Allowed

Kulsum Bibi @ Mustt. Kulsom v. the Union of India and 5 Ors.

Gauhati HC8 Feb 2018WP(C)/5386/2016

Case brief

AI extract

What is this about?

The Gauhati High Court allowed a writ petition seeking quashing of an ex-parte order by the Foreigners Tribunal. The court observed the petitioner's procedural default was limited to one date and granted a fresh opportunity to appear and file a written statement.

What did the court decide?

Set aside the order dated 12.05.2014 passed by the Foreigners Tribunal and direct the petitioner to appear on 06.03.2018 to contest the reference.

Kulsum Bibi @ Mustt. Kulsom Vs the Union of India… — Writ and Judicial Review | Gauhati HC (2018)

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GAHC010024442016

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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) 5386/2016

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KULSUM BIBI @ MUSTT. KULSOM D/O- MOHAMMAD ALI, W/O- RAMJAN ALI, VILL.- DATIALBORI, P.S.LAHARIGHAT, DIST.- MORIGAON, ASSAM, PIN- 782127.

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VERSUS

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1:THE UNION OF INDIA and 5 ORS

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REP. BY THE COMMISSIONER AND SECY. TO THE GOVT. OF INDIA, HOME DEPTT., NEW DELHI- 1, INDIA.

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2:THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY- 6.

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3:THE ELECTORAL REGISTRATION OFFICER MORIGAON DIST.- MORIGAON ASSAM.

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4:THE DY. COMMISSIONER MORIGAON DIST.- MORIGAON ASSAM.

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5:THE SUPERINTENDENT OF POLICE B MORIGAON DIST.- MORIGAON ASSAM. 6:THE OFFICER IN-CHARGE LAHARIGHAT POLICE STATION VILL. P.O. and P.S.- LAHARIGHAT DIST.- MORIGAON

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ASSAM PIN- 782127

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Advocate for the Petitioner : MR.R A CHOUDHURY

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Advocate for the Respondent :

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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 : 08-02-2018

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(Ujjal Bhuyan, J)

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Heard Mr. Z. Hammad, learned counsel for the petitioner and Mr. H. K. Hazarika, 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 12.05.2014 passed by the Foreigners’ Tribunal (2^nd ), Morigaon in Case No. FT(D) 1145/2011 (State of Assam Vs Musstt. Kulsom) declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from Bangladesh after 25.03.1971.

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This Court by order dated 22.12.2016 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 her appearance before the Superintendent of Police (Border), Morigaon and furnishing of adequate surety.

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From a perusal of the order dated 12.05.2014, it is seen that notice issued by the Tribunal was duly served upon the petitioner whereafter she had appeared before the Tribunal on 23.12.2013 and sought for time to file written statement which was granted. On the next two dates i.e. on 07.02.2014 and 21.03.2014, petitioner sought for time which was granted. But on 12.05.2014, petitioner remained absent without steps. Consequently, Tribunal decided to proceed ex-parte and having regard to the mandate of Section 9 of the Foreigners’ Act, 1946 , passed the order dated 12.05.2014 answering the reference in favour of the State in the above manner.

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In the writ petition, we find that petitioner has made a statement in paragraph 6 that petitioner had filed written statement on 23.12.2013 alongwith certain documents but on going through the record including the order-sheet, we do not find that any such written statement was filed by the petitioner.

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Be that as it may, we find that there was default by the petitioner on one date only i.e. on 12.05.2014.

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After hearing learned counsel for the parties and on due consideration, we feel 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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Consequently, we set aside the order dated 12.05.2014 and direct the petitioner to appear before the Foreigners Tribunal (2^nd ), Morigaon in connection with FT(D) Case No. 1145/2011 alongwith her written statement on 06.03.2018 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.

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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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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, Deputy Commissioner and Superintendent of Police (B) for doing the needful.

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

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JUDGE JUDGE

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Comparing Assistant

Kulsum Bibi @ Mustt. Kulsom v. the Union of India and 5 Ors.

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Kulsum Bibi @ Mustt. Kulsom v. the Union of India and 5 Ors.

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