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2019 DIGILAW 988 (GAU)

Sabitri Dutta v. Union of India

2019-09-03

KALYAN RAI SURANA, MANOJIT BHUYAN

body2019
ORDER : Kalyan Rai Surana, J. 1. Heard Mr. G.P. Bhowmik, learned senior counsel, assisted by Ms. M. Kalita, learned counsel for the petitioner. Also heard Ms. G. Hazarika, learned C.G.C. for respondent No. 1, Mr. J. Payeng, learned Government Advocate for the State respondents No. 2 to 5. 2. By this writ petition filed under Article 226 of the Constitution of India, the petitioner has challenged the opinion dated 05.05.2017, given by the learned Member, Foreigners Tribunal 2nd, Dhemaji at Silapathar in F.T. (D) Case No. 2ND Dhemaji 1- 207/2016 on the basis of reference forwarded by the Superintendent of Police (B), Dhemaji. By the said opinion, the reference was answered in the affirmative by holding the petitioner to be a foreigner. 3. The learned senior counsel for the petitioner has referred to the impugned opinion and he has submitted that based on the reference, three cases were registered against the petitioner, his mother and brother before the learned Foreigners Tribunal 2nd, Dhemaji at Silapathar, being F.T. (D) Case No. 207/2016, 208/2016 and 209/2019. However, as during the pendency of the cases, the mother and the brother of the petitioner had died, the F.T.'(D) Case No. 208/2016 and 209/2019 were closed and, as such, only F.T.(D) Case No. 207/2016 continued against the petitioner. 4. The learned senior counsel for the petitioner has referred to the statements made in the written statement and has submitted that the petitioner had made statement of all relevant facts in his written statement and that the petitioner had also annexed all the relevant documents to the written statement. By referring to the provisions of the Foreigners Tribunal (Order), 1964 it is submitted that the requirement of law is that a proceedee only had to make a representation and to produce evidence in support of her case. It is submitted that as the rigours of the Civil Procedure Code and the Evidence Act, 1872 is not applicable, except for summoning and enforcing attendance of any person, discovery and production of any document, issuing commission for examining any witness, etc., the provisions of Foreigners Tribunal (Order), 1964 did not envisage filing of evidence on affidavit by the proceedee or for recording oral examination-in-chief of the proceedee and to formally prove documents in accordance with the principles laid down in Civil Procedure Code and the Evidence Act, 1872. Accordingly, it is submitted that the learned Tribunal had failed to appreciate the law as laid down in Foreigners Tribunal (Order), 1964 and erroneously and illegally rejected the defence of the petitioner as narrated in the written statement and failed to appreciate the documents annexed to the written statement on the ground that the petitioner had not given evidence in support of her claim to be Indian citizen either under oath or on affidavit sworn before the Notary or other competent authority. It is further submitted that by bringing about the Notification dated 07.09.2015, the State Government had brought three amendments to the Foreigners Tribunal (Order), 1964 whereby some class of foreigners to which the petitioner belongs are exempted from detention and deportation. Hence, it is submitted that the opinion impugned herein is vitiated by erroneous rejection of the written statement including documents annexed thereto, as such, the impugned opinion is liable to be set aside and quashed and that the petitioner be declared as not a foreigner. 5. On the basis of submissions made by the learned senior counsel for the petitioner, the following two points of determination arise for decision in this case:- a. Whether the writ Court can interfere with the impugned opinion dated 5.5.2017 rendered by the Foreigners Tribunal on the ground that in law there is no requirement for a proceedee in a reference proceeding to either lead oral evidence by examining himself/herself and other supporting witnesses and that the proceeding be disposed of only on the basis of representation made by the proceedee? b. Whether in view of Notification dated 07.09.2015, the class of foreigners to which the petitioner belongs are exempted from detention and deportation? Point of determination No. (a):- 6. At the outset, it is seen that the petitioner has not annexed any document to show before this Court that the petitioner had applied before the learned Tribunal for review of the impugned opinion dated 05.05.2017 for granting her an opportunity to lead evidence and to prove the documents annexed with her written statement. 7. It would be relevant to quote the provisions of Section 9 of the Foreigners Act, 1946, which reads as follows:- "9. 7. It would be relevant to quote the provisions of Section 9 of the Foreigners Act, 1946, which reads as follows:- "9. Burden of proof.--If in any case not falling under section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person 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 (1 of 1872), lie upon such person." 8. In the case of State of Assam Vs. Moslem Mondal, 2013 (1) GLT 809, the Full Bench of this Court while answering question No. (b) had held, inter-alia, that Section 9 of the Foreigners Act, 1946 imposes a burden on the proceedee to prove that he is not a foreigner, which has been held by the Apex Court as a valid piece of legislation. 9. It would also be relevant to quote paragraphs 37 to 39 of the case of Musstt. Jan Nessa Vs. Union of India, 2018(5) GLT 499 : W.P.(C) 6834/2017, decided on 11.10.2018, hereunder:- "37) The Hon'ble Supreme Court in the case of Union of India and Others -Vs- Ghaus Mohammad reported in AIR 1961 SC 1526 , while considering the provisions of Section-9 of the Foreigners Act, 1946 have held that When a question arises whether a person is or is not a foreigner, the onus of proving that he is not a foreigner is on that person. 38) The Apex Court has reiterated the said principle of law in Fateh Mohd., son of Nathu Vs. Delhi Administration reported in AIR 1963 SC 1035 and Masud Khan -Vs- State of Uttar Pradesh reported in (1974) 3 SCC 469 , observing that By reason of Section 9 of the 1946 Act whenever a question arises whether a person is or is not a foreigner, the onus of proving that he is not a foreigner lies upon him and hence the burden is on the proceedee to establish that he is a citizen of India in the manner claimed by him. 39) In the case of Sarbananda Sonowal (I) Vs. 39) In the case of Sarbananda Sonowal (I) Vs. Union of India and Another, reported in (2005) 5 SCC 665 , where the question relating to the constitutional validity of the Illegal Migrants (Determination by Tribunals) Act, 1983 was under consideration, the Hon'ble Supreme Court - while dealing with various enactments made for dealing with the foreigners including the different provisions of the Foreigners Act, 1946 have held that Section 9 of the said 1946 Act casts the burden of proving that a person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, on such person and therefore, when an order made under the 1946 Act is challenged and a question arises whether the person against whom the order has been made is a foreigner or not, the burden of proving that he is not a foreigner is upon such a person." 10. Therefore, if the intended purpose of Section 9 of the Foreigners Act, 1946 was for the Foreigners Tribunal to give an opinion based only on written statement and documents annexed thereto, the legislature would not have used the words:- "whether any person 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 (1 of 1872), lie upon such person". Thus, the various judicial pronouncements, referred to herein above, leads to a conclusion that the requirement of Section 9 appears to be more rigorous, stringent and/or stricter than the manner of discharge of burden proof as ordinarily required under the Evidence Act, 1872. 11. In view of the discussions above, if any other view is taken, then it would render the words "burden of proof' in Section 9 of the Foreigners Act, 1946 as otiose and would serve no purpose or result. It would lead to a situation where a proceedee may file any document and the burden of proof would stand shifted from the proceedee to the Foreigners Tribunal to ascertain whether such document is admissible in evidence or not. It would lead to a situation where a proceedee may file any document and the burden of proof would stand shifted from the proceedee to the Foreigners Tribunal to ascertain whether such document is admissible in evidence or not. Moreover, it is a well established principle of law that mere marking of a document as exhibit is not enough as the contents of a document is also required to be proved. Therefore, if the contention of the learned senior counsel for the petitioner is accepted, it would lead to an anomalous situation where merely by filing documents as annexure to the written statement, the contents of a document would be deemed to have been proved, which is impermissible in law. Thus, the proposition canvassed by the learned senior counsel for the petitioner is rejected as untenable. 12. Thus, in the present case, as the petitioner did not discharge her burden as en-joined in Section 9 of the Foreigners Act, 1946 to prove the documents by exhibiting the same in accordance with law, a mere filing of documents would not partake the character of the petitioner effectively discharging her burden of proof. The manner of proving public documents and private documents is well prescribed under the Evidence Act, 1872, which need not be reproduced herein. Thus, as the petitioner has taken the risk of not tendering/getting her oral testimony recorded by way of examination-in-chief and/or by tending evidence-on-affidavit of herself and her supporting witnesses, and subjected them to cross examination and/or examination by Tribunal under Section 165 of the Evidence Act, 1872, she has done so at her own peril. Thus, the Court does not find any infirmity in the rejection of the stand of the petitioner by the learned Tribunal on the ground that the petitioner had not adduced any evidence. If no evidence is tendered, there is no requirement in law for the learned Foreigners Tribunal to deal with the stand taken by the proceedee in the written statement or to appreciate any document annexed to the writ petition. 13. In respect of the point of determination No. 1, we find more reasons to reject the contention of the learned senior counsel for the petitioner. 13. In respect of the point of determination No. 1, we find more reasons to reject the contention of the learned senior counsel for the petitioner. The provisions of paragraph 4 of Foreigners Tribunal (Order), 1964 specifically provides for application of Civil Procedure Code for summoning and enforcing attendance of any person, discovery and production of any document, issuing commission for examining any witness, etc. Provisions for the same appear under Section 30 and 31, Order XI, Order XIII, Order XVI, Order XVI-A, and Order XVIII of the Civil Procedure Code, amongst others. It is seen that the requirement to adduce evidence by way of examination-in-chief and/or by filing evidence-on-affidavit is an integral part of the provisions of Order XVI Rule 15, Order XVIII Rule 4, 16 and 19 of the Civil Procedure Code. 14. On a perusal of the provisions of paragraph 3(8), of the Foreigners (Tribunal) Order, 1964, it is clear that while opportunity is provided to the proceedee to file reply to show cause and a further ten days time is also provided to the proceedee to produce evidence in support of his or her case. Therefore, it is apparent that it is specifically provided that in addition to the reply to show cause the proceedee should also produce evidence. The provisions of paragraph 3(10) of the 1964 Order empowers the Tribunal to take such evidence as may be produced by the Superintendent of Police. The provisions of paragraph 3(11) thereof provides power to the learned Tribunal to hear such persons, as in its opinion, are required to be heard. The provisions of paragraph 3(13) thereof expressly provides that when the proceedee fails to produce any proof in support of his or her claim that he or she is not a foreigner and also not able to arrange for bail in respect of his or her claim, the proceedee shall be detained and kept in internment or detention centre. Thus, it appears from the reading of paragraph 3(13) of 1964 Order that in a given situation, the learned Tribunal may, without waiting for the final outcome of the reference, may detain and keep the proceedee in internment or detention centre. 15. Thus, it appears from the reading of paragraph 3(13) of 1964 Order that in a given situation, the learned Tribunal may, without waiting for the final outcome of the reference, may detain and keep the proceedee in internment or detention centre. 15. If the scheme of paragraph 3 of the Foreigners (Tribunal) Order, 1964 is read as a whole, the same does not appear to be contrary to the provisions of Order XVIII Rule 2 CPC, which reads as under:- "2. Statement and production of evidence.--(1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. (2) The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case. (3) The party beginning may then reply generally on the whole case. (3-A) Any party may address oral arguments in a case, and shall, before he concludes the oral arguments, if any, submit if the Court so permits concisely and under distinct headings written arguments in support of his case to the Court and such written arguments shall form part of the record. (3-B) A copy of such written arguments shall be simultaneously furnished to the opposite party. (3-C) No adjournment shall be granted for the purpose of filing the written arguments unless the Court, for reasons to be recorded in writing, considers it necessary to grant such adjournment. (3-D) The Court shall fix such time-limits for the oral arguments by either of the parties in a case, as it thinks fit." 16. Thus, we have no doubt that while the Foreigners Tribunal is required to give an opportunity to the proceedee to submit reply to show cause, which in common legal parlance is also called "written statement", a further opportunity is given to the proceedee to give evidence in this case. In the present case in hand, there is no allegation in the writ petition that time as envisaged under paragraph 3(10) of 1964 Order was not provided for the petitioner to produce her evidence. The manner of recording evidence is laid down under Rule 4 of Order XVIII of the Civil Procedure Code. 17. In the present case in hand, there is no allegation in the writ petition that time as envisaged under paragraph 3(10) of 1964 Order was not provided for the petitioner to produce her evidence. The manner of recording evidence is laid down under Rule 4 of Order XVIII of the Civil Procedure Code. 17. Thus, in view of the discussions above, we are unable to agree with the submissions made by the learned senior counsel for the petitioner that even without any evidence having been produced by the petitioner, the learned Tribunal ought to have examined the documents annexed to the show cause reply and/or written statement submitted by the petitioner. 18. Thus, the point of determination No. (a) is answered by holding that the writ Court cannot interfere with the impugned opinion dated 05.05.2017 rendered by the Foreigners Tribunal on the ground that in law there is no requirement for a proceedee in a reference proceeding to either lead oral evidence by examining himself/herself and other supporting witnesses and that the proceeding be disposed of on the basis of representation made by the proceedee alone. Point of determination No. (b):- 19. The other point raised by the learned senior counsel for the petitioner is that by bringing about the Notification dated 7.9.2015, the State Government had brought three amendments to the Foreigners Tribunal (Order), 1964 whereby some class of foreigners, to which the petitioner belongs, are exempted from detention and deportation. 20. The power to detain a person declared to be a foreigner is traceable to the provisions of (i) Section 3(g), 4 and 8 of the Foreigners Act, 1946, and (ii) Foreigners (Internment) Order, 1962. 21. The petitioner has not annexed a copy of the said Notification dated 07.09.2015 in the writ petition. However, we have perused a copy of the said Notification as available in the internet. It appears that by the said Notification, issued by the Government of India, Ministry of Home Affairs, amendments have been brought to the provisions of the Passport (Entry into India) Rules, 1950 and so also to the Foreigners Order, 1948. However, we have perused a copy of the said Notification as available in the internet. It appears that by the said Notification, issued by the Government of India, Ministry of Home Affairs, amendments have been brought to the provisions of the Passport (Entry into India) Rules, 1950 and so also to the Foreigners Order, 1948. In terms of the amended provision, the persons belonging to minority communities in Bangladesh and Pakistan, namely, Hindus, Sikhs, Christians, Jains, Parsis, and Buddhists, who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and entered into India on or before 31st December, 2014 are entitled to exemption as provided for by the said amendments. Having perused the writ petition and the written statement filed by the petitioner before the learned Tribunal, we find no statement that she or her parents had entered into India due to religious persecution or fear thereof and, as such, there is no material before this Court to presume that the petitioner belongs to a class of persons who are exempted from detention and deportation. The said plea also fails miserably and the point of determination No. (b) is answered accordingly. 22. The primary issue in a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 relates to determination as to whether the proceedee is a foreigner or not. Therefore, as the relevant facts are within the knowledge of the proceedee, notwithstanding anything contained in the Evidence Act, 1872, the burden of proving citizenship absolutely rests upon the proceedee as per the provisions of Section 9 of the Foreigners Act, 1946. In the present case in hand, the petitioner has failed to discharge the burden and to prove that she is an offspring of parents of Indian origin. 23. In the light of discussions above, this Court does not find that the impugned opinion rendered by the learned Tribunal is vitiated by any jurisdictional error or that there was any failure of giving opportunity of hearing to the petitioner. Therefore, as the Court is exercising supervisory jurisdiction and not appellate jurisdiction, no case is made out for substituting the opinion rendered by the learned tribunal with the view of the Court. This is not a case where the learned Tribunal had refused to admit admissible evidence or that its finding is dehors the evidence on record. 24. Therefore, as the Court is exercising supervisory jurisdiction and not appellate jurisdiction, no case is made out for substituting the opinion rendered by the learned tribunal with the view of the Court. This is not a case where the learned Tribunal had refused to admit admissible evidence or that its finding is dehors the evidence on record. 24. Hence, this writ petition fails and the same is dismissed, leaving the parties to bear their own cost. 25. Registry may communicate a copy of this order to the learned Foreigners Tribunal 2nd, Dhemaji at Silapathar to be kept with the case record for future reference.