Petitioner sought quashing of an ex-parte order declaring him a foreigner. Court granted one more opportunity to appear before the Foreigners Tribunal before deciding on merits.
Order dated 27.07.2017 set aside; petitioner directed to appear before Foreigners Tribunal No. 5 on 07.06.2018 to contest reference.
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GAHC010091682018
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 2994/2018
1:SAMIRAN NESSA @ SOMIRON NESSA D/O. LT. SONAULLAH @ SONAULLAH SK @ SHONA ULLLA, R/O. VILL.KODAMTOLA, GOPALPUR, P.S. MATIA, DIST.- GOALPARA, ASSAM.
VERSUS
1:THE UNION OF INDIA AND 6 ORS.
THROUGH THE SECRETARY, MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, NEW DELHI- 110001
2:THE STATE OF ASSAM THROUGH THE SECRETARY GOVT. OF ASSAM POLITICAL (B) GUWAHATI- 781006
3:THE DIRECTOR GENERAL OF POLICE ASSAM ULUBARI GUWAHATI- 781007
4:THE SUPERINTENDENT OF POLICE (B) GOALPARA P.O. AND DIST. GOALPARA PIN- 783101.
5:THE DEPUTY COMMISSIONER GOALPARA ASSAM PIN- 783101
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6:THE ELECTION COMMISSION OF INDIA THROUGH THE ELECTION COMMISSION OF INDIA NIRVACHAN SADAN ASHOKA ROAD NEW DELHI- 1100001
7:THE STATE COORDINATOR NATIONAL REGISTER OF CITIZENS
Advocate for the Petitioner : MR. I H SAIKIA
Advocate for the Respondent : ASSTT. S.G.I.
BEFORE
HON'BLE MR. JUSTICE UJJAL BHUYAN HON'BLE MR. JUSTICE NELSON SAILO
ORDER
Date : 16-05-2018
(UJJAL BHUYAN, J)
Heard Mr. I. H. Saikia, learned counsel for the petitioner and Mr. J. Payeng, learned Special Counsel, Foreigners Tribunal (FT).
By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 27.07.2017 passed by the Foreigners Tribunal No.5 at Goalpara in FT Case No. FT/5/193/MO/2017(Union of India Vs Samiran Nessa) declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from Bangladesh on or after 25.03.1971.
On a perusal of order dated 27.07.2017 it would go to show that notice issued by the Tribunal was returned unserved as none in the village could point out the residence of the petitioner. Therefore, notice was issued by the Tribunal second time which was served upon the brother of the petitioner. Despite service of notice, petitioner did not appear before the Tribunal.
In such circumstances, Tribunal decided to proceed ex-parte whereafter order dated
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27.07.2017 was passed answering the reference in favour of the State in the above manner.
Learned counsel for the petitioner submits that there was default by the petitioner only on one date which was on account of illness.
After hearing learned counsel for the parties and on due consideration, we are of the view that it would be in the interest of justice, if one more opportunity is granted to the petitioner to contest the reference on merit.
Accordingly, we set aside the order dated 27.07.2017 and direct the petitioner to appear before the Foreigners Tribunal No. 5 at Goalpara in connection with FT Case No. FT/5/193/MO/2017 on 07.06.2018 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.
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.
Before parting with the record, we make it clear that we have not expressed any opinion on the merit of the case.
This disposes of the writ petition.
Registry to inform the concerned Foreigners’ Tribunal, Deputy Commissioner and Superintendent of Police (B) for doing the needful.
Copies of this order may also be furnished to learned Standing Counsel, Election Commission of India and State Coordinator, NRC.
JUDGE JUDGE
Comparing Assistant
1 issue framed by the court
Whether an opportunity should be granted to the petitioner to contest the extradition/fugitive reference on merit given his alleged procedural default.
SAMIRAN NESSA @ SOMIRON NESSA
THE UNION OF INDIA
THE STATE OF ASSAM
THE DIRECTOR GENERAL OF POLICE ASSAM
THE SUPERINTENDENT OF POLICE (B) GOALPARA
THE DEPUTY COMMISSIONER GOALPARA
UJJAL BHUYAN
NELSON SAILO
As recorded by the court registry
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