WP(C) 3131/2010 BEFORE THE HON’BLE MR JUSTICE B.K. SHARMA 1. Heard Mr. M.H. Choudhury, learned counsel for the petitioner as well as Ms. R. Chokraborty, learned Addl. Sr. Govt. Advocate. I have also heard Mr. C. Baruah, learned CGSC appearing for the Union of India (respondent No. 2). 2. The petitioner claiming himself to be a citizen of India by birth has f iled this writ petition challenging the judgment dated 20.02.2010 passed by the Foreigners’ Tribunal, Golaghat in case No. FTG 334/2007 (State Assam vs. Muzamil Ali) by which the petitioner has been declared to be a foreigner who entered in to Indian territory on or after 25.03.1971. 3. On the basis of necessary investigation/enquiry etc. when a doubt arose as to whether the petitioner in fact is an Indian citizen or not, a reference w as made to the then IM(D)T. Subsequently, on the basis of the judgment of the ap ex Court passed in Sarbananda Sonowal (I) reported in AIR 2005 SC 2920 by which IM(D)T Act was struck down, the case of the petitioner was reregistered in the F oreigners Tribunal, Golaghat and was numbered as FTG No. 334/07. The notice was duly served on the petitioner. 4. I have verified the records received from the Foreigners’ Tribunal, Gola ghat. On such verification and also as reflected in the impugned judgment, what is seen is that the petitioner in response to the notice received from the Forei gners’ Tribunal, appeared on 27.07.07 by filing written statement, without, howe ver, furnishing any documents to prove his Indian citizenship. The next date was fixed on 05.10.07 on which date the petitioner appeared, but did not file any d ocument and the same was recorded by the Tribunal in the order passed on 05.10.0 7. Thereafter, on four subsequent dates, i.e. 28.11.07, 02.01.08, 26.03.08 and 1 1.06.08, the petitioner appeared before the Tribunal, but did not file any docum ents. 5. After the aforesaid appearance before the Tribunal the petitioner remain ed absent on all subsequent dates which are 29.09.08, 20.12.08, 19.02.09, 20.03. 09, 13.05.09, 30.06.09, 07.09.09, 04.01.2010 and finally on 20.02.2010 on which date the impugned judgment was passed. The absence of the petitioner before the Tribunal was duly recorded in the order sheet stating that the petitioner was ab sent on all the dates without any steps. When the petitioner remained absent in the proceeding before the Tribunal, the Tribunal on 20.12.08 passed an order tha t the proceeding would proceed ex parte against the petitioner. 6. As noted above, the petitioner did not appear before the Tribunal on all the aforesaid dates. Situated thus, the Tribunal had no other option then to pr oceed ex parte and passed the impugned order ex parte against the petitioner ans wering the reference in favour of the State. While doing so, the Tribunal examin ed three witnesses produced on behalf of the State. The said witnesses are PW 1, PW 2 and PW 3. The said witnesses duly proved the enquiry conducted against the petitioner during which it was found that he is not an Indian citizen and that he is a foreign national and entered into Indian soil after the cut off date, i. e. 25.03.1971. 7. The Tribunal has also discussed the contention raised in the written sta tement and upon a reference to the provision of Section-9 of the Foreigners’ Ac t, 1946 in terms of which the burden lies on a foreigner to establish his citize nship, has held that the petitioner having failed to discharge the said burden a nd the State having proved the reference through its witnesses, is a foreign nat ional who entered into Assam illegally after the cut of date, i.e. 25.03.1971. 8. There is absolutely no explanation as to why the petitioner did not resp ond to the proceeding before the Tribunal after the initial appearance. In parag raph -10 of the writ petition, it has been stated that the petitioner on receipt of notice duly appeared before the Tribunal on 27.07.07 and thereafter engaged an Advocate for taking necessary steps. Further statement made is that the writt en statement had been filed on 02.01.2008. This particular statement is not fact ually correct inasmuch as the written statement was filed on 27.07.2007. 9. Although the petitioner was present in the Tribunal on 02.01.2008 and th e State examined two witnesses, but he declined to cross examine them. This has been recorded in the order dated 02.01.2008. Further statement made in paragrap h-10 is that after 02.01.2008 the petitioner appeared before the Tribunal except on three dates which is also not factually correct. As noted above, the petiti oner after initial appearance did not appear before the Tribunal without any ste ps on 29.09.08, 20.12.08, 19.02.09, 20.03.09, 13.05.09, 30.06.09, 07.09.09, 04.0 1.2010 and finally 20.02.2010. Thus, the writ petition is founded on false state ment made by the petitioner. 10. It may not be out of place to discuss the written statement filed by him before the Tribunal. As noted above, the written statement was filed on 26.07.0 7, and the same is without any verification and/or without any supporting affida vit. In the said written statement there is a general denial that the petitione r is not an illegal migrant to Assam after 25.03.1971. His plea in the written s tatement is that he is an Indian citizen and his father’s name appeared in the v oter list. In pagraph-6 of the written statement, it has been stated that the pe titioner is in possession of sufficient proof of his Indian national and that he would prove the same in due course. 11. As noted above, the petitioner did not annexe any document alongwith the written statement nor he produced any documents in the proceeding before the Tr ibunal. The written statement is also a mere piece of paper and that too, withou t any verification and supported by any affidavit. It is on that basis, the pet itioner claims that he is an Indian citizen by birth. 12. In the writ petition, the petitioner has annexed the photo copies of cer tain voter list indicating the name of one Kazimuddin appearing in the said vote r list to be his father. No such plea was taken in the written statement filed b efore the Tribunal. Merely by producing certain photo copies of voter list in th e writ proceeding identifying a particular name to be of his father, the petitio ner cannot be permitted to contend that he is an Indian citizen by birth. 13. It has been the experience of this Court in most of the cases pertaining to foreign nationals that no proper steps are taken before the Tribunal and the reafter giving blame on the engaged counsel, they file writ petitions dumping th e photo copies of the documents so as to contend that they are Indian citizens. 14. When there is particular provision in the Foreigners’ Act, 1946 on the b asis of which a person is required, on being called upon, to discharge his burd en that he is not a foreign national and that he is a Indian citizen, he will ha ve to discharge that burden in the manner prescribed therein. After deliberately remaining absent in the proceeding before the Tribunal, one cannot be permitted to agitate in the writ Court that he is an Indian citizen. The writ Court is no t a fact finding authority. 15. In the instant case, the petitioner has miserably failed to explain as t o the cause of his non-appearance before the Tribunal and now coming to the writ Court has contended that the Tribunal has erred in law in proceeding ex parte a gainst him. I am afraid, no indulgence can be given to the petitioner in such a serious matter when the contention of the State is that the petitioner is not an Indian citizen and that he is an illegal migrant who entered into Assam after t he cut off date, i.e. 25.03.1971. 16. For all the aforesaid reasons, I do not find any merit in the writ petit ion and accordingly it is dismissed. 17. The petitioner is already in the detention camp. It is hereby directed t hat the Superintendent of Police (B) Golaghat shall ensure deportation/push back of the petitioner to Bangladesh as expeditiously as possible. The Deputy Commis sioner, Golaghat shall also ensure deletion of the name of the petitioner from t he voter list immediately. 18. Let the compliance report be furnished by the said two authorities on or before 17.08.10. Let the copies of this judgment and order be furnished to the Superintendent of Police (B) Golaghat and the Deputy Commissioner, Golaghat. Ano ther copy of the same be sent to the Union of India in the Ministry of Home. A f urther copy of this judgment and order be furnished to Ms. R. Chokraborty, learn ed Addl. Sr. Govt. Advocate for her necessary follow up action. 19. Registry shall send down the LCR to the Foreigners’ Tribunal, Golaghat a longwith a copy of this judgment and order.