High Court
Case Details
WP(C) 3138/2012 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA
Legal Reasoning
Heard Mr. N.N. Karmakar, learned counsel for the petitioner. Also heard Ms. H.M. Phukan, learned State Counsel and Mr. M. Bhagabati, learned CGC. This writ peti tion is directed against the exparte judgement and order dated 16/2/2010 passed by the Foreigners Tribunal (2nd) Barpeta in FT (2nd Tribunal) case No. 386/2006. As recorded in the said order, inspite of service of notice on the petitioner a nd his initial appearance, he did not participate in the proceeding and remained absent on several dates. During exparte hearing the State of Assam examined one Shri Dayal Das, Local Ver ification Officer, who had conducted the enquiry in which it was found that the petitioner was a suspected foreigner. Upon examination, the said local Verificat ion Officer duly proved the enquiry report (Ext.1) and his signature therein {Ex t.1(1)}. As recorded in the impugned order, the petitioner appeared before the Tribunal o n 17.8.2007, 17.9.2007 and 29.9.2007 praying for time to submit written statemen t and accordingly prayer so made on all the dates was allowed. However, not to s peak of filing any written statement, the petitioner remained absent on all subs equent dates i.e. 29.10.2007, 17.10.2007, 14.12.2007, 3.4.2008, 5.5.2008, 4.6.20 08 and finally on 30.11.2009. Accordingly, the Tribunal ordered for exparte proc eeding. Thereafter the impugned order was passed declaring the petitioner to be a foreign national who entered into India after 25th March, 1971. Although the aforesaid exparte judgement and order was passed on 16.2.2010 but t he petitioner filed the instant writ petition on 20.6.2012 with the explanation that when the police of Barpeta SP Office visited his house, he could come to kn ow about the exparte order. As regards the exparte order, the petitioner has mad e allegation against his engaged counsel to the effect that the said counsel did not communicate about the order passed by the tribunal. However, there is no al legation against him that he was responsible for non-appearance of the petitione r on all the aforementioned dates. Mr. Karmakar, learned counsel for the petitioner submits that the petitioner sho uld be given an opportunity to prove his case before the Tribunal by setting asi de the exparte order. As per the Full Bench decision of this Court reported in 2 013 (1)GLT 809 (The State of Assam s. Moslem Mondal and others), although the Tr ibunal is empowered to pass necessary order on an application to set aside an ex parte opinion, the same should be only on deriving satisfaction that the proceed ee was not served with the notice in the reference proceeding, reason for which was beyond his control. As observed in paragraph 92 of the said judgement, such application should not be entertained in a routine manner. The Tribunal can ente rtain such application provided the proceedee could demonstrate the existence of special /exceptional circumstances to entertain the same by way of pleadings in the application filed for setting aside the exparte opinion, otherwise the very purpose of enacting the Foreigners Act, 1946 and Foreigners Tribunal Order, 196 4 would be frustrated. It has further been observed that the tribunal would have the jurisdiction to reject such application at the threshold if no ground is ma de out. The petitioner has filed the instant writ petition with the aforesaid explanatio n to set aside the exparte order. The only explanation furnished is that his eng aged counsel did not communicate with him about the impugned order. In paragraph 6(iii) it has been contended that for the mistake of the learned counsel of Bar peta Court the petitioner should not be deprived of his right. From these state ments it cannot be said that the engaged counsel i.e. the respondent No.4 was at fault in any manner. On perusal of the records received from the Tribunal, it is found that the petit ioner was duly served with notice and he appeared on 17.7.2007. Thereafter, he a gain appeared on 17.8.2007, 17.9.2007, 29.9.2007 and on all the dates, prayed fo r time to file written statement. However, instead of doing so, he remained abse nt all throughout the proceeding from 9.10.2007 to the date of passing the impug ned judgement and order. In between about 22/23 dates had gone by. Above being the conduct of the petitioner in defending the proceeding before the Foreigners tribunal, I see no ground to set aside the exparte order passed by t
Decision
he Tribunal. In the counter affidavit filed by the SP(B), Barpeta, it has been stated that th e petitioner has done the act of vanishing and he has been absconding. In terms of the order passed on 28.2.2013, the petitioner was directed to appear before t he SP(B), Barpeta by furnishing adequate surety for his availability. However, i nstead of doing so the petitioner has done the act of vanishing. The aforesaid s tatement made by the SP(B), Barpeta in the affidavit filed on 14.3.2013 has not been denied by the petitioner by filing any affidavit-in-reply. However, this as pect of the matter need not detain us in view of the findings recorded above. In view of the above, the writ petition is dismissed directing the SP(B) Barpeta and the Deputy Commissioner, Barpeta to take appropriate action in the matter t owards deportation of the petitioner from India and deletion of his name from th e voter list, if found to have entered. Let copies of this judgement and order be furnished to the Superintenden t of Police (B), Barpeta and the Deputy Commissioner, Barpeta. An extra copy of this judgement and order may also be furnished to Mrs. H.M. Phukan, learned Stat e Counsel as well as Mr. M. Bhagabati, learned CGC for their necessary follow up action. Registry shall forward a copy of this order to the Ministry of Home Affa irs, Govt. of India and a copy to the Home Department, Govt. of Assam. Let the LCR be sent down to the Foreigners Tribunal (2nd), Barpeta immed iately.