Gauhati High Court
Mafizuddin @ Mafiz Uddin @ Md. Mafiz ... vs Union Of India & 2 Ors on 9 October, 2015
Bench: P.K. Saikia, Rumi Kumari Phukan
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
WRIT APPEAL NO.167 OF 2015
MAFIZUDDIN @ MAFIZ UDDIN @ MD. MAFIZ
UDDIN
S/O Rajab Ali @ Rajab
Vill. Chaparbari, P.S. Sarthebari,
District - Barpeta, Assam
...... Appellant
-Versus-
1. The Union of India, Represented by the
Ministry of Home Affairs, Govt. Of India,
New Delhi - 1.
2. The State of Assam, represented by the
Commissioner and Secretary to the
Govt. of Assam, Department of Home Affairs,
Dispur, Guwahati - 6.
3. The Superintendent of Police (B)
Barpeta, District-Barpeta, Assam.
..... Respondents
PRESENT
THE HON'BLE MR. JUSTICE P.K. SAIKIA
THE HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
For the appellants : Mr. M.U. Mahmud. Advocate
For the respondent : Mr. S.C. Keyal, Asst. SGI
Date of hearing : 16.09.2015
Date of judgment and & order : 09.10.2015
2
JUDGMENT & ORDER (CAV)
(By Rum i K um ari Phukan, J .)
This appeal is directed against the judgment and order dated
31.8.2013 passed by the learned Member, Foreigners Tribunal No.III,
Barpeta, Assam in FT Case No.07(III)/2009 holding that the petitioner is a
foreigner and an illegal migrant of post -1971 stream as well as the
judgment dated 2.5.2014, rendered in W.P.(C) No.6941 of 2013 affirming
the judgment of the tribunal aforementioned.
2. Being aggrieved by the aforesaid judgments, the appellant has
preferred this appeal citing serious infirmities in the judgments under
challenge.
3. We have heard Mr. M.U. Mahmud, learned counsel for the appellant
and also Mr. S.C. Keyal, learned Asstt. S.G.I. for the Union of India. None
has appeared on the State Respondents.
4. The facts pleaded before the present appeal is that the appellant's
father name appears in the NRC of 1951 at Village Chaparbari, Mouza Paka,
District - Barpeta, Assam and his mother's name appears in the same
locality in the voter list of 1970 at Serial Nos. 105 and 104 respectively
against House No.29 under 53 No. Sarukhetri LAC. The appellant's name
appears along with his wife Joynab Nessa in the Voter List of 1985 at Serial
Nos. 132 and 133 respectively, at House No.59 of the same locality under 46
No. Sarukhetri LACT. The name of the appellant along with his wife appears
in the voter list of 1997 at Serial No.513 and 514 respectively against House
No.240 under 46 No. Arukhetri LAC and is an Indian Citizen by birth. But,
suspecting him to be illegal migrants from Bangladesh, a reference was
Writ Appeal No.167 of 2015 Page 2 of 9
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made to the IMDT, Barpeta for deciding their citizenship status. On the basis
of such reference, F.T. Case No.07(III)/2009 was registered.
5. In the aforesaid case before the learned Tribunal, though the
appellant had filed written statement along with relevant documents in
support of his case denying the allegations, but no evidence could be led by
the appellant. It is submitted that he has documents to prove that he is not
a foreigner but an Indian citizen, but the Tribunal has declared him foreigner
by ex-parte judgment and order as aforesaid. It is prayed that one
opportunity may be granted to him to adduce evidence, by setting aside the
ex-parte order passed by the learned Member, Foreigners Tribunal No.III,
Barpeta, Assam in F.T. Case No.07(III)/2009 holding that the petitioner is a
foreigner and an in illegal migrant of post 1971 stream.
6. Apparently, there is no dispute that the appellant had received
notice from the learned Tribunal, but failed to adduce evidence in due
course which has resulted in ex-parte order. Let us have a look into the
relevant portion of the judgment passed by the learned Tribunal. Para-2 of
the judgment is quoted below :
"2. Notice w as duly served on the OP first through village
Gaonbura. On receipt of the said notice, one Jaynab Nessa,
identifying herself to be the w ife of the OP, appeared on
16.03.2009 and filed a petition show ing cause of absence of
the OP and prayed for tim e to file w ritten statem ent (W / S
for short). The said petition w as also signed by learned
Advocate appearing for the petitioner w ithout filing any
Vakalatnam a. On the subsequent tw o dates, the OP
rem ained absent w ithout step. Again on 02.06.2009, learned
Advocate for the OP filed a petition praying for tim e due to
lack of docum ents. The said petition w as also allow ed.
Thereafter, again the OP rem ained absent w ithout taking
any step continuously for the subsequent nineteen dates till
9.12.2010 from 02.06.2009. It m ay be m entioned that in the
m eantim e fresh notice issued for service on the OP, as it
appears from the record, w as duly served personally on the
Writ Appeal No.167 of 2015 Page 3 of 9
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OP and w as returned to this Tribunal by Officer-in-charge of
Sarthebari Police Station, Dist Barpeta along w ith the report
of the police process server, on 17.04.2010.Considering the
long absence of the OP after receipt of the notice and even
after his appearance before this Tribunal, as m entioned
above, it w as ordered vide order dated 09.12.2010 that the
case w ill proceed ex-parte. Accordingly, Local verification
Officer (LVO for short) w as sum m oned as a w itness for the
State petitioner but the sum m ons issued for service on LVO
w as returned by police process-server that nobody know s
any such person. The OP, how ever, rem ained absent w ithout
any step. The record show s that fresh notices for service on
the OP w ere issued vide order dated 15.07.2011,
03.09.2011, 07.10.2011 and 05.11.2011. The record further
show s that the OP refused to receive the notice issued on
03.09.2011 and it w as therefore received by OP's brother on
behalf of the OP. The notice issued on 05.11.2011 w as,
how ever, personally served on the OP for his appearance
before this Tribunal on 05.12.2011. The OP appeared, along
w ith his appointed learned Advocate by filing duly ex ecuted
Vakalatnam a, and filed his w ritten statem ent (W / S) on
05.12.2011 stating that he is a bonafide citizen of India by
birth. He also filed photocopies of certain docum ents along
w ith his W / S in support of his version. After subm ission of
the W / S by the OP, LVO w as again sum m oned as a w itness
for the Sate petitioner. As the sum m ons issued for service
on the LVO w ere not returned by police process server for
quite a long period, learned Advocate for the OP filed a
petition on 31.07.2012 praying for tim e to file docum ents
and affidavit. The said petition w as allow ed and tim e w as
granted to the OP for filing relevant docum ents and Affidavit
in support of his version. Tw o m ore such petitions w ere
allow ed. Thereafter since 30.11.2012, the OP rem ained
absent w ithout step for subsequent six dates and as such
vide order dated 21.03.2013 this Tribunal passed an order
that the case w ill proceed ex-parte. LVO w as again
sum m oned, w ho appeared on 03.05.2013. On his (LVO's)
appearance, his evidence w as recorded on oath on
03.05.2013. The OP, how ever rem ained absent w ithout any
step till date.
........
13. Considering the entire m aterial on record, I am of the considered opinion that OP M afizuddin s/ o R ajab Ali of Village Chaparbari under Sarthebari PS in the district of Barpeta, entered India w ithout authority subsequent to 25.03.1971 and hence he is, in m y opinion, a foreigner and Writ Appeal No.167 of 2015 Page 4 of 9 5 an illegal m igrant of post 1971 stream . The case is decided accordingly in the affirm ative and against the OP."
7. Being aggrieved by the aforesaid order, the appellant has approached this Court by way of W.P.(C) No.6941 of 2013 contending that the judgment rendered by the learned Tribunal is liable to be quashed and set aside since the finding that the appellant is an illegal migrants of post 1971 stream is perverse and as such, liable to be quashed and set aside.
6. Such a contention was vehemently opposed to by the learned counsel for the State respondent and Union of India. On hearing the learned counsel for both the parties, this Court by the judgment dated 2.5.2014 had affirmed the judgment of the learned Tribunal and resultantly the proceeding initiated by appellant on invoking power of this Court under Article 226 of the Constitution of India stood dismissed.
8. Still being aggrieved, the appellant has preferred this appeal. Learned counsel for the appellant submits that the findings of the Tribunal or for that matter the finding of the learned Single Judge that Mafizuddin @ Mafiz Uddin @ Md.Mafiz Uddin is a foreign national is perverse since such findings are against the materials available on record. Learned counsel for the respondents therefore, submits this court to dismiss the appeal there being no any infirmity in any of the judgments under challenge. Before proceeding further, we find it necessary to have a look at the relevant portion of the judgment of the learned Single Judge which stood challenged in the present appeal. For ready reference same is reproduce below :-
"3. M r. Handique subm its that though the petitioner had filed w ritten statem ent, no evidence could be led by the petitioner though he is in possession of docum ents to prove Writ Appeal No.167 of 2015 Page 5 of 9 6 that he is not a foreigner but an Indian citizen. His only subm ission is that one opportunity m ay be granted to him to adduce evidence, by setting aside the order im pugned.
............
5. From the perusal of the aforesaid as also from the records, it is clear that the case w as proceeded against the petitioner ex-parte on tw o occasions. It is also revealed that after appearance of the petitioner through his counsel on 2.6.2009, the petitioner rem ained absent on nineteen dates from 2.6.2009 to 9.12.2010, on w hich date it w as ordered that the case w ould proceed ex -parte against the petitioner. Prior to that, after his w ife had appeared on 16.3.2009 on his behalf, the petitioner did not take any step on tw o dates. Fresh notices for appearance w ere directed to be issued beginning from order dated 15.7.2011 and notice issued on 5.11.2011 w as served upon the petitioner. The petitioner, thereafter, filed w ritten statem ent on 5.12.2011 and after taking som e steps on three dates, again stopped appearing before the Tribunal on six subsequent dates on and from 13.11.2012, again necessitating passing of an order that the case w ill proceed ex-parte against the petitioner.
6. If a person chooses to rem ain absent after receiving notice and an order w as passed for proceeding ex -parte, this court fails to see w hy a second notice is required to be given. Purpose of a notice is to enable a person to m eet the allegations against him and to enable him to defend/ prove his case. After receipt of notice by the noticee, the Tribunal is not obliged and/ or required to give a second notice to the noticee and the Tribunal should proceed to decide the issue in accordance w ith law . In the instant case, m aterials on record reveal that not only once, but for the petitioner's repeated failure to appear, notice w as re-issued tw ice to the petitioner.
7. It is m ore than three decades that the burning issue of foreign nationals has been in the public dom ain in the State of Assam . Process of determ ination of question of citizenship cannot be a one-w ay traffic, leaning only in favour of a person w hose citizenship is doubted. Interest of the State is equally param ount as it affects the integrity and sovereignty of the country. No doubt, citizenship of a person is a valuable right. How ever, one w ho does not take step for safeguarding his interest does so at his ow n risk and peril, m ore so, in the contex t of allegation of w ide-spread influx of Writ Appeal No.167 of 2015 Page 6 of 9 7 foreign nationals from a specified territory to the State of Assam . It appears to the court that an idea is gaining ground that one can conveniently delay the proceeding before the Tribunals and keep the issue alive for years to com e, so that he can avert deportation and at the sam e tim e, try to create evidence over the years. But for such a perception, it w ould have been inconceivable that one could afford to be as casual and nonchalant as the petitioner w as w hen, otherw ise, so m uch w as at stake against him . For everything, there is tim e and place. R ight to fair hearing or principles of natural justice cannot be perm itted to lead to absurdities, consigning, in essence, the issue to back-burner. Such an eventuality can neither be countenanced nor accepted in a court of law .
8. M aterials on record dem onstrate that the petitioner w as given am ple opportunity to discharge his burden under the Foreigners Act, 1946 that he is not a foreigner. The petitioner has m iserably failed to m ake out a case for grant of a further opportunity.
9. In view of the above discussion, I find no m erit in this application and accordingly, the sam e is dism issed. The respondents w ill now take consequential steps in term s of the judgm ent and order dated 31.8.2013 passed by the learned M em ber, Foreigners Tribunal No.III, Barpeta, Assam in FT Case No.07(III)/ 2009. Interim order stands vacated.
10. Send back the records."
9. We have heard the learned counsel for the appellant who has strenuously argued relying upon the grounds of appeal and as submitted that the appellant who have all the necessary documents such as NRC of 1951, voter list of 1970, 1985 and 1997 which is enough to prove the fact that the appellant is a Indian citizen so he should be given a chance to prove his case, denial of which by both the Court as aforesaid, has denied his fundamental right to prove his case. We have also heard the learned counsel for the respondents who advanced his argument that the learned Tribunal as well as the learned Single Judge has appreciated all the facts as was available on record. In pursuance to the submissions of both the parties, we Writ Appeal No.167 of 2015 Page 7 of 9 8 have anxiously given through the impugned judgment under challenge and also given through the averment made in the pleadings as we found that the appellant was well aware about such pendency of case against him and the issue therein that his nationality has been questioned by the Legal Authority. Then what prevented the petitioner to prove his case, if he had all short of documents in his favour, is not at all explained by him. This is itself enough to discard of his contention so raised in course of his appeal which was also raised before the learned Single Judge. The appellant never tried to assert his case not to speak of any reason to show his inability to prove his case for which ultimately the learned Tribunal has decided the case ex-parte.
10. The contention of the petitioner is that he has requisite document to prove his citizenship cannot at all be considered at this stage while he has deliberately did not produce the said document, if any, in his possession at the relevant time at the appropriate place. Neither the Single Judge in the WP(C) No. 6941 of 2013 nor this Appellate Court can allow the petitioner to rely upon such document which was never produced earlier as has been held in 2010 (2) GLT 1 M oslem M ondal And Ors Vs. Union of I ndia and Ors that :
" W rit proceeding not a substitute for a proceeding before the Tribunal - Appellants in a w rit petition challenging the order of the Foreigners tribunal declaring them foreigners in an ex parte proceeding - Appellants in their w rit petition bringing in certain new evidence to support their claim of being I ndian citizens
- Single Judge w hile justifying the ex parte proceeding also exam ining the new evidence of the appellants and holding that the sam e does not establish the claim of the appellants - Held, w rit Court could have exam ined only the m aterials available before the Tribunal and not the new evidence."Writ Appeal No.167 of 2015 Page 8 of 9 9
11. Further, in the Full Bench decision of this Court in State of Assam & Anr. Vs. M oslem M ondal & Ors . reported in (2013) 1 GLT 809 FB it has been held that an ex parte order cannot be set aside by a Tribunal in a regular manner and it is necessary to prove on the part of the petitioner that he was prevented by sufficient cause while appearing before the proceeding. But the petitioner nowhere pleaded as to why he could not appear before the Tribunal for years together.
12. In the light of above discussion, we are of the considered opinion that appeal is devoid of merit and there is no infirmity in the judgment under challenge. Accordingly, appeal is dismissed. No order as to cost.
13. Copy of this judgment be sent to the SP(B), Barpeta and Deputy Commissioner, Barpeta to take appropriate step towards deportation of the petitioner from India and deletion of the name from the voter list as has been directed in the WP(C) No. 6941/2013. The copy of order shall also been sent to the Union of India in the Ministry of Home and State Government in the Home Department for necessary follow up action. Further copy also be furnished to Mr. S C Keyal, learned Government Advocate for the respondent for appropriate action.
JUDGE JUDGE
ISINGH
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