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2017 DIGILAW 461 (GAU)

Mojibar Rahman v. Union of India

2017-04-19

PARAN KUMAR PHUKAN, UJJAL BHUYAN

body2017
JUDGMENT : Ujjal Bhuyan, J. Heard Mr. M.U. Mahmud, learned counsel for the petitioner and Mr. G. Pegu, learned Government Advocate, Assam. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 01.09.2011, passed by the Foreigners' Tribunal No. 1, Goalpara, in FT Case No. 3004/G/11, declaring the petitioner to be a foreigner, who had illegally entered into India (Assam) from the specified territory after 25.03.1971. 3. A perusal of the order dated 01.09.2011 would go to show that notice issued by the Tribunal was served upon the petitioner, where after he entered appearance before the Tribunal along with his counsel on 18.06.2010 and prayed for time to file written statement, which was allowed. On the next date, i.e., on 28.07.2010, petitioner filed his written statement. However, when the case was fixed for evidence, petitioner remained absent. As recorded by the Tribunal, the case was adjourned on the following dates because of non-appearance of the petitioner: - 05.10.2010, 10.12.2010, 03.02.2011, 24.03.2011, 09.05.2011, 17.06.2011, 19.07.2011 and 19.07.2011. Thereafter, the case was fixed on 20.08.2011. Tribunal noted that counsel for the petitioner continued to file adjournment petitions, stating that petitioner could not collect the essential documents. Considering the persistent default of the petitioner, further adjournment was not granted by the Tribunal and, thereafter, order was passed on 01.09.2011, answering the reference in favour of the State in the above manner. 4. After more than 5 (five) years, petitioner filed an application for setting aside the aforesaid order dated 01.09.2011, contending the same to be an ex parte order. In this application, petitioner stated that his counsel never asked him to attend the case, for which reason he defaulted in his appearance. He also referred to an order dated 30.08.2016, passed by the Foreigners' Tribunal No. 5, Goalpara, in FT Case No. FT/5/245/MA/2015, stating that by the said order, he was declared to be not a foreigner. Tribunal held that the order dated 01.09.2011 could not be said to be an ex parte opinion as petitioner had filed written statement. Therefore, the application was not maintainable. Tribunal also held that order dated 01.09.2011, whereby petitioner was declared to be a foreigner of post 25.03.1971 stream being earlier in point of time than the subsequent order dated 30.08.2016, the same would prevail. Therefore, the application was not maintainable. Tribunal also held that order dated 01.09.2011, whereby petitioner was declared to be a foreigner of post 25.03.1971 stream being earlier in point of time than the subsequent order dated 30.08.2016, the same would prevail. Moreover, Tribunal noted that in the proceedings before the Foreigners' Tribunal No. 5, Goalpara, in FT Case No. FT/5/245/MA/2015, petitioner did not disclose about the order dated 01.09.2011 or about the proceeding in FT Case No. 3004/G/2011. So, there was suppression of materials facts. Therefore, his application was dismissed vide order dated 01.02.2017. 5. Before us, learned counsel for the petitioner has tried to put the blame on the counsel by saying that he did not inform the petitioner about the need to be present before the Tribunal, which explained his default. Now that another Tribunal has held him to be not a foreigner, the matter is required to be remanded back for a fresh decision on merit. 6. Learned State Counsel, however, opposes the submissions made by the learned counsel for the petitioner. 7. Submissions made have been considered. 8. We are afraid we can accept the contention advanced by learned counsel for the petitioner. As discussed above, we find that petitioner had duly responded to the notice issued by the Tribunal and had entered appearance through counsel, where after the written statement was filed. When the turn for adducing evidence came, petitioner did not appear. It is seen that as many as 9 (nine) dates were granted for adducing evidence and on all the dates, counsel of the petitioner sought for time on the ground that essential documents were not available. Therefore, it was quite evident that petitioner did not have any relevant document to support his contention of not being a foreigner. It is trite that mere making averments in the written statement would not be enough, those averments are required to be proved by adducing cogent and reliable evidence, which the petitioner failed to do. Therefore, petitioner had failed to discharge the burden under Section 9 of the Foreigners' Act, 1946, and consequently, Tribunal rightly answered the reference in favour of the State. 9. We do not find any error or infirmity in the order dated 01.09.2011 as well as in the subsequent order dated 01.02.2017, which is a well reasoned order. 10. Therefore, petitioner had failed to discharge the burden under Section 9 of the Foreigners' Act, 1946, and consequently, Tribunal rightly answered the reference in favour of the State. 9. We do not find any error or infirmity in the order dated 01.09.2011 as well as in the subsequent order dated 01.02.2017, which is a well reasoned order. 10. Coming to the order dated 30.08.2016, passed by the Foreigners' Tribunal No. 5, Goalpara, in FT Case No. FT/5/245/MA/2015, 2 (two) things are distinctly noticeable; firstly, participation of the petitioner in this proceeding unlike the previous one and secondly, non-disclosure about FT Case No. 3004/G/2011, decided by the Foreigners' Tribunal No. 1, Goalpara, on 01.09.2011. Firstly, if the petitioner could participate in the subsequent proceeding and obtain a favourable opinion, then the question arises as to why he could not participate in the earlier proceeding? It does not require much deliberation or application of mind to find out why. Because, as admitted by petitioner's counsel himself, he did not have the documents then But when he appeared in the second proceeding he very conveniently did not disclose or mention about the earlier proceeding despite being fully aware of it. Thus, this is not only a case of suppression of material facts by the petitioner as held by the Tribunal but appears to be a clear case of deliberate mischief. Such mischief cannot be countenanced. Secondly, it is quite apparent that when the petitioner was already declared to be a foreigner as far back as on 01.09.2011, there was no need or necessity to proceed with FT Case No. FT/5/245/MA/2015 by the Foreigners' Tribunal No. 5, Goalpara. Therefore, the second reference was wholly uncalled for and unwarranted. Since petitioner was already declared to be a foreigner on 01.09.2011, the subsequent order dated 30.08.2016, passed by the Foreigners' Tribunal No. 5, Goalpara, in FT Case No. FT/5/245/MA/2015 would be of no legal consequence. Apart from suppression of order dated 01.09.2011, the logic and reasoning given by the Foreigners' Tribunal No. 5, Goalpara, in the order dated 30.08.2016 is highly questionable. However, we need not go into this aspect of the matter since petitioner has already been declared a foreigner vide order dated 01.09.2011 and challenge to the same being not entertained by the Court. 11. Accordingly and in the light of the above, writ petition is dismissed. 12. However, we need not go into this aspect of the matter since petitioner has already been declared a foreigner vide order dated 01.09.2011 and challenge to the same being not entertained by the Court. 11. Accordingly and in the light of the above, writ petition is dismissed. 12. Registry to inform the concerned Foreigners' Tribunal, Superintendent of Police (Border) and Deputy Commissioner for taking necessary follow-up steps. 13. This order should also be brought to the notice of the Member, Foreigners' Tribunal No. 5, Goalpara and Commissioner and Secretary to the Government of Assam, Home and Political Department to ensure that once a proceedee is declared to be a foreigner, subsequent references are not to be made or decided in a contradictory manner. Registrar (Judicial), Gauhati High Court, shall do the needful.