High Court
Case Details
WP(C) 1576/2013 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (CAV) This writ petition is directed against the exparte judgment and order 02/07/2012 passed by the learned Foreigners Tribunal (1st) Morigaon in Case No. FT(C) 108/ 2007, by which the petitioners have been declared to be foreign nationals who il legally entered into Assam after the cut off date 25.03.1971.
Legal Reasoning
2. I have heard Mr. M.H. Ahmed, learned counsel for the petitioners. Also h eard Mr. M. Bhagabati, learned CGC and Mrs. H.M. Phukan, learned State Counsel. I have also perused the entire materials on record including the records receive d from the Tribunal. Although, in the impugned order, there is no mention of exa mining the State witness but on perusal of the records, it is found that one Shr i Prabin Deka, Government Gaonbura, was examined by the State on 24.3.2009. 3. He in his deposition, interi alia, stated that he had accompanied the p olice team who had conducted the enquiry and visited the residence of the petit ioner and that on being asked, the petitioner could not produce any documents to prove his Indian citizenship. 3. It appears that the petitioner on receipt of notice from the Tribunal, a ppeared on 5.5.2007 and 30.6.2007 and on both the occasions prayed for time to f ile written statement and the same was allowed. However, thereafter the petition er remained absent on several dates, such as, 11.9.2007, 15.12.2007, 29.3.2008, 30.6.2008, 18.11.2008, 2.1.2009, 24.3.2009, 4.6.2009, 19.10.2009, 8.2.2010, 25.5 .2010, 13.9.2010, 23.12.2010, 1.3.2011, 6.5.2011, 26.7.2011, 14.10.2011, 31.12.2 011, 29.3.2012 and finally on 2.7.2012 when the impugned exparte judgement was p assed. 4. for their non-appearance :-
Decision
In the writ petition, the petitioner has assigned the following grounds That, the petitioners beg to state that since they could not arranged mo (cid:28)4. ney to meet expenses for filing the W.S. on the date fixed 30.6.2007, prayer was made on behalf of the petitioner to fixed another date for filing W.S. Thereaft er the petitioner No.1 fail seriously ill and as such there was communication ga pes with their reengaged advocate who did not take necessary steps in the case i n their absence. In fact the petitioners because of their poverty failed to pay necessary legal fees to their engaged advocate and as such their engaged advocat e also loss interest to the necessary steps in the case. 6. That the petitioners submit that their absence from the Hon’ble Tribunal were not intentional rather the poverty and illiteracy are the main factors whi ch compelled them to be away from the proceedings of the F.T. Case. 9. That the petitioners submit that they pray for apology from this Hon’ble Court for not filing their W.S. as well as their absence from the proceedings o f the Tribunal. The financial crises that has been faced by the petitioners as w ell as their lack of knowledge place them in that position for which the impugne d ex-parte order has been passed by the Member, Foreigners Tribunal (1st), Morig aon. Therefore, an opportunity may be given by this Hon’ble court to the petitio ners to defend their case as a fresh, otherwise great injustice will be caused t o the petitioners. (cid:29) As discussed above, the Tribunals constituted under the Foreigners Act r 5. In terms of the Full Bench decision of this Court reported in 2013 (1) G LT 809 (State of Assam Vs. Moslem Mondal), the Tribunal can set aside the ex-par te order provided sufficient cause from appearing in the proceeding, reason for which was beyond his control. In this connection, paragraph-92 of the judgment i s quoted below: (cid:28)92. ead with the 1964 Order have to regulate their own procedure and they have also the quasi-judicial function to discharge and hence in a given case the Tribunal has jurisdiction to entertain and pass necessary order on an application to set aside an ex-parte opinion, provided it is proved to the satisfaction of the Trib unal that the proceedee was not served with the notice in the reference proceedi ng or that he was prevented by sufficient cause from appearing in the proceeding , reason for which was beyond his control. Such application, however, should not be entertained in a routine manner. The Tribunal can entertain such application provided the proceedee could demonstrate the existence of the special/exception al circumstances to entertain the same by way of pleadings in the application fi led for setting aside the ex-parte opinion, otherwise the very purpose of enacti ng the 1946 Act and the 1964 Order would be frustrated. The Tribunal, therefore, would have the jurisdiction to reject such application at the threshold, if no ground is made out. (cid:29) 6. In view of the above, while not interfering with the impugned judgment a nd order, this writ petition is disposed of granting liberty to the petitioners to approach the Tribunal for setting aside the ex-parte order, if so advised, wi thin 3 (three) weeks from today. However, this order shall not be construed to m ean that there is any direction to the Tribunal to set aside the ex-parte order. What has been provided is that in the event of approach being made by the petit ioners for setting aside the ex-parte order, the Tribunal shall consider the sam e in terms of the observations made above and in reference to the aforesaid Full Bench decision of this Court. In the meantime, the name of the petitioners shal l be deleted from the voter list, if any. If the petitioners do not approach the Tribunal within the stipulated period of 3 (three) weeks, the SP(B), Morigaon s hall implement the impugned order of the Tribunal. 7. Let a copy of the order be furnished to Mrs. H.M. Phukan, learned State Counsel for his necessary follow up action. A copy of this judgement and order m ay also be sent to the Deputy Commissioner and Superintendent of Police (B), Mor igaon, for their information and necessary follow up action. 8. The Registry shall send down the LCR to the Tribunal below immediately.