Biplab Kumar Sharma, J.

1. This writ petition was filed on 7.5.2013 challenging the ex-parte order dated 16.1.2010 of the Foreigners Tribunal (2nd) Barpeta in FT (2nd Tribunal) Case No. 302/2006 (Union of India Vs. Rukia Begum). Thus, the writ petition was filed after more than three years and no explanation has been furnished as to the cause of delay. The Tribunal had to pass the impugned order ex-parte, when the petitioner failed to discharge her burden of proof as envisaged under Section 9 of the Foreigners Act, 1946 by adducing evidence. After filing of the written statement, she remained absent throughout the proceeding as will be evident from the impugned judgment dated 1.6.2010 and also on perusal of the records received from the Tribunal.

2. The reference against the petitioner was initiated way back in 1997. When there was intensive revision of electoral roll as per the order of the Election Commission of India, it was suspected that the name of the petitioner was wrongly included in the draft electoral roll published on 24.7.1997 pertaining to 47 Chenga Assembly Constituency, accordingly an enquiry was conducted by the Verification Officer and on completion of the same, he submitted his report that during enquiry the petitioner failed to produce any valid document to prove her Indian citizenship.

3. It was on the basis of the above, reference was made to the Foreigners Tribunal to render opinion as to whether the petitioner is an illegal migrant or not as the records of the Tribunal would reveal, the proceeding against the petitioner started with the issuance of notice on 6.9.2003. Inspite of service of notice, when the petitioner did not respond to the proceeding, fresh notice was issued to her on 20.11.2004. As recorded in the order dated 6.1.2005, the petitioner did not appear before the tribunal inspite of service of notice on the next date fixed i.e. 15.2.2005. On 7.4.2005, 25.5.2005 and 1.7.2008 also she remained absent. Thereafter in view scrapping up of I.M.(D) T. Act, 1983 in Sarbananda Sonowal Vs. Union of India reported in AIR 2005 SC 2920, fresh proceeding started against the petitioner by way of issuance of notice. The notice was duly served on her as will be evident from the order passed on 6.12.2006, on which date, she appeared and prayed for time. Thereafter also she kept on taking time as will be evident from the orders passed on 26.12.2006, 7.2.2007, 27.2.2007, 21.3.2007, 24.4.2007 etc.

4. On 24.5.2007 the petitioner submitted written statement, but remained absence on the subsequent date i.e. 4.7.2007. Thereafter also with the exception of 3.8.2007, 7.9.2007 and 3.10.2007 she remained absent on all the dates fixed. Such dates are 30.10.2007, 16.11.2007, 5.12.2007, 7.1.2008, 12.2.2008, 6.3.2008, 4.4.2008, 2.5.2008, 31.5.2008, 4.7.2008, 20.8.2008, 9.9.2008, 3.10.2008, 24.10.2008, 28.11.2008, 1.1.2009, 30.1.2009, 3.3.2009, 7.4.2009, 20.5.2009, 1.7.2009, 13.8.2009, 6.10.2009, 17.11.2009, 4.1.2010 and finally on 16.1.2010, when the Tribunal passed the impugned judgment.

5. From the above, there is absolutely no manner of doubt that the petitioner was given ample opportunities to prove her Indian citizenship and for that matter to discharge her burden of proof as envisaged under Section 9 of the Foreigners Act, 1946, but she did not avail the same.

6. The ground for setting aside the impugned ex-parte order, the petitioner has urged in the writ petition are that-

i) She is entitled to get another opportunity to prove her Indian citizenship.

ii) Mere failure to contest the reference cannot be fatal.

iii) She failed to adduce evidence due to her ignorance and that there was communication gap and improper legal guidance.

7. Mr. A.R. Sikdar, learned counsel for the petitioner submits that the engaged counsel of the petitioner did not guide properly and in fact the petitioner was told that she was not required to appear in the subsequent dates. Although he has referred to the statement made in paragraph-3 of