Gauhati High Court
Sajiran Nessa vs The Union Of India And 5 Ors on 5 January, 2021
Page No.# 1/4
GAHC010040122020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1293/2020
SAJIRAN NESSA
D/O LATE SAIJUDDIN @ SADU SHEIKH @ SAIJUDDIN PARAMANIK, W/O
ABDUL WAHED ALI, R/O VILL-DAIPAM, P.O.-DAIPAM, P.S.-DALGAON,
DIST-DARRANG, ASSAM
VERSUS
THE UNION OF INDIA AND 5 ORS.
REPRESENTED BY THE SECRETARY TO THE MINISTRY OF HOME
AFFAIRS, GOVERNMENT OF INDIA, NEW DELHI
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
HOME DEPARTMENT
DISPUR
GUWAHATI-781006
3:THE DEPUTY COMMISSIONER
DARRANG
MANGALDOI
DIST-DARRANG
ASSAM
PIN-784125
4:THE SUPERINTENDENT OF POLICE (BORDER)
DARRANG
MANGALDOI
DIST-DARRANG
ASSAM
PIN-784125
Page No.# 2/4
5:THE ELECTION COMMISSION OF INDIA
REPRESENTED BY THE CHIEF ELECTORAL OFFICER
NIRVACHAN SADAN
ASHOKA ROAD
NEW DELHI-110001
6:TNE STATE COORDINATOR OF NATIONAL REGISTRATION (NRC)
ASSAM
REPRESENTED BY ITS COORDINATOR
1ST FLOOR
ACHYUT PLAZA
BHANGAGARH
GUWAHATI
ASSAM-78100
Advocate for the Petitioner : MS. M DEV
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE
HONOURABLE MR. JUSTICE MANOJIT BHUYAN
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
05.01.2021
(Manojit Bhuyan, J)
Heard Mr. R. Chakraborty, learned counsel for the petitioner as well as Mr. B. Sarma,
learned counsel representing respondent no.1. Mr. J. Payeng, learned counsel represents
respondent nos.2, 3 and 4 whereas Ms. N. Upadhyay, learned counsel appears for respondent
no.5. Ms. L. Devi, learned counsel accepts notice on behalf of respondent no.6.
Petitioner assails ex-parte order dated 26.10.2018 passed by the Foreigners' Tribunal
(5th) Darrang, Mangaldai, in Case No.FT(V) 1765/2016 declaring her to be an illegal
migrant/foreigner of post 25.03.1971 stream from Bangladesh.
As it transpires from the materials available on record, the petitioner had responded to
the notice issued by the Foreigners' Tribunal, Darrang, Mangaldai and prayed for time to file
written statement, which was granted. On 03.02.2018 and 12.02.2018 the petitioner was
Page No.# 3/4
absent without any steps. Thereafter on 22.02.2018, 19.03.2018, 31.03.2018, 13.04.2018,
11.05.2018, 19.05.2018 and 11.06.2018 the petitioner was present and prayed for time to file
written statement. Eventually on 25.06.2018 the petitioner filed written statement with
certain documents and the next date was fixed on 13.07.2018 for Orders. On 13.07.2018 and
26.07.2018 the petitioner was again absent with steps praying for time through engaged
counsel. Thereafter on the next 6 (six) dates i.e. 09.08.2018, 28.08.2018, 07.09.2018,
14.09.2018, 28.09.2018 and 11.10.2018 the petitioner remained absent without any steps.
The petitioner made no effort to prove her case and even on the date of delivery of opinion
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/opinion dated 26.10.2018 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. 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/her
interest, he/she does so at his 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
Page No.# 4/4
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.
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.
JUDGE JUDGE
Comparing Assistant
