Gauhati High Court
Ijjat Ali vs The Union Of India And 5 Ors on 12 October, 2020
Equivalent citations: AIRONLINE 2020 GAU 348
Author: Manojit Bhuyan
Bench: Manojit Bhuyan, Suman Shyam
Page No.# 1/5
GAHC010250682019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 8361/2019
1:IJJAT ALI
S/O- FAJAR ALI, R/O- VILL- KURANIBORI, P.S- MAYONG, DIST-
MORIGAON, ASSAM, PIN- 782411
VERSUS
1:THE UNION OF INDIA AND 5 ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF INDIA,
HOME AFFAIRS DEPTT, NEW DELHI- 01
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM
HOME DEPTT
DISPUR
GUWAHATI- 06
3:THE ELECTION COMMISSION OF INDIA
NEW DELHI- 01
INDIA
4:THE STATE COORDINATOR
NRC
ASSAM
5:THE DEPUTY COMMISSIONER
MORIGAON
P.O- MORIGAON
DIST- MORIGAON
ASSAM
PIN- 782105
Page No.# 2/5
6:THE SUPERINTENDENT OF POLICE (B)
MORIGAON
P.O- MORIGAON
DIST- MORIGAON
ASSAM
PIN- 78210
Advocate for the Petitioner : MR. B U LASKAR
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE SUMAN SHYAM
ORDER
12.10.2020 (Manojit Bhuyan, J) Heard Mr. B.U. Laskar, learned counsel for the petitioner as well as Mr. J. Payeng, learned counsel representing respondent nos.2, 5 and 6. Ms. B. Das, learned counsel represents respondent no.3 whereas Ms. G. Hazarika, learned counsel appears for respondent no.4.
Petitioner assails ex-parte order dated 06.02.2019 passed by the Foreigners' Tribunal No.4th, Morigaon, Assam, in Case No. F.T.(D) 152/2015, declaring him as a foreigner, having illegally entered into India (Assam) after the cut-off date i.e. 25.03.1971.
As it transpires from the materials available on record, the petitioner responded to the notice dated 12.10.2015, issued by the Tribunal and appeared through engaged counsel on 03.11.2015. On that day, the engaged counsel prayed for time to file written statement, which was granted and the case was next fixed on 21.11.2015. On the next three consecutive dates i.e 21.11.2015, 10.12.2015 and 22.12.2015, the engaged counsel filed petitions praying for further time to file written statement. On 02.01.2016 the petitioner was personally present along with his Advocate and filed written statement with documents. The Tribunal fixed the Page No.# 3/5 case next on 22.01.2016 for evidence. However, on the next two dates i.e. 22.01.2016 and 10.02.2016, the engaged counsel filed Petition Nos.336 and 428 praying for time to file evidence. It is seen from the records that on 09.03.2016 the petitioner was examined and discharged and the case was next fixed on 05.04.2016 for further evidence. On 05.04.2016, the petitioner again submitted petition for further evidence, which was granted, fixing 11.05.2016 for further evidence. Thereafter, the petitioner on three dates i.e. on 11.05.2016, 27.06.2016 and 14.08.2016 remained absent without any steps. The records reveal that following the dates after 14.08.2016, there are four undated and unsigned orders. The said fact was duly recorded by the Tribunal in its order dated 20.06.2018, which is reproduced hereinbelow for ready reference :
"Order sheet indicates sequential updates up to 14.08.2016, but thereafter 4 orders were written in the order sheet without any dates or seal or signature of my predecessor member, but OP have been declared as an Indian citizen, pronounced in open court, without the copy of detailed order.
Interestingly, there is not even a photocopy of documents (voter list) along with the W/s so filed on 02.01.2016 except two nos of print out Legacy Datas. Perusal of entire records also indicates that a last petition vide Petition No.846 dated 22.06.2016 was filed by learned counsel for OP, Mr. Dilip Medhi seeking for further D/w, as initial D/w of OP Md. Ijjat Ali was first recorded on 09.03.2016.
In such circumstances and keeping in view the short-comings detected in procedural lapse, any order obtained by the OP namely Md. Ijjat Ali, S/o Late Fajar Ali, R/o Kuranibori under Mayong P.S. in the district of Morigaon is totally illegal and non-est in the eye of law having no legal sanctity at law. Therefore, the matter needs to be heard again for passing final order.
Office to inform the learned counsel for OP to submit the original exhibits/documents as mentioned/indicated in the W/s before advancing his fresh Arguments. It is also made clear that failing to comply with the above order would lead to passing appropriate order as per law.
Fixed on 24th July for Argument/Re-hearing."
Not to speak of submitting original exhibits and documents, as required by the aforesaid order dated 20.06.2018, the petitioner altogether ignored to appear/attend the Tribunal on the next 6 (six) consecutive dates i.e. 24.07.2018, 18.08.2018, 22.10.2018, 20.11.2018, 21.12.2018 and 06.02.2019. To reiterate, on the said six dates the petitioner Page No.# 4/5 remained absent without taking any steps. In such compelling situation, an adverse view was taken and the impugned ex-parte opinion came to be rendered.
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, more than necessary 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.
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 Page No.# 5/5 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.
We find no merit in the present petition. Accordingly, the writ petition stands dismissed. Before parting with the case records we would, however, place on record our disagreement and interference with that part of the impugned opinion whereby a direction have been made to the authorities concerned to delete/cancel the names of the other family members of the petitioner from any Government Beneficial Scheme, Family Ration Card, Voter ID, Driving Licence, PAN Card etc., for the reason that the case records do not demonstrate initiation of any independent proceedings against any of the family members of the petitioner, save and except the petitioner alone.
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.
JUDGE JUDGE Comparing Assistant