Partly allowed

Md. Asab Uddin v. the State of Assam and 4 Ors.

Gauhati HC9 Feb 2018WP(C)/6242/2016

Case brief

AI extract

What is this about?

The High Court quashed an ex parte Foreigners Tribunal order passed due to the petitioner's default in appearing for evidence. The court remanded the matter to the Tribunal for fresh consideration from the stage of adducing evidence.

What did the court decide?

The order dated 29.12.2015 was set aside and the matter remanded to the Tribunal for fresh consideration from the stage of adducing evidence by 08.03.2018.

Md. Asab Uddin Vs the State of Assam… — Constitutional and Fundamental Rights | Gauhati HC (2018)

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GAHC010027372016

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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) 6242/2016

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1:MD. ASAB UDDIN

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S/O. LT. IRMAN ALI, VILL. CHARLOK, P.S. JAMUNAMUKH, DIST NAGAON ASSAM.

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VERSUS

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1:THE STATE OF ASSAM AND 4 ORS

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REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI.

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2:THE STATE OF ASSAM REP. BY THE COMMISSIONER and SECRETARY TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GUWAHATI -781006.

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3:THE DIRECTOR GENERAL OF POLICE ASSAM ULUBARI GUWAHATI -781007

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4:THE SUPRINTENDENT OF POLICE BORDER NAGAON DIST. NAGAON ASSAM.

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5:THE OFFICER-IN CHARGE DOBOKA P.S. DIST. NAGAON ASSAM. 6:THE DEPUTY COMMISSIONER NAGAON DIST. NAGAON ASSAM

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Advocate for the Petitioner : MRS M ABDULLAH P

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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 : 09-02-2018

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(Ujjal Bhuyan, J.)

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Heard Mr. B.K. Das, learned counsel for the petitioner and Mr. A. Kalita, learned Standing Counsel, Home and Political Department (FT), Govt. of Assam.

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By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 29.12.2015 passed by the Foreigners Tribunal, Nagaon Court No.10^th at Doboka in FT(D) Case No.217/2015 (State Vs. Md. Amser Uddin) 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 06.10.2016 had issued notice while requisitioning the case record and had 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), Hojai and furnishing of adequate surety.

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On going through the order dated 29.12.2015, we find that notice issued by the Tribunal was served upon the petitioner whereafter petitioner had entered appearance before the Tribunal along with his lawyer and subsequently filed written statement on 17.10.2015. When the turn for evidence came, petitioner defaulted in his appearance before the Tribunal. In such circumstances, Tribunal decided to proceed ex parte and having regard to the mandate of Section 9 of the Foreigners Act, 1946, answered the reference in favour of the State in the above manner.

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From the order-sheet, we find that petitioner had filed application on 21.11.2015 seeking time for filing his evidence-in-chief which was rejected. On 05.12.2015, petitioner filed his evidence-in-chief but was rejected by the Tribunal on the ground that prayer for time

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was already rejected on 21.11.2015. Therefore, impugned order was passed on 29.12.2015.

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Though learned counsel for the petitioner tried to argue that petitioner is Md. Asab Uddin and not Md. Amser Uddin against whom reference was made, we are not inclined to enter into this factual aspect of the matter. As a matter of fact, in the application filed by the petitioner before the Tribunal on 03.12.2015, he had stated that his name was wrongly recorded in the reference as Md. Amser Uddin, son of Iman Ali whereas the correct name should be Md. Asab Uddin, son of Md. Irman Ali. Therefore, it is not the petitioner’s case that the reference did not pertain to him.

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Be that as it may, we feel that since petitioner had already filed his written statement, it would be in the interest of justice if the petitioner is granted one more opportunity to adduce evidence and contest the reference on merit.

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Consequently, we set aside the order dated 29.12.2015 and remand the matter back to the Tribunal for fresh consideration from the stage of adducing evidence. Petitioner shall now appear before the Foreigners Tribunal, Nagaon Court No.10^th at Doboka in connection with FT(D) Case No.217/2015 on 08.03.2018 at 10.30 am whereafter Tribunal shall proceed with the reference in accordance with law from the stage of evidence 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 appropriate order that 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, 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

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Comparing Assistant

Md. Asab Uddin v. the State of Assam and 4 Ors.

Case brief

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Md. Asab Uddin v. the State of Assam and 4 Ors.

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