Allowed

Jyotsna Rani Ghosh v. the Union of India and 3 Ors.

Gauhati HC9 Apr 2018WP(C)/2114/2018

Case brief

AI extract

What is this about?

The High Court, in a writ petition seeking quashing of the Foreigners Tribunal's order declaring the petitioner a foreigner, set aside orders rejecting her review application due to delay and directed the Tribunal to summon the detained petitioner to appear and proceed within 60 days without expressing an opinion on the case merits.

What did the court decide?

Orders dated 16.02.2018 and 12.03.2001 set aside; petitioner directed to appear before Foreigners Tribunal by 03.05.2018; case to be concluded within 60 days; petitioner to be produced from detention.

Jyotsna Rani Ghosh Vs the Union of India and 3 Ors. — Quashing and FIR | Gauhati HC (2018)

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GAHC010058342018

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 2114/2018

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1:JYOTSNA RANI GHOSH

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W/O. LT. KALIPADA GHOSH, DAUGHTER OF MANGAL CHANDRA DAS, RESIDENT OF NAHARKATIA DAILY BAZAR, P.O. AND P.S. NAHARKATIA, DIST. DIBRUGARH, ASSAM.

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VERSUS

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1:THE UNION OF INDIA AND 3 ORS.

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REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI

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2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM HOME DEPARTMENT ASSAM SECRETARIAT DISPUR GUWAHATI-781006

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3:THE DEPUTY COMMISSIONER DIBRUGARH P.O. P.S. DISTRICT- DIBRUGARH ASSAM.

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4:THE SUPERINTENDENT OF POLICE (B) DIBRUGARH P.O. AND P.S. AND DISTRICT- DIBRUGARH ASSAM

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Advocate for the Petitioner : MR. R PHUKAN

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Advocate for the Respondent : ASSTT.S.G.I.

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BEFORE

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HON'BLE MR. JUSTICE UJJAL BHUYAN HON BLE MR. JUSTICE AJIT BORTHAKUR

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ORDER

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Date : 09-04-2018

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(Ujjal Bhuyan, J)

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Heard Mr. R. Phukan, learned counsel for the petitioner and Mr. J. Payeng, learned Special Counsel, Foreigners Tribunal (FT).

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By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 12.03.2001 passed by the Foreigners’ Tribunal, Dibrugarh in FT Case No. 93/2000 (State Vs Smti Jyosna Rani Ghose) declaring the petitioner to be a foreigner belonging to the 1966-1971 stream.

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A perusal of the order dated 12.03.2001 would go to show that as per the enquiry officer, petitioner was found to be an illegal foreigner belonging to the 1966-1971 stream.

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Notice was served upon the petitioner but petitioner did not appear. As a result, Tribunal decided to proceed ex-parte whereafter order dated 12.03.2001 was passed answering the reference in favour of the State, giving liberty to the petitioner to register her name as a foreigner belonging to the said stream before the Foreigners Regional Registration Officer.

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After almost 17 years petitioner filed an application for setting aside the aforesaid order dated 12.03.2001. By order dated 16.02.2018 the said application was rejected by the Foreigners Tribunal (2^nd ), Dibrugarh at Naharkatia as there was delay of almost 17 years.

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It appears that after the initial order dated 12.03.2001 was passed by the Foreigners Tribunal, Dibrugarh, the case record was transmitted to the Foreigners Tribunal (2^nd ), Dibrugarh at Naharkatia following creation of additional Tribunals.

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On going through the order dated 16.02.2018, it is seen that as per service report of the

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process server notice was served upon the petitioner on 11.02.2001 who accepted the same by putting her right thumb impression.

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Learned counsel for the petitioner submits that petitioner is an illiterate person and she did not realise the implications of the notice. He further submits that petitioner has sufficient documents to prove that she is not a foreigner. In any case as per the impugned order the finding is that petitioner is a foreigner belonging to the 1966-1971 stream.

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Learned Special Counsel submits that there is inordinate delay in approaching the Court which is unexplained. Controverting the submission of learned counsel for the petitioner, he submits that as per the Full Bench decision of this Court in State of Assam Vs. Moslem Mondal , reported in 2013 (1) GLT 809 if a person who is declared to be a foreigner of the said stream does not get himself registered before the competent authority within the time prescribed or within the extended period or within such time as may be provided, he being admittedly a foreigner would be liable to face legal consequences, i.e., detention and deportation.

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Upon hearing learned counsel for the parties and on going through the materials on record, we are inclined to grant one more opportunity to the petitioner to contest the reference on merit notwithstanding the long delay and default of the petitioner.

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Consequently, we set aside the orders dated 16.02.2018 and 12.03.2001 and direct the petitioner to appear before the Foreigners Tribunal (2^nd ), Dibrugarh at Naharkatia in connection with FT Case No. 93/2000 alongwith her written statement on 03.05.2018 at 10:30 a.m. whereafter Tribunal shall proceed with the reference in accordance with law and conclude the same within a period of 60 (sixty) days from the date of appearance.

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At this stage, learned counsel for the petitioner submits that petitioner was taken into custody and is presently lodged in the Dibrugarh Jail.

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In that view of the matter, Superintendent of Police (Border), Dibrugarh shall produce the petitioner from detention before the Tribunal on the date and time fixed as above.

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Before parting with the record, we make it clear that we have not expressed any opinion on the merit of the case.

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Writ petition is disposed of.

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Registry to inform the concerned Foreigners’ Tribunal, Deputy Commissioner and Superintendent of Police (B) for doing the needful.

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Copies of this order may also be furnished to learned Standing Counsel, Election Commission of India and State Coordinator, NRC.

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JUDGE JUDGE

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Comparing Assistant

Jyotsna Rani Ghosh v. the Union of India and 3 Ors.

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Jyotsna Rani Ghosh v. the Union of India and 3 Ors.

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