State of As sam v. Musstt. Momtaz Begum). The order is ex
Case Details
WP(C) 3737/2013 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA Heard Mr. T.N. Srinivasan, learned counsel for the petitioner. Also heard Mr. M. Bhagawati, learned CGC and Mrs. H.M. Phukan, learned State Counsel. This writ petition is directed against the order dated 27.2.2013 passed by the l earned Foreigners Tribunal (2nd), Morigaon in F.T. (D) No. 930/2011 (State of As sam Vs. Musstt. Momtaz Begum). The order is ex-parte. The impugned reads as foll ows: (cid:28)ORDER 1. The Superintendent of Police (B), Morigaon referred this case to the the n learned Chairman I.M. (D) .T. Nagaon. The allegation is that O.P. (cid:29)D (cid:29) voter Mus st. Momtaz Begum, W/O. Md. Faizuddin(aged about 42 years at the time of verifica tion during the year 1997) village Dandua Bill Tup under Morigoan P.S. of Morigo an district as illegal migrant from Bangladesh entered into India(Assam) after 2 5.03.1971 and she could not produce document in support of her receive citizensh ip at the time of verification. Subsequently the reference was received on trans fer from Foreigners Tribunal Nagoan in pursuance of Govt. notification no. PLB. 101/2005/pt/194 dtd. 02.02.2006. and No. PBL. 101/2005/pt/226 dtd. 05.07.2006. 2. Notice was issued to O.P. to appear and file objection. Notice returned after service on fixed date 20.09.12 O.P. was absent without steps. Next date fi xed on 18.10.12. The O.P. appeared with lawyer and filed adjournment petition No . 926 praying for another date for W/S. The prayer was granted fixing next 28.12 .12. On the said date O.P. was absent without steps. Thereafter date fixed on 27 .02.2013 for ex-parte hearing. Today 27.02.2013 O.P. was absent without step. 3. The V.O is present. He is examined. Heard state of Assam. Perused record . Junior inspector of Handloom & Textile at Morigaon. He was entrusted with the job by the E.R.O. for verification and correction (cid:28)D (cid:29) voter’s list. The V.O. v isited O.P’s residence with village Headman asked O.P to show documents as she r ecorded (cid:28)D (cid:29) voter. But O.P failed to show any document in spite of given suffici ent time. The V.O stated that he visited O.P’s residence for second time after a llowing one month time. During second visit also O.P failed to show documents. T herefore the V.O suspected O.P as illegal migrant from Bangladesh after 25.03.1 971 and submitted report. 4.
Decision
The V.O proved Ext.1 report. Ext. 3(1) is his signature. Ext.2 report by E.R.O. Ext. 2(1) is E.R.O’s signature. Ext. 3 report by S.P.(B), Morigaon, who referred to Tribunal. Ext. 3(1) and Ext. 3(2) are his signatures. The signature s are known to V.O. 5. Since O.P failed to established case as required Under Section 9 of the Foreigners Act 1946, she falls under the category of foreigners as alleged by the State. 6. In view of the above and in my opinion O.P. (cid:29)D (cid:29) voter Musst. Momtaz Begum , W.O. Md. Faizuddin of village Dandua Bill Tup under Morigaon P.S of Morigaon d istrict is a foreigner U/S 2 (a) of the Foreigners Act 1946, who illegally enter ed into India (Assam) from Bangladesh after 25.03.1971 and declares as such. 7. r law. 8. 9. 10. y, 2013. (cid:29) The reference thus stands disposed of Ex-parte. Inform Deputy Commissioner and S.P (B), Morigaon for necessary action. Given under my hand and seal of the Tribunal on this 27th day of Februar The name of O.P is enrolled in any voter list be deleted forthwith as pe Mr. Srinivasan, learned counsel for the petitioner referring to the Full Bench d ecision of this Court reported in 2013 (1) GLT 809 (State of Assam Vs. Mosem Mon dal) submits that the ex-parte order is required to be vacated giving an opportu nity to the petitioner to defend the reference. As per the Full Bench decision in Moslem Mondal (supra) the Tribunal has jurisdi ction to entertain and pass necessary order on an application to set aside an ex As discussed above, the Tribunals constituted under the Foreigners Act r -parte opinion, provided it is proved to the satisfaction of the Tribunal that t he proceedee was not served with the notice in the reference proceeding or that he was prevented by sufficient cause from appearing in the proceeding, reason fo r which was beyond his control. For a ready reference, paragraph-92 of the said judgment is 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) (Emphasis supplied) In view of the above, the writ petition is disposed of granting liberty to the p etitioner to approach the Tribunal by filing application seeking vacation of the ex-parte order within 15 days from today. In the event of making such applicati on, the Tribunal shall pass appropriate order strictly in accordance with law ke eping in view the above observation of the Full Bench judgment. If the petitioner does not appear before the Tribunal within the aforesaid stipu lated period of time, the impugned judgment shall be implemented by the SP(B), M origaon and the Deputy Commissioner, Morigaon.