Allowed

Kati Ram Das v. the Union of India and 2 Ors.

Gauhati HC5 Feb 2018WP(C)/4809/2016

Case brief

AI extract

What is this about?

In a writ petition under Article 226, the Gauhati High Court set aside an ex parte order declaring the petitioner a foreigner. The court granted another opportunity to the petitioner to appear and contest the reference before the Foreigners Tribunal.

What did the court decide?

Ex parte order dated 28.01.2016 set aside; petitioner directed to appear before Foreigners Tribunal No. 4 on 05.03.2018; Tribunal to conclude reference within 60 days.

Kati Ram Das Vs the Union of India and 2 Ors. — Criminal Trial and Appeal | Gauhati HC (2018)

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GAHC010022602016

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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) 4809/2016

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1:KATI RAM DAS S/O- LT. SACHIN DAS @ SACHINDRA KOCH, VILL.- PUBPAR JATIA BHANGARA, P.O.- SUTAR GAON, P.S.- BAIHATA CHARIALI, DIST.- KAMRUP, ASSAM.

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VERSUS

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1:THE UNION OF INDIA

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REP. BY THE SECY., MINISTRY OF HOME AFFAIRS, NEW DELHI- 110001.

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2:STATE OF ASSAM REP. BY THE SECY. HOME DEPTT.

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3:SUPERINTENDENT OF POLICE B DHUBRI.

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4:THE DY. COMMISSIONER DHUBR

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Advocate for the Petitioner : MR.H J TAMULI

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Advocate for the Respondent :

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

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ORDER

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Date : 05-02-2018

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(Ujjal Bhuyan, J.)

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Heard Mr. A.K. Sharma, learned counsel for the petitioner and Mr. S.P. Choudhury, learned Govt. Advocate, Assam.

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By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 28.01.2016 passed by the Foreigners Tribunal-4^th , Dhubri in Case No. FT-4/234/2015 (Union of India vs. Kati Ram Das) 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 28.01.2016 would go to show that initially the reference was made by the Superintendent of Police (Border), Dhubri under the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) with the allegation that petitioner was an illegal migrant as defined under the said Act, i.e., a foreigner unauthorisedly entering into India after 25.03.1971. The reference was registered as IMDT Reference Case No.4753/1988. After the IMDT Act was declared unconstitutional by the Supreme Court in Sarbananda Sonowal Vs. Union of India, (2005) 5 SCC 665, the reference was transferred to the Foreigners Tribunal No.1 and after creation of additional Tribunals, to the Foreigners Tribunal No.4, Dhubri where it was re-registered as Case No.FT-4/234/2015.

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Order dated 28.01.2016 indicates that notice issued by the Tribunal was served upon the petitioner in a substituted manner by affixing a copy of the notice on the wall of the house where the petitioner had last resided. Since petitioner did not respond to such notice, Tribunal decided to proceed ex parte and having regard to the mandate of Section 9 of the Foreigners Act, 1946, Tribunal passed the order dated 28.01.2016 answering the reference in favour of the State in the above manner.

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Petitioner filed an application for setting aside the ex parte order which was however rejected by the Tribunal vide order dated 24.06.2016 by holding that no special or exceptional circumstances could be demonstrated by the petitioner preventing him from contesting the

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reference.

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Aggrieved, present writ petition has been filed.

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This Court by order dated 06.09.2016 had issued notice while requisitioning the case record and passed an interim order to the effect that petitioner should be allowed to remain on bail subject to his appearance before the Superintendent of Police (Border), Dhubri and furnishing of adequate surety.

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Learned counsel for the petitioner submits that petitioner is an employee of Assam Power Distribution Company Ltd (APDCL) and originally hails from Baihata Chariali in Kamrup district. At the relevant point of time, he was posted at Gauripur in the district of Dhubri and was residing in a camp. He submits that no notice was served upon the petitioner in the camp where he was residing.

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Learned Govt. Advocate submits that having regard to the facts and circumstances of the case, Court may consider passing appropriate order.

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Submissions made by learned counsel for the parties have been considered. Also perused the materials on record.

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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.

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Accordingly, we set aside the order dated 28.01.2016 and direct the petitioner to appear before the Foreigners Tribunal No.4, Dhubri in connection with Case No.FT4/234/2015 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.

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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 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 the merit of the case.

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Writ petition is disposed of.

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

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Copies of this order may also be furnished to learned Standing Counsel, Election Commission of India and State Coordinator, NRC, Assam.

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JUDGE JUDGE