RAHIMA KHATUN @ RAHIMA BIBI Vs. UNION OF INDIA
LAWS(GAU)-2015-6-97
HIGH COURT OF GAUHATI
Decided on June 09,2015

Rahima Khatun @ Rahima Bibi Appellant
VERSUS
UNION OF INDIA Respondents




JUDGEMENT

- (1.)THE petitioner is aggrieved by the judgement and order dated 05/01/2015 of the learned Member, Foreigners Tribunal, Goalpara in FT Case No. 5693/G/131 (Reference ERO's Case No. 110 -2/36) (Union of India Vs. Rahima Khatun). By the said judgement passed exparte, the petitioner has been declared to be an illegal Bangladeshi migrant having entered into Indian territory after the cut -off date i.e. 25/03/1971.
(2.)WHILE Mr. H.A. Sarkar, learned counsel for the petitioner, referring to the averments made in the writ petition, submits that the Tribunal committed manifest error of fact as well as on law in declaring the petitioner to be an illegal migrant, inasmuch as, in the written statement and the documents submitted, the petitioner could demonstrate that she is an Indian national. He has also referred to the documents annexed to the writ petition so as to contend that the petitioner is an Indian citizen. Mr. S.C. Keyal, learned ASGI representing the Union of India submits that the petitioner having failed to discharge the burden of proof towards establishing that she is an Indian citizen, there is nothing wrong in the impugned judgement. Mr. J. Handique, learned State Counsel submitting in the same line further submits that the documents on which the petitioner has now placed reliance were very much available before the impugned judgement was passed and yet she kept on taking time. Referring to the amended provisions of the Foreigners (Tribunal) Order, he submits that specific time limits having been laid down in the said time schedule, the petitioner ought to have responded to the proceeding by proving her Indian nationality, discharging the burden of proof as envisaged under Section 9 of the Foreigners Act, 1946.
(3.)I have considered the submissions made by the learned counsel for the parties and perused the entire materials on record including the records received from the Tribunal. On perusal of the impugned judgement dated 05/01/2015 and also on perusal of the records, it is found that notice was duly served on the procedee i.e. the writ petitioner and she appeared on 03/07/2014, the Tribunal having experienced the delay in disposal of the proceeding, cautioned her not to make any default with the advice to submit required documents to prove her nationality. On the basis of the prayer made by her, time was granted fixing the matter on 14/07/2014. However, the petitioner again prayed for time to file written statement and documents. Prayer was allowed with caution not to make any default fixing the matter on 24/07/2014. On 24/07/2014 also she prayed for further time to produce evidence of her Indian citizenship. However, she submitted her written statement and photocopies of some documents. Acceding the prayer made, the petitioner was granted further time to adduce evidence fixing the matter on 03/11/2014. On 03/11/2014, the petitioner again prayed for time and the same was allowed fixing 22/12/2014 for evidence. On 22/12/2014 also the petitioner did not adduce any evidence and consequently the Tribunal passed an order for exparte hearing and order on 05/01/2015. On 05/01/2015, the petitioner did not appear and also did not take any step and consequently, the Tribunal had no other option than to pass the impugned exparte judgement.
As discussed in the impugned judgement, as per the amended provisions of the Foreigners (Tribunals) Order, the Tribunal is to give reasonable opportunity to the procedee to produce evidence in support of her case. Ordinarily not more than 10 (ten) days time to produce such evidence should be given. However, reference is required to be disposed of within 60 (sixty) days of receipt of the reference from the competent authority. The amended provision further stipulates that power of granting adjournment should be sparingly exercised.



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