Partly allowed

Jayeda Khatun @ Begum Khatun v. Union of India and 3 Ors.

Gauhati HC9 May 2018WP(C)/7507/2016

Case brief

AI extract

What is this about?

Petitioner challenged an ex-parte order by the Foreigners' Tribunal declaring her a foreigner. The Court set aside the order, directing a fresh hearing with a written statement, noting the Tribunal's failure to issue notice upon transferring the reference.

What did the court decide?

Writ petition disposed of; ex-parte order set aside; petitioner directed to appear with written statement by 30.05.2018.

Jayeda Khatun @ Begum Khatun Vs Union of… — Pension and Retirement Benefits | Gauhati HC (2018)

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GAHC010032692016

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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) 7507/2016

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1:JAYEDA KHATUN @ BEGUM KHATUN W/O. AKBAR ALI, D/O. JABED ALI, R/O. VILL. SIKATARI PART-I, P.S. MERERCHAR, DIST. BONGAIGAON, ASSAM.

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VERSUS

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1:UNION OF INDIA and 3 ORS.

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REPRESENTED BY THE MINISTRY OF HOME AFFAIRS, NEW DELHI.

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2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM DEPTT. OF HOME DISPUR GUWAHATI-6.

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3:THE DEPUTY COMMISSIONER BONGAIGAON P.O. and P.S. BONGAIGAON DIST. BONGAIGAON ASSAM.

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4:THE SUPERINTENDENT OF POLICE B BONGAIGAON P.O. and P.S. BONGAIGAON DIST. BONGAIGAON ASSAM

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Advocate for the Petitioner : MR.M H TALUKDAR

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Advocate for the Respondent : ASSTT.S.G.I.R. 1

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BEFORE

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HON’BLE MR. JUSTICE UJJAL BHUYAN HON’BLE MR. JUSTICE NELSON SAILO

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09.05.2018 (Ujjal Bhuyan,J)

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Heard Mr. A.R. Sikdar, learned counsel for the petitioner and Mr. J. Payeng, learned Special Counsel, Foreigners’ Tribunal (FT).

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By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 27.04.2016 passed by the Foreigner’s Tribunal, Bongaigaon No. 2 at Abhayapuri in BNGN/FT/Case No. 3288/2007 (State Vs. Begum Khatun) declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from Bangladesh after 25.3.1971.

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This Court by order dated 15.12.2016 had issued notice and passed an interim order to be effect that petitioner should be allowed to remain on bail subject to her appearance before the Superintendent of Police (Border), Bongaigaon and furnishing of adequate surety.

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A perusal of the order dated 27.04.2016 would go to show that notice issued by the Foreigners’ Tribunal was served upon the petitioner whereafter, the petitioner had appeared before the Tribunal but sought for time to file written statement which was allowed but written statement was not filed. In such circumstances, Tribunal decided to proceed ex-parte, whereafter order dated 27.04.2016 was passed answering the reference in favour of the State in the above manner.

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Learned counsel for the petitioner submits that the related reference was initially registered as BFT Case No. 3288/07 before the Foreigners’ Tribunal, Bongaigaon, in which petitioner had entered appearance and sought for time to file written statement. On 30.07.2015, the reference was fixed on 06.11.2015 for filing written statement and documents. But before that, on 11.09.2015 the reference was transferred to the newly

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created Foreigners’ Tribunal, Bongaigaon No. 2 at Abhayapuri (Tribunal) for disposal. No fresh notice was issued by the Tribunal on transfer. This would explain the default of the petitioner. He therefore prays for grant of one more opportunity to the petitioner to contest the reference on merit.

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On the otherhand, learned Special Counsel submits that conduct of the petitioner is not at all satisfactory. If the petitioner had attended the Foreigners’ Tribunal, Bongaigaon on the date fixed i.e., on 06.11.2015, he would have easily come to know about the transfer of the reference but he did not do so.

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Submissions made by learned counsel for the parties have been considered.

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While the submissions made by learned Special Counsel may have some force yet we feel that since the transfer was on an off date, the subsequent Tribunal ought to have issued a notice to the petitioner. We have held in a number of cases that references should not be transferred on an off date, but, if such transfer becomes inevitable then endorsement of the proceedee or engaged counsel should be taken which would obviate the necessity for issuing fresh notice to the proceedee upon transfer of the reference.

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Be that as it may, taking an overall view of the matter, 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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We accordingly set aside the order dated 27.04.2016 and direct the petitioner to appear before the Foreigners’ Tribunal, Bongaigaon No. 2 at Abhayapuri in connection with Case No. BNGN/FT/3288/07 alongwith her written statement on 30.05.2018 at 10.30. am whereafter the Tribunal shall proceed with the reference in accordance with law and conclude the same within a period of 60 days from the date of production.

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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 stands disposed of.

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Registry to inform the concerned Foreigners Tribunal, Deputy Commissioner and Superintendent of Police (Border) for doing the needful.

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A copy of this order may 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

Jayeda Khatun @ Begum Khatun v. Union of India and 3 Ors.

Case brief

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Jayeda Khatun @ Begum Khatun v. Union of India and 3 Ors.

Case brief

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