IMPORTANT POINT
The burden of proving citizenship lies with the proceedee, and the Writ Court's jurisdiction is limited to reviewing the decision-making process.

JUDGMENT :

SANJAY KUMAR MEDHI, J.

1. The extra-ordinary jurisdiction of this Court has been sought to be invoked by filing this application under Article 226 of the Constitution of India by putting to challenge the opinion rendered vide impugned order dated 22.11.2023 passed by the learned Foreigners Tribunal, Baksa in F.T. Case No. 21/BAKSA/2023 [Ref-I.M.(D).T. Case No. 111/99]. By the impugned judgment, the petitioner who was the proceedee before the learned Tribunal, has been declared to be a foreigner post 25.03.1971. As per the projection made in the petition, the aforesaid order is an ex-parte one.

2. The facts of the case may be put in a nutshell as follows:

(i) The reference was made by the Superintendent of Police (B), Baksa, Mushalpur District, against the petitioner giving rise to the aforesaid F.T. Case No. 21/BAKSA/2023.

(ii) As per requirement u/s 9 of the Foreigner’s Act, 1946 to prove that the proceedee is not a foreigner, the petitioner was duty bound to file written statement to prove his citizenship. Though at least 7 dates were fixed for filing of written statement and evidence on affidavit, the petitioner had utterly failed to do the same.

(iii) The learned Tribunal, after noticing the aforesaid facts and circumstances and taking into account of the provisions of Section 9 of the Foreigners Act, 1946 had come to a finding that the petitioner as opposite party had failed to discharge the burden cast upon him and accordingly, the opinion was rendered on 22.11.2023, declaring the petitioner to be a foreign national post 25.03.1971.

3. We have heard Shri M.U. Mahmud, learned counsel for the petitioner. We have also heard Ms. A. Verma, learned Standing Counsel, Home Department, Assam, Shri H. Kuli, learned counsel appearing on behalf of Shri A.I. Ali, learned Standing Counsel, Election Commission of India and Shri P. Sarma, learned Additional Senior Government Advocate, Assam. We have also carefully examined the records of the Tribunal which were requisitioned vide an order dated 22.01.2024.

4. It is contended on behalf of the petitioner that the default in appearance was on account of the fault on the part of his counsel. It is submitted that the petitioner was unwell and undergoing treatment and therefore he could not appear before the learned Tribunal.

5. By referring to Order 4(e) of the Foreigners (Tribunals) Order, 1964, the learned counsel submits that the aforesaid provision vests powers upon the Tribunal to issue warrant of arrest to secure the attendance of a party and without exercising the said power, the decision to proceed ex-parte is not proper.

6. Shri Mahmud further submits that the documents which are available and annexed to the writ petition would demonstrate his citizenship. In this connection, certain Voter Lists, Electoral Voter ID Cards, Aadhar Card, PAN Card and copy of Jamabandi have been referred to.

7. In support of his contention, the learned counsel for the petitioner has relied upon the following case laws:

(i) Rajendra Das vs. Union of India, 2022 (1) GLT 756

(ii) Asor Uddin vs. Union of India, W.P. (C) No. 6544/2019, dated 09.09.2021

8. In both the aforesaid cases, ex-parte opinion rendered by Foreigners Tribunal were interfered with and the matters were remanded for adjudication on merits.

9. Shri Mahmud, has also relied upon the case of State of Orissa vs. Dhaniram Luhar, (2004) 5 SCC 568 wherein the Hon’ble Supreme Court has laid down that maintenance of judicial discipline is an integral part of the judicial system. Reliance is also placed upon in the case of State of Bihar vs. Kalika Kuer, (2003) 5 SCC 448 whereby it has been laid down that a later Coordinate Bench is required to follow an earlier view rendered and in case of disagreement, the matter may be referred to a larger Bench.

10. It is accordingly submitted that the petitioner was deprived from an opportunity to contest the case which proceeded ex parte and therefore, the instant petition may be allowed and the matter be remanded