Allowed

Smti. Dipika Saha v. the Union of India and 4 Ors.

Gauhati HC4 Apr 2018WP(C)/3670/2016

Case brief

AI extract

What is this about?

This Court, via writ petition, set aside ex-parte orders of the Foreigners Tribunal against the petitioner. The Court directed the petitioner to appear and produce evidence, mandating the Tribunal to conclude proceedings within 60 days without expressing an opinion on merit.

What did the court decide?

Set aside orders dated 03.04.2012 and 21.11.2015; direct petitioner to appear before Foreigners Tribunal with evidence on 26.04.2018; Tribunal to conclude proceedings within 60 days.

Smti. Dipika Saha Vs the Union of… — Constitutional and Fundamental Rights | Gauhati HC (2018)

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Page No.# 1/4

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GAHC010113822016

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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) 3670/2016

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1:SMTI. DIPIKA SAHA

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W/O SRI BHARAT CHANDRA SAHA D/O AMULYA CHANDRA SAHA @ AMULYA SAHA @ AMULYA KUMAR SAHA R/O VIL- LAKHIPUR TOWN, WARD NO. 2, DEVIBARI, P.S. LAKHIPUR, DIST. GOALPARA, ASSAM.

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VERSUS

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1:THE UNION OF INDIA AND 4 ORS

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THROUGH HOME SECRETARY, MINISTRY OF HOME, GOVT. OF INDIA, NEW DELHI.

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2:THE STATE OF ASSAM REP. BY THE SECRETARY DEPARTMENT OF HOME AFFAIRS GOVT. OF ASSAM DISPUR GUWAHATI- 781006.

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3:SUPERINTENDENT OF POLICE B DIST. GOALPARA ASSAM.

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4:THE OFFICER-IN-CHARGE LAKHIPOUR POLICE STATION DIST. GOALPARA ASSAM.

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5:THE DEPUTY COMMISSIONER GOALPARA DISTRICT- GOALPARA ASSAM

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Page No.# 2/4

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Advocate for the Petitioner : MR.H A SARKAR

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Advocate for the Respondent : GA, ASSAM

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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 : 04-04-2018

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Ujjal Bhuyan, J.

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Heard Mr. B Acharyya, learned counsel for the petitioner and Mr. A Kalita, 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 03.04.12, passed by the Foreigners Tribunal, Goalpara in FT Case No. 154/G/06 (State Vs. Dipika Saha), declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from Bangladesh after 25.03.1971 as well as order dated 21.11.2015, passed by the Foreigners Tribunal No.1, Goalpara rejecting the application filed by the petitioner for setting aside the aforesaid order.

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This Court by order dated 18.08.2016 while requisitioning the case record had passed an interim order to the effect that petitioner should be allowed to remain on bail subject to her appearance before the Superintendent of Police (Border), Goalpara and furnishing of adequate surety.

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We find that order dated 03.04.2012 was passed by the Tribunal due to failure of the petitioner to adduce evidence. On going through the order dated 03.04.2012, we find that after notice was served upon the petitioner, she had entered appearance and thereafter filed written statement, but when the turn for evidence came, petitioner started taking adjournments and ultimately failed to adduce any evidence compelling the Tribunal to proceed with the reference. Since the facts pleaded in the written statement were not proved, Tribunal answered the reference in favour of the State in the manner vide order dated 03.04.2012. At that stage, petitioner had approached this Court by filing WP(C)

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No.3051/2012. This Court by order dated 28.09.2015 disposed of the writ petition by giving liberty to the petitioner to file application before the Tribunal for setting aside the aforesaid order, as it was for all intent and purpose an ex-parte order. However, on such application being filed, Foreigners Tribunal No.1, Goalpara vide the order dated 21.11.2015 rejected such application by taking the view that no good ground could be shown by the petitioner for setting aside the ex-parte order.

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Learned counsel for the petitioner submits that Tribunal failed to appreciate the spirit of the High Court order when it had granted liberty to the petitioner to approach the Tribunal. View taken by the Tribunal is too technical and would not subserve the cause of justice.

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On the other hand, Mr. Kalita supports the order passed by the Tribunal.

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After hearing learned counsel for the parties and on going through the record, we are of the view that though there was considerable default by the petitioner and to that extent, the order passed by the Tribunal cannot be faulted, however, having said that, we are also of the view that in a proceeding of this nature, an opinion on merit is more desirable.

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That being the position and taking an overall view of the matter, we set aside the orders dated 03.04.2012 & 21.11.15 and direct the petitioner to appear before the Foreigners Tribunal No.1, Goalpara in connection with FT Case No.154/G/06 (State Vs. Dipika Saha) along with her evidence-in-chief by way of affidavit on 26.04.2018 at 10.30 am whereafter, Tribunal shall proceed with the reference from the stage of adducing evidence by the petitioner 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

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India and State Coordinator, NRC.

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JUDGE JUDGE Biplab

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Comparing Assistant

Smti. Dipika Saha v. the Union of India and 4 Ors.

Case brief

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Smti. Dipika Saha v. the Union of India and 4 Ors.

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