The burden of proving citizenship lies with the proceedee under Section 9 of the Foreigners Act, 1946, and failure to participate in proceedings results in the declaration of foreigner status.

ORDER :

M.R. Pathak, J.

1. Heard Mr. A. W. Aman, learned counsel for the petitioner and Mr. A. I. Ali, learned Standing Counsel, Election Commission of India for the respondent No.2. Also heard Ms. A. Verma, learned Standing Counsel, Home Department Assam for the respondent Nos. 3 & 5 as well as Mr. P. Sharma, learned Additional Senior Government Advocate, Assam for the respondent No.6.

2. The petitioner has filed this writ petition on 19.12.2023 challenging the ex-parte order dated 23.12.2019, passed by the learned Foreigners Tribunal, Baksa at Tamulpur, Assam in F.T. Case No. 42/BAKSA/2019 whereby, she was declared to be a foreigner under the Foreigners Act, 1946, who had illegally entered into the territory of India from the specified territory on or after 25.03.1971.

3. Earlier, on 20.12.2023, the records in original of said F.T. Case No. 42/BAKSA/2019 were called for from the said Tribunal that has been accordingly placed before the Court and we have perused the same.

4. Brief facts of the case is that the Superintendent of Police (Border), Baksa vide communication No. BSA/B/27/10/755-769 dated 08.09.2010 in F.T. Case No. 571/2010 referred the matter under Order 2 (1) of the Foreigners' (Tribunals) Orders, 1964 to the Foreigners' Tribunal, Baksa seeking opinion as to whether the suspect/proceedee/opposite party, i.e., petitioner herein is a foreigner under the Foreigners Act, 1946 or not.

5. The said reference of the S.P. (Border), Baksa dated 08.09.2010 was accordingly registered before the Foreigners Tribunal, Baksa at Tamulpur, Assam as F.T. Case No. 42/BAKSA/2019 wherein as per the provisions of Order 3 (1) of the Foreigners (Tribunal) Order, 1964, the said Tribunal on 06.06.2019 issued notice to the petitioner enabling her to show cause, supported by valid documents as admissible as required under Section 9 of the Foreigners Act, 1946 so as to prove her nationality, i.e., she is not a foreigner/illegal migrant, fixing the matter on 29.06.2019, observing that on her failure to respond to the said notice (dated 06.06.2019), the Tribunal shall proceed to decide the reference ex-parte.

6. The petitioner on receipt of the said notice dated 06.06.2019 appeared before the Foreigners Tribunal, Baksa on 29.06.2019 through her engaged counsel in said F.T. Case No. 42/BAKSA/2019. Though she did not appear before the Tribunal on 29.06.2019 but her counsel on 29.06.2019 filed an application before the Tribunal seeking another date for filing her Written Statement in the matter stating that the opposite party (petitioner) could not appear on the said date due to unavoidable circumstances. The Tribunal considered such prayer on behalf of the opposite party/petitioner and granted time to her, fixing the matter on 22.07.2019 for her appearance and filing of Written Statement and documents in the matter.

7. From the records we have seen that on 22.07.2019, the petitioner did not appear before the Tribunal in the matter and her counsel filed a petition stating that though she was ready to appear but as she could not collect a proper bailor, she could not appear on that day and therefore prayed for some time for her appearance and filing of Written Statement. The Tribunal considering the same fixed 14.08.2019 for appearance of the petitioner and filing of her Written Statement in it.

8. The petitioner on various pretext did not appear before the said Tribunal in the matter on the dates fixed i.e., on 14.08.2019; 04.09.2019; 25.09.2019 and 21.10.2019 though those were the dates fixed by the Tribunal for her appearance and filing of her Written Statement. However, the counsel for the petitioner on those dates filed petitions seeking adjournment of the matter for appearance of the petitioner and for filing her Written Statement stating the ground of her non- appearance due to unavoidable circumstances. The Tribunal considered those petitions of the learned counsel for the petitioner and extended the time for her appearance and for filing her writte