Gau HC | Granting opportunity for identification and declaration of individual of foreign nationality to establish claim of Indian citizenship cannot be enlarged to ceaseless exercise under Foreigners Act

Gauhati High Court: A Division Bench of Manojit Bhuyan and Hitesh Kumar Sarma, JJ. upheld the ex-parte order of the Foreigners’ Tribunal and dismissed the writ petition.

In the present appeal, the petitioner assailed the ex-parte order passed by the Foreigners’ Tribunal declaring him to be a foreigner, having illegally entered into India after March 1971. The petitioner responded to the notice issued by the Tribunal and appeared in November 2014 and prayed for time to file a written statement. Thereafter, 11 occasions were afforded to the petitioner, but he continued remaining absent without any steps. In such a situation, an adverse view was taken by the Tribunal and the impugned ex-parte order/opinion was rendered.

The Court taking note of the several opportunities granted to the petitioner and his continuous absence made a noteworthy observation;

“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. If a person who is not diligent or is unmindful to take steps to safeguard his interest, he does so at his own risk and peril.”

The Court further pointed out certain pertinent aspects in deciding the primary issue for determination, whether the proceedee is a foreigner or not under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964.

  1. The burden of proving citizenship absolutely rests upon the proceedee, notwithstanding anything contained in the Indian Evidence Act, 1872 as mandated under section 9 of the aforesaid Act, 1946.
  2. The above-mentioned 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.
  3. 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.

The Court stressed the fact that in the instant case, the petitioner utterly neglected to participate/contest in the proceedings. Further, the Court also emphasised 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 the 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. In the present case, the Court concluded that none of the above-mentioned grounds existed in the case.[Sadar Ali v. Union of India, 2020 SCC OnLine Gau 3673, decided on 31-08-2020]

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