Partly allowed

Sabirul Islam v. Union of India and 4 Ors.

Gauhati HC2 Feb 2018WP(C)/7497/2017

Case brief

AI extract

What is this about?

This order allows a writ petition seeking to set aside an ex parte order declaring the petitioner a foreigner. The court accepts the petitioner's explanation of serious illness and grants an opportunity to contest the reference on merit.

What did the court decide?

Set aside the order dated 05.05.2014 and 19.09.2017; direct petitioner to appear before Foreigners Tribunal-1 with written statement by 05.03.2018.

Sabirul Islam Vs Union of India and 4… — Constitutional and Fundamental Rights | Gauhati HC (2018)

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GAHC010054292017

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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) 7497/2017

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1:SABIRUL ISLAM

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S/O LATE FAIJUL ISLAM, VILL- BASANTAPUR, PO-NAIRGRAM, PS- and DIST. KARIMGANJ

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VERSUS

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1:UNION OF INDIA and 4 ORS.

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TO BE REP. BY THE SECRETARY TO THE GOVT. OF INDIA, HOME DEPTT. NORTH BLOCK, NEW DELHI

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2:STATE OF ASSAM

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TO BE REP. BY COMMISSIONER and SECRETARY TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GUWAHATI-06

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3:ADDITIONAL DIRECTOR GENERAL OF POLICE ASSAM BORDER BHANGAGARH GUWAHATI-05

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4:DEPUTY COMMISSIOER KARIMGANJ ASSAM

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5:SUPERINTENDENT OF POLICE BORDER KARIMGANJ ASSA

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Advocate for the Petitioner : MR.T K DEY

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

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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 : 02-02-2018

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Ujjal Bhuyan, J.

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Heard Mr. N Islam, learned counsel for the petitioner and Mr. G Pegu, learned Government Advocate, Assam.

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By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 05.05.2014, passed by the Foreigners Tribunal-1, Karimganj in FT Case No.234/10 (State Vs. Sabirul Islam), declaring the petitioner to be a foreigner.

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From a perusal of the order dated 05.05.2014, it is seen that notice issued by the Tribunal was duly served upon the petitioner but, petitioner did not contest the reference by filing written statement and by adducing evidence. In such circumstances Tribunal decided to proceed ex-parte whereafter, order dated 05.05.2014 was passed answering the reference in favour of the State in the above manner.

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Petitioner filed an application for setting aside the aforesaid ex-parte order dated 05.05.2014, which was registered as MC No.44/2016. By order dated 19.09.2017, MC No. 44/2016 was dismissed.

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This led to filing of the present writ petition.

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On 11.12.2017 when the writ petition was moved, the following order was passed : -

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“ Petitioner is aggrieved by order dated 05.05.2014 passed by the Foreigners Tribunal No.1, Karimganj in FT Case No.234/2010 declaring him to be a foreigner.

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Application filed for setting aside ex parte order was rejected by the Tribunal on 19.09.2017.

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In paragraph 5 of the writ petition, petitioner has stated that from September, 2013 onwards, he fell seriously ill and was under long treatment. That was the reason for his default before the Tribunal and delay in filing the application for setting aside the ex parte order. When we asked learned counsel for the petitioner as to what was the nature of illness since no medical certificate has been annexed to the writ petition, learned counsel for the petitioner submits that she is not aware of

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the nature of illness.

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We strongly disapprove of the kind of practice being indulged by learned counsel for the petitioner. Without proper pleadings and without proper documents, averments on oath are being made in a reckless manner. This can neither be appreciated nor condoned. Moreover, Ms. L. Wajeeda does not appear to be an authorized counsel of the petitioner as she has not signed the power granted by the petitioner.

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However, considering the fact that learned counsel is a relatively inexperienced lawyer before the Court, we grant her four weeks time to file an additional affidavit explaining the above position.”

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Today when the matter is called upon, Mr. Islam learned counsel submits that he has filed an affidavit yesterday; copy of which has been made available to us. Court Master shall requisition the affidavit and place the same in the case file.

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In the additional-affidavit, petitioner has stated that he had engaged an Advocate, who had appeared before the Tribunal on 29.08.2013 and took time to file written statement. Petitioner had handed over all the relevant documents to the Advocate on 23.09.2013 for preparation of written statement. In the meanwhile, petitioner had fallen seriously ill due to his liver problem and was under prolonged treatment. Certificates of medical treatment and prescription have been annexed to the affidavit. According to learned counsel for the petitioner, this was the reason for his default before the Tribunal.

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After hearing learned counsel for the parties, we accept the explanation furnished by the petitioner and 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 05.05.2014 as well as the subsequent order dated 19.09.2017 and direct the petitioner to appear before the Foreigners Tribunal-1, Karimganj in connection with FT Case No.234/10 (State Vs. Sabirul Islam) 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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However, 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

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opinion on merit.

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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 (Border) for necessary follow-up steps.

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A copy 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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Biplab

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Comparing Assistant

Sabirul Islam v. Union of India and 4 Ors.

Case brief

What is this about?

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Sabirul Islam v. Union of India and 4 Ors.

Case brief

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