUMI KUMARI PHUKAN, UJJAL BHUYAN

body2016
JUDGMENT : Rumi Kumari Phukan, J. Heard Mr. S.C. Biswas, learned counsel for the petitioner, Mr. S.C. Keyal, learned Asstt. Solicitor General of India and Mr. R. Dhar, learned Govt. Advocate for the State of Assam. 2. The petitioner herein has challenged the impugned Ex-parte judgment and order dated 2.9.2013 passed by the learned Foreigners Tribunal (2nd) Sonitpur, Tezpur in F.T.(DC) Case No.472/2002 (SP Case no. 804/98), whereby the petitioner was declared to be a foreigner of post 25.3.1971 stream. 3. The case of the petitioner is that she and her ancestors were original inhabitants of Sorun District of Bihar, wherein they have landed property in the name of her father, grandfather. Her grandfather purchased a plot of land in Sarun District of Bihar on 22.5.1971. There he had also a pass-book issued by the Indian Post Office on 24.7.1970. For livelihood her father came to Assam in the year 1965 and settled at village Missamari in the Sonitpur District. The petitioner was born and brought up at village Missamari, District-Sonitpur. Father of the petitioner has also purchased a plot of land at Missamari by a registered Sale Deed no.738. An electoral identity care was issued in the name of the petitioner's mother, Sakina Khatun under 78 No. Gohpur LAC. A residential certificates to the petitioner was issued by the Missamari Gaon Panchayat as well as by the Govt. Gaonburah. A reference case No.804/98 was initiated by the respondent no.3 expressing the petitioner as doubtful citizen and accordingly FT (DC) Case No.472/2002 was registered against him. Although the petitioner received summons but due to her misunderstanding/lack of knowledge she did not contest the case and ultimately the by the ex parte order dated 2.9.2013 she has been declared foreigners of post 25.3.1971. The petitioner could learn the aforesaid order only on 10.9.2015 when the police came to her residence to arrest her and now she is in the Kokrajhar jail (detention camp). After knowing the aforesaid ex-parte judgment she applied for the certified copy of the judgment through her relatives on 14.9.2015 and copy was obtained on 19.9.2015 and filed petition for vacating the ex-parte judgment and order, however, her petition was rejected vide order dated 7.10.2015 on limitation ground. After knowing the aforesaid ex-parte judgment she applied for the certified copy of the judgment through her relatives on 14.9.2015 and copy was obtained on 19.9.2015 and filed petition for vacating the ex-parte judgment and order, however, her petition was rejected vide order dated 7.10.2015 on limitation ground. Now the petitioner has preferred the present petition challenging the ex-parte order dated 2.9.2013 as well as the order dated 7.10.2015 with a prayer to remand the case for retrial with an opportunity to the petitioner to prove her citizenship after releasing her on bail. An additional affidavit has also been filed on behalf of the petitioner whether the son of the petitioner has annexed certain documents like residential certificates issued by District Magistrate Siwan, Bihar as well as the village headman and the copies of voter's list of 1966 in respect of mother of the petitioner. 4. We have considered the submissions so made by the learned counsel for both the parties and perused the impugned order. According to the learned counsel for the petitioner the impugned ex-parte order is the result of ignorance of the petitioner being illiterate lady and due to wrong advice by the people she did not attend the proceeding so she should be given an opportunity to contest the proceeding as she has sufficient document to prove her nationality. On the other hand learned counsels for the respondents have vehemently opposed such contention that ignorance of law is no excuse and as admittedly the petitioner knowingly did not contest the proceeding and as such there is no scope to interfere with the order so passed by the learned Tribunal. 5. We have carefully gone through the impugned order dated 2.9.2013 passed by the learned Tribunal which reflect that in spite of receipt of notice the petitioner did not appear before the learned Tribunal for which the learned Tribunal has passed the impugned ex-parte order. 5. We have carefully gone through the impugned order dated 2.9.2013 passed by the learned Tribunal which reflect that in spite of receipt of notice the petitioner did not appear before the learned Tribunal for which the learned Tribunal has passed the impugned ex-parte order. Admittedly, the petitioner was aware of the aforesaid proceeding as notice was served upon her and the F.T.Case relates to the year 2002, however on receipt of the case by the learned Tribunal on transfer the same was tried by the learned Tribunal at Tezpur at Sonitpur in view of the fact that the petitioner has received the notice it can be assumed that she was aware about the contents of the notice whereby she was directed to appear before the Tribunal to prove her citizenship otherwise she will be declared foreigner. But peculiarly the petitioner neither appear before the Tribunal nor filed any written statement to contest the case even after opportunity was given to her for her representation. Obviously as per Section 9 of the Foreigners Act, 1946 burden lies on the proceedee to prove the citizenship as it is within her knowledge that as regards the date of birth, place of birth and all details about family tree as all are being the personal knowledge of the person concerned but not on the State authority. The petitioner herein did not avail the opportunity to prove her citizenship and such a contention on the part of the petitioner that due to wrong advice by people she did not turn up before the proceeding cannot be accepted. 6. The Full bench of this Court in the case of Assam and Ors. v. Moslem Mandal reported in 2013 (1) GLT 809 it has been held that while dealing with the power of a Tribunal to set aside ex-parte order, has held that the Tribunal has jurisdiction to entertain such application to pass necessary order provided that it is proved to the satisfaction of the Tribunal that proceedee was not served with a notice in the reference proceeding or the proceedee was prevented by sufficient causes from appearing in the proceeding and the reasons beyond his control. It has also been held that such an application should not be entertain in a routine manner. It has also been held that such an application should not be entertain in a routine manner. The Tribunal can entertain such application provided that proceedee would demonstrate the existence of special /exceptional circumstances to entertain the same by way of pleadings in the application filed for setting aside the ex-parte order. 7. So far as the case of the petitioner is concerned, of service of notice and adequate opportunity the petitioner did not contest the proceeding and remain idle without responding to such vital issue alleged against her and never enquired about the result of such proceeding and only after arrest made in connection with the aforesaid FT Case she made a prayer before the learned Tribunal for setting aside the ex-parte order with the similar submission that has been made before this Court and the learned Tribunal has rejected the same. There appears no any irregularity in the aforesaid orders. 8. Although the petitioner herein has filed some document by way of additional affidavit before this Court which was never laid before the Tribunal, the same cannot be looked into by this Court as has been held by the Division Bench of this Court reported in 2010 (2) GLT 1 (Moslem Mondal and Ors. v. Union of India and Ors)., wherein it has been held that writ Court could have examined only the materials available before the Tribunal and not the new evidence. A writ proceeding is not a substitute for a proceeding before a Tribunal. 9. In view of the above matters on record as well as the proposition of law, as laid down by the Full Bench decision the petitioner has failed to make out a case for interference by invoking extraordinary jurisdiction. Rather, petitioner has failed to set forth any special or exceptional circumstances to set aside the ex-parte order. There being no illegality or irregularity in the impugned order so passed by the learned Tribunal, the present writ petition stands dismissed. Consequently, the respondent authority will take the follow up action for deportation of the petitioner as directed by the Tribunal. 10. With the directions above, this writ petition stands disposed. No costs.