Citizenship- Absence Of Petitioner After Filing Written Statement Not A Ground To Pass Order Against Him Without Considering The Materials On Record: Gauhati HC

An ex-parte order had been passed on 22.05.2015 by Foreigners Tribunal in Diphu, declaring the Petitioner as a foreigner. A writ petition had been filed against this declaration stating that despite documents and a WS had been filed by the Petitioner, he was unable to appear before the Ld. Tribunal due to serious liver and chronic kidney ailments, and had lost track of the proceedings.

While the Court stated that the delay in filing of the Writ Petition was not justified, the judges noted that the documents had not been adequately appraised by the Ld. Tribunal and had not been mentioned in the impugned order as well.

"The law requires the proceedee to furnish proof of his citizenship and therefore, the burden of proof will always be on the proceedee. However, even if a proceedee remains absent after filing written statement and documents, the Ld. Tribunal would be duty bound to take note of the materials available on record before rendering its opinion. The mere fact that the proceedee has remained absent after filing written statement and documents cannot be a justification for the Tribunal to give an opinion against the proceedee without considering the materials brought on record."

In light of the aforementioned statement, the Bench stated that "for the ends of justice, the Petitioner should be granted one more opportunity to appear before the Tribunal and contest the matter".

The Bench directed the Petitioner to appear before the Ld. Tribunal on 05.02.2020 and directed the Tribunal to proceed with the matter from stage of evidence. The Bench lastly added that if the Petitioner failed to appear yet again, the Order would stand discharged and he would be deported as a foreigner.