Allowed

Sandhya Bala Sarkar @ Sandhya Sarkar v. the Union of India and 5 Ors.

Gauhati HC4 May 2018WP(C)/2706/2018

Case brief

AI extract

What is this about?

In a writ petition under Article 226, the Gauhati High Court set aside the Foreigners' Tribunal order declaring the petitioner a foreigner due to her failure to appear for cross-examination. The Court directed the Tribunal to grant her another chance to face cross-examination and conclude proceedings within 30 days, reserving merit for later.

What did the court decide?

Set aside the order dated 26.07.2017 and directed the petitioner to appear before the Tribunal on 22.05.2018 for cross-examination.

Sandhya Bala Sarkar @ Sandhya Sarkar… — Constitutional and Fundamental Rights | Gauhati HC (2018)

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GAHC010087912018

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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) 2706/2018

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1:SANDHYA BALA SARKAR @ SANDHYA SARKAR D/O LT. UPEN SARKAR @ UPENDRA NATH SARKAR W/O SRI SANTI RAM SARKAR R/O VILL- JAMDOHA PT.II, P.S.MANIKPUR DIST. BONGAIGAON, ASSAM

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VERSUS

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1:THE UNION OF INDIA AND 5 ORS.

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REP. BY THE SECRETARY TO THE MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, NEW DELHI.

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2:THE STATE OF ASSAM

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REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM

HOME DEPARTMENT

DISPUR

GUWAHATI - 06.

3:THE ELECTION COMMISSION OF INDIA REP. BY ITS CHIEF COMMISSIONER NIRVACHAN SADAN ASHOKA ROAD

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NEW DELHI.

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4:THE DEPUTY COMMISSIONER BONGAIGAON DIST. BONGAIGAON ASSAM.

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5:THE SUPERINTENDENT OF POLICE (B) BONGAIGAON

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P.O. AND DIST. BONGAIGAON ASSAM

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6:THE STATE CO-ORDINATOR (NRC) ASSAM BHANGAGARH DIST. KAMRUP (M) ASSA

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Advocate for the Petitioner : MR H J TAMULI

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

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BEFORE

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HONBLE MR. JUSTICE UJJAL BHUYAN HON BLE MR. JUSTICE NELSON SAILO

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ORDER

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Date : 04-05-2018

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(Ujjal Bhuyan, J)

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Heard Mr A K Gupta, 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 26.07.2017, passed by the Foreigners’ Tribunal No. 1, Bongaigaon, in BNGN/FT/Case No. 1447 of 2008 ( State –Vs- Sandhya Bala Sarkar), declaring the petitioner to be a foreigner, who had illegally entered into India (Assam) from Bangladesh after 25.03.1971.

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A perusal of the order dated 26.07.2017 would go to show that after receipt of notice issued by the Tribunal, petitioner had entered appearance before the Tribunal and filed written statement. Thereafter, she had filed her evidence-in-chief by way of affidavit. However, when the turn for crossexamination came, she stopped appearing before the Tribunal. Taking the view that mere filing of written statement and evidence-in-chief by way of affidavit was not enough, Tribunal passed the order dated 26.07.2017, answering the reference in favour of the State in the above manner.

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Learned counsel for the petitioner submits that after filing her evidence-in-chief by way of affidavit petitioner suffered from acute infective hepatitis, for which she had to take medical assistance and was advised bed rest. This was the reason for her default before the Tribunal.

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However, learned Special Counsel supported the order passed by the Tribunal.

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After hearing learned counsel for the parties and on due consideration, we feel that it would be in

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the interest of justice if one more opportunity is granted to the petitioner to face the cross-examination. Consequently, we set aside the order dated 26.07.2017 and direct the petitioner to appear before the Foreigners’ Tribunal No. 1, Bongaigaon in connection with BNGN/FT/Case No. 1447 of 2008 on 22.05.2018 at 10:30 am, whereafter, Tribunal shall proceed with the reference from the stage of crossexamination of the petitioner and conclude the same within a period of 30 (thirty) days from the date of appearance.

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Needless to say, if there is any default on the part of the petitioner henceforth, Tribunal would be at liberty to pass such order(s) as may be deemed fit and proper.

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8 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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This disposes of the writ petition.

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Registry to inform the concerned Foreigners’ Tribunal, Superintendent of Police (Border) and Deputy Commissioner for taking necessary follow-up steps.

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A copy of this order may also be furnished to learned Standing Counsel, Election Commission of India and, State Coordinator, National Register of Citizens (NRC), for doing the needful.

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JUDGE JUDGE

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Comparing Assistant

Sandhya Bala Sarkar @ Sandhya Sarkar v. the Union of India and 5 Ors.

Case brief

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Sandhya Bala Sarkar @ Sandhya Sarkar v. the Union of India and 5 Ors.

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