State of Assam and Anr v. Moslem Mondal and Ors.) and other connected writ appeals, it has been submitted b
Case Details
WA 9/2013 BEFORE HON’BLE MR. JUSTICE B.P. KATAKEY HON’BLE MR. JUSTICE A.K. GOSWAMI [Katakey, J.]
Legal Reasoning
This appeal, by the writ petitioner, is directed against the judgment an d order dated 14.12.2012 passed by the learned Single Judge in WP(C) No.4920/201 1 dismissing the writ petition filed by the appellant, by affirming the ex parte order dated 25.06.2007 passed by the learned Member, Foreigners’ Tribunal Nalba ri in FT (Nal) Case No.4356/2006, opining the appellant as a foreigner. On the basis of the reference made by the Superintendent of Poli 2. ce, Nalbari, aforesaid proceeding before the Foreigner’s Tribunal was registered . The Tribunal, thereafter, issued notice to the appellant and as the appellan t did not contest the proceeding, despite issuance of notice on two occasions, f irstly, on 11.10.2007 and thereafter on 17.07.2008, the Tribunal proceeded ex pa rte against the appellant and declared him to be a foreigner under the provision s of the Foreigner’s Act, 1946, since the burden of proof lies on the noticee to demonstrate that he is not a foreigner but an Indian national, in view of Secti on 9 of the Foreigner’s Act, 1956. 3. The appellant has filed WP(C) No.4920/2011 before this Court cha llenging the aforesaid order dated 04.07.2011 passed by the Tribunal, wherein a specific plea has been taken that the appellant could not contest the proceeding before the Tribunal as no notice was ever served on him to enable to participat e in the proceeding before the Tribunal.
Legal Reasoning
The learned Single Judge upon hearing the learned counsel for t 4. he parties and also on a perusal of the records of FT (Nal) Case No.4356/2006 ha s dismissed the writ petition by holding that the appellant was served with the notice by the Tribunal on two occasions and despite that he did not appear and c ontest the proceeding. It has also been found by the learned Single Judge that the appellant has taken recourse of falsehood while stating on oath that no not ice was ever served in the proceeding before the Tribunal. The learned Single Ju dge having dismissed the writ petition filed, issued further order directing the respondents to detain the appellant in detention camp till he is deported to Ba ngladesh and to delete his name from voter’s list, if any. Hence, the present a ppeal. 5. We have heard Mr. M.U. Mahmud, learned counsel appearing for the appellant, Mr. N. Upadhyay, learned State Counsel and Mr. A. Hussain, learned C entral Govt. Counsel appearing for Respondent No.3. 6. Referring to the Full Bench judgment of this Court passed in Rev iew Petition No.22/2010 (State of Assam and Anr. Vs. Moslem Mondal and Ors.) and other connected writ appeals, it has been submitted by the learned counsel for the appellant that since the Full Bench has held that the Tribunal can entertain an application for setting aside an ex parte opinion, the appeal may be dispose d of allowing the appellant to file appropriate application before the Tribunal for setting aside its ex parte opinion dated 04.07.2011 to demonstrate the reaso n/ground on which the appellant could not contest the said proceeding before the learned Tribunal, though the notices were served. It has also been submitted b y the learned counsel that the appellant should not punish again for taking reco urse to falsehood in making a statement on oath in the writ petition that the no tice in the proceeding before the Tribunal was never served on him. The learned counsel further submits that in any case further direction issued by the learned Single Judge directing the detention of the appellant in the detention camp and deletion of his name from the voter’s list, if any, were not required to be pas sed, as on being detected to be foreigner, the law will take its own course. Th e learned Counsel placing reliance on the judgment of the Apex Court in Cement W orkers Karmachari Sangh Vs. Jaipur Udyog Ltd. and Ors., (2008) 4 SCC 701 has su bmitted that at least one chance may be given to the appellant to demonstrate th at he is not a foreigner but an Indian national. 7. The learned State Counsel as well as the learned Central Govt. C ounsel, per contra, supporting the judgment and order passed by the learned Sing le Judge, have submitted that it is evident from the judgment passed by the lear ned Single Judge that the appellant took recourse of falsehood by saying that no notice was served on him in the proceeding pending before the Tribunal. Accord ing to the learned counsel, since the appellant did not approach this Court with clean hand, he is not entitled to the discretionary relief under Article 226 of the Constitution of India, which has rightly been denied by the learned Single Judge. Referring to the aforesaid Full Bench judgment passed in Moslem Mondal c ase, the learned counsel submits that the appellant could not even demonstrate a ny ground, in the writ petition filed, to set aside the ex parte opinion rendere d by the Tribunal. The learned counsel, therefore, submits that the appeal dese rves to be dismissed. 8. We have considered the submissions advanced by the learned couns el for the parties and perused the materials made available in the appeal includ ing the judgment and order passed by the learned Single Judge. 9. The appellant filed the writ petition, challenging the opinion o f the Tribunal that he is a foreign national and not an Indian, stating inter al ia that he could not contest the proceeding before the Tribunal because of non service of notice by the Tribunal. To appreciate the said contention, the learn ed Single Judge has called for the records from the Foreigner’s Tribunal and upo n perusal of the same found that notices on two occasions were issued by the Tri bunal, firstly, on 11.10.2007 and then on 17.07.2008, which were received by the appellant on 09.12.2007 and 08.08.2008, respectively. For getting the relief under Article 226 of the Constitution of 10. India in exercise of the extra ordinary power of the High Court, the person seek ing such relief must come with clean hand. The appellant has resorted to falseho od, which disentitled him from getting the relief sought for in the writ petitio n. The Apex Court in Cement Workers Karmachari Sangh (Supra), having regard to the facts and circumstances involved in the case, has allowed the party one more opportunity to contest the proceeding. In the said case there was neither supp ression of fact or pleading of the false statement relating to the service of no tice. The decision rendered by the Apex Court being based on the fact involved in that case, it cannot be applied to the facts of the case in hand. 11. The appellant accept saying that no notice was ever served on hi m did not demonstrate any other ground for setting aside the ex parte decree pas sed by the Tribunal and hence giving an opportunity to the appellant to file an application before the Tribunal for setting aside the ex parte opinion would be a futile exercise, in absence of any other ground cited by the appellant in the writ petition. 12. It also appears from the judgment and order passed by the learne d Single Judge that certain directions, namely- detention of the appellant in th e detention camp till he is deported and deletion of his name from voter’s list, if exists, have been passed, which are in fact consequential upon the declarati on of the appellant as foreigner. 13. In exercise of the jurisdiction under Article 226 of the Constit ution of India High Court can definitely pass such order(s) directing detention of a foreigner in the detention camp till deportation and also deletion of his n ame from the voter’s list if exists, such directions being not contrary to any law. 14. That being the position, we do not find any ground to interfere with the judgment and order passed by the learned Single Judge. Hence, the appe al stands dismissed. No costs.