Allowed

Dipak Sarkar v. the Union of India and 3 Ors.

Gauhati HC2 Apr 2018WP(C)/2548/2016

Case brief

AI extract

What is this about?

The Gauhati High Court exercised its writ jurisdiction to set aside ex-parte orders passed by the Foreigners Tribunal against the petitioner. Considering the petitioner's health conditions which prevented him from contesting the reference within the limitation period, the Court granted him a final opportunity to appear before the Tribunal and submit a written statement.

What did the court decide?

Set aside the ex-parte orders dated 26.11.15 and 30.03.15; directed the petitioner to appear before the Foreigners Tribunal on 03.05.2018 with a written statement to contest the reference on merit.

Dipak Sarkar Vs the Union of India and… — Constitutional and Fundamental Rights | Gauhati HC (2018)

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Page No.# 1/3

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GAHC010014192016

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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) 2548/2016

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1:DIPAK SARKAR

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S/O- LT. SUNIL SARKAR, VILL.- HOLOKHOWA, P.S.- BARPATHER, DIST.KARBI ANGLONG.

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VERSUS

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1:THE UNION OF INDIA and 3 ORS

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REP. BY THE CHIEF SECY. TO THE GOVT. OF INDIA, DEPTT. OF HOME, NEW DELHI.

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2:THE STATE OF ASSAM REP. BY THE SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY- 6. 3:THE DY. COMMISSIONER DIST.- KARBI ANGLONG DIPHU ASSAM.

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4:THE SUPERINTENDENT OF POLICE B DIST.- KARBI ANGLONG DIPHU ASSAM

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Advocate for the Petitioner : MR.A SARKAR

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Advocate for the Respondent :

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

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ORDER

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Date : 02-04-2018

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Ujjal Bhuyan, J.

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Heard Mr. P.C. Dey, 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 30.03.15, passed by the Foreigners Tribunal, Diphu in FT Case No. 267/06 (State Vs. Dipak Sarkar), declaring the petitioner to be a foreigner.

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It is seen that notice issued by the Tribunal was served upon the petitioner but petitioner did not respond to such notice. In such circumstances, Tribunal decided to proceed ex-parte whereafter, order dated 30.03.15 was passed answering the reference in favour of the State, in the above manner.

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Petitioner filed an application for setting aside the above ex-parte order, which was registered as Misc. Case No. 20/2015. By order dated 26.11.15, Tribunal dismissed the said application on the ground that it was filed beyond the period of limitation. Be it sated that Section 3A(1) of the Foreigners (Tribunals) Order, 1964 an application for setting aside exparte order is required to be filed within 30 days of such order.

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Learned Counsel for the petitioner submits that petitioner was suffering from severe asthma and tuberculosis because of which he could not pursue the reference.

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Learned Special Counsel submits that in the facts and circumstances of the case, Court may consider passing appropriate order.

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Though it is true that a petition for setting aside an ex-parte order is required to be filed within the period of limitation, the same by itself cannot be an absolute bar for not considering such a prayer made if a proceedee is able to show good grounds for not filing the petition within the prescribed period. Having regard to the health condition of the petitioner, we feel that it would be in the interest of justice if one more opportunity is granted to the

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petitioner to contest the reference on merit.

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Consequently, we set aside the orders dated 26.11.15 & 30.03.15 and direct the petitioner to appear before the Foreigners Tribunal, Diphu in connection with FT Case No. 267/06 (State Vs. Dipak Sarkar) along with his written statement on 03.05.2018 at 10.30 am whereafter, Tribunal shall proceed with the reference in accordance with law and conclude the same within a period of 60 days from such appearance.

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It is made clear that if there is any default on the part of the petitioner henceforth, Tribunal would be at liberty to pass such order as may be deemed fit and proper.

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

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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 (Border) for necessary follow-up steps.

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

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JUDGE JUDGE

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Biplab

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Comparing Assistant

Dipak Sarkar v. the Union of India and 3 Ors.

Case brief

What is this about?

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Dipak Sarkar v. the Union of India and 3 Ors.

Case brief

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