Ajbahar Ali vs Union Of India

A.K. Goswami, J

Heard Mr. H.R.A. Choudhury, learned senior counsel for the petitioner. Also heard Ms. G. Sarma, learned Central Government counsel, appearing

for the respondent No.1 and Mr. U.K. Nair, learned senior special counsel, Foreigners Tribunal, appearing for the respondent Nos.2, 3, 4 & 5.

Challenge in this writ petition is to an order dated 03.02.2012 passed by the learned Member, Foreigners Tribunal No.1, Goalpara in F.T. Case

No.1415/G/06, whereby the petitioner was held to be an illegal migrant of post-1971 stream.

Pursuant to service of notice of the proceeding, the petitioner had entered appearance and had filed his written statement. Perusal of the order goes

to show that the case was fixed for evidence of the petitioner on 23.04.2010, 07.07.2010, 13.10.2010, 28.12.2010, 23.02.2011, 18.04.2011, 04.06.2011,

13.07.2011, 17.08.2011 and 22.09.2011. However, the petitioner remained absent. The learned Tribunal, despite the absence of the petitioner on all

these dates, directed personal attendance of the petitioner on 04.11.2011, failing which it was indicated that the case would be proceeded ex parte.

The petitioner responded to the said notice and appeared on 04.11.2011 and prayed for adjournment for adducing evidence. While granting the

adjournment and fixing the case on 12.01.2012, it was indicated that no further time will be given. Once again a prayer for adjournment was made on

12.01.2012 for producing evidence. The petition was rejected.

Section 9 of the Foreigners Act, 1946 provides that if in any case not falling under Section 8, any question arises with reference to the Act or any

order made or direction given thereunder, whether any person is or is not a foreigner or is or is not a foreigner of a particular class or description, the

onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall

notwithstanding anything contained in the Indian Evidence Act, 1872, shall lie upon such person.

Order 3(14) of the Foreigners (Tribunals) Order, 1964 mandates disposal of a reference by the Foreigners Tribunal within a period of 60(sixty) days

of the receipt of the reference from the competent authority.

In Sarbananda Sonowal -Vs- Union of India, reported in 2005 (5) SCC 665 at Paragraph 73, the Supreme Court had observed that the procedure

under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964 is just, fair and reasonable and does not offend any constitutional provision.

In Paragraph 63, the Supreme Court had observed that there can be no manner of doubt that the State of Assam is facing external aggression and

internal disturbance on account of large-scale illegal migration of Bangladeshi nationals and that it, therefore, becomes the duty of the Union of India

to take all measures for protection of the State of Assam from such external aggression and internal disturbance as enjoined in Article 355 of the

Constitution. In Paragraph 70, it was observed that the influx of Bangladeshi nationals who have illegally migrated into Assam pose a threat to the

integrity and security of the North-Eastern region and that their presence has changed the demographic character of that region and the local people

of Assam have been reduced to a status of minority in certain districts.

After the judgment is delivered, the petitioner had not taken any steps to question the legality and validity of the order for the last 5(five) years. It is

reasonable to expect that if a question mark is raised in respect of a citizen regarding his citizenship, he would take prompt and effective steps to

dispel that doubt and establish his citizenship. In the instant case, we find that when the stage of evidence came, the petitioner remained absent on

10(ten) dates, spanning over almost 1(one) year 6(six) months. As noticed earlier, once again a notice was issued by the Tribunal, though really not

called for, for ensuring participation of the petitioner in the proceedings.

In the additional affidavit filed pursuant to the order of this Court dated 13.12.2017 as well as in the writ petition, plea is taken that his engaged

counsel did not inform him anything about the proceedings. Further plea is taken that he had consulted with one Md. Mizanur Rahman, who is an

educated person, and he also did not advise to challenge the order of the Tribunal unless police comes looking for him and accordingly, he had not

taken any steps to challenge the same.

The pleas taken that his counsel did not inform him to take requisite steps or that a respectable educated person did not advise him not to challenge

the order of the Tribunal, do not inspire confidence. When the issue of influx of foreign nationals has been in public domain in the State of Assam for

more than three decades and has engaged the attention of the people, it cannot be countenanced that the petitioner was not aware of the seriousness

of the issue and the possible consequences. Interest of the State is of paramount importance in that unabated influx has the potential to affect the

integrity and sovereignty of the country. Citizenship of a person, no doubt, is a very valuable right and should be zealously guarded. There is no

gainsaying the fact that a person who is alleged to be a foreigner must be given due and reasonable opportunity to establish that he is a citizen of India.

However, if a person does not take steps for safeguarding his interest, he does so at his own risk and peril as grant of opportunity cannot be an

endless exercise. Right to a fair hearing or principles of natural justice cannot be permitted to lead to a farcical situation and to be an engine for

defeating the very object of identification and deportation of foreigners.

The petitioner had ample opportunity before the learned Tribunal to establish his case that he is not a foreigner, but he had not availed of the

opportunities granted. In the circumstances of the case, we are of the opinion that the learned Tribunal was justified in proceeding with the case ex

parte after appearance of the petitioner and in declaring him as a foreigner, who had entered into India after 25.03.1971. It appears to the Court that

the petitioner simply bided his time, as he has approached this Court after long lapse of more than 5(five) years from the date of judgment.

In view of our aforesaid discussions, we find no good ground to interfere with the impugned order dated 03.02.2012 passed by the learned

Member, Foreigners Tribunal No.1, Goalpara in F.T. Case No.1415/G/06 and accordingly, the writ petition is dismissed.