The burden of proof regarding citizenship lies with the petitioner, and failure to appear at the Tribunal results in a valid ex parte decision if due process is followed.

JUDGMENT :

(M. Nandi, J.)

Heard Mr. M. Ahmed, learned counsel for the petitioner. Also heard Ms. B. Sarma, learned CGC; Mr. M. Kalita appearing on behalf of Ms. P. Barua, learned Standing Counsel, ECI; Ms. A. Verma, learned Standing Counsel, FT matters and Mr. P. Sarma, learned Additional Senior Government Advocate.

2. The petitioner assails the order/opinion dated 30.05.2023, passed in FT Case No.1250/2017 [arising out of IM(D)T Case No.95/2002] by the learned Foreigners’ Tribunal, Bajali praying for setting aside the ex parte order whereby the petitioner was declared to be a foreigner who had illegally entered into Assam after 25.03.1971.

3. The case of the petitioner is that she used to live with her two children at her matrimonial home in village – Hilapukhuri. Her husband is living with his second wife at Kharupetia town in Darrang district. Her financial position is very poor and somehow she is surviving with her children. On receipt of the notice from the learned Tribunal, she informed about the same to her husband who assured her to do the needful and engaged an advocate to conduct her case.

4. It is also the case of the petitioner that her husband took all the xerox copies of documents along with copy of the notice of the Tribunal from her. She was waiting for her husband but he neither came nor informed anything to her. She kept pursuing her husband to know the status about her case but after a lapse of long period, her husband informed her that he lost the notice of the Tribunal. She could not immediately know about the status of her case as she failed to recollect the number of the case. Then one advocate was engaged by her son to know about the status of the case and then she came to know that her case was decided ex parte on account of her default to appear before the Tribunal and declared her as a foreigner of post 25.03.1971 stream. Subsequently, she was arrested by police in pursuant to the impugned order dated 30.05.2023.

5. It was urged by learned counsel for the petitioner that the aforesaid proceeding has been initiated against her without proper investigation which is illegal. There cannot be fair trial in absence of fair investigation. By referring the judgment of Sarbananda Sonowal Vs. Union of India , reported in (2007) 1 SCC 174, the learned counsel has pointed out that the Hon’ble Apex Court held that although the burden of proof is on the proceedee but the State has initial burden to collect materials of doubt.

6. Learned counsel for the petitioner also relied on another case law State of Assam Vs. Moslem Mandal , reported in (2013) 1 GLT 809 and also pointed out that wherein this Court held that there will be violation of fundamental rights guaranteed under Article 21 of the Constitution of India unless the reference is made, giving opportunity to the proceedee to demonstrate that if he/she is not a foreigner by producing relevant documents at the investigation stage. That opportunity not being given, the whole proceeding is illegal. As such, the same is violation of Article 21 of the Constitution.

7. It is also submitted that in this writ petition, the petitioner has challenged the investigation/verification done by the State.

8. Learned counsel for petitioner also contended that the petitioner is not a foreigner as alleged in the reference. She is an Indian citizen born to her parents who are Indian national. Her parents are Hazrat Ali and Asatan Nessa. Her grandparents were Lokman and Halemon Nessa. The petitioner has 6 (six) siblings including her namely Shahidul Islam, Anowar Hussain, Mazeda Begum @ Mazida Khatoon (petitioner), Moynal Hoque, Sikkim Uddin and Sajeda. Her husband is Akbar Ali.

9. According to the learned counsel for the petitioner, the petitioner was born on 18.06.1979 at village - Barbala and was brought up in the said village. She studied up to class IV in Kamalpur L.P School and was promoted to class V in the year 1988.

10. It is further submitted that the names of the petitioner’s gra