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2019 DIGILAW 602 (GAU)

Abdul Rashid @ Abdur Rashid v. Union of India

2019-05-15

MANISH CHOUDHURY, MANOJIT BHUYAN

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JUDGMENT : Manojit Bhuyan, J. 1. Heard Mr. L.R. Mazumder, learned counsel for the petitioner as well as Mr. U.K. Nair, learned senior counsel representing respondent nos. 2, 4 and 5. Ms. A. Verma, learned counsel represents respondent no.6. None to represent respondent nos.1 and 3. 2. Petitioner assails the ex-parte order dated 03.11.2017 passed by the Foreigners Tribunal 6th, Silchar in F.T.6th (D) Case No.823/2016, declaring him to be an illegal migrant of post 25.03.1971 stream. Also assailed is the order dated 11.02.2019 passed in Misc. Case No.31/2018, whereby the petition praying for vacating the ex-parte opinion dated 03.11.2017 stood dismissed as not maintainable. 3. As it transpires from the materials available on record, the petitioner responded to the notice issued by the Tribunal and appeared through his engaged counsel, filed written statement along with some xerox copy of documents. Thereafter the case was fixed for evidence. The petitioner through his counsel took adjournment on as many as 10 (ten) occasions i.e. on 17.11.2016, 04.01.2017, 30.01.2017, 18.03.2017, 18.04.2017, 06.05.2017, 23.05.2017, 23.06.2017, 29.07.2017 and 18.08.2017. In between, on as many as 4 (four) occasions i.e. 13.12.2016, 28.02.2017, 08.06.2017 and 12.09.2017 the petitioner or his engaged counsel remained absent without any steps. The petitioner made no effort to prove his case and even on the date of delivery of opinion the petitioner remained absent without any steps. 4. The petitioner had filed Misc. Case No.31/2018 for setting aside the ex-parte opinion dated 03.11.2017, which was dismissed vide order dated 11.02.2019. It is submitted that ground taken in the review petition is that the petitioner could not appear on due dates as he could not obtain necessary documents in time despite applying for certified copies. This, in our view, is an incorrect stand, inasmuch as, it can be seen from the copies of the Voter Lists of 1966 and 1970 (page 13 and 15 of the writ petition) that the same were applied for much after the final opinion in the reference case was rendered. 5. Having regard to the undisputed facts, as above, we find that sufficient opportunities had been granted to the petitioner to establish his claim as not being foreigner or to refute the allegation that he had illegally entered into the territory of India after 25.03.1971. 5. Having regard to the undisputed facts, as above, we find that sufficient opportunities had been granted to the petitioner to establish his claim as not being foreigner or to refute the allegation that he had illegally entered into the territory of India after 25.03.1971. In this context, we may observe that although the procedure of identification and for declaring an individual to be a foreign national cannot be relegated to a mechanical exercise and that fair and reasonable opportunity must be afforded to a proceedee to establish claim that he/she is a citizen of India, however, such grant of opportunity cannot be enlarged to an endless exercise. A person who is not diligent and/or is unmindful to take steps to safeguard his interest, he does so at his own risk and peril. In the instant case several opportunities were granted to the petitioner to establish his claim, which he utterly failed to do so. In this context, we observe 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. The said position would not change even 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 option left 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, where notice was issued and duly served upon the proceedee. In the instant case, the petitioner neglected to participate/contest the proceedings by adducing evidence. 6. We take note that 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. 6. We take note that 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. At 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. At 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 the region, reducing the local people of Assam to a status of minority in certain districts. 7. Having noticed as above, another aspect to be noted is that the scope of interference under Article 226 of the Constitution of India to a decision of the Tribunal is limited to 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 case. To reiterate, sufficient opportunities had been given to the petitioner to discharge the burden of proving that he is not foreigner, which he utterly failed to discharge. On this ground alone, the writ court would refrain from interfering with the impugned order. We also hold that the documents enclosed in the present writ petition cannot be looked into, those not having been proved before the Tribunal at the first instance, despite sufficient opportunities being afforded. 8. We find no merit in the present petition. Accordingly, the writ petition stands dismissed and the order/opinion of the Tribunal is affirmed. No cost.