WP(C) 965/2008 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA This batch of writ petitions involves 61 petitioners, who have been decl ared as foreigners by the respective Foreigners Tribunals. They have invoked the writ jurisdiction of this Court assailing the legality and validity of such dec larations. Since the issue involved is the same, which is - whether the petition ers are illegal migrants to Assam after the cut-off date i.e. 25.3.1971, all the writ petitions are being disposed of by this common judgment and order, dealing with each and every case independently. 2. One interesting feature of all the cases, except three, is that the impu gned judgments and orders passed by the Foreigners Tribunals are all Ex-parte. T he petitioners, except in three cases, did not respond to the proceedings before the Tribunals, which the learned State counsel describes as a methodical ploy t o prolong the proceedings on untenable grounds. 3. Barring three, in all the cases, the common ground(s) is/are that the Ex -parte proceedings and judgments are because of non-receipt of notice, and/or a lthough the engaged advocate (s) was/were entrusted with the required instructio ns/documents, they did not take proper steps towards defending the petitioners. According to the petitioners, they are all Indian citizens. They have annexed p hotocopies and/or typed copies of certain documents, mostly voter lists in suppo rt of their such claim. Barring one case, all the cases are after the decision in Sarbananda Sonowal v. Union of India, reported in AIR 2005 SC 2920. As we a ll know that, in the said decision, the Apex Court struck down the provisions of the Illegal Migrants (Determination by Tribunals) Act, 1983 as ultra vires the Constitution of India. As a result, the Tribunals and the appellate Tribunals c onstituted under the said Act, ceased to function and the cases pending before t he I.M.D.T. stood transferred to the Tribunals constituted under the Foreigners (Tribunal) Order, 1964. The direction was issued for deciding the pending case s in the manner provided in the Foreigners Act, 1946. The direction was also is sued to constitute sufficient number of Tribunals under the Foreigners (Tribunal s) Order, 1964 to effectively deal with the cases of foreigners, who have illega lly come from Bangladesh or illegally residing in Assam. 4. When the effect and direction of the Apex Court was sought to be diluted , by promulgating the Foreigners (Tribunals for Assam) Order, 2006 and also by amending the Foreigners (Tribunals) Order, 1964, by two pieces of subordinate l egislations, the Apex Court quashed both the pieces of legislation by its judgme nt and order reported in (2007) 1 SCC 174 (Sarbananda Sonowal (II) v. Union of I ndia and others). While allowing the writ petition, the Apex Court issued dire ction to the respondents to forthwith implement the directions issued in Sarbana nda Sonowal (I) case, referred to above. It was observed that no time limit fo r implementation of the direction was fixed in Sarbananda Sonowal (I) case, wi th the hope that the Central Government would implement the direction within a r easonable time, but there was no adequate reasons for justifying the non-implem entation of the said direction. Accordingly, the direction was issued to the Un ion of India to constitute sufficient number of Tribunals under the 1964 Order e ffectively dealing with the cases of foreigners within a period of four months f rom the date of the judgment, which is 5th December, 2006. 5. In the aforesaid decision in Sonowal (II) case, the Apex Court while de precating the action of the respondents towards promulgating the aforesaid two pieces of legislation, observed that there is lack of will in the matter ensurin g that the illegal migrants are sent out of the country. The Apex Court observe d thus :- 64. In the face of the clear directions issued in Sonowal I1 it was for the aut hority concerned to strengthen the Tribunals under the 1964 Order and to make th em work. Instead of doing so, the 2006 Order has been promulgated. It is not as if the respondents have found the 1964 Order unworkable in the State of Assam; t hey have simply refused to enforce that Order in spite of directions in that beh alf by this Court. It is not for us to speculate on the reasons for this attitu de. The earlier decision in Sonowal I1 has referred to the relevant materials sh owing that such uncontrolled immigration into the North-Eastern States posed a t hreat to the integrity of the nation. What was therefore called for was a strict implementation of the directions of this Court earlier issued in Sonowal I1 so as to ensure that illegal immigrants are sent out of the country, while in spite of lapse of time, the Tribunals under the 1964 Order had not been strengthened as directed in Sonowal I1. Why it was not so done, has not been made clear by th e Central Government. We have to once again lament with Sonowal I1 that there is a lack of will in the matter of ensuring that illegal immigrants are sent out o f the country. 6. Section 4 of the Foreigners Act, 1946 reads as under - 9. Burden of proof - if in any case not falling under section 8 any question a rises with reference to this Act or any order made or direction given thereunder , whether any person is or is not a foreigner or is or is not a foreigner of a p articular class or description the onus of proving that such person is not a for eigner or is not a foreigner of such particular class or description, as the cas e may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872 (I of 1872), lie up0on such person 7. The Act provides wide ranging powers to deal with all foreigners or with respect to any particular foreigner or any prescribed class or description of f oreigner for prohibiting regulating or restricting their or his entry into India or their presence or continued presence including his arrest, detention and con finement. The most important provision is Section 9 which casts the burden of p roving that a person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall lie upon such person. Therefo re, where an order made under the Foreigners Act is challenged and a question a rises whether the person against whom the order has been made is a foreigner or not, the burden of proving that he is not a foreigner is upon such a person. 8. In Union of India v. Ghaus Mohammed, AIR 1961 SC 1526, the Chief Commiss ioner of Delhi served an order on Guaus Mohammad to leave India within three day s as he was a Pakistani national. He challenged the order before the High Court which set aside the order by observing that there must be prima facie materia l on the basis of which the authority can proceed to pass an order under Secti on 3(2)(c) of the Foreigners Act, 1946. In appeal the Constitution Bench rever sed the judgment of the High Court holding that onus of showing that he is not a foreigner was upon the respondent. 9. The Apex Court in Sarbananda Sonowal (I) case emphasizing on the gener al rule in the leading democracies of the world pertaining to citizenship observ ed thus :- It needs to be emphasized that the general rule in the leading democracies of t he world is that where a person claims to be a citizen of a particular country, the burden is upon him to prove that he is a citizen of that country. 10. Further, in paragraph-17 of the said judgment, the Apex Court while hold ing that there is good and sound reason for placing the burden of proof upon th e person concerned who asserts to be a particular country observed thus :- There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country. In order to estab lish one’s citizenship, normally he may be required to give evidence of (i) his date of birth, (ii) place of birth, (iii) name of his parents, (iv) their place of birth and citizenship, Sometimes the place of birth of his grand parents may also be relevant like under Section 6-A(1)(d) of the Citizenships Act. All these facts would necessarily be within the personal knowledge of the person concerne d and not of the authorities of the State. After he has given evidence on these points, the State authorities can verify the facts and can then lead evidence i n rebuttal, if necessary. If the State authorities dispute tha claim of citizens hip by a person and assert that he is a foreigner, it will not only be difficult but almost impossible for them to first lead evidence on the aforesaid points. This is in accordance with the underlying policy of Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any per son, the burden of proving that fact is upon him. 11. In the instant batch of writ petitions, as will be noticed a little late r, in almost all the cases, the petitioners did not discharge their burden of pr oof, by adducing any evidence and/or proving the photocopies of the documents, m ostly voter list. The common feature of the cases is that the petitioners have m ade use of copies of voter lists at random so as to indicate any name resembling theirs. Their whole emphasis is mainly on such voter list and not anything else including oral evidence to prove their citizenships. The reason is obvious. It is very easy to pick up any voter list, find out names and particulars resembli ng theirs, obtain certified copies of the same and dump them to the writ Court t aking it for granted that the writ Court will swallow the same unmindful of requ irement of Section 9 of the Foreigners Act, 1946. 12. After having generally noticed, the grounds on which the petitioners hav e challenged the judgments of the Tribunals as well as the position of law, I no w deal with the cases individually. W.P. (C) NO.1094 OF 2008 District Sonitpur (Arising out of Ex-parte judgments and orders dated 5.10.2007 in FT (DC) Case No s.89/2007; 90/2007 and 91/2007) 13. The three petitioners who have been declared to be foreigners being the illegal migrants to Assam after 25.3.1971, have filed this writ petition. All t he independent judgments delivered on the same date i.e. 5.10.2007 are Ex-parte judgments. Although 3 separate proceedings were initiated against the petitione rs on the basis of the independent references and thus, independent writ petitio ns ought to have been filed, the petitioners have chosen to file a single writ petition challenging the independent judgments pertaining to their cases. Howeve r, the matter has been considered on its own merit. 14. As per the averments made in the writ petition, the petitioner No.1 Must t. Sarabari Begum @ Syera Begum, wife of Ruwan Hussain @ Mustakin is the mother of the petitioner No2 namely, Md. Jakir Hussain, son of Late Mustakin Ali. The petitioner No.3 is Mustt. Tabashum Begum @ Sabari Khatoon, wife of petitioner No .2 i.e. Md.Jakir Hussain. It is the case of the petitioners that they are all ci tizens of India by birth and their forefathers belonged to the State of Bihar. Referring to a particular plot of land stated to be in their possession without, however, indicating anything as to since when they are in possession of the la nd, the petitioners have contended that since they are in occupation of the sa id plot of land, they are citizens of India. In this connection, they have ann exed Annexure-’A’ documents dated 10.3.1995 issued by the Circle Officer, Tezpur Revenue Circle, Tezpur, which is a certificate certifying that the land describ ed in the certificate stands in the name of Mustt. Sayera Begum. 15. The petitioners have also enclosed Annexure-’B’ document which is a form of declaration for enrolment as a voter. The declaration was made on 21.4.1993 and in the particular column, the name of one Sahera Begum, wife of Late Mustak ib , aged 60 years as of 1st January, 1993 appears. 16. Annexure-’C’ and ’D’ are the copes of the purported Voters Identity Card s issued in favour of the petitioners No.2 and 3. Although no dates are indicat ed in the Identity Cards, but it can be presumed that while Annexure-’C’ Identit y Card was issued after 1.1.2003, Annexure-’D’ Identity Card was issued after 1 .1.2005 as respective age of the card holders are indicated as on 1.1.2003 and 1 .1.2005 respectively. 17. In the writ petition, it is the specific case of the petitioners that t he petitioners did not get opportunity of submitting the relevant documents befo re the Tribunal due to non-receipt of notice from the Tribunal. Such statement has been made in Paragraph-10 of the judgment. Thus, according to the petitione rs, they could have proved their citizenship before the Tribunal, had they been served with notice. 18. On perusal of all the 3 orders dated 5.10.2007 passed in the aforesaid F T. Cases, it is seen that the petitioners, in spite of service of notice, did n ot appear before the Tribunal. In this connection, I have verified the case re cords of the Tribunal. So far as the petitioner No.1 is concerned, although in t he writ petition, she has taken the alternative name of her husband as wife of Ruwan Hussain @ Mustakin , but in the proceedings before the Tribunal, the name of her husband finds mention only as Ruwan Hussain and there is no other altern ative name. 19. The notice from the Tribunal was received by the petitioner No.2 Md Jak ir Hussain whom she claims to be her son. Similarly, the petitioner No.2 recei ved notice for himself as well as for his wife i.e. the petitioner No.3. Notic e was received under his clear signature. Thus, it cannot be said that the peti tioners did not receive notice in respect of the proceedings before the Tribunal . It is not the case of the petitioners that although the petitioner No.2 was s erved with the notices, but he did not inform the petitioners No.1 and 2 about t he proceedings before the Tribunal. Further under Order 5 Rule 15 of the Code o f Civil Procedure, 1908, the service of notice on the adult member of the family is sufficient. 20. From the above, it will be seen that the plea of the petitioners that th ey did not receive any notice from the Tribunal is a false plea. On this score a lone, this writ petition is liable to be dismissed. However, independent of suc h a position and also independent of an Ex-parte proceeding before the Tribunal, when the petitioners failed to discharge their burden of proof, as envisaged u nder Section 9 of the Foreigners Act, 1947, I have examined their case as projec ted in the writ petition in respect of their claim that they are all Indian citi zens by birth. 21. As noticed above, Annexure-’A’ is a document pertains to one Mustt. Saye ra Begum and not Mustt. Sarabari Begum, in whose name, the proceeding before th e Tribunal was initiated. In the document, she is also not described as Sarabari Begum. Further, in the document, the name of her husband is shown as Mustakin while in the proceeding before the Tribunal her husband’s name is Md. Ruwan Hu sain and the notice was also served mentioning her husband as Ruwan Husaain. Th us, this document on the face of it, does not belong to her and even if, same be longs to her, same does not prove her citizenship. As noticed above, the documen t is of 1995. The cut off date being 25.3.1971, such a document unless the linka ge to pre 25.3.1971 period in India is established to prove one’s Indian Citizen ship, is of no consequence. 22. Annexure-’B’ also pertains to one Sahera Begum wife of Late Mustakib and not Mustakin. The said document is a declaration made by the head of the fami ly for incorporation of name in the voter list. The declaration was made on 21. 4.1993 by one Md. Khaleque Husen and the age of Sahera Begum was declared to be 60 as on 1.1.1993. Thus, this document also does not belong to the petitioner and even it does, cannot prove her Indian citizenship. 23. In the writ petition, it is the case of the petitioner No.1 that her na me was incorporated in the Electoral Roll prior to 1966 of Tezpur Legislative As sembly Constituency. However, no document has been produced to establish the sa me. 24. As noted above, Annexure-’C’ and ’D’ are the Voter Identity Cards purpo rtedly issued in favour of the petitioners No.2 and 3. Interestingly, as agai nst the claim of the petitioners that the husband, father and father-in-law of t he petitioners No.1, 2 and 3 respectively is Late Mustakin Ali, but in Annexure- ’C’ Voter Identity Card, the father’s name of the elector Jakir Husain is Md. Mu slim. Similarly, in Annexure-’D’ Voter Identity Card, which is stated of the petitioner No.3, her husband is described as Md. Roban and not Md. Jakir Hussa in. 25. If we go by the aforesaid identity cards, the petitioner No.2 i.e. the h usband of the petitioner No.3 is younger than his wife i.e. the petitioner No.3 . While in Annexure-’C’ identify card, the age of the card holder is 20 as on 1 .1.2003, the age of the Annexure-’D’ card holder, whom the petitioner No.2 claim s to be his wife, is 23 yeres as on 1.1.2005. 26. Apart from the above, such voter identity cards are of no consequence , inasmuch as, the cut off date is 25.3.1971 and unless it is established that t he persons concerned are not illegal migrants and/or they were born in India aft er 25.3.1971 from their Indian parents, within the meaning of provisions relatin g to Citizenship Act and Foreigners Act, no amount of documents produced, which are of post 25.3.1971 without any linkage to their Indian origin within the mea ning the said Act, are of no consequence. Moreover, when the documents itself have caught the petitioners red handed coupled with the fact that they have take n recourse to falsehood in filing the writ petition and also failure to establi sh that they are Indian citizens by discharging their burden of proof to that ef fect, the irresistible and only conclusion which could be arrived at is that th e petitioners are all foreign nationals and are illegal migrants to Assam. 27. In the Tribunal, the prosecution duly established its case by proving th e documents/Exhibits and the petitioners failed to discharge their burden of pro of of Indian citizenship. 28. In view of the above, the writ petition is dismissed upholding the impug ned judgments of the Tribunal. 29. The Superintendent of Police i.e. the Respondent No.2 is directed to tak e immediate steps to take the petitioners into custody and to keep them under cu stody till they are deported from India. W.P. (C) NO.1355 OF 2008 District Barpeta (Arising out of Ex-parte judgment and order dated 31.12.2007 in FT Case No.164/2 007) 30. The four petitioners who have been declared as foreigners and illegal mi grants to Assam by the Foreigners Tribunal-I, Barpeta have filed this writ peti tion for setting aside and quashing of the said judgment and order. As in the first case, in this case also, the judgment of the Tribunal is pursuant to Ex- parte proceeding. According to the petitioners, on receipt of notice from the Tribunal, they had engaged two advocates namely, Mr. Nazrul Islam and Mr. Danesh Ali of Barpeta Court to represent them in the proceeding before the Tribunal, b ut due to reasons best known to the said counsel, they did not appear before th e Tribunal nor produced the documents annexed to the writ petition to prove tha t the petitioners are Indian citizens. Further allegation made against the enga ged counsel is that they also did not advise the petitioners to adduce evidence. Thus, according to the petitioners, the inaction on the part of the engaged c ounsel resulted in Ex-parte judgment and order challenged in this writ petition. 31. The Tribunal by its judgment dated 31.12.2007 has answered the reference , as to whether the petitioners entered into Assam after 25.3.1971 without any v alid document, in the affirmative. In spite of service of notice, the petitione rs did not submit written statement nor adduce any evidence. On the other hand, the prosecution examined the Enquiry Officer as P.W.1, who in his deposition p roved the enquiry report holding the petitioners to be foreigners and entered in to Assam after 25.3.1971. The Enquiry Officer in his deposition stated about th e failure on the part of the petitioners to produce any document pertaining to their citizenship of India. The Enquiry Officer also examined two co-villagers, who also suspected the petitioners to be foreigners. Since the burden of proof was with the petitioners but they did not submit any written statement and addu ce any evidence, the Tribunal had no option but to proceed Ex-parte. 32. The plea of the petitioners that their engaged counsel did not take any steps in the matter is not at all believable and cannot help the petitioners. T he petitioners cannot escape from their liability to discharge the burden of pro of of their Indian citizenship putting the blame on their engaged counsel. It wa s their bounden duty to appear before the Tribunal, which in fact, they did, bu t failed to discharge their burden by submitting written statement and adducing evidence. There is nothing to show that any complaint was lodged against the co unsel. They are also not party in this proceeding. 33. The reference was received by the Tribunal on 7.5.2007 and the petitione rs duly appeared on the date fixed which was 18.6.2007. The prayer for adjournm ent was granted fixing the matter on 24.7.2007. On 24.7.2007, the petitioners d id not appear before the Tribunal and the case was adjourned to 27.8.2007 on the basis of the prayer petition filed by the engaged counsel. 27.8.2007 was the date fixed for filing written statement. However, on 27.8.2007, the petitioners did not appear before the Tribunal and the case was adjourned to 28.9.2007 on the basis of the prayer made by their engaged counsel. On 28.9.2007 also, the pe titioners remained absent and the matter was again adjourned to 26.10.2007 on the basis of the petition filed by their engaged advocate. Same repetition wa s made on 26.10.2007. Noticing the fact that the petitioners had already taken four adjournments, the adjournment prayed for was granted as the last chance an d the matter was fixed on 21.11.2007 on which date also, the petitioners remaine d absent without any steps. 34. After the aforesaid dates, the matter was fixed on 17.12.2007 on which d ate, the petitioners remained absent without any steps. Thus, naturally, the Tr ibunal had no option than the order for Ex-parte hearing fixing the date as 29 .12.2007. The matter was heard on that day examining the I/O who proved the doc uments exhibited and thereafter, the impugned judgment and order was delivered on 31.12.2007. From the aforesaid position of the case, the plea of the petiti oners that their engaged counsel did