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2016 DIGILAW 1012 (GAU)

Paritosh Chanda v. Union of India

2016-11-17

RUMI KUMARI PHUKAN, UJJAL BHUYAN

body2016
JUDGMENT : Rumi Kumari Phukan, J. Heard Mr. M. A. Ahmed, 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. A reference case No.157/06 was initiated by the respondent no.3 suspecting the petitioner to be a doubtful citizen and accordingly FT (2) Case No.650/07 was registered against him. Notice was issued but the petitioner did not contest the case and ultimately by the ex-parte order dated 10.7.2008 he has been declared to be a foreigner of post 25.3.1971 stream. 3. According to the petitioner, he could learn about the aforesaid order only when the police came to search him in his residence. After knowing the aforesaid ex-parte order he applied the same through his Advocate and copy was obtained on 7.8.2014 and thereafter this writ petition was filed on 5.12.2014. The petitioner could gather from the ex-parte judgment that notice was acknowledged by him with his thumb impression but, he never use thumb impression as he put his signature in all communications. 4. Now the petitioner herein has challenged the impugned Ex-parte order dated 10.7.2008 passed by the learned Foreigners Tribunal (2nd) Mangaldai in FT Case No.650/07 (S.P. Enquiry No.157/06) declaring him foreigner of post 25.3.1971. 5. 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 no notice was even served upon the petitioner and he never put his thumb impression upon the notice and he has sufficient document to prove his citizenship and accordingly the ex-parte order should be set aside by giving an opportunity to the petitioner to contest the proceedings. On the other hand learned counsels for the respondents have vehemently opposed such contention and submitted that there is sufficient prove that notice was duly served upon the petitioner and the petitioner, knowing fully well did not contest the proceeding and as such there is no scope to interfere with the order so passed by the learned Tribunal. 6. We have carefully gone through the impugned order dated 10.7.2008 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. 6. We have carefully gone through the impugned order dated 10.7.2008 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. As per record, the petitioner was aware of the aforesaid proceeding as notice was served upon him. The F.T. Case relates to the year 2007 and on receipt of the case by the learned Tribunal the same was tried by the learned Tribunal Mangaldoi in view of the police report that the petitioner has received notice, as has been evident from the acknowledgment of the notice, whereby he was directed to appear before the Tribunal to prove his citizenship otherwise he 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 him for his representation. Obviously as per Section 9 of the Foreigners Act, 1946 burden lies on the proceedee to prove the citizenship as it is within his 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 his citizenship and such a contention on the part of the petitioner that no notice was served upon him for which he did not turn up, cannot be accepted in view of the matters on record. 7. After careful examination of the LCR it reveals that notice was returned after service on 15.5.2007 with a report of the serving agency that notice was personally served upon the petitioner Shri Paritosh Chanda in his house and on next date i.e. on 12.6.2007 the petitioner was stated to be absent with step but on all subsequent dates thereafter he remained absent without steps and the learned Tribunal allowed time for appearance since 12.6.2007 to 10.7.2008 and due to non appearance of the petitioner the learned Tribunal passed the impugned order. In view of such specific report of serving agency as regards proper service of notice upon the petitioner as well as the order of the learned Tribunal dated 12.6.2007 leaves no scope to hold that notice was not served upon the petitioner as has been contended. In view of such specific report of serving agency as regards proper service of notice upon the petitioner as well as the order of the learned Tribunal dated 12.6.2007 leaves no scope to hold that notice was not served upon the petitioner as has been contended. The order of the learned Tribunal is reproduced below: "O.P is absent. One witness is examined. Heard learned Addl. G.P. Mangaldoi for the State. Evidence is closed. Perused the case records. The case was filed by the then S.P.Mangaldoi against O.P.Sri Poritosh Chanda, Son of Sri Putul Chanda of Manpur/Udalguri alleging him as a foreign national. Due notice to the O P was served but despite receipt of notice OP did not take any action to prove himself as Indian National. Neither produced any document not proved himself as Indian national by oral evidence. Learned Addl. GP Mangoldoi for the State has also submitted that the OP is a foreigner. He failed to prove his nationality either by documentary evidence or by oral evidence. The enquiry officer was also a Govt. officer having no biasness who made an enquiry in his official capacity as per order of his superior. Hence his report cannot be disbelieved. The argument of the learned addl. GP Mangaldoi also has sufficient reasonable grounds to believe that the O P is a foreigner. Considering all aspect I find that OP is a foreigner." 8. The Full bench of this Court in the case of State 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, the Tribunal has jurisdiction to entertain such application to pass necessary order provided, 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 cause from appearing in the proceeding and the reasons beyond his control. It has also been held that such an application should not be entertained 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. 9. It has also been held that such an application should not be entertained 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. 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 by this Court. Rather, petitioner has failed to set forth any special or exceptional circumstances to set aside the ex-parte order. There being no illegality or irregularly 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. Registry to inform the concerned Deputy Commissioner & Superintendent of Police (Border) and engaged counsels for the respondents accordingly.