High Court
Case Details
WA 151/2013 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY THE HON’BLE MR JUSTICE A.K. GOSWAMI
Legal Reasoning
Heard Mr. Huda, learned counsel for the appellants, Mr. Bhagabati, learned CGC a s well as Mr. Handique, learned State counsel appearing for the respondents. The appellants have filed the present appeal challenging the order dated 12.3.20 13 passed by the learned Single Judge in WP(C) No. 350/2005, whereby and whereun der the writ petition filed by the present appellants has been dismissed with a further direction to the Deputy Commissioner, Nagaon and the Superintendent of P olice (B), Nagaon to take appropriate action in the matter including del etion of their names from the voters list in terms of the provisi ons of the Citizenship Act. WP(C) No. 350/2005 was filed challenging the order dated 14.9.2009 passed by the learned Member, Foreigners Tribunal in FT Case No. 4620/1988 declaring the pres ent appellants as foreigners coming to India from the specified territory betwee n 1.1.1966 to 25.3.1971. The aforesaid proceeding before the Tribunal was regist ered on the basis of the reference made by the Superintendent of Police alleging that the present appellants are foreigners within the meaning of the Foreigners Act. Though the present appellants at one stage entered appearance, they, however, di d not subsequently contest the said proceeding, for which the order to proceed e x parte was passed and eventually the said proceeding was decided on 14.9.2001 r endering the opinion that the present appellants are foreigners coming to Assam from the specified territory between 1.1.1966 to 25.3.1971. Mr. Huda, learned counsel appearing for the appellants submits that had the reas onable opportunity been given, the appellants could have proved that they are no t foreigners but Indian nationals and as such they may be given a further opport unity to adduce evidence to substantiate that they are not foreigners, by settin g aside the order dated 12.3.2013 passed by the learned Single Judge as well as the order dated 14.9.2001 passed by the Foreigners Tribunal. In the alternative it has also been submitted that since the appellants have been declared to be fo reigners coming to Assam from the specified territory between 1.1.1966 to 25.3.1 971, they may be allowed to file appropriate applications before the Registering authority requesting registration of their names as directed by the Tribunal vi de its opinion rendered on 14.9.2001. The learned CGC as well as the learned State counsel on the other hand supportin g the order dated 14.9.2001 and 12.3.2013 passed by the Tribunal and the learned Single Judge, respectively, in the aforesaid proceedings have submitted that de spite giving sufficient opportunity to the appellants to discharge their burden of proof that they are not foreigners but Indian nationals, they have failed to prove the same by producing any document. Referring to the judgment dated 12.3.2 013 passed by the learned Single Judge it has also been submitted that in fact a number of adjournments were granted by the Tribunal and despite that they did n ot contest the proceeding further. The learned counsel, however, relating to the alternative submission have submitted that since the Full Bench, in State of As sam & ors., vs. Moslem Mondol & ors., reported in 2013 (1) GLT (FB) 809, has hel d that an application seeking registration can be entertained by the Registering Authority even after the expiry of the period prescribed under law, subject to demonstration of sufficient cause in not filing the application within time, the appellants may be allowed to approach the Registering Authority. We have considered the submission advanced by the learned counsel for the partie s and also perused the materials available on record including the various order s, apart from the order dated 14.9.2001 passed by the Tribunal and also the orde r 12.3.2013 passed by the learned Single Judge in WP(C) No. 350/2005. It is evident from the record that the present appellants were served with the n otice in the proceeding before the Tribunal, on receipt of which they have enter ed appearance and filed application seeking time to file their statements. The s aid application was allowed and despite granting few adjournments thereafter, as the present appellants did not appear, the order was passed to proceed ex parte against them. Consequently the ex parte order was passed declaring the present
Decision
appellants as foreigners coming to India between 1.1.1966 to 25.3.1971. It also appears from the order dated 12.3.2013 passed in the aforesaid writ peti tion that the appellants have taken recourse to falsehood by making a statement in the writ petition that they came to know about the Tribunal’s order only on 3 .9.2003 though in fact they filed the application before the Tribunal on 26.2.20 02 to set aside the ex parte opinion. It, therefore, appears that despite sufficient opportunity given to the appellan ts they have decided not to contest the proceeding and to discharge the burden o f proof that they are not foreigners but Indian national. Hence the opinion rendered by the Tribunal on 14.9.2001 and also the order dated 12.3.2013 passed by the learned Single Judge in the aforesaid writ proceeding n eeds no interference in appeal. However, since the appellants are declared to be foreigners coming to Assam from the specified territory between 1.1.1966 to 25.3.1971, the appellants are allow ed to approach the Registering authority for registration of their names by expl aining the delay in not filing the said applications, in view of the aforesaid F ull Bench judgment of this Court in Moslem Mondol’s case. The appellants shall file such applications within three weeks from the date of release of the appellant No. 1 from custody and the registering authority shall decide the same within two weeks thereafter. The appellant No. 1, who is in custody, is directed to be released so as to enab le him to file the application. All the appellants, however, till the said appli cations are disposed of by the Registering authority appear before the Officer-i n-Charge of the jurisdictional police station every week. It is, however, made clear that in case the appellants do not file the applicati ons within the aforesaid period of time they shall immediately be taken into cus tody and necessary follow up action shall be taken. The appeal is accordingly disposed of. A copy of this order be furnished to Mr. Bhagabati, learned CGC as well as Mr. H andique, learned State counsel.