When burden of proof is not on state to prove that particular person is foreigner?

IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

WRIT PETITION (C) NO.1396/2011

Petitioner :Smti. Roimon Nessa,
Vs
Respondents :State of Assam,

BEFORE HON’BLE MR. JUSTICE UJJAL BHUYAN.

Date of Judgment : 28.02.2014.
W .P (C) N o. 1396 of 2011
Citation;AIR 2014(NOC) 511 Gauhati

By way of this petition under article 226 of the Constitution of India, petitioner has challenged the legality and correctness of the order dated 24.06.2010 passed by the Foreigners Tribunal, Sonitpur in Foreigners Tribunal (Doubtful) Case No. 128/2008 declaring that the petitioner is not a citizen of India.

Case of the petitioner, in brief, is that she is a permanent resident of village Gorsinga Bihia Gaon in the district of Sonitpur (Assam). Her father’s name is Abdul Salam and the name of her paternal grandfather is Sagar Mahmud. Her father’s name appeared in the voters list of 1960. Certificates issued by the Gaonbura shows that petitioner is the daughter of Md. Abdul Salam and that she is a genuine Indian citizen. She married one Rajib Ali and has children born out of her wedlock. Her name appeared in the voters list of the Panchayat Election, 2007.

Petitioner received notice from the Foreigners Tribunal, Sonitpur, Tezpur (Tribunal) in connection with Foreigners Tribunal (Doubtful) Case No. 128/2008. Petitioner appeared before the Tribunal on 27.06.2008. She engaged one counsel Sri Amiya Kumar Saikia but due to some misunderstanding with the engaged counsel, the latter withdrew from the case on 03.10.2008. Thereafter, the petitioner did not appear before the Tribunal. Ex-parte order was passed by the Tribunal on 24.06.2010 declaring that petitioner is not a citizen of India. Petitioner did not know about this order but when police visited her residence, she could come to know about the order passed by the Tribunal. Accordingly, the present petition has been filed challenging

the legality and correctness of the impugned order of the Tribunal dated 24.06.2010.

Contention of the petitioner is that she may be given one more chance to appear before the Tribunal where she can prove her Indian citizenship. Therefore, the case be remanded back to the Tribunal for a fresh decision after giving the petitioner one more opportunity to defend her case.

This Court by order dated 11.03.2011 had issued notice and as an interim measure directed that the petitioner should not be deported from India. Subsequently, the case was admitted for hearing.

An affidavit has been filed by the respondent No. 2 wherein it is stated that in connection with doubtful voters Case No. 1619/2006, matter was enquired into and thereafter, reference was made to the Tribunal. Tribunal after hearing the matter passed the order dated 24.06.2010 declaring that the petitioner is not a citizen of India.

Heard Mr. I Choudhury, learned counsel for the petitioner and Mr. J. U Laskar, learned State Counsel, Assam. Also heard Mr. M. Bhagawati, learned Central Government Counsel.

Learned Counsel for the petitioner submits that petitioner is an ignorant and illiterate lady. Though she had engaged a lawyer to defend her case before the Tribunal, because of misunderstanding, the engaged Counsel withdrew from the case and thereafter the petitioner did not pursue the case. He, therefore, submits that petitioner may be given one more opportunity to defend her case before the Tribunal and for that purpose, the matter may be remanded back to the Tribunal for a fresh decision.

Learned Central Government Counsel as well as learned State Counsel have, however, opposed the said submission of learned Counsel for the petitioner. They have submitted that there is clear laches on the part of the petitioner and, therefore, no indulgence should be given to the petitioner.

Submissions made have been considered. I have also perused the lower Court record.

Impugned order of the Tribunal dated 24.06.2010 reads as under:-

“ This case has been registered on a reference being forwarded
by S.P.(B) Sonitpur, Tezpur alleging inter-alia therein that the Election
Commission of India had ordered intensive revision of electoral rolls
for the 73-Tezpur Assembly Constituency in Assam with reference to
01.01.2005 as the qualifying date. During the period from 01.10.2004
to 25.11.2004 house to house enumeration was done. The electoral roll
of the said Constituency was published in draft on 15.06.2005
including therein the name of the opposite-party Mustt. Raimon Nessa
W/o Rajab of village Garsinga Bihia Gaon under Tezpur P.S. of
District Sonitpur. The then Electoral Registration Officer for the said
Assembly Constituency having doubt about the citizenship of the
opposite-party got the matter verified by an officer locally who in his
report has stated that the opposite-party during verification could not
produce any document regarding her nationality before him. Hence is
the case.

Notice issued to opposite-party was duly served, and on
19.08.2008, Rajab Ali husband of opposite-party vide petition No. 629
took adjournment on behalf of opposite-party. Again on 03.10.2008,
husband of opposite-party Rajab Ali vide petition No. 854 took time for
submission of written statement by the opposite-party. It reveals from
the record that on the very day the learned engaged counsel for the
opposite-party vide petition No. 865 made a prayer to allow him to
withdraw from this case and explained the reason of his withdrawal.
Thereafter the opposite party remained absent without any step and
hence the case was proceeded ex-parte against the opposite-party.
Two witnesses were examined ex-parte for the State. The
learned Asstt. Govt. pleader has submitted that the opposite party is not
a citizen of India and hence the opposite-party failed to produce any
document before L.V.O. of this case regarding her nationality during
verification.

I have carefully gone through the entire materials available on
record including the evidence of witnesses examined in this case.
Witness No. 1 Agriculture Development officer, Dholaibil, Tezpur Sri
Kamaljyoti Das is the L.V.O. of this case. He in his evidence has
deposed that in the year 2004 he was at Tezpur as Agriculture
Development Officer (Soil) and on 20.12.2004, he was appointed as
L.V.O. by the then Deputy Commissioner Sonitpur, Tezpur to verify the
citizenship of some suspected voters of 73-Tezpur Assembly
Constituency. He also deposed that the list of those suspected voters
was prepared by the then E.R.O. of that Assembly Constituency and he
collected that list and proformas from the then E.R.O. for verification
and informed those suspected voters of Garsinga Bihia Gaon through
the concerning Gaonburah together at Panchmile Panchayat office
alongwith their necessary documents regarding their nationality on
20.03.2005 for verification and on 26.03.2005 he went to Panchmile
Panchayat office for verification and in presence of Sarkari Gaonburah
asked the opposite-party to produce any document regarding her
nationality to prove that she is a citizen of India but the opposite-party
could not produce any document before him and hence he prepared his
report in Annexure ‘A’ the for verification officers report and submitted
the same to then E.R.O. He proved the Annexure (A) as Ex ‘1’ upon
which Ex 1 (1) is his signature. He proved the Annexure (B) the format
for making reference to the Competent Authority as Ex 3 and Form No.
VII as Ex. 3. Witness No. 2 Sri Prafulla Kumar Borah Constable (B) of
Tezpur P. S. has deposed that on 30.05.2008 he was endorsed by
S.I.(B) Sri Kamal Borah of Tezpur P.S. to serve the notice issued by
this Tribunal against the opposite-party in connection with this case
and on 16.06.2008 he alongwith Constable (B) Sri Dhaneswar Das of
Tezpur P.S. went to the address cited in the notice but he did not find
the opposite-party there. He also deposed that he met Rajib Ali
husband of the opposite-party and served the notice on him after
explaining him about the time and date of appearance of opposite-party
and Rajib Ali accepted the notice on behalf of opposite-party, his wife
and put his signature on the notice. He further deposed that he
explained Rajib Ali about the consequences of non appearance of his
wife the opposite-party before this Tribunal on the date mentioned in
the note. He proved the notice as Ex 4 upon which Ex 4 (1) is his
signature with report.

There is no rebuttal evidence. The opposite-party did not come
forward to challenge the allegations made against her.
Considering the evidenced available on record as well as the
submission made by the learned Asstt. Govt. pleader I opine and
declare that the opposite-party Musstt. Raimon Nessa is not a citizen of
India.

In the result, the case is decided in the affirmative and in favour
of the State.”

From the above order, it is clearly evident that petitioner was served with the notice of the proceedings of Foreigners Tribunal (Doubtful) Case No. 128/2008. On receipt of notice, she appeared and sought for time to file written statement. She also engaged a lawyer, who, however, submitted an application subsequently for withdrawal from the case. Thereafter, the petitioner remained absent all throughout because of which the Tribunal proceeded ex-parte against her.

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A perusal of the record shows that petitioner remained absent since 26.11.2008 on 16 occasions. Her engaged counsel withdrew from the case by filing an application on 03.10.2008 wherein he stated that the petitioner did not maintain any contact with him for which he could not file the written statement. Petitioner also did not submit any document with him because of which he was unable to defend her case. The record further discloses that the Tribunal examined two witnesses, Sri Prafulla Kumar Bora and Sri Kamal Jyoti Das. Sri Bora was a Constable of Tezpur Police and he deposed that he was entrusted to serve the notice issued by the Tribunal on the petitioner. He stated that he had served the notice of the case on the husband of the petitioner, who had accepted the notice on behalf of his wife and put his signature. He further deposed that he had explained to the husband the nature of the proceeding and the consequences of non-appearance. Sri Kamal Jyoti Das was the Local Verification Officer. An Agriculture Development Officer, he stated that during verification, the petitioner could not produce any document before him in support of her Indian citizenship. Accordingly, he prepared his report and submitted the same before the appropriate authority.

Under section 9 of the Foreigners Act, 1946, the onus of proving that a person is not a foreigner shall lie upon such person.

A Full Bench of this Court in State of Assam and others -Vs- Moslem Mondal and others reported in 2013 (1) GLT 809 has held that in an ex-parte proceeding before the Tribunal when the proceedee does not appear and does not adduce any evidence to discharge his initial burden, the Tribunal has no alternative but to opine the proceedee as a foreigner, having regard to the grounds on which reference has been initiated and notice having been issued. In an ex-parte proceeding, State is not required to adduce evidence as the burden lies on the proceedee to prove to the satisfaction of the Tribunal that he is not a foreigner in view of the provisions contained in Section 9 of the Foreigners Act, 1946. Paragraph 78 of the said judgment is as under :-

“(78). In a proceeding under the Foreigners Act, 1946 read with 1964
Order the issue is whether the proceedee is a foreigner. It being a fact
especially within the knowledge of the proceedee, the burden of proving
that he is a citizen is, therefore, upon him, because of Section 9 of the
1946 Act and it is, therefore, his obligation to provide enough evidence
to establish that he is not a foreigner. In an ex-parte proceeding before
the Tribunal constituted under the provisions of 1964 Order the said
position would not be changed as the burden of proving that the
proceedee is not a foreigner continues to be upon the proceedee, which
cannot shift and when the proceedee does not adduce any evidence to
discharge such burden, the Tribunal has no alternative but to opine the
proceedee as a foreigner, having regard to the main grounds on which
the reference has been initiated and the notice having been issued to
the proceedee. Unlike in a suit in the Civil Court, where the Court may
require the plaintiff to adduce evidence to prove his case even in an ex-
parte proceeding, as the burden of proof lies on the plaintiff in view of
Section 101 of the Evidence Act, in a proceeding before the Tribunal
under the provisions of 1946 Act read with 1964 Order, the same is not
required, meaning thereby that the State is not required to adduce
evidence in an ex-parte proceeding, as the burden lies on the proceedee
to prove to the satisfaction of the Tribunal that he is not a foreigner, in
view of the provisions contained in Section 9 of the 1946 Act.”

Coming to ex-parte proceeding, the Full Bench held that in a given case the Tribunal has jurisdiction to entertain and pass necessary order on an application to set aside an ex-parte opinion provided it is proved to the satisfaction of the Tribunal that the proceedee was not served with the notice in the reference proceeding or that he was prevented by sufficient cause from appearing in the proceeding. The Full Bench opined that such application cannot be entertained in a routine manner. Paragraph 92 of the said judgment reads as under:-

“(92). As discussed above, the Tribunals constituted under the
Foreigners Act read with the 1964 Order have to regulate their own
procedure and they have also the quasi-judicial function to discharge
and hence in a given case the Tribunal has jurisdiction to entertain and
pass necessary order on an application to set aside an ex-parte
opinion, provided it is proved to the satisfaction of the Tribunal that the
proceedee was not served with the notice in the reference proceeding
or that he was prevented by sufficient cause from appearing in the
proceeding, reason for which was beyond his control. Such application,
however, should not be entertained in a routine manner. The Tribunal
can entertain such application provided the proceedee could
demonstrate the existence of the special/exceptional circumstances to
entertain the same by way of pleadings in the application filed for
setting aside the ex-parte opinion, otherwise the very purpose of
enacting the 1946 Act and the 1964 Order would be frustrated. The
Tribunal, therefore, would have the jurisdiction to reject such
application at the threshold, if no ground is made out.”

When the petitioner seeks remand for a fresh decision by the Tribunal, he must be able to show to the satisfaction of the Court that he was either not served the notice of the proceeding or he was prevented by sufficient cause from appearing in the proceeding, the reason for his absence being beyond his control. A proceeding relating to citizenship of a person cannot be taken lightly. It cannot continue for an indefinite period or till such time a decision is arrived at which can only be to the satisfaction of the proceedee. After a proceeding is continued for a number of years and when the materials on record indicate clear laches and negligence on the part of the petitioner, order of remand is not to be passed unless exceptional circumstances are made out by the petitioner.

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A perusal of the averments made in the writ petition do not disclose any such exceptional circumstances to warrant remand of the case to the Tribunal for a fresh decision as sought for by the petitioner. All that has been stated in the writ petition is that the petitioner is an illiterate and a poor person. This is no ground for remand. When the petitioner had engaged a lawyer to defend herself before the Tribunal, such averments on the face of it are untenable and cannot be accepted.

Petitioner has not able to show any reason as to why she did not file the written statement and also as to why she did not appear before the Tribunal on as many as 16 occasions.

In view of above, this Court finds no good ground to interfere with the order of the Tribunal dated 24.06.2010. Writ petition is devoid of any merit and is accordingly dismissed.

Interim order passed on 11.03.2011 stands vacated.

Registry to send down the case record forthwith.

No costs.

JUDGE
Aparna

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