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2016 DIGILAW 316 (GAU)

Kodvanu v. Union of India

2016-04-22

RUMI KUMARI PHUKAN, UJJAL BHUYAN

body2016
JUDGMENT AND ORDER : This appeal is directed against the judgment and order dated 3.11.2015 passed by the learned Single Judge in W.P(C) No. 1025/2010 dismissing the petition preferred by the appellant for setting aside the judgment and order dated 22.10.2009 passed by the learned Member, Foreigner's Tribunal, Goalpara, Assam in F.T. Case No. 58/G/06/2007 (Reference ERO's Case No. 79-37/36) whereby the appellant has been declared as illegal migrant of post 1971 stream. 2. We have heard Mr. MU Mahmud, learned counsel appearing for the appellant. Also heard Mr. S.C. Keyal, learned Asstt. Solicitor General of India appearing for the respondent No.1, Union of India and Mr. M. Bhagawati, learned Govt. Advocate appearing for respondent Nos. 2 and 3. 3. The case of the appellant is that though she is a bona fide Indian citizen having sufficient documents in favour of her citizenship, yet a case was registered against the appellant in the Foreigner's Tribunal, Goalpara being F.T. Case No. 58/G/06/2007 (Reference ERO's Case No. 79-37/36). After receiving notice, the appellant appeared before the learned Tribunal and submitted her written statement, but the learned Advocate failed to instruct her to adduce any evidence, which may be due to lack of communication between them. On last two occasions, i.e. on 16.9.2009 and 22.10.2009, her engaged Advocate did not take any steps. As such, on 22.10.2009, the learned Foreigner's Tribunal declared the appellant as illegal migrant of post 1971 stream vide ex-parte order dated 22.10.2009. On being aggrieved by the said ex-parte order, the appellant filed a writ petition before the High Court being W.P.(C)No. 1025/2010 challenging the order dated 22.10.2009 passed by the learned Tribunal, which was dismissed by the learned Single Judge vide the impugned judgment and order dated 3.11.2015. As the appellant did not find any favourable order from the Court of the learned Single Judge and the order of the Tribunal was not interfered with by the learned Single Judge, hence present appeal has been preferred with a prayer to set aside and quash the order dated 3.11.2015 passed in W.P(C) No. 1025/2010. Alternatively, the appellant prayed for setting aside of the orders of the learned Tribunal, as mentioned above. 4. Alternatively, the appellant prayed for setting aside of the orders of the learned Tribunal, as mentioned above. 4. After going through the matters on record, we have found that the appellant has raised certain grievances alleging the infirmities in the judgment and order of the learned Single Judge, that the learned Single Judge has failed to appreciate the documents annexed. It is contended that the learned Single Judge failed to appreciate the fact that the appellant is the daughter of Late Songser Ali, whose name was incorporated in the voter list of 1966 so filed in the case. Further, the learned Single Judge also failed to appreciate the fact that the engaged Advocate of the appellant failed to instruct her to adduce evidence and later on abstained himself from appearing and taking steps, as a result of which the ex-parte order was passed by the learned Tribunal. On the next, it is contended that the learned Single Judge failed to appreciate the documents annexed to the written statement, which were produced before the learned Tribunal to prove her 'Indian Nationality'. According to the appellant, the learned Single Judge did not consider the case of the appellant and the writ petition was dismissed in a routine manner by the impugned judgment and order dated 3.11.2015. 5. For better appreciation of the matter, the relevant portions of the observations of the learned Single Judge are re-produced here-in-below: "6. That the petitioner begs to state that beside having all these favourable documents to prove Indian Nationality of the petitioner, the Superintendent of Police, Goalpara brought an allegation against her stating that the petitioner is a Foreign National. In this regard, the Foreigners Tribunal, Goalpara issued a notice dated 29.3.2005 to the petitioner stating to appear before the Ld. Tribunal on 16.5.05 and to submit relevant document to prove her nationality. The petitioner's case was registered being case No. FT 58/G/06. After receiving the notice, the petitioner engaged an Advocate in the Court below and the Advocate filed written statement in support of her citizenship annexing the residential certificate of Panchayat Secretary and Xerox copy of voter list of 1966 showing her parents name but the Advocate failed to instruct her to adduce any evidence. The Local Verification Officer who is submitted a wrong report and the ERO of 36 No. Dudhnoi (ST) LAC baselessly doubted the petitioner for which the ld. The Local Verification Officer who is submitted a wrong report and the ERO of 36 No. Dudhnoi (ST) LAC baselessly doubted the petitioner for which the ld. Tribunal also could not go through the records and hence the petitioner got deprived from justice and thus the Learned tribunal declared the petitioner as a Foreign National vide impugned order dated 22.10.09 in FT Case No. 58/G/06, Goalpara. 7. That the petitioner begs to state that she is a permanent resident of aforesaid locality and Indian Citizen by birth as supported by the documents annexed herewith. The petitioner's parents name appear in the voter list of 1966 and 1977 her name appears in the voter list of 1977, 1989 and 1997, the concerned local authority also has issued her residential proof certificate and hence she is an Indian Citizen by birth. She neither is a Foreign National in view of section 2(a) of the Foreigner's Act 1946 nor she entered into Assam after 25th March of 1971 rather she is an Indian Citizen by birth as defined under the Citizenship Act, 1955 and provisions of the Constitution of India and other statutory provisions made thereunder. The enquiry officer filed a false and malicious report without proper investigation due to reasons known to him." By no stretch of imagination, the aforesaid grounds can be said to be special/exceptional circumstances requiring setting aside of the ex-parte order. The Full Bench of this Court in State of Assam v. Moslem Mondal & Ors. Reported in (2013) 1 GLT (FB) 809, while holding that the Tribunal is empowered to set aside the ex parte order but at the same time also held that such order should not be passed in a routine manner, otherwise 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 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 proceed 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 proceed 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." Independent of the above, I have perused the written statement that was filed before the Tribunal. In the written statement, the petitioner only referred to the purported voter list of 1966 purportedly containing her father's name. She also referred to her marriage with one Abul Kasem of village Katlitari. Along with the written statement, she submitted only two documents (all photocopies). The first document in the certificate dated 09/05/2005 of the Ambari Gaon Panchayat certifying her marriage with Abul Kasem of village Bamunipaniloa. On the other hand in the written statement, she categorically stated that Abul Kasem belonged to village Katlitari. The second document is a voter list of 1966 (not legible). Needless to say that such photocopies are inadmissible in evidence. Section 9 of the Foreigners Act, 1946, burden of proof lies on the proceed to establish that he/she is not a foreigner and a citizen of India. In the instant case, the petitioner miserably failed to discharge the said burden, about which the learned Tribunal has discussed the same in the impugned judgement, I see no reason to interfere with the same and accordingly the writ petition stands dismissed." 6. In the instant case, the petitioner miserably failed to discharge the said burden, about which the learned Tribunal has discussed the same in the impugned judgement, I see no reason to interfere with the same and accordingly the writ petition stands dismissed." 6. Supporting the judgment of the learned Single Judge as well as the judgment of the learned Tribunal, the learned Asstt. S.G.I as well as Govt. Advocate, Assam have vehemently argued that the appellant has failed to make out any ground whatsoever so as to entertain the appeal against the judgment and order of the learned Single Judge as well as of the Tribunal. On the other hand, learned counsel for the appellant strenuously contended that the learned Tribunal has failed to appreciate the documents so produced by the appellant side and has rendered the judgment ignoring the document so filed which is sufficient to prove has nationality. On the next it is also contended that learned counsel has failed to instruct the appellant to adduce evidence for which the ex-parte order was passed. As such, it is submitted that the judgment under challenge is liable to be set aside, as the same has been disposed of in routine manner. 7. We have gone through the judgment so rendered by the learned Tribunal passed in F.T. Case No. 58/G/06 and it reflects that the learned Tribunal has given enough time to the appellant to file written statement and thereafter the appellant filed the written statement only when last chance was given to file the same. It is also to be noted that after filing of written statement, the appellant failed to adduce evidence even after giving last chance for adducing evidence since 10.3.2009 to 22.10.2009, for which ultimately the learned Tribunal passed the impugned order. No any infirmity is found in the order of the learned Tribunal and the learned Single Judge has also appreciated each and every material aspect on record as has been indicated above. The appellant himself failed to assign any convincing reason as to why she remained absent in the subsequent course of proceeding while she was very much aware about the pendency of the proceeding and the consequence of non-appearance. Further, the appellant simply cannot avoid her responsibility blaming her conducting lawyer. The appellant himself failed to assign any convincing reason as to why she remained absent in the subsequent course of proceeding while she was very much aware about the pendency of the proceeding and the consequence of non-appearance. Further, the appellant simply cannot avoid her responsibility blaming her conducting lawyer. Unless contrary is proved, it cannot be accepted that the conducting lawyer will not provide necessary instruction to his client, in a proceeding of such serious nature. It is also hard to accept as to why such persons, whose nationality has been questioned before a legal Forum can remain idle without pursuing its own case. Necessary implication of such aspect may indicate that the appellant had no necessary document to prove her case for which even after giving ample opportunity for adducing evidence, she failed to adduce the same. 8. Though the appellant herein try to defend herself by blaming her engaged counsel but she failed to fortify her own conduct, as to what restrained her to make her counsel or to enquire about her case after filing written statement. Such a conduct of the appellant is not at all acceptable. 9. The learned Single Judge has appreciated also the merit of the case and has held that the petitioner filed only two photocopies of document, one is certificate of Gaonburah (about marriage of the petitioner) and second one is the photocopy of voter list of 1966 (not legible), which is also not admissible in evidence. Having regard to the contentions raised by the learned counsel for the appellant that for the error committed by the engaged counsel for the appellant for giving no proper instruction to the appellant resulting for her non-appearance before the Tribunal, cannot be a ground to be interfered by way of appeal. 10. In Sarbanand Sonowal v. Union of India reported in (2005) 5 SCC 665 , the Hon'ble Apex Court dealing with the modality of proving one citizenship, it has been emphasised that the burden of proof is always on the proceed as per provisions of Section 9 of the Foreigner's Act, 1946. Merely by producing some photocopies, one cannot establish his/her 'Indian Citizenship'. The power of proviso 2 in exercising judicial review under Article 226 of the Constitution of India cannot sit on appeal over the findings of facts recorded by the Court/Tribunal. Merely by producing some photocopies, one cannot establish his/her 'Indian Citizenship'. The power of proviso 2 in exercising judicial review under Article 226 of the Constitution of India cannot sit on appeal over the findings of facts recorded by the Court/Tribunal. It is only when the Court/Tribunal exercise a jurisdiction without being empowered or in excess of it or fails to exercise the vested jurisdiction or acts illegally, the Writ Court can exercise its jurisdiction to interfere in such matter. The power of judicial review is limited only to correction of errors apparent on the face of records and does not need long drawn out process of reasons on points whether there may be conceivably two views. 11. As per the direction rendered, it is seen that in the present case, the appellant failed to make out any exceptional and special circumstances so as to interfere into the ex-parte order so passed by the learned Tribunal for which such order has been upheld by the learned Single Judge. 12. In view of the legal propositions and matters on record, we are of the opinion that there is no illegality or irregularity either in the findings of the learned Tribunal as well as the learned Single Judge in the writ petition. Accordingly, the appeal is devoid of merit, hence, the same is dismissed. 13. Copies of this judgment be sent to Superintendent of Police (B), Goalpara and the Deputy Commissioner, Goalpara for taking further course of action towards detention of the petitioner in the detention camp for her deportation to her country of origin and for deletion of her name from the voter list. Copies of this order shall also be sent to the Union Government in the Ministry of Home and so also to the State Government in the Home Department for their necessary follow-up action in terms of this judgment and order. 14. Another copy be furnished to Mr. S.C. Keyal, learned Assistant Solicitor General of India for the follow-up action.