Failure to discharge the burden of proof under Section 9 of the Foreigners Act, 1946 can lead to a declaration of foreigner status and deportation.

1. Heard Dr. G. Lal, learned counsel for the petitioner. Also heard Ms. M. Goswami, learned State Counsel. I have also heard Ms. G. Sarma, learned counsel holding for Mr. S.C. Keyal, learned ASGI. This writ petition is against the order dated 04/06/2009 of the learned Member, Foreigners Tribunal, Goalpara in FT Case No. 810/G/06 (ERO’s Case No. 293 116/37 Ka (Union of India Vs. Dulal Sekh). By the said order passed exparte, the petitioner has been declared to be a foreigner.

2. From the materials on record it appears that after the initial appearance and filing of written statement and some photocopies of documents, the petitioner abandoned the proceeding before the Tribunal and did not discharge the burden of proof that he is an Indian citizen as envisaged under Section 9 of the Foreigners Act, 1946 and discussed in Sarbananda Sonowal Vs. Union of India and others reported in AIR 2005 SC 2920.

3. On perusal of the records received from the Tribunal, it is found that the proceeding against the petitioner was initiated in 2002 and inspite of service of notice the petitioner remained absent on as many as 26 dates. After the scrapping of IM(D)T Act by the Apex Court in Sarbananda Sonowal (Supra), proceeding started against the petitioner as per the provisions of the Foreigners Act, 1946. On that occasion also, he remained absent on 07/04/2007 and 08/05/2007, however, filed the written statement on 20/06/2007. Thereafter, he remained absent on 27/07/2007 but again appeared on 06/08/2008 and prayed for time. The matter was again taken up on 28/01/2008, 06/09/2008, 05/01/2009, 28/04/2009 and 03/06/2009. On all the dates, the petitioner remained absent and prayed for time.

4. As recorded in the order dated 03/06/2009 with the joining of a new Member, inspite of service of notice on the petitioner earlier, fresh notice was issued and served. Although the petitioner appeared but all-along prayed for time. Rejecting the prayer for further adjournment on 03/06/2009, the Tribunal fixed the matter for exparte hearing. When the matter was taken up on 04/06/2009, the petitioner could not appear which resulted in the exparte order.

5. Dr. G. Lal, learned counsel for the petitioner submits that the petitioner be given a further opportunity by setting aside the exparte order. The only ground on which the petitioner has prayed for setting aside the exparte order is in paragraph 9 of the writ petition, which is quoted below :-

“9. That the petitioner states that the learned Foreigners Tribunal, Goalpara has passed the impugned judgement and order dated 05.06.2009 without giving sufficient and adequate opportunity to the petitioner to prove his nationality, and without considering his Written Statements and only relying upon the evidence of the local verification officer (L.V.O.) who was not even put into cross examination causing serious prejudice to the petitioner. It may be mentioned here that the case has been dismissed without taking any hearing causing serious prejudice to the petitioner. Under the facts and circumstances as narrated above, the aforesaid impugned judgment and order dated 05.06.2009 is liable to be set aside and quashed and the petitioner may be given an opportunity to prove his case.”

6. Mr. S.C. Keyal, learned ASGI submits that the petitioner having failed to discharge the burden of proof as envisaged under Section 9 of the Foreigners Act, 1946, inspite of granting several opportunities, he is not entitled to get the impugned order set aside. Ms. M. Goswami, learned State Counsel also adopted the said argument. Although, there is no provision for setting aside the exparte order but the Full Bench of this Court in State of Assam Vs. Moslem Mondal and others reported in 2013 (1) GLT 809 has held that in appropriate cases, Tribunal can set aside exparte order provided good and sufficient cause is shown. It has also been held that after exparte orders are set aside in routine manner, the very purpose of enacting the Foreig