Gauhati High Court
Padma Devi vs The Union Of India And 5 Ors on 1 February, 2021
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GAHC010205382019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6416/2019
PADMA DEVI
W/O- JOGAT BAHADUR, PERMANENT R/O- AMSING, JORABAT, P.O-
NOONMATI, P.S- NOONMATI, GUWAHATI- 781020, DIST- KAMRUP (M),
ASSAM,
VERSUS
THE UNION OF INDIA AND 5 ORS
REP. BY THE SECRETARY, MIN OF HOME AFFAIRS, GOVT OF INDIA,
SHASTRI BHAWAN, NEW DELHI- 110011
2:THE STATE OF ASSAM
THROUGH THE SECRETARY TO THE GOVT OF ASSAM
HOME DEPTT
DISPUR
GUWAHATI- 781006
3:THE DEPUTY COMMISSIONER OF POLICE (B)
PANBAZAR
GUWAHATI- 781001
KAMRUP (M)
ASSAM
4:THE STATE COORDINATOR
NRC
ZOO ROAD
R G BARUAH ROAD
P.O- ZOO ROAD
GUWAHATI- 781024
P.S- GEETANAGAR
DIST- KAMRUP(M)
ASSAM
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5:THE ELECTION COMMISSION OF INDIA
NIRBASAN SADAN
ASHOKA ROAD
NEW DELHI- 110001
6:THE DEPUTY COMMISSIONER
KAMRUP METROPOLITAN DISTRICT
PANBAZAR
GUWAHATI- 781001
DIST- KAMRUP (M)
ASSA
Advocate for the Petitioner : MR. M K BORAH
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE AJIT BORTHAKUR
ORDER
01.02.2021
(Manojit Bhuyan, J)
Heard Mr. M.K. Borah, learned counsel for the petitioner as well as Mr. S.K. Medhi, learned
counsel representing respondent no.1. Mr. J. Payeng, learned counsel represents respondent nos.2, 3
and 6 whereas Ms. L. Devi, learned counsel appears for respondent no.4. Ms. B. Das, learned counsel
accepts notice on behalf of respondent no.5.
Petitioner assails ex-parte order dated 13.02.2012 passed by the Foreigners' Tribunal,
Kamrup(M), Guwahati in respect of F.T. Kamrup(M) D.V. Case No.198/2011, declaring her to be a
foreigner of post 1971 stream.
As it transpires from the materials available on record, the petitioner did not respond to the
notice issued by the Tribunal on 29.03.2011 despite due service of the same. Thereafter, on the next
four dates i.e. 03.05.2011, 30.05.2011, 17.06.2011 and 06.07.2011 the petitioner remained absent
without any steps. On 18.07.2011 notice was again issued. On 01.09.2011 the petitioner again
remained absent without steps though notice was duly served. Even on the subsequent dates i.e.
29.09.2011, 18.11.2011, 19.12.2011, 11.01.2012 and also on the date of passing of the order i.e.
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13.02.2012 the petitioner remained absent without any steps. In such a situation, an adverse view
was taken by the Tribunal and the impugned ex-parte order was rendered.
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. The petitioner was very much aware of
the proceedings and was utterly negligent to contest the proceedings. 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/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. 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.
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.
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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.
JUDGE JUDGE
Comparing Assistant
