Union of India v. Abdul Barek). The order is ex
Case Details
WP(C) 1584/2013 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA Heard Mr. S. Saikia, learned counsel for the petitioner. Also heard Mr. M. Bhaga wati, learned CGC and Mrs. B. Dutta, learned State Counsel. This writ petition is directed against the order dated 4.12.2012 passed by the l earned Member, Foreigners Tribunal, Goalpara in F.T. Case No. 4613/G/2011 (Ref. Dist. Case No. 39-99/38) (Union of India Vs. Abdul Barek). The order is ex-parte as ex-parte proceeding had to be ordered due to successive absence of the petit ioner on the dates fixed, which are 3.8.2012, 15.9.2012, 16.10.2012, 19.11.2012 etc. On 15.9.2012, the Tribunal had cautioned the petitioner not to make any fur ther prayer for adjournment and the matter was fixed on 16.10.2012 granting a la st chance. Referring to the written statement and the photocopies of the documen ts submitted by the petitioner, the learned Tribunal has made the following obse rvation. (cid:28)I have perused the record. Along with written statement a Xerox copy of certified copy of 1966 and Xerox copy of electronic copy of voter list 1985 and a Xerox copy of extract electoral roll (single page) 1997 are furnished where f rom no link even can be presumed . As per 1966 voter list (copy) Fakir Mamud is son of Mamud Ali aged 45 years, Porosullah is son of Mamud Ali 38 years and Isha ton Bibi is wife of Mamud Ali 40 years. If Fakir Mamud is considered to be son o f Mamud Ali and Ishaton Bibi is considered to be wife of Mamud Ali then eldest s on of Mamud Ali is more than older than that of his mother and Poroshullah shall be only 2 years younger than that of his mother. So, without cross examination
Legal Reasoning
of particularly respondent no inference can be drawn. The respondent deliberately avoided the witness box. After last chance there can not be super last chance as there can be super fast before fast. Our function i s regulated by ordinary conduct of litigant people but ordinary conduct of litig ant people cannot be regulated by even legislature by amending provision of law. A litigant person may not know the provision of law but on first day of appeara nce I cautioned fully. So, in my opinion it is nothing but deliberate gross negl igence of respondent as respondent has no good case to prove. For this willful a bstinence in my opinion respondent is an illegal migrant. In spite of giving rea sonable opportunity the respondent hopelessly failed to prove his case. (cid:29) That, the petitioner begs to state that he is old ailing person. Frequen
Decision
On the other hand, the petitioner has assigned the following reasons in paragrap h-8 of the writ petition for his non-appearance before the Tribunal. (cid:28)8. tly he has been suffering from asthmatic problem. On the other hand petitioner i s coming from very interior place. There is no suitable communication facility i n his locality. For that reason petitioner unable to appear before the Hon’ble T ribunal in his case in further dates and on the other hand the petitioner also n ot been able to contact with the counsel of the petitioner. But counsel for the petitioner taken up steps in that case properly. On the other hand Hon’ble Court also had given time to the petitioner to defend his case. But only his ill heal th and also lack of suitable communication petitioner is not in a position to at tain his case on the dates fixed for adducing evidence. (cid:29) As per the Full Bench decision of this Court reported in 2013 (1) GLT 809 (State of Assam Vs. Moslem Mondal), the Tribunal has jurisdiction to entertain and pas s necessary order on an application to set aside an ex-parte opinion, provided i t is proved to the satisfaction of the Tribunal that the proceedee was not serve d with the notice in the reference proceeding or that he was prevented by suffic ient cause from appearing in the proceeding, reason for which was beyond his con trol. For a ready reference, paragraph-92 of the said judgment is quoted below: (cid:28)92. As discussed above, the Tribunals constituted under the Foreigners Act r 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, while not interfering with the impugned judgment and order , this writ petition is disposed of granting liberty to the petitioner to approa ch the Tribunal within 3 (three) weeks from today for setting aside the ex-parte order, if so advised. In the event the petitioner being desirous to approach th e Foreigners Tribunal, Goalpara seeking setting aside of the exparte order, the S.P. (B), Goalpara shall ensure his appearance before the Tribunal enabling him to take steps in this regard. Let copies of the order be furnished to Mr. M. Bhagawati, learned CGC and Mrs. B . Dutta, learned State Counsel and so also the Deputy Commissioner and S.P. (B), Goalpara for their necessary follow up action. Before parting with the case records, it is hereby made clear that this order sh all 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 approac h being made by the petitioner for setting aside the ex-parte order, the Tribuna l shall consider the same in terms of the observations made above and in referen ce to the aforesaid Full Bench decision in Moslem Mandal (supra) of this Court. The Registry shall transmit the LCR immediately.