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2016 DIGILAW 1031 (GAU)

MD. JAKIR HUSSAIN v. UNION OF INDIA

2016-11-22

RUMI KUMARI PHUKAN, UJJAL BHUYAN

body2016
ORDER : Rumi Kumari Phukan, J. Heard Mr. M.I. Hussain, learned counsel for the appellant, Ms. G. Saram, learned Central Govt. Counsel and Mr. R. Dhar, learned Govt. Advocate, Assam. 2. This appeal is directed against the impugned judgment and order dated 28.8.2015 passed by the learned Single Judge in W.P.(C)No.5222/2011, whereby the learned Single Judge upheld the ex-parte order dated 5.3.2009 passed by the learned Foreigners Tribunal-II, Barpeta in FT (2nd Tribunal) Case No.20/2006 (S.P.Ref No.6803 (A) dated 12/08) (Union of India v. Jakir Hussain), by the aforesaid order the appellant has been declared to be a foreigner of post 25.3.1971 stream. 3. The Superintendent of Police (B) Barpeta doubting the citizenship of the appellant made a reference to Foreigners Tribunal-II Barpeta and accordingly FT (2nd Tribunal) Case No.20/06 (S.P.Ref No.6803(A) was registered against him and the learned Tribunal served a notice upon the appellant to appear before the Tribunal to prove his Indian nationality. Pleaded case of the petitioner is that in response to the notice he appeared before the Tribunal and prayed for time on several occasions to file written statement, but the thereafter the elderly local people suggested and mislead him not to appear before the learned Tribunal saying that the problem would be solved automatically, as such he did not appear before the Tribunal for which he was declared as a foreigner on by its order dated 5.3.2009 pursuant to which he was arrested on 3.9.2011 and he was deported beyond the border on 23.10.2011. However, he managed to come back to challenge the ex-parte order but in the meantime time he was arrested on 4.12.2014 and detained in the detention camp. According to the appellant learned tribunal without considering his case passed ex-parte order declaring the appellant foreigner of post 1971 stream. 4. The impugned order of the Tribunal was challenged before the learned Single Judge which was registered as writ petition (civil) No.5222/2011 wherein the learned Single Judge has refused to interfere with the impugned order of the Tribunal by its order dated 28.8.2015. Hence the present appeal has been preferred with a prayer to set aside the impugned order dated 28.8.2015 passed by the learned Single Judge as well as the order dated 5.3.2009 passed by the learned Foreigners Tribunal. Hence the present appeal has been preferred with a prayer to set aside the impugned order dated 28.8.2015 passed by the learned Single Judge as well as the order dated 5.3.2009 passed by the learned Foreigners Tribunal. The relevant portion of the judgment of the learned Single Judge is as follows : "As would be evident from the impugned order itself insptie of granting several opportunities, the petitioner did not discharge the burden of proof as envisaged under Section 9 of the Foreigners Act, 1946 and consequently the Tribunal had no other option than to proceed ex parte and eventually passed the impugned ex parte order. During ex parte hearing, the State examined the Local Verification Officer who had conducted the enquiry and submitted report suspecting the petitioner to be a foreigner. He deposed that during enquiry he along with his staff and the Gaonbura met the petitioner at the enquiry centre but he failed to produce any valid documents to establish his Indian citizenship. Ext.1 is the verification report and Ext. 1(1) is the signature of the LVO. In the writ petition it was stated that after the judgement, the petitioner was arrested on 03/09/2011 and was kept in the detention camp. In the counter affidavit filed by the respondents, it has been stated that the petitioner was deported/pushed back to Bangladesh on 23/10/2011 vide Exit No. 45/2011. Above apart, on perusal of the case records it is found that the case was registered against the petitioner way back in 2003 and on receipt of notice he first appeared before the Tribunal on 18/12/2003. He kept on praying for time to file written statement and documents and the prayer for adjournments were allowed. The dates are 09/02/2004, 03/03/2004, 31/03/2004, 04/06/2004, 07/07/2004, 16/08/2004, 30/09/2004, 19/11/2004, 03/01/2005, 16/02/2005, 19/03/2005, 04/05/2005, 07/06/2005 and 08/07/2005. After the non-appearance of the petitioner on the above mentioned dates, the Tribunal issued fresh notice in view of decision of the Apex Court in view of Sarbananda Sonowal v. Union of India and others reported in AIR 2005 SC 2920 . On receipt of the notice the petitioner appeared before the Tribunal on various dates and prayed for time. The dates are 15/11/2006, 05/12/2006, 26/12/2006, 22/01/2007, 17/02/2007 and 28/02/2007, on which he was given a last chance. On receipt of the notice the petitioner appeared before the Tribunal on various dates and prayed for time. The dates are 15/11/2006, 05/12/2006, 26/12/2006, 22/01/2007, 17/02/2007 and 28/02/2007, on which he was given a last chance. Thereafter, he again remained absent on 23/03/2007, 21/04/2007, 25/05/2007, 12/07/2007, 10/08/2007, 15/09/2007, 08/10/2007, 12/11/2007, 01/12/2007, 07/01/2008, 13/02/2008, 14/03/2008, 11/04/2008, 15/05/2008, 12/06/2008, 11/07/2008, 12/08/2008, 23/09/2008, 30/10/2008, 04/12/2008, 07/01/2009, 17/02/2009, 27/02/2009 and 05/03/2009, on which date the Tribunal passed the ex parte judgement and order." The grounds assigned in the writ petition for such non-appearance is as follows :- "3. That it is stated that the notice from the aforesaid Tribunal was served upon the petitioner and in response to that he appeared before the tribunal. The petitioner also engaged one advocate on his behalf to proceed with the case and have submitted all relevant documents and expected appropriate justice from the Hon'ble Tribunal on his behalf. However, due to ignorance, illiteracy and poor economic condition the petitioner could not further pursue the case. Surprisingly, on 03/09/2011 the petitioner was arrested by the police and then only he came to know that an ex-parte judgement and order dated 05.03.09 was passed declaring him as a foreigner. 9. It is sated that the petitioner came to know about the impugned ex parte judgement and order dated 05.03.09 only when the petitioner was arrested on 03.09.11 from the market area of his village. It is further stated that the petitioner was never communicated with the impugned ex parte judgement and order dated 05.03.09 by the Learned Tribunal and other authorities." Above cannot be construed to be good and sufficient ground. As has been held by the Full Bench in the case of State of Assam v. Moslem Mondal and others reported in 2013 (1) GLT (FB) 809, setting aside of an ex parte order must not be in a routine manner, otherwise the very purpose of enacting the Foreigners Act, 1946 and the Foreigners (Tribunal) Order, 1964 shall stand frustrated. For a ready reference, para 92 of the said judgement is quoted below :- "92. For a ready reference, para 92 of the said judgement 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." For all the aforesaid reasons, I do not find any merit on the grounds assigned in the writ petition and accordingly it is dismissed. Consequently, the Superintendent of Police (B), Barpeta shall furnish report as to whether the petitioner has come back after he was pushed back as discussed above." 5. It reflected that the learned Single Judge while passing his judgment has extensively gone through the pleadings and the relevant LCR. As per the matters on record, the appellant first appeared before the Tribunal as on 18.12.2003 and took time for filing written statement and document and since then upto 8.7.2005 (14 dates) and he did not file any written statement and even thereafter as he did not appear, the learned Tribunal issued notice to the appellant and accordingly on receipt of the 2nd notice the appellant appeared and again took time for filing written statement since 15.11.2006 till 5.3.2009 (30 dates) and at this stage also he failed to submit written statement/documents as a result of which the learned Tribunal passed the impugned judgment and order dated 5.3.2009. There appears so infirmity in the judgment and order of the Tribunal. There appears so infirmity in the judgment and order of the Tribunal. Accordingly the learned Single Judge has rightly declined to interfere with the order of the learned Tribunal. 6. As regard the plea taken by the appellant regarding his non-appearance before the Tribunal that as misleaded by the people he did not appear before the Tribunal cannot at all be accepted as a good ground to interfere with an ex-parte order. A full Bench decision of this Court in State of Assam v. Moslem Mondal, reported in 2013 (1) GLT 809, has held that only in case of 'special' or 'exceptional' circumstances which prevented the proceedee from contesting the reference, Tribunal would have the jurisdiction to set aside an ex parte order. If no 'special' or 'exceptional' circumstances are made out, Tribunal would have the jurisdiction to reject an application filed for setting aside an ex parte order. 7. On due consideration, we are of the view that the ground urged by the appellant in the writ petition explaining non-appearance before the Tribunal, by no stretch of imagination, can be construed to be 'special' or 'exceptional' circumstances. 8. Under Section 9 of the Foreigners Act, 1946, burden is on the proceedee to prove that he is an Indian citizen and not a foreigner. The Full Bench in Moslem Mondal (supra), has held that in the event of non-appearance of the proceedee, it would amount to failure to discharge the statutory burden under Section 9 of the Foreigners Act, 1946, and in such an eventuality, Tribunal would be justified to decide the reference against the proceedee. The appellant herein even after getting ample opportunity to contest the proceedings has failed to prove his case in spite of knowing such a serious allegation against him. Such a casual approach of the appellant towards such serious issues whereby his nationality has been questioned by the State Authority, cannot neither be appreciated nor can be acted upon so as to interfere with the order of the learned Tribunal as well as the learned Single Judge by invoking writ jurisdiction. 9. That apart it is an admitted position that after the impugned order dated 5.3.2009, the appellant was arrested on 3.9.2011 and was deported beyond the border 23.10.2011 but he again came back. 9. That apart it is an admitted position that after the impugned order dated 5.3.2009, the appellant was arrested on 3.9.2011 and was deported beyond the border 23.10.2011 but he again came back. Thereafter the appellant was again detained and kept in the detention camp from 4.12.2014 and only thereafter has filed the writ petition with such frivolous ground only to frustrate the very purpose of the Foreigners Tribunal Act. The contention that has been raised about violation of fundamental rights of the petitioner/appellant by giving no opportunity to prove his nationality is nothing but a false pretext whereas appellant is not vigilant about his obligation to discharge before an authority of law, to prove his nationality. 10. We do not find any error or infirmity in the view taken by the learned Single Judge. There is no merit in this appeal which is accordingly dismissed. 11. Registry to inform the concerned Deputy Commissioner & Superintendent of Police (Border) and engaged counsels for the respondents accordingly.