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2020 DIGILAW 578 (GAU)

Sandhya Dey v. Union of India

2020-06-18

MANOJIT BHUYAN, PARTHIVJYOTI SAIKIA

body2020
ORDER : 1. Heard Mr. J.C. Gogoi, learned counsel for the petitioner as well as Ms. G. Hazarika, learned counsel representing respondent Nos. 1 and 4. Ms. B. Das, learned counsel appears on behalf of respondent No. 2, whereas Mr. A. Kalita, learned counsel appears on behalf of respondent Nos. 2, 5 and 6. 2. Petitioner assails ex-parte order dated 08.08.2018 passed by the Foreigners' Tribunal, Diphu, Karbi Anglong, Assam in F.T. Case No. 26/2017, declaring her to be a foreigner of post 1971 stream. 3. As it transpires from the materials available on record, the petitioner had responded to the notice issued by the Foreigners' Tribunal, Diphu, Karbi Anglong through the engaged counsel and prayed for time to file written statement on 18.09.2017. Thereafter, the matter was listed on 15 (fifteen) consecutive dates i.e. 03.10.2017, 24.10.2017, 15.11.2017, 29.11.2017, 11.12.2017, 30.01.2018, 20.02.2018, 07.03.2018, 28.03.2018, 18.04.2018, 10.05.2018, 29.05.2018, 18.06.2018, 12.07.2018 and 26.07.2018. The counsel for the petitioner filed petition only on 7 (seven) dates seeking time to file written statement. Rest of the dates the petitioner remained absent without steps. Even after the 14th date, no written statement came to be filed. In such a situation an adverse view was taken and the Tribunal rendered the impugned opinion on 08.08.2018. 4. Having regard to the facts, as above, we find that sufficient opportunities had been granted to the petitioner to establish her claim as not being a foreigner or to refute the allegation that she 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/her interest, he/she does so at his/her own risk and peril. In the instant case several opportunities were granted to the petitioner to establish her claim, which she utterly failed to do so. In this context, we may 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. In the instant case several opportunities were granted to the petitioner to establish her claim, which she utterly failed to do so. In this context, we may 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 utterly neglected to participate/contest in the proceedings. 5. 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 she is not a foreigner, which she 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. 6. 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. Office to send back the case records to the Tribunal forthwith. 6. 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. Office to send back the case records to the Tribunal forthwith. A copy of this order be made part of the case records of the Tribunal for future reference.