Uni on of India v. Sonaullah Seikh) seeks to challenge the said order. The impugned order dated
Case Details
WP(C) 2739/2013 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA Heard Mr. M.U. Mondal, learned counsel for the petitioner. Also heard Mr. M. Bha gawati, learned CGC and Mr. J.U. Laskar, learned State Counsel. By means of this writ petition the petitioner, who has been declared to be a for eign national by order dated 4.4.2013 passed by the learned Member, Foreigners T ribunal, Goalpara in F.T. Case No. 4650/G/2011 (Ref Dist. Case No. 8-33/38) (Uni on of India Vs. Sonaullah Seikh) seeks to challenge the said order. The impugned order dated 4.4.2013 is an ex-parte order as the petitioner after initial respo
Decision
nse did not participate in the proceeding before the Tribunal. The petitioner himself has described in paragraph-6 of the writ petition that he failed to appear before the Tribunal on 11.7.2012, 1.9.2012, 4.10.2012, 5.11.20 12, 3.1.2013 and 4.4.2013, but there is absolutely no explanation as to why he d id not appear on those dates. According to the petitioner, his engaged counsel a lso did not appear on those dates and accordingly the impugned ex-parte order da ted 4.4.2013 was passed. As per the amendment in Foreigners (Tribunal) Order 1964 brought in 2012, a proc eeding is required to be disposed of by the Foreigners Tribunal within 60 days. In the instant case, the petitioner on receipt of the notice appeared and prayed for time to file written statement. The case was fixed on 22.5.2012, on which d ate, the petitioner remained absent. However, on the basis of the prayer made by his engaged counsel, the matter was adjourned to 11.7.2012. On that day also, t he petitioner was absent and no steps was taken. The learned Tribunal with due c aution fixed the matter on 26.7.2012. By that time, more than 4 months had elaps ed. On 26.7.2012, the petitioner submitted his written statement and filed Petit ion No. 1839 stating that due to shortage of document, he was unable to adduce e vidence and prayed for another date. The learned Tribunal granted the prayer and fixed the matter on 1.9.2012 for evidence of the respondents. On 1.9.2012, the petitioner remained absent. However, his engaged counsel filed a petition No. 2048 stating therein that the petitioner could not collect the do cument and accordingly prayed for time. As recorded in the order of the Tribunal , there was no explanation as to why the petitioner remained absent. Be that as it may, the learned Tribunal fixed the matter on 9.10.2012 for evidence of the p etitioner, on which date also, the petitioner did not appear. However, his engag ed counsel filed Petition No. 2324 assigning the ground of illness of the petiti oner resulting in his non-appearance. The case was adjourned to 5.11.2012 with a note of caution. However, as usual, the petitioner again filed Petition No. 256 9 on 5.11.2012 praying for time on the ground of inability to obtain the documen t. The Tribunal granted time as a last chance and the matter was fixed on 3.1.20 13, on which date, because of the bandh called given by an organization, the Cou rt did not function. However, the petitioner did not appear, but a petition was filed praying for another date. In the above circumstances, the Tribunal adjourned the matter till 13.3.2013 as a last chance. On 13.3.2013 also, the petitioner could not adduce any evidence. As recorded in the impugned order, because of the adjournments granted to the pe titioner from time to time, about one year had elapsed. It was in such circumsta nces, the Tribunal had to pass the impugned order. Now coming to the Writ Court, in paragraph-6 of the writ petition, the petitione r has stated thus: (cid:28)That the petitioner begs to state that on 11.4.2012 and 22.5.2012 he appeared b efore the Tribunal and he failed to appear on 11.7.2012, 1.9.2012 , 4.10.2012, 5.11.2012 and 3.1.2013 as well as 4.4.2013. The learned engaged advocate also did not appear on those dates and accordingly on 4.4.2013 ex-parte judgment an d order was passed for the negligence of the learned engaged advocate and as suc h the petitioner has been declared as a foreigner under Section 2(A) of the Fore igners Act, 1946 by ex-parte judgment and order dated 4.4.2013 and as such in te rms of the Full bench decision of this Hon’ble High Court, the matter may be rem anded to the learned Tribunal for fresh trial by setting aside the ex-parte judg ment and order otherwise the petitioner would suffer irreparable loss and hardsh ips. (cid:29) From the above, no ground as such to set aside the ex-parte order is discernible . Mr. Mondal, learned counsel for the petitioner submits that because of the fau lt of the engaged counsel of the petitioner, the proceeding resulted in ex-parte order. In paragraph-6 of the writ petition except stating that there was also n egligence on the part of the engaged counsel, there is no other explanation as t o why the petitioner could not adduce any evidence inspite of granting several o pportunities. In State of Assam Vs. Moslem Mondal reported in 2013 (1) GLT 809, the Full Bench of this Court while recongising the right of the proceedee to pra y for setting aside an ex-parte order of the Tribunal, issued a note of caution that the said procedure cannot be a matter of course, otherwise the very purpose of enacting the 1946 Act and the 1964 Order would be frustrated. For a ready re As discussed above, the Tribunals constituted under the Foreigners Act r ference, paragraph-92 of the 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) Although by order dated 3.6.2013, the petitioner was allowed to implead the enga ged counsel as a party respondent, but as submitted by Mr. Mondal, learned couns el for the petitioner, the application seeking his impleadment has been filed on ly on 7.8.2013 i.e. more than 2 months of the said order dated 3.6.2013. Having regard to the particular allegation made against the engaged counsel in paragrap h-6 of the writ petition quoted above, irrespective of the said engaged counsel having been impleaded as party respondent in this proceeding or not, result is i nevitable which is dismissal of the writ petition. In view of the above, the writ petition is dismissed. The Deputy Commissioner an d S.P., Goalpara are directed to delete the name of the petitioner from the vote r list and to detain her in detention camp till she is deported to her country o f origin. Let a copy of this order be furnished to Mr. J.U. Laskar, learned State Counsel for his necessary communication with Deputy Commissioner and S.P. Goalpara. Regi stry shall also furnish copies of this order to the Deputy Commissioner and S.P. Goalpara for their necessary follow up action. Another copy be furnished to the Union of India, New Delhi.