Bimal Debnath vs The Union Of India & Ors.

(CAV)

(K.R. Surana, J)

Heard Mr. S. Dutta, learned counsel for the petitioner. Also heard Mr. S. K. Medhi, learned CGC, Ms. A. Verma, learned Standing Counsel, FT and Border matters, Mr. A. I. Ali, learned Standing Counsel, ECI and Mr. P. Sarmah, learned Additional senior Govt. Advocate for the state.

By filing this writ petition under Article 226 of the Constitution of India, the petitioner, namely, Bimal Deb Nath has assailed the impugned ex parte opinion dated 19.07.1991, passed by the Illegal Migrants (Determination) Tribunal, Dibrugarh [hereinafter referred to as IM(D)T for brevity], in Case No. DDT 7/89/325-326, arising out of Police E. No. 293/88, by which he was declared to be an illegal migrant who had come to India from East Pakistan on account of political unrest.

The learned counsel for the petitioner had submitted that the learned IM(D)T has not given any finding as to the date on which the petitioner had entered India. It was submitted that the learned Tribunal had relied on the affidavit purportedly sworn by one Mantu Kr. Debnath, wherein it was stated that the petitioner had entered into India from East Pakistan along with 2 (two) others and he had given them shelter in his house and in the said context, it was submitted that the said affidavit does not contain any date and year of entry of the petitioner into India and it was submitted that the said affidavit, having not been proved in accordance with law, was inadmissible. It was also submitted that as the issue of citizenship is a very important right, the case is required to be decided on merit. It was submitted that the notice was not served on the petitioner in accordance with law. It was also submitted that the father of the petitioner had entered into India after communal riots and disturbance in East Pakistan, and the father of the petitioner was granted citizenship by virtue of a Certificate of Registration.

The learned Standing Counsel for FT and Border matters has supported the impugned opinion and also submitted that the ex parte opinion was passed on 19.07.1991, which has been challenged after 25 (twenty five) years by filing this writ petition on 20.06.2016, with insufficient explanation for the enormous delay .

On the point of delay and laches in assailing the impugned ex parte opinion, the learned counsel for the petitioner had placed reliance on the case of Sabitri Dey @ Swasthi Dey v. Union of India and Ors., 2026 INSC 694 : 2026 Supreme (SC) 786 : 2026 (4) GLT (SC) 1.

On perusal of the Tribunal records, it appears that in the notice dated 14.03.1989, issued by the learned IM(D)T and duly served on the wife of the petitioner, the next date of appearance was given as 27.04.1989. The wife of the petitioner, namely, Smt. Sonali Devi, was served with the Tribunal’s notice on 26.04.1989 and she had put her right hand thumb impression towards acknowledgement of the receipt of the said notice. The appearance of the petitioner before the learned IM(D)T is recorded in its order dated 28.04.1989. The appearance of the petitioner on 28.04.1989, is supported by the Court attendance (i.e. hazira) filed by the petitioner on 28.04.1989. The order dated 28.04.1989, reads as follows:-

On the left hand margin of the said order, the petitioner has put his signature acknowledging the receipt of the copies from the learned IM(D)T. The petitioner’s hazira is available at page-91 of the learned Tribunal’s records, where an endorsement has been made regarding the next date of proceeding on 27.02.1990. The said hazira was filed by the petitioner through his learned counsel. Be it mentioned that as per the IM(D)T’s order sheet, no date was fixed on 27.02.1990. Thus, as per the record, notice was duly served to the wife of the petitioner, which is due service of notice to the adult member of the family and hence, the service of notice is found to be in accordance with law. Moreover, the record called for from the learned IM(DT) reveals that on receipt of notice, the petitioner had appeared before the learned Tribunal on one date and thereafter, defaulted and/or stopped taking steps and remained unrepresented all throughout.

With due regard to the decision of the Supreme Court of India in the case of Sabitri Dey @ Swasthi Dey (supra), cited by the learned counsel for the petitioner, the said decision cannot be read to mean that even after 25 (twenty five) years of the ex parte opinion dated 19.07.1991, the opinion can be set aside merely because the issue of citizenship is involved and it is a valuable right. The petitioner has not been able to show that the provisions of the IM(DT) Act, 1983 was not followed by the learned Tribunal in this case. The ex parte opinion dated 19.07.1991, discloses that the State had examined two witnesses. The State had also examined one Madan Mohan Kanungo, PW-1, who was a cultivator, who had stated that he had seen the petitioner for the last 15 years only. The State had also examined one Sri Alok Kr. Goswami, the Enquiry Officer (PW-2), who had conducted the enquiry against the petitioner under instructions from the Superintendent of Police, Dibrugarh, who, upon enquiry, concluded that the petitioner was an illegal migrant. The said prosecution witness had stated that during enquiry, the petitioner had produced a photocopy of an affidavit (Ext.1), produced by the petitioner, which was sworn on 24.07.1971, by one Mantu Kr. Debnath, wherein it was stated that the petitioner had entered into India from Bangladesh and he had given shelter to him. Thus, as the PW-2 had stated that the said affidavit was produced by the petitioner, the learned IM(D)T, in the absence of any rebuttal by the petitioner, had held that the petitioner had failed to discharge his burden of proof that he was an Indian and not a foreigner and it was held that the State had proved its case beyond reasonable doubt.

Hence, the case of Sabitri Dey @ Swasthi Dey (supra), is not found to help the petitioner in any way.

In respect of the plea that notice was issued to the petitioner without reference to any stream of entry of the petitioner into India, the learned counsel for the petitioner had relied on this Court’s order dated 03.12.2021, passed in W.P.(C)/1216/2019 - Asmina Begum @ Aspina v. The Union of India & 5 Ors., and it was submitted that the referral authority must apply its mind and only on being satisfied it can make a reference. It was submitted that the learned IM(D)T was also required to prima facie satisfy itself regarding the existence of the main ground before issuing notice to the petitioner.

In the said context, the Court is of the considered opinion that the decision of this Court in the case of Asmina Begum @ Aspina (supra), is distinguishable on facts and in law. In the said case, the reference was made under the Foreigners Act, 1946, but in the present case, the reference was made under the IM(DT) Act and Rules framed thereunder. Under the said Act, reference is required to be made under Section 8 (a) thereof. As per Section 3(1)(c) of the IM(DT) Act, an illegal migrant would be a person who had entered into India on or after 25.03.1971, without possessing a valid travel document. The reference to the stream of entry into India between 01.01.1966 and 25.03.1971 is provided for under Section 6-A of the Citizenship Act, 1955 and not under the IM(DT) Act. Hence, the case of Asmina Begum @ Aspina (supra), has no application to the facts and circumstances of the case. In this case, the petitioner, despite getting an opportunity of contesting the reference, failed and neglected to do so. Moreover, the IM(DT) Act was applicable to a foreigner of post 25.03.1971 only and hence, the non- mentioning of the stream in the notice could not vitiate the proceedings and would also not cause any perceivable prejudice to the petitioner. Thus, the point urged by the learned counsel for the petitioner does not help the petitioner in any way.

In course of the submissions, the learned counsel for the petitioner, by referring to Annexure-A of the writ petition, had submitted that the said document is a Certificate of Registration of Sri Nirdhan Ch. Deb Nath as a citizen of India under Section 5(1)(a)/5(1)(d) of the Citizenship Act, 1955. The photocopy of the said document is not legible and even the typed copy of the said Certificate of Registration is incomplete and illegible portions have been left blank. Moreover, the name entered in the said certificate is Nirdhan Ch. Deb Nath, son of Jhanu Ch. Deb Nath. However, in the Elector Photo Identity Card (EPIC for short) (Annexure-B of the writ petition), the name of the holder is Bimal Debnath and the name of the related person is Late Nidhan. However, the petitioner has not annexed any document or other cogent and admissible material from which it can be established that Nirdhan Ch. Deb Nath, in whose name Certificate of Registration was issued and Late Nidhan, whose name is reflected in the EPIC are the same and one person.

Moreover, the petitioner has not been able to show any document by which Late Nidhan, whose name appears in the EPIC, which was issued on 01.10.2013, i.e. after the impugned ex parte opinion was passed on 19.07.1991, was continuously residing in the Country (Assam) prior to 25.03.1971.

In this regard, it may be stated that the Court is exercising certiorari jurisdiction and not appellate or revisional jurisdiction. Therefore, the Court is not required to appreciate evidence which was never produced before the learned Tribunal, but the Court is only to examine if the decision of the learned IM(D)T is vitiated by jurisdictional error. Re-appreciation of evidence is impermissible while exercising certiorari jurisdiction. If one needs authority on the point, the case of Central Council for Research in Ayurvedic Sciences vs. Bikartan Das, (2023) 16 SCC 462.

It was urged by the learned counsel for the petitioner that as the issue of citizenship is a very important right, the case is required to be decided on merit.

It was submitted that the notice was not served on the petitioner in accordance with law. In this writ petition, the petitioner has not denied that notice of the proceeding was not served on his wife, an adult member of the family. Moreover, it can be otherwise presumed that the petitioner had the knowledge of the case and therefore, he had appeared before the said learned IM(D)T by filing a hazira on 24.08.1989 and by signing the order-sheet, acknowledged the receipt of the documents from the learned Tribunal. The said fact is also not denied. There is no explanation that why after appearing on 24.08.1989, the petitioner did not bother to appear before the learned IM(D)T after that. There is no explanation why the petitioner did not bother to know about the fate of the proceeding for about 28 years of service of notice on 26.04.1989.

The learned counsel for the petitioner had cited the case of Asor Uddin Vs. The Union of India & Ors., W.P.(C) No. 6544/2019, decided on 09.09.2021, and it was submitted that this Court, took into consideration the valuable right of citizenship and therefore, set aside the ex parte opinion and gave liberty to the petitioner of that case to contest the proceeding. It appears that while passing the order dated 09.09.2021, in the case of Asor Uddin (supra), the previous decision of this Court in the case of Ajbahar Ali vs. Union of India & Ors., 2019 (1) GLT 818 was not brought to the notice of the Court. In the said case, the Division Bench of this Court had held that the principles of natural justice cannot be permitted to lead to a farcical situation and be an engine of defeating the very object of identification and deportation of foreigners. Therefore, the earlier decision of this Court in the case of Ajbahar Ali (supra) would be a binding precedent in this case.

Therefore, in this case, the petitioner has displayed sheer disregard to the fact the notice of the proceeding was served on him, he had appeared in the case and was aware that the learned Tribunal was deciding about his citizenship, and as to whether or not he was an illegal migrant. Hence, no case is made out for interference with the impugned opinion after 25 years.

It has been discussed hereinbefore that the reference was under IM(DT) Act, 1983 before the IM(D)T Act. Under the said Act, the reference would only be as to whether or not the suspect is a foreigner. Assuming for the time being that the petitioner’s allegation is true that notice was not properly served on him, but the fact remains that on appearance of the petitioner on 28.04.1989, the learned Tribunal had provided him with relevant copies and the petitioner had never raised objection before the learned IM(D)T that the notice was not properly served or that relevant materials as to how and why the State was suspecting the petitioner to be an illegal migrant was not provided to the petitioner. Hence, this point is also without any merit.

It may be stated that in this writ petition, the petitioner has annexed the following documents, viz., (i) Certificate of Registration (from photocopy, the date is not readable) (Annexure-A); (ii) Elector Photo Identity Card (Annexure-B); (iii) photocopy of certified copy of the impugned ex parte opinion dated 19.07.1991 (Annexure-C); (iv) photocopy of purported order under F.No. 25022/50/2015/F.I dated 07.09.2015, issued by Govt. of India, Ministry of Home Affairs (Annexure-D series); and (v) photocopy of another purported order under F.No. 25022/50/2015/F.I dated 07.09.2015, issued by the Govt. of India, Ministry of Home Affairs (Annexure-D series). As per the affidavit filed in support of the writ petition, the age of the petitioner as on 20.06.2016 is 65 years. Therefore, he would have been born in the year 1951 and he is supposed to acquire his right to franchise in the year 1972. However, if he had entered into India with his projected father, his entry into India would have been documented. The enquiry against the petitioner was started on 18.07.1988 and reference was made vide communication signed on 28.12.1988 and sent on or after 31.12.1988. In this case, the first order by the learned IM(D)T was passed on 08.03.1989, notice was served on 26.04.1989, the petitioner appeared before the learned Tribunal on 28.04.1989, and an ex parte opinion was passed on 19.07.1991. However, the petitioner has not annexed/ produced any voter list between 1972 and 2017 (year of filing the writ petition) to show that he had casted his vote. Therefore, it has to be presumed that the petitioner was aware of the proceeding before the IM(D)T and he had knowledge that on being declared to be a foreigner by the learned IM(D)T, his name was either not appearing in the voter list or even if it was appearing, he would be marked a doubtful voter. Therefore, being aware of his status as a declared foreign national by the learned IM(D)T, the petitioner had not made any attempt to have his name included in the electoral roll. Thus, the presumption that the petitioner had knowledge of the ex parte opinion by the learned IM(D)T by which he was declared to be an illegal migrant can be drawn.

Therefore, on all counts the writ petition fails and accordingly, the writ petition is dismissed. The parties are left to bear their own cost.

The consequences of the impugned would follow.

However, it is made clear that his order shall not preclude the right of the petitioner, if any, for availing the benefit of any statutory enactment or Government notification, if so advised.

The Registry shall return back the records of the learned IM(D)T, which was received from the learned Member, Foreigners Tribunal, Tinsukia.