Foreigners Act, 1946 – s.9 – Foreigners (Tribunal) Order, 1964 – Illegal Migrants (Determination by Tribunals) Act, 1982 – The case against the appellant was initiated in the year 2004 alleging that the appellant illegally migrated to India after 25.03.1971 from Village Dorijahangirpur, Police Station – Torail, District Mymansingh, Bangladesh and was living in Village Kasimpur, Police Station, District-Nalbari in the State of Assam – The initiation of the case against the appellant was based on the report submitted by the Sub-Inspector which in turn was based on the fact that in his deposition he had stated that upon being directed by the S.P. (B), Nalbari, he had undertaken an inquiry against the appellant and asked him to show the documents regarding his Indian nationality – However, appellant failed to do so – Reference was made to the Tribunal – By ex-parte order dated 19.03.2012, the Tribunal held that the appellant had failed to discharge his burden under Section 9 of the Act and failed to prove that he is not a foreigner – Aggrieved, appellant filed writ petition, which was dismissed – Correctness: Held: Undisputedly, the appellant is not a foreigner recognised as a national by the law of more than one foreign country – Thus, the appellant’s case would not fall under Section 8 of the Act – Section 9 of the Act stipulates if in a case not falling under Section 8 of the Act, any question arises as to whether a person is or is not a foreigner or is or is not a foreigner of a particular class, the person concerned must prove that he/she is not a foreigner or not a foreigner of that particular class – In the instant case, it was specifically alleged that the appellant had come to Assam from Village-Dorijahangirpur, Police Station-Torail, District-Mymansingh in Bangladesh while making a reference to the Tribunal – Hence, it was incumbent on the authority making the reference to provide details as to how it had received such information as also its bona fide belief of such factum being true – In other words, the authority had been, as claimed, able to trace the appellant’s place of origin – Surely then, the authority had some material to back its assertion – The record does not show such material was given either to the appellant or the Tribunal by the authority – In the absence of the basic/primary material, it cannot be left to the untrammelled or arbitrary discretion of the authorities to initiate proceedings, which have life-altering and very serious consequences for the person, basis hearsay or bald and vague allegation(s) – Under the garb of and by taking recourse to Section 9 of the Act, the authority, or for that matter, the Tribunal, cannot give a go-by to the settled principles of natural justice – Audi alteram partem does not merely envisage a fair and reasonable opportunity of being heard – In opinion of this Court, it would encompass within itself the obligation to share material collected with the person/accused concerned – The evidence produced before the Tribunal by the appellant to indicate that his parents had been resident in India much prior to 01.01.1966 whereas his siblings and he himself much prior to 25.03.1971, has been disbelieved only on the ground of mismatch of actual English spelling of the names and discrepancy in dates – As far as the discrepancy(ies) in dates and spellings are concerned, this Court is of the view that the same are minor in nature – The appellant had produced a document showing that his father and mother had been resident of Village Dolur Pather since 1965; that his sibling had also been declared not to be a foreigner by the Tribunal, and; his elder brother and he were both voters as per the 1985 Electoral Roll relating to 41 Bhabanipur Legislative Assembly Constituency – For and on the strength of the totality of reasons, the Tribunal’s order dated 19.03.2012 as also the Impugned Judgment dated 23.11.2015 passed by the High Court are set aside – Putting an authoritative quietus to the issue, the appellant is declared an Indian citizen and not a foreigner. [Paras 36, 37, 41, 43, 54, 55] Evidence – Imposing reverse burden – discussed.
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Ankit Gyan. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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