High Court
Case Details
WA 174/2013 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY THE HON’BLE MR JUSTICE A.K. GOSWAMI
Decision
The appellant has filed the present appeal challenging the order dated 15.7.2013 passed by the learned Single Judge, in WP(C) No. 3770/2013 wher eby and whereunder the writ petition filed by the present appellant challenging the dated 25.3.2013 passed by the Tribunal has been dismissed. On the basis of the reference made by the Superintendent of Poli ce FT Case No. 5082/G/2012 was registered against the present appellant. On rece ipt of notice though the appellant had entered appearance and filed the written statement, no evidence was filed, either oral or documentary, despite being give n time for more than six months. The Tribunal having no alternative eventually o n 4.3.2013 rejected the application filed by the appellant seeking further time to produce the documents and proceeded to decide the said proceeding. The Tribun al thereafter opined that the appellant is a foreigner coming to India after 25. 3.1971. The said order was put to challenge in WP(C) No. 1389/2013. Bas ed on the submission advanced by the learned counsel for the writ petitioner tha t because of the fault of the learned counsel engaged by her she could not file the deposition of witnesses and having regard to the Full Bench judgment passed in State of Assam and ors. Vs. Muslem Mondol and ors reported in 2013 (1) GLT (F B) 809, the said writ petition was disposed of vide order dated 18.3.2013 allowi ng the present appellant to approach the Tribunal for setting aside the order pa ssed by filing appropriate application with a further direction to the Tribunal to consider the same keeping in mind the judgment passed in Moslem Mondol by the Full Bench of this Court. An application dated 26.3.2013, thereafter, was filed by the pre sent appellant for setting aside the aforesaid order dated 4.3.2013, contending that such application has been filed as per the direction of the High Court, wit hout however, citing any reasons whatsoever as to why she could not file the doc uments before the Tribunal despite giving sufficient opportunity. The said appli cation was rejected by the Tribunal vide order dated 4.5.2013, which was challen ged in WP(C) No. 2770/2013. The learned Single Judge vide order dated 15.7.2013 has dismissed the said writ petition on the ground that the appellant did not ci te any reasons in the aforesaid application dated 26.3.2013 which was rejected v ide order dated 4.5.2013. Hence the present appeal. We have heard Mr. Mahmud, learned counsel for the appellant, Mr. Bhagabati, learned CGC as well as Mr. Handique, learned State counsel appearing for the respondents. It has been contended by Mr. Mahmud, learned counsel for the app ellant that the learned Tribunal while passing the order dated 4.5.2013 did not even consider the evidence on affidavit filed by the present appellant and anoth er witness, though no documents were filed. The learned counsel submits that suc h evidence on affidavit having been filed, the Tribunal cannot ignore the same, as has been done in the instant case. It has also been submitted that because of the reasons beyond the control of the appellant as she could not obtain the doc uments in support of her evidence on affidavit on time, she may be allowed to ad duce evidence to demonstrate that she is not a foreigner but an Indian national. Per contra, the learned CGC as well as the learned State counsel submit that despite giving sufficient opportunities, over a period of more than six months from the date of filing of the written statement, the appellant did not bother to file any documents to demonstrate that she is not a foreigner but an Indian national. It has also been submitted that the contention of the appell ant that the evidence on affidavit of two witnesses were filed is not correct as the appellant in Para 8 of the WP(C) No. 3770/2013 has admitted that no evidenc e on affidavit has been filed. The learned counsel further submit that in any ca se the evidence on affidavit stated to be filed, which have been annexed to the present appeal, being based on the documents, unless those documents are submitt ed and proved, the said evidence has no evidentiary value. The learned counsel f urther submit that despite giving opportunity by the Single Bench of this Court vide order dated 18.3.2013 passed in WP(C) 1389/2013 the appellant did not demon strate any ground for not filing the documents on time and no reasons at all has been cited as to why the order dated 4.3.2013 should be recalled by the Tribuna l. The learned counsel further submit that even in the writ petition no reason h as been cited in that regard. We have considered the submission advanced by the learned counse l for the parties. It appears from the order dated 4.3.2013 passed by the Tribunal that though the present appellant upon receipt of the notice entered appearance and filed the written statement she, however, neither filed the evidence on affi davit nor the documents, despite giving opportunity for that purpose. The conten tion of the appellant in this appeal that the evidence on affidavit of two witne sses were filed is belied by the appellant’s own statement in para 8 of the writ petition filed in WP(C) No. 3770/2013, wherein the appellant has stated on oath that though the learned Advocate had prepared the evidence on affidavit of the appellant and her elder brother the same were not submitted before Tribunal. The appellant despite the order dated 18.3.2013 passed in WP(C) No. 1389/2013 did n ot take the opportunity to demonstrate the reasons for not filing the evidence a s well as the documents before the Tribunal and has filed the application for se tting aside the order dated 4.3.2013 stating inter alia that such application ha s been filed as directed by this Court. The Tribunal having not found any ground rejected the same vide order dated 4.5.2013. The writ petition being WP(C) No. 3770/2013 has also been rejected on the same ground by the learned Single Judge vide order dated 17.5.2013. The appellant even in the writ petition did not cite any reason as to why she could not file the documents and/or the evidence before the Tribun al. In view of the aforesaid position, we do not find any merit in t he appeal so as to interfere with the order dated 15.7.2013 passed by the learne d Single Judge in WP(C) No. 3770/2013. Hence the appeal stands dismissed. No cost.