High Court
Case Details
WP(C) 1929/2012 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA
Legal Reasoning
Heard Mr. S.C. Biswas, learned counsel for the petitioner. Also heard Ms. B. Dut ta, learned State Counsel. I have also heard Mr. M. Bhagabati, learned CGC. Both the writ petitions, raising more or less the same issue, filed by the same peti tioner, have been heard together and are being disposed of by this common order. While in WP(C) No. 2050/2012, the prayer is to furnish the certified copies of t he documents indicated in the prayer portion pertaining to FT Kamrup(M) Case No. 103/2011, in WP(C) 1929/2012, the challenge is to the order dated 27.12.2011 pa ssed by the said Tribunal in FT Kamrup (M) DV Case No. 103/2011, declaring the p etitioner to be a foreign national. So far as prayer for documents is concerned, the records of the Tribunal are now available in this proceeding and it will always be open for the petitioner to g et required documents. As regard the prayer for setting aside the impugned order dated 27.12.2011, admittedly the said order is an exparte one. As per the state ment made in the writ petition, the petitioner was served with the notice pertai ning to the aforesaid FT case from the Tribunal. In paragraph 8 of the writ peti tion it has been stated that on receipt of the notice she appeared before the Tr ibunal and prayed for some time for filing Written State and the documents. It h as been stated that the petitioner had engaged a counsel by executing Vakalatnam a and the said counsel assured her of filing Written Statement and documents and that she need not appear before the Tribunal personally. According to the petit ioner, having so assured by the said engaged counsel, she did not appear before the Tribunal which eventually resulted in exparte proceedings the impugned expar te order. For a ready reference, paragraph 8 of the writ petition is quoted belo w :- That the petitioner begs to state that, thereafter notice of the D.V. ca (cid:28)8. se was served to the petitioner and she immediately appeared before the learned Tribunal and prayed for some time to file Written Statement and documents in sup port of her claim of being an Indian citizen and the same was allowed which in f act will be evident on perusal of the case record. Thereafter the petitioner eng aged a counsel by signing Vakalatnama by praying necessary fees and submitted re levant documents and the said counsel assured the petitioner that she will file Written Statement and documents on her behalf and contest the case and that the petitioner need not appear before the learned Tribunal personally. The petitione r being assured thereafter did not appeared before the learned Tribunal and was quite sure that necessary steps has been taken by her counsel to defend her case before the learned Tribunal. The petitioner also did not received any communica tion thereafter from her counsel. The petitioner out of ignorance and also as sh e has meet her counsel once forget the name and address of her counsel and also due to the fact that after the expiry of her husband, the petitioner was undergo ing mental trouma and was busy with her only daughter who is presently undergoin g MBA course under Gauhati University. (cid:29) I have considered the submissions made by the learned counsel for the parties an d perused the entire records including the records received from the Tribunal. O n perusal of the records I do not find any Valakatnama executed by the petitione r engaging any counsel. What is found is two applications, one dated 19.4.2011 a nd another dated NIL praying for time to file written statement and documents. In terms of the Full Bench decision of this Court reported in 2013 (1) GLT 809 ( State of Assam Vs. Moslem Mondal), the Tribunal can set aside the ex-parte order provided sufficient cause for non-appearing in the proceeding, reason for which was beyond his control. In this connection, paragraph-92 of the judgment is quo As discussed above, the Tribunals constituted under the Foreigners Act r ted 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)
Decision
In view of the above, while not interfering with the impugned judgment and order , both the writ petitions are disposed of granting liberty to the petitioner to approach the Tribunal for setting aside the ex-parte order, if so advised. Howev er, this order shall not be construed to mean 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 petitioner for setting aside the ex-parte o rder, the Tribunal shall consider the same in terms of the observations made abo ve and in reference to the aforesaid Full Bench decision of this Court. In the meantime, the name of the petitioner shall be deleted from the voter list , if any. Let a copy of the order be furnished to Ms. B. Dutta, learned State Counsel for her necessary follow up action. The Registry shall send down the case record to the Tribunal below immediately.