Gauhati High Court
Shri Ram Kumar Roy vs The Union Of India And 4 Ors on 4 April, 2019
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan, Nelson Sailo
Page No.# 1/4
GAHC010128722018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Review.Pet. 119/2018
1:SHRI RAM KUMAR ROY
S/O LATE RAMESH CHANDRA ROY, VILL. GAJAL GHAT, P.S. DHOLAI, DIST.
CACHAR, ASSAM.
VERSUS
1:THE UNION OF INDIA AND 4 ORS
REPRESENTED BY THE SECY., MINISTRY OF HOME AFFAIRS, GOVT. OF
INDIA, NEW DELHI-01
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT. OF
ASSAM
HOME DEPTT.
DISPUR
GUWAHATI-6
3:THE DEPUTY COMMISSIONER
DIMA HASAO
DIST. DIMA HASAO
ASSAM.
4:THE SUPERINTENDENT OF POLICE (BORDER)
DIMA HASAO
DIST. DIMA HASAO
ASSAM.
5:THE OFFICER IN CHARGE
HAFLONG POLICE STATION
DIMA HASAO
DIST. ASSAM
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Advocate for the Petitioner : MR. P ROY
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE UJJAL BHUYAN
HONOURABLE MR. JUSTICE NELSON SAILO
ORDER
Date : 04-04-2019 (Ujjal Bhuyan, J) Heard Mr P Roy, learned counsel for the review petitioner.
2. This petition seeks review of final order dated 19.05.2017, passed by the writ court in WP(C) No. 2858 of 2017, dismissing the writ petition filed by the review petitioner assailing the legality and correctness of the order dated 21.04.2017, passed by the Foreigners' Tribunal, Dima Hasao, District- Haflong, in FT Case No. 14/2017, declaring the petitioner to be a foreigner, who had illegally entered into India (Assam) from the specified territory, i.e., present day Bangladesh, after 25.03.1971.
3. Relevant portion of the order dated 19.05.2017 is extracted hereunder:-
"3. From a perusal of the order dated 21.04.2017 and other materials on record, we find that initially reference was made by Superintendant of Police (Border), Dima Hasao, Assam under the Illegal Migrants (Determination by Tribunals), Act, 1983, with the allegation that petitioner was an illegal migrant as defined under the said Act. This reference was registered as IM(D)T Case No. 117 of1990 before the Tribunal, constituted under the said Act at Diphu. In other words, proceeding had commenced against the petitioner way back in the year 1990. Be it stated that such reference was preceded by police investigation which led to the reference. Therefore, it can be safely inferred that petitioner was aware of the proceeding against him at least from 1990 onwards.
4. After the aforesaid Act was declared unconstitutional by the Supreme Court in Sarbananda Sonowal -Vs- Union of India; reported in (2005) 5 SCC 665, the reference was re-registered under the Foreigners' Act 1946 and after creation of Tribunal at Haflong, it was numbered as FT Case No. 14 of 2017 and assigned to the Foreigners' Tribunal, Dima Hasao, Halflong (Tribunal) for opinion. Notice issued by the Tribunal was served upon the petitioner. Thereafter, petitioner sent a letter to the Tribunal dated 09.03.2017 asking for 3 (three) months' time for his appearance. However, Tribunal fixed the reference on 16.03.2017, 14.04.2017 and 11.04.2017 for written statement. But petitioner did not Page No.# 3/4 appear and consequently no written statement was filed.
5. Ultimately, on 21.04.2017, Tribunal passed the ex-parte order answering the reference in favour of the State in the above manner.
6. In his letter dated 09.03.2017, copy of which has been placed on record, petitioner stated that because of blood pressure and blood sugar he was not able to appear before the Tribunal. He also stated that due to non-availability of relevant documents he was not in a position to file written statement. We are afraid we can countenance such conduct of petitioner. Grounds given for non- appearance are not at all justified. In fact, in the letter dated 09.03.2017, petitioner himself admitted that because of non-availability of documents, he could not file written statement. As already discussed above, citizenship of the petitioner was suspected by none else but by the State, which led to registration of reference way back in 1990. If the petitioner is unable to collect documents for long 26/27 years, it is not understood how he will produce the documents now. It only goes to show that petitioner does not have any document to prove that he is not a foreigner but a citizen of India. Be it stated that under Section 9 of the Foreigners' Act 1946, burden is on the proceedee facing a proceeding before a Foreigners' Tribunal to prove that he is not a foreigner but a citizen of India. A Full Bench of this Court in State Vs. Moslem Mondal; reported in (2013) 1 GLT 809, has clarified that if the proceedee does not appear before the Foreigners' Tribunal and does not contest the reference, it would amount to failure to discharge his statutory burden and in such an eventuality, Tribunal would be justified in answering the reference in favour of the State. This is precisely what has happened in the present case.
7. Thus, we do not find any good ground to entertain this writ petition, which is accordingly dismissed."
4. Mr Roy, learned counsel for the review petitioner makes two-fold submissions. Firstly, he submits that relevant documents, such as, land document of his grandfather could not be produced before the Foreigners' Tribunal. Such land document clearly shows presence of his grandfather on Indian soil since 1940. His second contention is that petitioner was a victim of wrong/improper advice given by various lawyers right from the proceedings before the Foreigners' Tribunal up to the Supreme Court. For wrong/improper advice given by the lawyers petitioner should not be made to suffer the adverse consequences.
5. We are not at all impressed by the submissions made by learned counsel for the review petitioner. As noted in the order dated 19.05.2017 extracted above, reference against the petitioner was registered wayback in the year 1990 under the then Illegal Migrants (Determination by Tribunals) Act, 1983, to be precise IMDT Case No. 117/1990 before the IMDT Tribunal at Diphu. For almost 17 years, no progress was made in the said reference. After the decision of the Supreme Court in Sarbananda Sonowal -Vs-
Page No.# 4/4 Union of India; reported in (2005) 5 SCC 665, the reference was re-registered under the Foreigners' Act, 1946, read with the Foreigners' (Tribunals) Order, 1964 and after creation of additional Foreigners' Tribunal at Haflong, it was assigned to the Foreigners' Tribunal, Dima Hasao, Haflong as FT Case No. 14/2017. Fresh notice issued by the Foreigners' Tribunal was duly served upon the petitioner, but he refused to file written statement, the reasons for which have been noted in the order dated 19.05.2017.
6. After dismissal of the writ petition, petitioner had filed Petition for Special Leave to Appeal (C) No. 19075/2017 before the Supreme Court, which was, however, dismissed on 04.08.2017 in the following terms:-
"No case for interference with the impugned judgment is made out. Accordingly, the Special leave petition is dismissed.
Pending application, if any shall stand disposed of."
7. At this stage, Mr Roy submits that dismissal of SLP by the Supreme Court would not debar petitioner from filing a review petition for review of the order passed by the writ court.
8. In the facts and circumstances of the case as noted above and considering the order passed by the writ court dated 19.05.2017 and the order of the Supreme Court dated 04.08.2017, we do not find that the present is a fit case to invoke our review jurisdiction. There is no merit in the review petition.
9. Review petition is accordingly, dismissed.
JUDGE JUDGE Comparing Assistant