ORDER

Date : 02-02-2018 (Ujjal Bhuyan, J)

Heard Ms. M. Bora, learned counsel for the petitioner and Mr. G. Pegu, learned Government Advocate, Assam.

2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 19-07-2001 passed by the then Illegal Migrants (D) Tribunal, Nagaon in IMDT Case No. 41/1998 (State -Vs- Mustt. Feroja Khatoon) answering the reference in favour of the State by declaring the petitioner to be not a citizen of India but a foreigner.

3. It is seen that reference was made by the State under the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) suspecting the petitioner to be an illegal migrant. Be it stated that under Section 3(1)(c) of the IMDT Act, an illegal migrant was defined as a foreigner who had unauthorizedly entered into India after 25-03-1971.

4. The reference was registered as IMDT Case No.41/1998 before the Illegal Migrants (D) Tribunal, Nagaon (Tribunal). Notice issued by the Tribunal was duly served upon the petitioner whereafter she had entered appearance before the Tribunal alongwith her counsel and filed her written statement after initial adjournment. However at the stage of adducing evidence, petitioner defaulted in her appearance. On behalf of the State, Investigating Officer Shri Someswar Baruah adduced evidence. He stated that petitioner could not show any document in support of her birth in Assam except photocopy of school certificate. Tribunal accepted the evidence of the State witness and since his evidence remained unchallenged, answered the reference in favour of the State vide order dated 19-07-2001.

5. After long 16 ½ years petitioner has filed the present writ petition seeking the relief as indicated above.

6. On a query by the Court as to the reasons for such inordinate delay, learned counsel for the petitioner has taken us to the averments made in paragraphs 5 to 8 of the writ petition. She submits that petitioner did not receive any information from her lawyer and she was also busy with her daily life raising her three children. She came to know in May, 2001 that her counsel had expired in the year 2000. She was advised by the village elder that her case might have been dropped as otherwise she would have received some notice from the State authorities. Thereafter she stopped thinking about the case.

7. We are afraid we can accept such untenable contentions of the petitioner. The contentions advanced are too shallow and silly to merit any serious consideration. It is not a case of non-receipt of notice. Petitioner did receive notice and had appeared before the Tribunal. As a matter of fact, petitioner filed her written statement before the Tribunal but when the turn for evidence came, she stopped appearing before the Tribunal. For more than 16 long years, petitioner did not do anything. No reasonable and prudent person whose citizenship was being questioned, that too, by the State, would have conducted himself like the petitioner. Such conduct can neither be condoned nor overlooked. When the citizenship of a person is questioned by the State, it is the bounden duty of such a person to respond to the notice issued by the Tribunal.

8. Adverting to the present case, we have already noticed that the reference was made under the IMDT Act. Unlike under Section 9 of the Foreigners Act, 1946, in a proceeding under the IMDT Act burden was on the State to prove that the person suspected was an illegal migrant. In her written statement filed before the Tribunal the only statement petitioner made was that she was the daughter of Kudus Ali, son of late Abu Sheikh and that at the proper stage she would adduce evidence. This is all that the petitioner had stated in her written statement which was wholly inadequate by any standard to establish that she was not an illegal migrant but a citizen of India. That apart no evidence was tendered on behalf of the petitioner to prove the above. On the other hand, the State witness in his