R.S. Garg, CJ;-
Heard Mr.P. Gogoi, learned counsel for the petitioners and Ms. B.Goyal, learned counsel for the State.
With the consent of the learned counsel for the parties, the matter is finally heard.
The petitioner being aggrieved by the or der dated 28.01.2008 passed in FT Case No. 114/2007 has come to this Court with the submission that on one side the learned Presiding Officer, Foreigners Tribunal proceeded ex-parte and on the other even when there was no evidence on record from the side of the complainant/State, has simply relied on Sec tion 9 of the Foreigners Act, 1946, and came to the conclusion that the burden was required to be discharged by the petitioner but the said burden was not discharged and thus, wrongly, held that the petitioner was a foreigner.
It is contended that even in an ex-parte matter, prima facie evidence is required to satisfy the judicial conscience of the authority in absence of rebuttal of which it will lead to only conclusion that the opposite party is a foreign national.
The learned counsel for the State, on the other hand, submitted that there were no need from the side of the complainant to lead any oral or documentary evidence.
We have heard the learned counsel for the parties and have perused the original records so also the proceeding recorded by the For eigners Tribunal. It would appear that the notices was issued on 09.05.2007 and there after the matter was taken up on 07.09.2007, 26.10.2007,4.12.2007,8.1.2008. The mat ter was thereafter adjourned to 28.01.2008 and on the said date the learned Tribunal pro ceeded to record its final order.
From the entire perusal of the proceeding it does not appear that any oral evidence in support of the allegation was produced by the complainant or any witness was exam ined to prove that the petitioner was a foreign national. In absence of such evidence in our opinion, the learned Tribunal was not justi fied in relying upon Section 9 of the Foreign ers Act, 1946 to record the findings that the petitioner could not discharge his burden and therefore he could safely be declared a for eign national.
In our opinion, the order passed by the Foreigners Tribunal is contrary to law, it de serves to be and is hereby set aside. The matter is remanded back to the Foreigners Tribunal with a direction that it would give appropriate opportunity to the petitioner to file his written statement. Further opportunity would be given to the parties to lead evidence documentary/oral and after providing appro priate opportunity to the parties, it shall decide the case in accordance with law.
The petitioner shall appear before the learned Tribunal on 28.06.2010 and produce a copy of this order enabling the tribunal to know what is required to do.
In view of the final disposal of the matter, let the records of the Foreigners Tribunal be remitted immediately with a copy of this or der. In view of final disposal of the writ peti tion, the Misc. Case is also disposed of.