Mustt. Halima Khatun W/o Soleman v. Union of India, Represented by the Secretary to the Govt. of India, Home Department, New Delhi
2018-07-25
A.K.GOSWAMI, M.R.PATHAK
body2018
DigiLaw.ai
JUDGMENT : A.K. Goswami, J. Heard Mr. P. Sharma, learned counsel for the petitioner. Also heard Mr. U.K. Nair, learned senior special standing counsel, Foreigners Tribunal, appearing for respondent Nos.2, 4 and 5; Ms. G. Sarma, learned CGC appearing for respondent No.1; Mr. A.I. Ali, learned standing counsel, Election Commission of India, appearing for respondent No.3 and Ms. U. Das, learned standing counsel, NRC, appearing for respondent No.6. 2. Challenge in this writ petition is to an order 06.07.2012 passed by the learned Member, Foreigners Tribunal No.1, Dhubri, in F.T. Case No.257/MKCR/2010, whereby it was held that the petitioner had entered into India without authority after 25.03.1971 and therefore, she is an illegal migrant of post-1971 stream. 3. A perusal of the impugned order goes to show that the petitioner had entered appearance through a counsel on 07.04.2011 and had filed written statement along with photocopies of documents. The case was fixed for hearing on 25.05.2011. The petitioner did not appear on that date and also on five subsequent dates, namely, on 21.06.2011, 22.07.2011, 20.08.2011, 19.11.2011 and 09.03.2012. On all these dates, the learned counsel appearing for the petitioner filed petitions for adjournment which were allowed. The petitioner remained absent without any steps on 27.03.2012 and 19.04.2012. The learned Tribunal intimated the counsel appearing for the petitioner to appear, whereupon the counsel appeared on 18.05.2012 and submitted that he was unable to contact the petitioner. As the petitioner had not appeared, the case was fixed for ex parte hearing. 4. Although no evidence was adduced, the learned Tribunal had considered the written statement and copies of documents filed by the opposite party and had opined that sufficient material was not available to decide the case in her favour. 5. Section 9 of the Foreigners Act, 1946 provides that if in any case not falling under Section 8, any question arises with reference to the Act or any order made or direction given thereunder, whether any person is or is not a foreigner or is or is not a foreigner of a particular class or description, the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall notwithstanding anything contained in the Indian Evidence Act, 1872, shall lie upon such person. 6.
6. In the writ petition, the petitioner attributed default on the part of the petitioner as a root cause for the ex-parte judgment. It is pleaded that the counsel engaged did not wilfully inform the petitioner about the date of her case and that though he had taken the certified copy of the judgment, the same was not handed over to her. 7. The petitioner had filed two additional affidavits: one on 20.04.2018 and the other one on 09.07.2018. In the writ petition, averment is made at paragraph 9 that she could learn only recently about the ex-parte judgment rendered by the learned Tribunal. In the additional affidavit filed on 20.04.2018, it is stated that as Mr. Murad Hussain, who was engaged by a friend of the husband of the petitioner and whose name the petitioner had come to know presently, is a practicing advocate at Dhubri District Court and also at the Foreigners Tribunal and therefore, they could not meet him at the Foreigners Tribunal when they came to meet him. 8. It is further pleaded that the mobile number of the husband of the petitioner was given to the learned counsel, but the mobile had fallen into water in the month of February, 2012 and therefore, the contact with the advocate was lost. Statement is made at paragraph 6 to the effect that the learned counsel had tried to contact her, but was unable to contact and that he had also sent two letters. 9. In the additional affidavit filed on 09.07.2018, there is more or less reiteration of what was stated in the additional affidavit dated 20.04.2018. 10. On perusal of the materials on record, we are of the considered opinion that the plea taken by the petitioner that there was default on the part of the learned counsel of the petitioner is unfounded. It appears to us from the averments made by the petitioner herself that the learned counsel had taken all possible steps, but it was the petitioner who had not taken due care to attend to the proceeding before the learned Tribunal even though her nationality was at stake. Any bonafide Indian citizen, whose nationality is at stake, would have taken prompt and effective steps, but in the instant case, we see that no such steps have been taken by the petitioner after filing written statement. 11. In Sarbananda Sonowal Vs.
Any bonafide Indian citizen, whose nationality is at stake, would have taken prompt and effective steps, but in the instant case, we see that no such steps have been taken by the petitioner after filing written statement. 11. In Sarbananda Sonowal Vs. Union of India, reported in 2005(5) SCC 665 at Paragraph 73, the Supreme Court had observed that the procedure under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 is just, fair and reasonable and does not offend any constitutional provision. In Paragraph 63, the Supreme Court had observed that there can be no manner of doubt that the State of Assam is facing external aggression and internal disturbance on account of large-scale illegal migration of Bangladeshi nationals and that it, therefore, becomes the duty of the Union of India to take all measures for protection of the State of Assam from such external aggression and internal disturbance as enjoined in Article 355 of the Constitution. In Paragraph 70, it was observed that the influx of Bangladeshi nationals who have illegally migrated into Assam pose a threat to the integrity and security of the North-Eastern region and that their presence has changed the demographic character of that region and the local people of Assam have been reduced to a status of minority in certain districts. 12. It is more than three decades that the issue of influx of foreign nationals has been in public domain in the State of Assam and has engaged the attention of the people. Interest of the State is of paramount importance in that unabated influx has the potential to affect the integrity and sovereignty of the country. Citizenship of a person, no doubt, is a very valuable right and should be zealously guarded. There is no gainsaying the fact that a person who is alleged to be a foreigner must be given due and reasonable opportunity to establish that he is a citizen of India. However, if a person does not take steps for safeguarding his interest, he does so at his own risk and peril as grant of opportunity cannot be an endless exercise. Right to a fair hearing or principles of natural justice cannot be permitted to lead to a farcical situation and to be an engine for defeating the very object of identification and deportation of foreigners. 13.
Right to a fair hearing or principles of natural justice cannot be permitted to lead to a farcical situation and to be an engine for defeating the very object of identification and deportation of foreigners. 13. In view of above, we are of the considered opinion that in the instant case sufficient opportunity was granted to the petitioner, which was not availed of and therefore, we do not see any justification to interfere with the impugned order dated 06.07.2012 and accordingly, the writ petition is dismissed.