Allowed

Polu Ali @ Palu Sheikh v. the Union of India and 5 Ors.

Gauhati HC1 Oct 2018WP(C)/6588/2018

Case brief

AI extract

What is this about?

The Gauhati High Court allowed a writ petition assailing an ex parte order declaring the petitioner an illegal foreigner. The bench held that the petitioner was not granted adequate opportunity to contest the reference and set aside the order, directing the Foreigners Tribunal to conduct proceedings within 60 days.

What did the court decide?

Writ petition allowed; Impugned ex parte order dated 30.01.2018 set aside; Direction to appear and file written statement on 10.10.2018 and conclude proceedings within 60 days.

Polu Ali @ Palu Sheikh Vs the Union of… — Constitutional and Fundamental Rights | Gauhati HC (2018)

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Page No.# 1/3

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GAHC010204552018

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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) 6588/2018

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1:POLU ALI @ PALU SHEIKH

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S/O- LT GADULLA MIAH @ GADU, PERMANENT R/O- VILL- RAWMARI GAON, P.S. TARAPUR, DIST- BARPETA, ASSAM, PRESENTLY RESIDING AT VILL CHATIPUR EAST, P.S. DHALIGAON, DIST- CHIRANG (BTAD), ASSAM, PIN- 781309

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VERSUS

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1:THE UNION OF INDIA AND 5 ORS.

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THROUGH THE MINISTRY OF HOME AFFAIRS, GRIHA MANTRALAYA, NEW DELHI- 110001

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2:THE STATE OF ASSAM THROUGH THE SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY-6

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3:THE ELECTION COMMISSION OF INDIA NIRVACHAN SADAN ASOKA ROAD NEW DELHI- 110001

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4:THE STATE CO-ORDINATOR NATIONAL REGISTRATION OF CITIZEN ASSAM BHANGAGARH GHY-6

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5:THE DY. COMMISSIONER CHIRANG

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P.O. KAJALGAON DIST- CHIRANG (BTAD) ASSAM PIN- 783385

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6:THE SUPERINTENDENT OF POLICE (B) P.O. KAJALGAON DIST- CHIRANG (BTAD) ASSAM PIN- 78338

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Advocate for the Petitioner : MR. A DAS

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Advocate for the Respondent : ASSTT.S.G.I.

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BEFORE

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HONOURABLE MR. JUSTICE MANOJIT BHUYAN HONOURABLE MR. JUSTICE PRASANTA KUMAR DEKA

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ORDER

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Date : 01-10-2018

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(Manojit Bhuyan, J.)

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Heard Mr. A. Das, learned counsel for the petitioner as well as Ms. G. Sarmah, learned counsel for respondent no. 1; Mr. A. Kalita, learned counsel for respondent nos. 2, 5 and 6; Mr. A.I. Ali, learned counsel for respondent no. 3 and Mr. G. Taye, learned counsel for respondent no. 4. Petitioner assails the order/opinion dated 30.01.2018 passed by the Foreigners’ Tribunal, Chirang in Case No. BNGN/FT(CHR)/760/09, declaring the petitioner to be an illegal migrant of Bangaladeshi nationality of post 1971 stream.

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It appears from the materials available on record that notice in the case was issued by the Tribunal on 05.01.2018. It is recorded that notice returned on 17.01.2018 after service. The Tribunal have also recorded that the petitioner was absent without any step, as a result of which the case was posted next on 25.01.2018 for appearance and for filing written statements and documents.

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However, on the said date i.e. 25.01.2018, the petitioner remained absent without taking steps, which prompted the Tribunal to post the matter to 30.01.2018 for ex parte order.

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We have heard the learned counsels for the parties and have also perused the materials on record. We find that adequate opportunity was not granted to the petitioner to contest the Police reference on merits. In fact, the petitioner appears to have been absent only on two dates and, thereafter, the impugned opinion was rendered. The petitioner is at least entitled to one more opportunity to discharge the burden, as required of him under Section 9 of the Foreigners Act, 1946. In this view of the matter, we set aside the order/opinion dated 30.01.2018, with direction to the petitioner to appear before the Foreigners’ Tribunal, Chirang on 10.10.2018 at 10.30 A.M., on which date he shall file his written statement without fail. No fresh notice is required to be issued by the Tribunal, either for his appearance or for filing written statement. The Tribunal shall proceed accordingly and conclude the proceeding within 60(sixty) days from 10.10.2018. We make it clear that if the petitioner defaults in appearing before the Tribunal and to file written statement on 10.10.2018 and/or defaults in participating in the proceeding on the dates to be fixed in the case, it shall be open to the Tribunal to pass such order or orders as may be deemed fit and proper and in accordance with law.

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To the extent above, the writ petition stands allowed.

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JUDGE JUDGE

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Comparing Assistant

Polu Ali @ Palu Sheikh v. the Union of India and 5 Ors.

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Polu Ali @ Palu Sheikh v. the Union of India and 5 Ors.

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