High Court
Case Details
WP(C) 1677/2013 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA
Decision
By means of this writ petition, the petitioner has prayed for se tting aside and quashing of the judgment and order dated 19.04.2005, passed by t he then IM(D) Tribunal, Barpeta in case No.1240/03 (Union of India -vs- Rupbhanu Nessa). Apart from the fact that the writ petition has been filed after long ei ght years, challenging the said order dated 19.04.2005, passed by the then IM(D) T, Barpeta, there is also no proper explanation as to the cause of delay in fili ng the writ petition. The explanation furnished is in paragraph 9, which is quot ed below:- (cid:28) That the petitioner begs to state that the ex-parte judgment was passe d on 19.04.2005 declaring the petitioner as a foreign national. But the police n ever visited the place of the petitioner’s house. Hence, the petitioner had no k nowledge about the impugned judgment dated 05.02.2005 till last months, nor any communication was made with her regarding the Judgment dated 19.04.2005, hence t here is delay in filing this writ petition against the Judgment dated 19.04.2005 . She is ready to face the trial, if the case is remanded back to prove her nati onality. (cid:29) If we go by the said statement, the petitioner has attributed th e fault on the part of the police as they never visited her towards implementati on of the impugned judgment and order. It has also been stated that the petition er had no knowledge about the impugned judgment. If she was not aware of the jud gment, she will have to thank herself for not responding to the proceeding after the initial appearance before the tribunal. In paragraph 7 of the writ petition, it has been stated thus:- (cid:28)That the petitioner begs to state that even after having all th e aforementioned documents in favour of her citizenship, the Superintendent of P olice, Barpeta referred the matter to Illegal Migrants (Determination) Tribunal, whereby, a case was registered vide IM(D)T Case No.1240/2003 and issued notice to the petitioner to prove her Citizenship. After receiving the notice from the learned IM(D)T, Barpeta, the petitioner without engaging any advocate, herself a ppeared before the learned Tribunal and prayed for another date for filling writ ten statement and submitting documents. The learned tribunal did not give date, immediately not even after 2/3 times, and hence the petitioner stopped appearing before the learned Tribunal and consequently IM(D)T, Barpeta passed an Ex-parte Judgment dated 19.04.2005 holding that the petitioner is an illegal migrant. In this regard, it is worthy to mention that under the provision s of IMDT Act, 1983, the burden which is required to prove by State has not been discharged, as in Ext.1(i), there is no signature of the petitioner is present and on merit also, the impugned order is not sustainable in Law. (cid:29) If we go by the aforesaid statement made in the writ petition, o n receipt of notice, the petitioner appeared before the Tribunal and prayed for another date for filing written statement and documents. Accordingly to her, the Tribunal did not give any date immediately not even after 2/3 times and hence t he petitioner stopped appearing before the Tribunal. Such statement made in the writ petition is contrary to the records received from the Tribunal. As recorded in the order sheet and also reveals from the documents available in the case fi le of the Tribunal, the petitioner was duly served with notice and she appeared before the Tribunal on 06.01.2004 by filing an application praying for time to f ile written statement and documents. The prayer was allowed fixing the matter on 11.02.2004. On that day also the petitioner appeared and by filing application, again prayed for time which was allowed. Along with the said application, she a lso submitted a photocopy of the purported voter list of 1966. Thereafter, upon granting adjournment the matter was again fixed on 15.03.2004, on which date als o the petitioner appeared and prayed for time, which was again allowed fixing th e matter on 29.04.2004. On 29.04.2004, the petitioner was absent, however, the m atter was adjourned to 10.06.2004, on which date the petitioner again appeared. However, since the Full Court was not available, the mater was adjourned to 02.0 8.2004. Thereafter, on all the subsequent dates i.e. 02.08.2004, 16.09.2004, 17. 09.2004, 09.11.2004, 29.12.2004, 05.02.2004, 25.02.2005, 04.04.2005 and finally on 19.04.2005, the petitioner was absent. On perusal of the records with the aforesaid revelation, the sto ry made out in the writ petition with the aforesaid statement in paragraph-7, it is absolutely false. Although the learned counsel for the petitioner has referr ed to the order for issuance of fresh notice on 17.09.2004, there was no necessi ty for the same, once notice was served on the petitioner and there was failure on her part to respond to the proceeding. This aspect of the matter will have to be considered in reference to the aforesaid statement made by the petitioner in paragraph-7 that the Tribunal did not give any date after the first appearance. The fact of the matter is that the petitioner duly appeared before the Tribunal on receipt of notice on 06.01.2004, followed by the further dates on 11.02.2004 , 15.03.2004 and 10.06.21004. Thus the petitioner was aware of the dates fixed b y the Tribunal. But contrary to the said position, has made the misleading state ment that the Tribunal did not give any date and accordingly she did not appear. Above apart, there is also absolutely no explanation as to the c ause of delay, approaching the writ court, which is eight years. As to what is t he explanation furnished in the writ petition in paragraph-9 has been quoted abo ve. If the petitioner in spite of receipt of notice, did not appear before the T ribunal after the initial appearance on four dates, she cannot attribute any fau lt on the part of the police for not visiting her. If she had no knowledge about the judgment till filing of the writ petition, same is attributable only to her and none else. Above being the position, I do not find any merit in the writ pe tition and accordingly it is dismissed. The Registry shall transmit the case rec ord to the learned Court below along with the copy of this order. The Deputy Commissioner, Barpeta and Superintendent of Police (B ), Barpeta, are directed to take the required follow up action transfer, deletio n of the name of the petitioner from the voter list, if any, and the Superintend ent of Police (B) ensuring detention of the petitioner till such time she is dep orted to her Country of origin. Let copies of this order be sent to the said two authorities imm ediately. Further, a copy of this order be also furnished to Ms. K.K. Choudhury, learned state counsel for her communication with the said two authorities.