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IN THE HIGH COURT OF GAUHATI
N. Kotiswar Singh, Manish Choudhury, JJ.
Md. Abul Kalam – Appellant
Versus
Union of India and Ors. – Respondents
WP(C)/139 of 2019
Decided On : 27-09-2021
Code of civil Procedure,1908 - Order XVIII Rule 2,(2)(1),(2)(2),(2)(3),3A,3D,OrderXX Rule 2 - Statement and production of evidence – Party to appear before other witnesses – Power to pronounce judgment written by judge’s predecessor - Whether he will be an Indian citizen or a foreigner – Held, important facet of justice delivery system would be reduced to naught if the successor Judge who takes over a case before delivery of judgment is not afforded the opportunity to hear the oral submissions of the parties, as judgment is a personal assessment by the Judge of the evidence and application of law on the facts and evidence that may have been brought on record for deciding a case - It is for this reason that if the new Judge who takes over the case delivers judgment without hearing the oral submission, it could cause serious prejudice to either of the parties In the present case, as discussed above, there is nothing on record to indicate that the Ld. Member of the Tribunal who had passed the opinion had the advantage of hearing the oral submissions of the parties including the petitioner in the present case – Petition disposed of.
JUDGMENT :
N. Kotiswar Singh, J.
1. Heard Mr. J. Sarmah, learned counsel for the petitioner. Also heard Ms. M. Barman, learned counsel on behalf of Mr. S.K. Medhi, learned CGC; Mr. A. Bhuyan, learned Standing Counsel, ECI; Mr. A. Kalita, learned Special Counsel, FT and Ms. L. Devi, learned Standing Counsel, NRC.
2. The present petition has been filed being aggrieved by the opinion dated 20.06.2018 passed by the Member of the Foreigners' Tribunal No. 1, Morigaon, in F.T.(C) Case No. 461/2008 declaring the petitioner to be a foreigner, having illegally entered into India (Assam) after 25.03.1971.
3. Though on perusal of the impugned opinion dated 20.06.2018 it appears that the judgment was rendered after hearing the arguments and on perusal of the records, as reflected in the judgment, it has been submitted by the learned counsel for the petitioner that in fact the learned Tribunal did not hear the parties before the said opinion was rendered. The said opinion was based only on the opinion prepared by her predecessor and as such the said opinion is void.
In this regard, we have perused the original records requisitioned from the Foreigners' Tribunal.
4. On perusal of the records we have also noted that on 02.06.2017 the learned Tribunal passed the following order :
Now, the matter of delivering the judgment is kept reserved."
Subsequently the matter was put up again on 12.04.2018 with the following order passed by the Foreigners' Tribunal:-
"Though the matter was kept reserved for judgment, the same could not be delivered due to shortage of time as well as dearth of a typist in this Tribunal.
Matter is accordingly released from being reserved as permanent Member have already joined."
5. The matter was thereafter put up on 20.06.2018. What we have noted from the records is that when the new Member of the Tribunal, Smt. Navanita Baruah took over the charge of the Foreigners' Tribunal, the following order was passed on 20.06.2018:
After summing up the materials on record and perusal of the evidence of the O.Ps., I am of the opinion that the OP1, namely Abu Kalam; OP3, Sahidul Islam; OP4, Asadul Islam and OP5, Kulsum Bibi, of village - Borbari/Ahatpam under P./S-Dharamtul in the district of Morigaon, Assam are Foreigners/illegal Migrants who had entered India (Assam) after 25-03-1971 from the specified territory without any valid documents.
However, after examining the Ext-H (the death certificate), it is observed that since the OP2 has expired during pendency of the instant F.T. Case, the name of the OP2, Sahida Begum has been strike out by this Court.
Hence, the reference is answered in affirmative and in favour of the Union of India.
The detailed order will follow in a separate sheet comprising of six pages.
Inform the Superintendent of Police (Border), Morigaon, Deputy Commissioner, Morigaon and the Election Officer, Morigaon for taking necessary action."
6. We have also noted that between 12.04.2018 and 20.06.2018, there was no proceeding before the Tribunal.
7. Thus what can be gathered from record is that though the learned Member of the Foreigners' Tribunal No. 1, Morigaon, Smti. Navanita Baruah passed the opinion dated 20.06.2018, and though it has been mentioned in paragraph-8 of the said opinion that the arguments had been heard and records of the case has been perused, the records indicates otherwise. In fact, what the record clearly shows is that the matter perhaps was heard by her predecessor and was kept in a sealed cover and though the matter was reserved for judgment by the earlier Member, the same could not be delivered due to shortage of time and also because of non-availability of a typist and the matter was accordingly released from being reserved as ment
If recording of evidence is concluded and matter is fixed for argument for delivery of judgment and after hearing of submission of parties is concluded if Judge is transferred or demits office, in th....
The principle of res judicata applies to proceedings before the Foreigners' Tribunal, and the earlier opinion of the Tribunal has a binding effect.
The burden of proving citizenship under the Foreigners Act remains with the individual, regardless of representation, and failure to provide evidence justifies a tribunal's determination of foreign n....
The burden of proving citizenship lies with the proceedee, and the Writ Court's jurisdiction is limited to reviewing the decision-making process.
The burden of proving citizenship rests upon the proceedee, and documents submitted must be proved in accordance with the law.
The main legal point established is that the right to a reasonable opportunity to prove nationality and procedural fairness are essential in nationality determination cases under the Foreigners Act, ....
The burden of proving citizenship rests on the proceedee, and the court's jurisdiction under Article 226 is limited to examining the decision-making process.
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