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2018 DIGILAW 1326 (GAU)

Rezia Bibi @ Rezia Begum v. Union of India

2018-09-07

MANOJIT BHUYAN, PRASANTA KUMAR DEKA

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JUDGMENT : MANOJIT BHUYAN, J. 1. Heard Mr. A.S. Tapadar, learned counsel for the petitioner as well as Ms. G. Sarmah, learned CGC for respondent no.1; Mr. A. Kalita, learned counsel for respondent nos.2, 3, 6 & 7; Mr. A.I. Ali, learned counsel for respondent no.4 and Ms. A. Verma, learned counsel for respondent no.5. 2. The petitioner assails the judgment and order dated 7.9.2009 passed by the Foreigners' Tribunal-I, Karimganj in F.T. Case No.634/2007, declaring the petitioner as a foreigner. Such declaration was made on the basis of reference made by the Superintendent of Police (Border), Karimganj. 3. Having heard the learned counsels for the parties and on perusal of the materials on record we, at the outset, are not inclined to interfere with the aforesaid judgment and order dated 7.9.2009 for the reasons stated hereunder. 4. The notice of the proceeding in the said F.T. Case No.634/2007 was duly issued and served upon the petitioner through her husband. However, despite receipt of notice, the petitioner remained absent without any steps. Apparently, she neither did adduce evidence nor discharged her statutory burden under Section 9 of the Foreigners Act, 1946. In such a situation, the petitioner was declared to be a foreigner. About 7 (seven) years later, the petitioner filed an application under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure for setting aside the ex-parte order dated 7.9.2009 along with a delay condonation petition under Section 5 of the Limitation Act, 1963. The said application was registered and numbered as Misc. Case No.07/2016. The same was dismissed vide order dated 2.8.2016 of the Foreigners Tribunal-II, Karimganj on ground that the petitioner could not show satisfactory explanation for condoning the delay. However, in the said order the learned Member, Foreigners Tribunal-II, Karimganj made an observation that having regard to the documents at Annexures-A, B and C of the application, it prima facie appeared that the petitioner has an Indian origin since the time of her forefathers. 5. Dealing first with the observation made by the learned Member in the order dated 2.8.2016, as above, we place on record that the learned Member exceeded his jurisdiction in making such observation, that too, in an application under Order 9 Rule 13 of the Code of Civil Procedure. 5. Dealing first with the observation made by the learned Member in the order dated 2.8.2016, as above, we place on record that the learned Member exceeded his jurisdiction in making such observation, that too, in an application under Order 9 Rule 13 of the Code of Civil Procedure. Further, the said untoward observation was made on the basis of three documents, which were never produced nor pleaded nor proved by the petitioner in the original proceeding. We take strong exception to such observation made. 6. Turning to the case in hand, without any dispute the petitioner abstained from participating in the proceedings despite service of notice through her husband. From the available records i.e. Annexure-15 to the writ petition, which is the deposition of the petitioner in Misc. Case No.07/2016, a clear statement is also made that she had received a notice issued by the Foreigners' Tribunal, Karimganj. 7. In the above fact situation, we hasten to add that in a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 the primary issue for determination is whether the proceedee is a foreigner or not. The relevant fact being especially within the knowledge of the proceedee, as such, the burden of proving citizenship absolutely rests upon the proceedee, notwithstanding anything contained in the Indian Evidence Act, 1872. This is mandated under Section 9 of the aforesaid Act, 1946. Accordingly, burden is cast upon the proceedee to plead and prove evidence to establish that he is not a foreigner. The said position would not change in an ex-parte proceeding before the Tribunal as the burden never shifts but continues to be upon the proceedee. In a situation where no evidence is adduced or the burden is not discharged, the only alternative left open to the Tribunal would be to declare the proceedee to be a foreigner, based on the grounds of reference upon which appropriate proceeding was initiated and notice was issued and served upon the proceedee. In the instant case, the petitioner even after receiving notice from the Tribunal, abstained from appearing and/or participating in the proceedings to discharge her burden as required under Section 9 of the Foreigners Act, 1946. No infirmity can be attributed in the order dated 7.9.2009 of the Tribunal. 8. In the present petition, the petitioner has enclosed documents to establish that she is a citizen of India. No infirmity can be attributed in the order dated 7.9.2009 of the Tribunal. 8. In the present petition, the petitioner has enclosed documents to establish that she is a citizen of India. In this context we say that the scope of interference to an order of the Tribunal in a proceeding under Article 226 of the Constitution of India is limited. A writ in the nature of certiorari can only issue for correcting errors of jurisdiction or when decision is made by the Tribunal without giving opportunity of hearing or when judgment is rendered in violation of the principles of natural justice or where there appears to be an error apparent on the face of the record. None of the above grounds exists in the present writ petition. The writ court would definitely not interfere with the order of the Tribunal when opportunity had been given to the proceedee to discharge the burden of proving that he/she is not a foreigner, as in the instant case. The certiorari jurisdiction is supervisory and not appellate jurisdiction. The documents which the petitioner have enclosed in the present writ petition also cannot be looked into, those not having been proved before the Tribunal at the first instance despite opportunity afforded. 9. For all the reasons afore stated, we find no merit in the present petition. Accordingly, the writ petition stands dismissed and the judgment and order of the Tribunal affirmed. 10. Registry to inform the concerned Foreigners' Tribunal, the Deputy Commissioner and the Superintendent of Police (Border) for taking immediate follow-up steps.