ORDER

01.02.2021 (Manojit Bhuyan, J)

Heard Mr. S.C. Pandit, learned counsel for the petitioner as well as Mr. S.K. Medhi, learned counsel representing respondent no.1. Mr. J. Payeng, learned counsel represents respondent nos.2, 3, 4 and 7 whereas Ms. N. Upadhyay, learned counsel appears for respondent no.5. Ms. L. Devi, learned counsel accepts notice on behalf of respondent no.6.

Petitioner seeks review of the order dated 25.11.2019 dismissing the writ petition i.e.

WP(C) 3449/2019 wherein challenge was made to the opinion dated 19.10.2016 of the Foreigners’ Tribunal-1, Nalbari, in F.T.(Nal) Case No.(N) 3021/2006. The relevant portion of the said order is extracted hereinunder:

“Petitioner assails ex-parte order dated 19.10.2016 passed by the Foreigners’ Tribunal-1, Nalbari in F.T.(Nal) Case No.(N) 3021/2006 declaring him to be a foreigner, having illegally entered into India from the specified territory after 25.03.1971. Also assailed is the order dated 13.02.2019 passed in Misc. Case No.08/2018, whereby the petition praying for vacating the ex-parte opinion dated 19.10.2016 stood dismissed.

The Tribunal recorded that despite service of notice and affording of sufficient time, the petitioner neither appeared nor submitted documents to establish that he is not a foreigner. In such a situation an adverse view was taken and the impugned opinion was rendered on 19.10.2016.

The petitioner submits that, in fact, no notice was received enabling him to participate and contest the proceedings. The petitioner came to know about the proceedings when NRC Service Centre, Nalbari showed him as Declared Foreigner in the year 2018. Immediately thereafter the petitioner filed Misc. Case 08/2018 for vacating the ex-parte order which was also dismissed on

13.02.2019.

To test the argument as regards non-receipt of notice, regard can be had to the Report of the Process Server dated 06.01.2014 (page 12). It is seen from the said report that notice was duly received by the petitioner’s wife Smti. Puspa Rahi Das. It is also seen from the order-sheet of the Tribunal that petitioner was directed to appear before the Tribunal on 18.02.2014 and to file written statement. On 18.02.2014, the petitioner remained absent without any step. Thereafter as many as 17 consecutive dates i.e. on 08.05.2014, 20.08.2014, 24.10.2014, 24.12.2014, 17.01.2015, 01.04.2015, 08.07.2015, 26.10.2015, 13.11.2015, 07.12.2015, 28.12.2015, 03.02.2016, 13.05.2016, 04.07.2016, 19.08.2019 (sic), 22.09.2016 and finally on 19.10.206 when the ex-parte order was passed then also petitioner remained absent without step. Thus, the finding of the Tribunal as regards failure on the part of the petitioner to appear and file documents despite service of notice appears to be correct and in order.

In the above context, we may observe that although the procedure of identification and for declaring an individual to be a foreign national cannot be relegated to a mechanical exercise and that fair and reasonable opportunity must be afforded to a proceedee to establish claim that he/she is a citizen of India, however, such grant of opportunity cannot be enlarged to an endless exercise. A person who is not diligent and/or is unmindful to take steps to safeguard his/her interest, he/she does so at his/her own risk and peril. In the instant case the petitioner did not appear before the Tribunal to establish her claim that she is not a foreigner. We may further observe that in a proceeding under the Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964, the primary issue for determination is whether the proceedee is a foreigner or not. The relevant fact being especially within the knowledge of the proceedee, as such, the burden of proving citizenship absolutely rests upon the proceedee, notwithstanding anything contained in the Indian Evidence Act, 1872. This is mandated under section 9 of the aforesaid Act, 1946. The said position would not change even in an ex-parte proceeding before the Tribunal as t