Writ petition seeking quashing of order declaring petitioner a foreigner. Bench set aside previous tribunal orders granting one opportunity to petitioner to appear and contest the reference.
Ex parte orders dated 19.11.2014 and 10.05.2016 set aside. Petitioner directed to appear before Foreigners Tribunal No.3 along with written statement.
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GAHC010022302016
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 4707/2016
1:MD. AFAJUDDIN
S/O- MD. IMAMUDDIN @ IMANUDDIN, VILL.- GERUA, P.S.- KHATOWAL, DIST.- NAGAON, ASSAM.
VERSUS
1:THE UNION OF INDIA
REP. BY THE SECY. TO THE GOVT. OF INDIA, DEPTT. OF HOME AFFAIRS, NEW DELHI.
2:THE STATE OF ASSAM
REP. BY THE COMMISSIONER and SECY. HOME AND POLITICAL B DEPTT. DISPUR.
3:THE SUPERINTENDENT OF POLICE BORDER NAGAON ASSAM.
4:THE DY. COMMISSIONER NAGAON ASSAM.
5:THE OFFICER -IN- CHARGE KHATOWAL POLICE STATION NAGAON ASSAM
Advocate for the Petitioner : MR.B C DAS
Advocate for the Respondent : ASSTT.S.G.I.
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BEFORE HON BLE MR. JUSTICEUJJAL BHUYAN HONBLE MR. JUSTICE NELSON SAILO
ORDER
Date : 02-02-2018
(Ujjal Bhuyan, J.)
Heard Mr. B.C. Das, learned counsel for the petitioner and Mr. G. Pegu, learned Govt. Advocate, Assam.
By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 19.11.2014 passed by the Foreigners Tribunal-2nd , Nagaon in FT Case No. 136/2011 (State of Assam vs. Md. Afazuddin) declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from Bangladesh on or after 25.03.1971.
A perusal of the order dated 19.11.2014 would indicate that petitioner had failed to submit written statement as he remained absent. In such circumstances, Tribunal decided to proceed ex parte whereafter order dated 19.11.2014 was passed answering the reference in favour of the State in the above manner.
Application filed by the petitioner for setting aside ex parte order was registered as Misc. Case No.05/2015. Since there was delay in filing the aforesaid application, petitioner also filed an application for condonation of delay. In the meanwhile, following creation of additional Tribunals and re-organisation of the jurisdiction of the Foreigners Tribunals, case records of FT Case No.136/2011 were transmitted to the Foreigners Tribunal No.3, Nagaon. Ground given for the default and delay was illness of the petitioner. Tribunal took the view that medical certificates filed by the petitioner were doubtful and those were not accompanied by any prescription. In that view of the matter, Tribunal rejected the application for setting aside the ex parte order vide order dated 10.05.2016.
Aggrieved, present writ petition has been filed.
This Court by order dated 06.09.2016 had issued notice while requisitioning the case record and had passed an interim order to the effect that petitioner should be allowed to
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remain on bail subject to his appearance before the Superintendent of Police (Border), Nagaon and furnishing of adequate surety.
We have heard submissions made by learned counsel for the parties and have perused the materials on record, including the record requisitioned from the Tribunal.
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. Consequently, we set aside the orders dated 19.11.2014 and 10.05.2016 and direct the petitioner to appear before the Foreigners Tribunal No.3, Nagaon in connection with FT Case No. 136/2011 along with his written statement on 05.03.2018 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 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 as may be deemed fit and proper.
Before parting with the record, we make it clear that we have not expressed any opinion on merit.
Writ petition is disposed of.
Registry to inform the concerned Foreigners Tribunal, Superintendent of Police (Border) and Deputy Commissioner for necessary follow-up steps.
Copies of this order may also be furnished to learned Standing Counsel, Election Commission of India and State Coordinator, NRC, Assam.
JUDGE JUDGE
Comparing Assistant
2 issues framed by the court
Whether the petitioners application to set aside the ex parte order of the Foreigners Tribunal should be allowed considering the delay and doubtful medical certificates filed by him.
Whether one more opportunity should be granted to the petitioner to contest the reference on merit in the Foreigners Tribunal case.
MD. AFAJUDDIN
THE UNION OF INDIA
THE STATE OF ASSAM
Ujjal Bhuyan
Nelson Sailo
As recorded by the court registry
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