High Court
Case Details
MC 126/2012 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (CAV)
Legal Reasoning
The applicant in the aforesaid two Misc. Applications is the writ petiti oner. While by the said two MCs, the writ petitioner has prayed for restoration of the writ petition by recalling the order dated 8.6.2005, by which the writ pe tition was dismissed for non-prosecution, in the writ petition the prayer made i s to set aside and quash the judgement and order dated 22.6.2000 passed by the I M(D)T, Hojai, Sankardev Nagar, in case NO. IMDT/H/165/98(D), by which the petiti oner was declared to be not a citizen of India but an illegal migrant. 2. The writ petition was filed on 31.10.2000 and by order dated 3.11.2000, the same was entertained with the direction to the petitioner to serve notice on the respondent No.1 and 2 by registered post. However, it appears from the note s furnished by the Registry that the petitioner did not take steps for long more than five years. In this connection, the office notes dated 3.1.2003, 17.2.2004 , 23.6.2004, 28.6.2004, 10.12.2004, 13.12.2004, 17.1.2005 and 21.3.2005 may be r eferred to, by which either it was indicated that steps for service of notice o n respondents No. 1 and 2 was not taken or the petitioner was granted time to do so.
Decision
3. The writ petition was dismissed for default on 8.6.2005. After 7(seven) years thereafter, the petitioner has filed MC NO. 126/2012 and 127/2012. While i n MC 126/2012, the prayer is to restore the writ petition upon setting aside the order dated 8.6.2005, in MC 127/2012 the prayer made is to condone the delay of 2374 days in preferring the MC 126/2012, seeking restoration of the writ petiti on. 4. The basis ground on which the delay condonation petition has been filed is that the petitioner was not aware of the order dated 8.6.2005, by which the w rit petition was dismissed. Attributing negligence to the engaged counsel it has been stated that the said counsel did not intimate the petitioner about the sai d order and / or the outcome of the writ petition. 5. Noticing the aforesaid stand of the petitioner, this Court by order date d 25.7.2012 directed the learned counsel for the writ petitioner to obtain instr uction as to whether any complaint with the North East Bar Council was lodged ag ainst the said engaged counsel who represented the petitioner in the writ petiti on. It was only thereafter a complaint was lodged on 3.9.2012 in the office of t he Bar Council of Assam, Nagaland, etc. In addition to the said complaint, as pe r the order of this Court, the engaged counsel was also made party respondent an d notice was sent to him to respond to the allegation. However, there was no app earance on his behalf. 6. It is the common plea in most of such cases that the engaged counsel did not represent the suspected foreigner properly. It has been the experience of t his Court that after the expate orders are passed by the Foreigners Tribunals, c oming to the writ Court, such declared foreigners blamed the engaged counsel. Ho wever, till date, not a single instance could be cited that any one of such enga ged counsel has been prosecuted by the Bar Council and / or penalized. 7. Mr. M. J. Quadir, learned counsel for the petitioner submitted that sinc e there was no default on the part of the petitioner, the writ petition is requi red to be restored to file. During the course of hearing of the two MCs, he also advanced arguments on the merit of the writ petition. 8. Opposing the aforesaid submission of the learned counsel for the petitio ner, both Mr. N. Upadhyay, learned State Counsel as well as Mr. M. Bhagawati, le arned CGC, submitted that the grounds on which the delay condonation petition ha s been filed is unbelievable. They also submitted that there being delay of abou t more than 7 years, such delay should not be condoned. According to them, after filing of the writ petition way back in 2000, it was incumbent on the part of t he petitioner to keep track of his writ petition, which admittedly he did not. I t was only after the police searched for the petitioner, he filed the aforesaid 2 MCs. I have given my anxious consideration to the submissions made by the lea 9. rned counsel for the parties both in respect of the MCs and the writ petition. I have also gone through the entire materials on records including the records re ceived from the Tribunal. 10. The grounds which have been assigned for condonation of delay are not at all convincing. It was incumbent on the part of the petitioner, a declared for eigner to keep track on his own case. After filing the writ petition which was e ntertained by order dated 3.11.2000, he did not take any steps for service of no tice, for more than 4 years. Even after dismissal of the writ petition for defau lt by order dated 8.6.2005, he did not do anything in the matter. It was only wh en there was search for him by the police, he filed the instant two MCs in 2012. In my considered view, blaming the engaged counsel cannot absolve the petitione r from his own responsibility to keep track of the matter. It will be pertinent to mention here that although the writ petition was entertained by order dated 3 .11.2000 but no interim order was passed staying the operation of the impugned o rder passed by the learned Tribunal. 11. Irrespective of the aforesaid position, I have considered the writ petit ion on its own merit as the learned counsel for the petitioner strenuously argue d for consideration of the case of the petitioner on its own merit. 12. As in the instant writ proceeding, in the proceeding before the Tribunal also, the conduct of the petitioner was that of non-cooperation. On perusal of the case file received from the Foreigner Tribunal, it is seen that after servic e of notice, the petitioner appeared before the Tribunal on 27.1.1999 and prayed for time to file written statement vide petition No. 605. Accepting the said pr ayer, the proceeding was adjourned to 17.5.1999, on which date the petitioner re mained absent. Thereafter also on several dates i.e. 15.9.99, 9.2.2000 and 17.6. 2000, the petitioner did not appear without any step. Thereafter, pursuant to th e order for ex-parte hearing the impugned judgement dated 22.6.2000 was passed d eclaring the petitioner to be not an Indian citizen but an illegal migrant. 13. In the writ petition, the petitioner has alleged that he has been illega lly declared to be an illegal migrant and that the State did not examine any wit ness to prove the reference. Referring to the statements made by the Verificatio n Officer, it has been stated that the said statement was not correctly apprecia ted. Significantly, in paragraph 6 of the writ petition, it has been stated that the petitioner was not aware of the exparte order passed by the learned Tribuna l. However, no reason has been assigned as to why he did not respond to the proc eeding after the first response on 27.1.1999. There is no whisper in the writ pe tition about service of notice on him and his appearance on the first date. A co lour was sought to be given in the writ petition that the petitioner was not awa re of the impugned order as he was not aware of the proceeding, although the fac t of the matter is that he duly received notice from the Tribunal and also appea red on 27.1.1999 and prayed for time to file written statement. However, upon gr anting of the said prayer, he did not appear before the Tribunal thereafter even for a single day. 14. After abandoning the proceeding in the above manner, the petitioner file d the writ petition challenging the judgement dated 22.6.2000 passed by the IM(D )T, without even obliquely stating about the proceeding before the Tribunal and his non-appearance inspite of service of notice and first appearance praying for time to file written statement, which was granted by the Tribunal. 15. In view of the above, there is absolutely no manner of doubt that the pe titioner has suppressed the material fact in moving the writ petition which natu rally will disentitle him to get any relief. In the writ petition, the petitione r has questioned the impugned order on the ground of lack of evidence and non-ap preciation of the evidence by the learned Tribunal, unmindful of his own burden to prove his nationality, for which he was called upon by the Tribunal. On perus al of the case records, it is found that the State duly proved its case by exami ning the PW-1, who in his deposition categorically stated that while performing the duty as entrusted by the Electoral Registration Officer of 91, Hojai Constit uency, he duly enquired in respect of the suspicion that arose about the nationa lity of the petitioner. He in his deposition categorically stated about his vis it to the locality and interaction with the petitioner and as to how on being as ked, he could not produce any document in support of his claim of Indian citizen ship. The aforesaid version of the I.O. went unrefuted in absence of any cross e xamination by the petitioner. 16. The reference against the petitioner was made pursuant to the suspicion that arose when the name of the petitioner was incorporated in the 1997 draft el ectoral roll. Pursuant to the directive of the Election Commission of India, int ensive revision of electoral roll of 91 Hojai Constituency was carried out and w hen the name of the petitioner was found to be enrolled in the draft electoral r oll, the enquiry was conducted as to whether he is an Indian citizen. It was pur suant to the aforesaid exercise, the petitioner was suspected to be a foreign na tional and accordingly the reference was made to the IM(D)T. As to what happed t hereafter has been noted above. 17. Although the petitioner was declared to be an illegal migrant about 13 y ears back, he is still in India and could not be deported. However, it was submi tted by the learned counsel for the petitioner that for last couple of years, he is in the detention camp. It is only because of his apprehension, the aforesaid two Misc. Applications have been filed by the son-in-law of the petitioner. But for such apprehension, the petitioner would not have cared to file the MCs, as he did not care to respond to the proceeding before the Tribunal and also the wr it proceeding which was initiated by himself. 18. ned to accept the same. In view of the above, even on merit of the writ petition, I am not incli 19. The proceeding is answered in the above manner. The SP(B) Nagaon, shall ensure deportation of the petitioner to his country of origin. Simultaneously, t he Deputy Commissioner, Nagaon, shall also ensure deletion of the name of the pe titioner from the electoral roll, if any. 20. Let copies of this judgement and order be sent to the said two authoriti es and also the Union Government in the in the Ministry of Home Affairs. Another copy be sent to the Home Department, Govt. of Assam. A copy of this judgement a nd order may also be furnished to Mr. N. Upadhyay, learned State Counsel, for hi s necessary follow up action.