Allowed

Basiron Khatun @ Basiron Nessa v. the Union of India and 5 Ors.

Gauhati HC17 May 2019WP(C)/3024/2019

Case brief

AI extract

What is this about?

The Gauhati High Court allowed a writ petition challenging an ex-parte order declaring the petitioner an illegal migrant. The Court held that for the ends of justice, the petitioner deserved a second opportunity to contest the reference on merits regarding citizenship.

What did the court decide?

Ex-parte order dated 28.01.2019 and subsequent order dated 07.03.2019 set aside; petitioner directed to appear before the Tribunal on 04.06.2019.

Basiron Khatun @ Basiron Nessa Vs the… — Constitutional and Fundamental Rights | Gauhati HC (2019)

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GAHC010099362019

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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) 3024/2019

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1:BASIRON KHATUN @ BASIRON NESSA D/O LT. ASHAN ALI @ ASAN ALI, W/O LALCHAN ALI, VILL. TANGONMARI (PANDITARPAM), P.S. HAJO, DIST.-KAMRUP (R), ASSAM

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VERSUS

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1:THE UNION OF INDIA AND 5 ORS. REP. BY THE MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA, NEW DELHI110001 2:THE ELECTION COMMISSION OF INDIA REP. BY THE CHIEF ELECTION COMMISSIONER INDIA NEW DELHI-110001 3:THE STATE OF ASSAM REP. BY THE GOVT. OF ASSAM HOME DEPTT. DISPUR GHY-6 4:THE STATE COORDINATOR ASSAM NATIONAL REGISTER OF CITIZENS BHANGAGARH GHY-5 5:THE SUPERINTENDENT OF POLICE (B) KAMRUP (R) DIST.-KAMRUR (R) ASSAM PIN-781031 6:THE DEPUTY COMMISSIONER KAMRUP DIST.-KAMRUP (R) ASSAM PIN-78103

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Advocate for the Petitioner : MD. A HUSSAIN

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

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BEFORE HONOURABLE MR. JUSTICE MANOJIT BHUYAN HONOURABLE MR. JUSTICE MANISH CHOUDHURY

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O R D E R

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17.05.2019

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(Manojit Bhuyan, J)

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Heard Mr. A. Hussain, learned counsel for the petitioner as well as Ms. B. Das, learned counsel for respondent no.2. Mr. A. Kalita, learned counsel representing respondent nos. 3, 4 and 6 whereas Ms. A. Verma, learned counsel appears for respondent no.4. None to represent respondent no. 1.

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Petitioner assails ex-parte order/opinion dated 28.01.2019 passed by the Foreigners’ Tribunal No.4, Hajo, Kamrup in Case No.H.F.T/1034/2015, declaring her to be an illegal migrant of post 1971 stream. Challenge is also made to the order dated 07.03.2019 passed in Misc. Case No.05/2019 against the ex-parte order dated 28.01.2019 stood rejected.

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It appears from the materials available on record that the petitioner appeared before the Tribunal on 18.09.2018, consequent upon due service of notice and prayed for time to file written statement. On the next three dates i.e. 22.10.2018, 21.11.2018 and 28.12.2018 petitioner failed to submit written statement and took time. On 28.01.2019 petitioner remained absent without any step. In such a situation, an adverse view was taken by the Tribunal and the impugned order/opinion dated 28.01.2019 was rendered.

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Mr. Hussain submits that the petitioner had filed Misc. Case 05/2019 for vacating the ex-parte opinion dated 28.01.2019 on the same date, which was rejected vide order dated 07.03.2019. It is submitted that as the petitioner resides in a backward place she could not reach in the court premises in time on 28.01.2019.

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Mr. Hussain further submits that having regard to the fact that the petitioner could

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not appear before the Tribunal for valid reasons, the reference case ought not to have been decided against the petitioner without granting adequate opportunity to defend the case. It is further stated that the petitioner has a good case on merits and, if given one more opportunity, she can successfully discharge the burden as required of her under section 9 of the Foreigners’ Act, 1946. It is further stated that citizenship being a valuable right, fair and reasonable opportunity requires to be afforded, although such opportunity cannot be relegated to an endless exercise.

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We have heard the learned counsels for the parties and have also perused the materials on record. We are of the opinion that for the ends of justice at least one more opportunity should be afforded to the petitioner to contest the police reference on merits. In this view of the matter, we set aside the order/opinion dated 28.01.2019 and 07.03.2019 with direction to the petitioner to appear before the Foreigners’ Tribunal No.4, Hajo, Kamrup on 04.06.2019 at 10.30 AM, on which date she shall file written statement and evidence without fail. In this regard, no fresh notice is required to be issued by the Tribunal for her appearance. The Tribunal shall proceed accordingly and conclude the proceeding within 60 (sixty) days from 04.06.2019. We make it clear that if the petitioner defaults in appearing before the Tribunal on 04.06.2019 and/or defaults in filing written statement and evidence on 04.06.2019 and/or defaults in participating in the proceeding on the subsequent 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

Basiron Khatun @ Basiron Nessa v. the Union of India and 5 Ors.

Case brief

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Basiron Khatun @ Basiron Nessa v. the Union of India and 5 Ors.

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