The burden of proof for citizenship lies with the proceedee, and failure to contest leads to the presumption of foreign nationality.

JUDGMENT AND ORDER :

(S.K.Medhi, J.)

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 24.02.2023 passed by the learned Foreigners Tribunal 3rd, Hojai at Sankardev Nagar in F.T. (D) Case No. 1550/2015 corresponding to Case No.F.T./H/3178/2012 arising out of S.P. (B)’s F.T. Case No.377/2010. 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), Nagaon against the petitioner giving rise to the aforesaid F.T.(D) Case No.1550/2015 corresponding to Case No.F.T./H/3178/2012 arising out of S.P. (B)’s F.T. Case No.377/2010.

(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 5 dates were fixed for the petitioner to appear and contest, 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 24.02.2023, declaring the petitioner to be a foreign national post 25.03.1971.

3. We have heard Shri J.C. Gogoi, learned counsel for the petitioner. We have also heard Shri G. Sarma, learned Standing Counsel, Home Department, Assam, Shri A.I. Ali, learned Standing Counsel, Election Commission of India and Shri P.Sarma, learned Additional Senior Government Advocate, Assam.

4. Shri Gogoi, the learned counsel for the petitioner has submitted that the petitioner is an illiterate and rustic villager who is not aware of the technical aspects and therefore there was some default in contesting the case. He has also attributed certain negligence on the part of his counsel in the Tribunal who did not give him proper advice as a result of which, the impugned order has been passed. The learned counsel has also submitted that a complain has been made against the concerned counsel in the Bar Association, Nagaon.

5. The learned counsel has further submitted that the documents which are available and annexed to the writ petition would demonstrate his citizenship which include certain Voter Lists.

6. He accordingly submits that the impugned opinion dated 24.02.2023 be set aside and another chance be given to him to prove his citizenship.

7. Per contra, Shri Sarma, learned Standing Counsel, Home Department has, at the outset emphatically refuted the primary contention made on behalf of the petitioner that the order dated 24.02.2023 of the learned Tribunal is an ex parte order. It is submitted that notices were duly served whereafter, the petitioner had also appeared and also filed his written statement and thereafter, kept on seeking adjournments and there was continuous default. He has also highlighted that initially a final opinion was passed on 06.12.2021 by the learned Tribunal declaring the petitioner a foreigner and such opinion was the subject matter of challenge in WP(C)/5122/2022. This Court vide order dated 18.08.2022 had however set aside the said order by directing the petitioner to appear on a particular date before the Tribunal. However, the petitioner had failed to abide by the said direction and ultimately the impugned order has been passed. He has submitted that the petitioner is not entitled to any equitable relief from this Court. He has relied upon the observations of this Court in the case of Sadar Ali vs- Union of India [order dated 3